On appeal from the Superior Court, Law Division, Essex County.
Antell, Shebell and Muir. The opinion of the court was delivered by Shebell, J.A.D.
Plaintiff, Tomanqui Kirk, appeals from a judgment n.o.v. dismissing his action following a jury verdict awarding him $10,000 under 42 U.S.C.A. § 1983 against defendant, Virginia Cardillo, a Newark police detective.
Defendant cross-appeals, alleging error in the admittance of certain evidence and in the jury instructions requiring a remand in the event this court reverses the judgment n.o.v.
Plaintiff filed suit in the Law Division asserting deprivation of his rights in violation of § 1983. The basis for his claim was that defendant filed a criminal complaint against him without probable cause. He alleged malicious, reckless and negligent disregard of his constitutional rights in that defendant caused him to be arrested and incarcerated without probable cause.
Defendant's motions for involuntary dismissal at the end of plaintiff's case and at the close of all of the evidence were denied. The court however reserved the right to enter judgment n.o.v. on the question of whether probable cause should have been submitted to the jury.
The jury found upon special interrogatories that although defendant acted without malice she filed the criminal complaint without probable cause and in reckless disregard of plaintiff's constitutional rights.
After verdict, defendant renewed her motion pursuant to R. 4:40-2(a). The court granted the motion on the grounds previously reserved and dismissed the complaint with prejudice.
Defendant was assigned to the Youth Aid Bureau with responsibility to investigate child abuse and neglect. By letter
dated March 4, 1981, the Essex County Prosecutor's Office requested that the Newark Police investigate the February 5, 1981 scalding of a three-year-old child. Attached to the letter was the investigative report of a D.Y.F.S. caseworker which noted that the scene of the incident had been examined and that the mother and her paramour, plaintiff Tomanqui Kirk, had been interviewed. The caseworker and Dr. F. W. Fuller, the examining physician, opined that the burns were of "questionable" origin.
Defendant called D.Y.F.S. to verify the information and requested that plaintiff come to her office. He came on March 12, 1981 and, after waiving his Miranda rights, signed an exculpatory statement. He agreed to submit to a polygraph test, which was scheduled for March 18, 1981. Thereafter defendant was informed plaintiff had not shown up for the examination. Defendant presented the reports and statement to an assistant Essex County prosecutor assigned to Newark Municipal Court whose responsibility it was to decide whether probable cause was established. Upon his advice and direction, defendant filed a criminal complaint against plaintiff for aggravated assault. Plaintiff was arrested on March 23, 1981 and held for five days until he could make bail.
On April 8, 1981, defendant phoned Dr. Fuller and requested a more detailed report. Dr. Fuller informed her by letter that the burns appeared to be accidental and consistent with plaintiff's version of the incident. Defendant informed the prosecutor's office and the complaint was administratively dismissed.
The court instructed the jury to predicate liability on a finding of a) the absence of probable cause and either b) malice or c) intentional, deliberate or reckless indifference to plaintiff's constitutional rights. Defendant objected, asserting malice must always be proven. The court also instructed that a finding ...