Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kirk v. City of Newark

Decided: January 25, 1988.

TOMANQUI KIRK, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
THE CITY OF NEWARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; HUBERT WILLIAMS, DIRECTOR OF THE NEWARK POLICE DEPT.; CHARLES M. ZIZZA, CHIEF OF POLICE OF THE CITY OF NEWARK; JOHN DOE, DEPUTY CHIEF, NEWARK POLICE DEPT., YOUTH & COMMUNITY SERVICE DIVISION; AND JOHN DOE, CAPTAIN, NEWARK POLICE DEPT., YOUTH AID BUREAU, DEFENDANTS, AND VIRGINIA CARDILLO, DETECTIVE, NEWARK POLICE DEPARTMENT, DEFENDANT-APPELLANT AND CROSS-RESPONDENT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 212 N.J. Super. 201 (1986).

For reversal -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Pollock, Justice.

Pollock

This appeal arises out of an action brought under 42 U.S.C.A. section 1983 (section 1983) by plaintiff, Tomanqui Kirk, against various defendants, including Virginia Cardillo, a Newark police detective. Kirk complains that Cardillo caused him to be arrested without probable cause in violation of the fourth and fourteenth amendments to the United States Constitution. The jury returned a verdict against Cardillo, but the trial court granted judgment notwithstanding the verdict in favor of Cardillo under Rule 4:40-2(a). The Appellate Division reversed and remanded the matter to the Law Division for a new trial. 212 N.J. Super. 201 (1986). We granted Cardillo's petition for certification, 107 N.J. 30 (1986), and Kirk's cross-petition, id. We reverse the judgment of the Appellate Division and reinstate the judgment of the Law Division.

-I-

By letter dated March 4, 1981, the Essex County Prosecutor's Office requested that the Newark Police Department investigate the February 4, 1981, scalding of a three-year-old child. Attached to the letter was the investigative report of a Division of Youth and Family Services (DYFS) caseworker and a medical report of Dr. F. W. Fuller, the treating physician. The DYFS report recited that the caseworker had examined the scene of the accident and interviewed the mother of the child and Kirk, who lived with them. According to the caseworker and Dr. Fuller, the burns were of "questionable origin."

At the time of the incident, Cardillo was employed by the Newark Police Department as a detective assigned to the Youth Aid Bureau. Her responsibilities included the investigation of child abuse and neglect. Cardillo verified the report with DYFS, and requested that Kirk come to her office. On March 12, 1981, Kirk met with Cardillo, waived his Miranda rights, and signed an exculpatory statement, in which he asserted that the scalding of the child resulted from the breaking of a

bathroom sink pipe. Kirk agreed to take a polygraph test, but no operator was available. Although a polygraph examination was scheduled for March 18, 1981, Kirk failed to appear for the examination.

Thereafter Cardillo met with an Essex County Assistant Prosecutor assigned to the Newark Municipal Court, who had the responsibility to decide the existence of probable cause. Acting upon the prosecutor's advice, Cardillo filed a criminal complaint against Kirk for aggravated assault. On March 23, 1981, Kirk was arrested and held in the Essex County Jail until he posted bail five days later.

On April 8, 1981, Cardillo spoke for the first time with Dr. Fuller and requested a more detailed report. In a letter dated April 14, 1981, Dr. Fuller advised Cardillo that, consistent with Kirk's version of the incident, the child's burns appeared to be accidental in nature. Cardillo related this information to the prosecutor's office, and in May 1981 the complaint against Kirk was voluntarily dismissed.

On March 21, 1983, Kirk filed a complaint under section 1983*fn1 against the City of Newark, Police Director Hubert Williams, Chief of Police Charles Zizza, Detective Virginia Cardillo, and two unnamed John Doe defendants. Kirk claimed that in causing him to be arrested without probable cause, the defendants acted with a malicious, reckless, and negligent disregard of his constitutional rights. Before trial, the complaint was dismissed as to all defendants except Cardillo.

At the close of all of the evidence, Cardillo moved for entry of judgment pursuant to Rule 4:40-1. The court reserved decision on the motion and submitted the case to the jury, instructing that to find Cardillo liable, it must find that she acted without probable cause and with either malice or an intentional, deliberate, or reckless indifference to Kirk's constitutional rights. Additionally, the court instructed the jury that Cardillo would not be liable, even if Kirk proved all the elements of a section 1983 violation, if Cardillo acted in good faith or under the advice of counsel. The court, however, did not instruct the jury that if a reasonably well-trained police officer could have believed that probable cause to arrest Kirk existed, then Cardillo would not be liable.

The jury returned a verdict in the form of special interrogatories, finding that Cardillo filed the complaint against Kirk without probable cause. The jury found further that Cardillo filed the complaint not with malice, but with intentional, deliberate, or reckless indifference and disregard of Kirk's constitutional rights. As a result, the jury awarded Kirk damages of $10,000.

The trial court granted Cardillo's motion for a directed verdict under Rule 4:40-2(a), holding that Cardillo had probable cause as a matter of law. Without discussing the issues of immunity based upon advice of counsel or on the objective reasonableness of Cardillo's conduct, the court dismissed the complaint with prejudice.

The Appellate Division reversed and remanded for a new trial on all issues except malice, as to which the jury had found for Cardillo. 212 N.J. Super. at 207. The court held that except where no genuine issue of material fact exists, the issue of probable cause was for the jury, not the court. Id. Additionally, the court ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.