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Del Tufo v. Township of Old Bridge

Decided: January 4, 1995.

GERALD DEL TUFO, EXECUTOR OF THE ESTATE OF DONALD KIKEN, PLAINTIFF-RESPONDENT,
v.
TOWNSHIP OF OLD BRIDGE, OLD BRIDGE TOWNSHIP POLICE DEPARTMENT, PATROLMAN THOMAS COLLOW, PATROLMAN ROBERT MAHER, WILLIAM A. VOLKERT, CHIEF OF THE OLD BRIDGE TOWNSHIP POLICE DEPARTMENT AND JERRY PALUMBO, ACTING CHIEF OF POLICE OF OLD BRIDGE TOWNSHIP POLICE DEPARTMENT AND JOHN DOES (1 THROUGH 5), DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

Before Judges Havey, Brochin and Cuff

Brochin

The opinion of the court was delivered by

BROCHIN, J.A.D.

In this wrongful death action, defendants Township of Old Bridge and Old Bridge Township Police Department*fn1 have appealed from a $300,000 judgment entered in favor of plaintiff Gerald Del Tufo, executor of the estate of Donald Kiken. Mr. Kiken died while he was in the custody of the Old Bridge police. The immediate cause of his death was cardiac arrest caused by ingesting a massive amount of cocaine. The gravamen of this action by his executor against the Township is that the police are liable for Mr. Kiken's death because they failed to summon emergency medical assistance for him promptly after they arrested him. Instead, the police called the first-aid squad only after he

had collapsed while he was being taken from a police car to the station house, approximately one-half hour after his arrest.

As grounds of appeal, the defendants allege that the jury verdict was against the weight of the evidence because the Old Bridge police could not reasonably have been expected to perceive Mr. Kiken's need for immediate medical attention. The defendants also contend that the trial court erred in refusing to instruct the jury to determine the comparative fault of Mr. Kiken and the police, in ruling as a matter of law that the defendants were not entitled to immunity pursuant to the Tort Claims Act, N.J.S.A. 59:1-1 et seq., and in failing to grant a mistrial or to appropriately instruct the jury when plaintiffs advanced a factual argument during summation which, defendants allege, should have been precluded by collateral estoppel.

For the following reasons, we conclude that the jury verdict was not against the weight of the evidence and we agree with the trial court's rejection of defendants' immunity and collateral estoppel arguments. However, we hold that the jury should have been instructed to weigh the comparative fault of defendants and of the plaintiff's decedent.

From the evidence before it, the jury could have found the following facts. At 10:58 p.m. in the month of August, a telephone call notified the Old Bridge police that an automobile accident had just occurred in, or adjacent to, a residential development. As the result of that notice, Police Officers Thomas Collow and Robert Maher, arrived at the scene of the accident at 11:04 p.m. in separate patrol cars. A group of people were gathered outside. Several vehicles that had been involved in an accident stood along the road and a white Cadillac, which also appeared to have been in an accident, was parked partially on a lawn and partially on the sidewalk. The engine of the Cadillac was running, and Donald Kiken was sitting at the wheel.

Officer Collow approached the Cadillac. He told Mr. Kiken to turn off the engine, that the police were there and that everything would be "OK." Mr. Kiken suddenly backed the car off the

sidewalk, struck Officer Collow's left leg and knocked him to the ground. The car also struck Officer Maher, knocking him to the ground.

Within a few minutes, Officer Maher found the Cadillac parked in a driveway of Mr. Kiken's nearby residence. Mr. Kiken, who was in the car, had driven into his closed garage door. Officer Maher approached the car and asked Mr. Kiken if he was all right. Mr. Kiken answered, "Yes, I'm fine. I did nothing wrong. I did nothing wrong." According to Officer Maher's incident report, he noticed that there was an eighth-of-an-inch long "facial laceration due to [a] motor vehicle accident" on the bridge of Mr. Kiken's nose.

Sergeant Crowley arrived. There was a brief struggle when he and Officer Maher handcuffed Mr. Kiken and told him that he was under arrest. At 11:09 p.m., Officer Maher radioed to headquarters that Mr. Kiken was under arrest. Pursuant to Sergeant Crowley's direction, Officer Maher put Mr. Kiken in the back seat of a patrol car.

Officer Collow, who had driven off to find Mr. Kiken, returned to the residential development where the accident had taken place. As Officer Collow approached the police car in which Mr. Kiken was seated, he saw Mr. Kiken turning his body and kicking the rear passenger side windows. Officer Maher saw Mr. Kiken attempt to kick out the back window of the patrol car. Sergeant Crowley heard a thumping sound coming from the back seat. The patrol car was shaking vigorously up and down, and Mr. Kiken was "undulating" without uttering any sound.

Sergeant Crowley ordered Officer Maher to transport Mr. Kiken to police headquarters. At 11:20 p.m., Officer Maher radioed that they were on route there. The trip took approximately two minutes. When they arrived, Officer Maher and two other waiting police officers helped Mr. Kiken out of the patrol car. After taking a few steps, Mr. Kiken collapsed. The policemen removed the handcuffs and moved him into the cell area. While one administered CPR, another called the First Aid Squad.

The ambulance arrived at police headquarters at 11:36 p.m. When Mr. Kiken arrived at the hospital, he was in cardiac arrest. At 12:03 a.m., he died of cardiac failure caused by ingesting between one-and-a-half and three-and-a-half grams of cocaine, well in excess of a lethal dose.

According to the testimony of plaintiff's experts, the fact that Mr. Kiken had been involved in an accident resulting in heavy damage to his car, that he struck several other vehicles, that he drove his car into a closed garage door, and that there was a laceration near the bridge of his nose showed that he was in need of medical attention. His abnormal movements in the back seat of the patrol car, made without any utterances, were probably seizures. ...


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