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Zalewski v. Gallagher

Decided: May 20, 1977.

LESLIE ZALEWSKI AND BARBARA ZALEWSKI, HIS WIFE, PLAINTIFFS-RESPONDENTS,
v.
THOMAS GALLAGHER, TOWN OF IRVINGTON, A MUNICIPAL CORPORATION OF THE COUNTY OF ESSEX, NEW JERSEY, AND EDWARD J. OLEKSIK, POLICE CHIEF OF THE TOWN OF IRVINGTON, DEFENDANTS-APPELLANTS



Fritz, Ard and Pressler.

Per Curiam

Plaintiff Leslie Zalewski (Leslie) filed a complaint against defendant Gallagher, a police officer employed by the Town of Irvington. Also named as defendants were the township and its police chief. The complaint alleged that Gallagher had wrongfully committed an assault and battery against plaintiff and also charged Gallagher with malicious prosecution and false arrest. Leslie's wife, Barbara, sought damages for loss of consortium arising out of each of her husband's causes of action.

A jury returned the following verdicts in favor of Leslie: (1) $2,305 for assault and battery against defendants Gallagher and the Town of Irvington; (2) $2,500 in compensatory damages for malicious prosecution against Gallagher alone; (3) $3,000 in punitive damages for malicious prosecution against Gallagher, and (4) $5,000 in punitive damages for false arrest against Gallagher (no compensatory damages were awarded for false arrest).

The jury awarded Barbara two separate awards for loss of consortium: (1) $2,500 on the assault and battery cause, and (2) $2,500 for the malicious prosecution. The judge

directed that interest be awarded on each verdict. The actions were dismissed against the chief of police.

On appeal defendants contend: (1) the malicious prosecution action should have been dismissed by the judge because a grand jury had indicted Leslie, thereby establishing a presumption of probable cause which plaintiffs did not overcome in this action; (2) if the malicious prosecution action was properly submitted to the jury the judge erred in not charging the jury that the presumption raised by the indictment could be overcome only by "convincing proof"; (3) it was error to permit Barbara to recover twice for loss of consortium; (4) punitive damages should not have been permitted for false arrest since there were no compensatory damages on that count; (5) it was error for the judge to refuse to charge the jury that an officer could use deadly force to effect a lawful arrest; (6) the judge erroneously refused to charge the jury on the elements of the crime with which defendant Gallagher had charged plaintiff; (7) it was error to permit interest on punitive damages; (8) Gallagher was immune from civil liability from malicious prosecution because he was a police officer; (9) it was error to hold defendant Town of Irvingtion liable under the theory of respondeat superior , and (10) the verdicts were excessive and against the weight of the evidence.

A brief review of the facts is necessary. Plaintiff Leslie was in a confectionery store when defendant Gallagher entered and recognized plaintiff. The facts are sharply in dispute as to what occurred between the two men. Leslie testified that Gallagher began to insult him, reminding Leslie that he had arrested him in the past. He then assaulted Leslie, dragged him from the store, arrested him and charged him with assaulting a police officer. A grand jury indicted Leslie on that charge but he was later acquitted.

Gallagher's version was different: he claimed that Leslie had tripped and insulted him, then started a fight. Leslie

allegedly grabbed Gallagher's gun from his belt and struck Gallagher with it, threatening to kill him.

Defendant Gallagher maintains on appeal that the grand jury's indictment of Leslie establishes presumptive evidence that Gallagher had probable cause to prosecute him. He also says that such a presumption was not overcome by plaintiff and that the judge should therefore have dismissed the malicious prosecution action as a matter of law since plaintiff failed to prove one of its essential elements, i.e. , lack of probable cause in the institution of the criminal action. Lind v. Schmid , 67 N.J. 255, 262-263 (1975).

The court in Lind dealt with a municipal conviction and held the presumption was rebuttable. In the instant case we deal with the effect of a grand jury indictment on the question of probable cause. Although the precise question is a novel one in this State, our courts have held that the action of a municipal judge in holding over a defendant for grand jury action constitutes no more than prima facie evidence of probable cause. Galafaro v. Kuenstler , 53 N.J. Super. 379, 385 (App. Div. 1958). Moreover, Galafaro went on to say that although evidence of a grand jury's action in refusing to indict is not conclusive on the issue of lack of probable cause, it is evidence to be considered by the jury along with other evidence in the case in considering the question of whether plaintiff has proved this element of the cause of action, i.e. , that probable cause did not exist. We are satisfied the converse is also true with respect to the effect of grand jury action in handing up an indictment. Again, it is evidence to be considered with all other evidence in the case on the question of whether defendant acted with probable cause. Such evidence may be enough to exculpate a person defending a malicious prosecution action brought by a person indicted until that person has proved some fact other than his acquittal from which malice or lack of probable cause might be inferred. The effect of such grand jury action is best stated in a quotation from Prosser on Torts (2nd ed. 1955),

"Malicious Prosecution," ยง 98 at 657, contained in Galafaro v. Kuenstler, supra:

Additionally, a majority of the jurisdictions which have ruled on the issue have determined that the returning of an indictment is no more than prima facie or presumptive evidence that defendant has probable cause to prosecute. See "Malicious Prosecution: Effect of Grand Jury Indictment on Issue of ...


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