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Del Tufo v. Township of Old Bridge

December 12, 1996

GERALD DEL TUFO, EXECUTOR OF THE ESTATE OF DONALD KIKEN, PLAINTIFF-APPELLANT,
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-RESPONDENTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 278 N.J. Super. 312 (1995).

The opinion of the Court was delivered by Coleman, J. Justices Handler, Pollock and Garibaldi join in Justice COLEMAN's opinion. Justice O'hern filed a separate Concurring and Dissenting opinion, in which Justice Stein joined. Chief Justice Poritz did not participate.

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Gerald Del Tufo v. Township of Old Bridge, et. al. 147 N.J. 90, 685 A.2d 1267

Coleman, J., writing for a majority of the Court.

The question presented in this wrongful death case is whether comparative negligence is available as a defense in a claim alleging police negligence in failing to provide immediate medical care to an arrestee who had taken a lethal drug overdose shortly before his arrest.

Officers Thomas Collow and Robert Maher of the Old Bridge Police Department arrived at the scene of a vehicular accident at 11:04 p.m. on August 10, 1986. Upon arrival, they discovered several damaged vehicles, which appeared to have been parked at the time of impact, along with a white Cadillac situated partially on a sidewalk and partially on a lawn. Officer Collow approached the decedent, Donald Kiken, who was sitting at the wheel of the Cadillac with its engine running, and instructed him to shut off the engine. Suddenly, Kiken backed the vehicle off the sidewalk, knocking both Collow and Maher to the ground and fleeing the scene.

Within a few minutes, the officers located the Cadillac in the driveway of Kiken's nearby residence where he had driven the car into his closed garage door. Maher approached Kiken and asked if he was all right to which Kiken responded in the affirmative. Maher noticed a small laceration on the bridge of Kiken's nose. He instructed Kiken to exit from the vehicle and Kiken complied.

As Kiken was exiting the vehicle, Sergeant Crowley, the patrol supervisor, arrived at the scene and asked Kiken if he needed medical attention. Kiken responded in the negative. The sergeant and Officer Maher then placed Kiken under arrest and handcuffed him. At 11:09 p.m., Kiken was placed in the back seat of the patrol car, after which Officer Collow observed Kiken turn his body and kick the rear side windows of the patrol car. Officer Maher also observed Kiken kick the back window. Although Sergeant Crowley heard a thumping noise coming from the back seat of the patrol car, he did not observe the cause of the sound.

Pursuant to Sergeant Crowley's direction, Officer Maher left the scene at 11:20 p.m. and transported Kiken to police headquarters, where he was assisted by two other officers in removing Kiken from the car. Kiken, initially unsteady, regained his footing and began to walk with the assistance of the police officers. However, after taking only a few steps, he collapsed. The officers removed the handcuffs and transported Kiken to the cell area, where one of the officers administered CPR and another radioed for first aid. An ambulance arrived at the station at 11:36 p.m. and transported Kiken to Old Bridge Regional Hospital, where he died at 12:03 a.m. of cardiac failure. The cause of the cardiac failure was an ingestion of a lethal dosage of cocaine within an hour of death.

The executor of Kiken's estate filed a wrongful death action against the individual police officers, the police department and the Township of Old Bridge, alleging negligence in failing to summon emergency medical assistance upon Kiken's arrest. Plaintiff's expert on police procedures testified that the arresting officers should have recognized from Kiken's behavior and the surrounding circumstances that he was in need of medical assistance from the time of arrest. Defendant's expert on police procedure testified that nothing in Kiken's behavior or the surrounding circumstances indicated to the arresting officers that decedent was in need of immediate medical assistance. He further testified that, given decedent's conscious reply that he did not need medical assistance and the absence of any obvious critical injury, the actions of the officers and the sergeant in arresting and transporting Kiken to headquarters were normal and appropriate.

At the Conclusion of the evidence, the defendants sought an instruction on comparative fault that would require the jury to consider whether the decedent was negligent in ingesting cocaine, in failing to inform the police that he had ingested a lethal amount of cocaine, and in telling the police that he did not need medical assistance. The trial court rejected the requested charge, relying on Dubak v. Burdette Tomlin Memorial Hospital, 233 N.J. Super. 441, 559 A.2d 424 (App. Div.), certif. denied, 117 N.J. 48 (1989). The jury found Sergeant Crowley negligent in failing to summon medical assistance promptly and awarded $300,000 in damages. The Appellate Division reversed, concluding that the jury should have been instructed to weigh Kiken's negligence against the police department's negligence.

The Supreme Court granted the plaintiff's petition for certification.

HELD: Kiken's pre- and post-custodial behavior in ingesting a lethal dose of cocaine and in failing to advise the police that he had done so, while refusing medical attention, was not immune from comparative fault analysis and the jury should have been instructed to compare Kiken's culpability with the defendant's negligent failure to summon medical assistance more promptly.

1. Law enforcement officials have a duty to provide emergent medical assistance for an arrestee or an inmate in the custody of a law enforcement agency. (pp. 9-11)

2. Although there is a presumption under the law that a visibly intoxicated person is presumed to be incapable of recognizing the risks associated with his or her behavior, that presumption disappears under exceptional circumstances. (pp. 12-15)

3. This case is distinguishable from the health care cases that hold that, when the duty of a professional health care provider encompasses the protection of a patient from self-inflected harm, the infliction of that harm is not to be regarded as contributory negligence on the part of the patient. To the extent that the dicta in Tobia places drug abusers in the same category as the elderly or mentally ill for purposes of determining whether comparative fault should be available as a defense when a defendant had a duty to prevent a plaintiff from engaging in self-damaging conduct, it is rejected. (pp. 15-19)

4. Whether a reasonable opportunity existed for the police to satisfy their legal duty depends on when the police officers knew or should have known that Kiken was in need of medical assistance. (pp. 19-22)

5. Unless public policy dictates otherwise, whenever a plaintiff's conduct contributes to an event negligently caused by a defendant, the plaintiff's comparative fault should be submitted to the fact finder for determination. (pp. 22-23)

6. Although a health care provider's superior knowledge and a patient's justifiable reliance on that knowledge provide substantial policy reasons for limiting the applicability of the defense of contributory negligence in medical malpractice cases, Kiken's duty of self-care was not subsumed by the duty of care owed him by the defendants. (pp. 23-24)

7. An examination of the legal principles that should govern the apportionment of fault between law enforcement officials and arrestees who become ill while in police custody from the ingestion of illegal drugs, should reflect the strong public policy of this State to make such arrestees legally accountable for violating the New Jersey Comprehensive Drug Reform Act and a person who overdoses on a controlled dangerous substance before coming into police custody should have the same responsibility for self-care as that required of a dram-shop patron. (pp. 27-30)

8. As long as an arrestee has the capacity to engage in self-protective measures, permitting a comparative negligence defense is consistent with the important public policy objective of discouraging illegal drug use while at the same time encouraging conduct that protects health and safety. (pp. 30-31)

9. If the police knew or should have known that Kiken had overdosed or was otherwise in need of emergent medical assistance, regardless of what necessitated that need, the police had a legal duty to seek medical assistance immediately. (p. 32)

10. Here, a line has been drawn in cases involving voluntary consumption of alcohol or drugs in a way that excludes application of the doctrine of avoidable consequences as an instrument of overall fairness and sound public policy. (pp. 34-36)

Judgment of the Appellate Division is AFFIRMED.

Justice O'HERN filed a separate Concurring and Dissenting opinion in which JUSTICE STEIN joins supporting the remand ordered by the Court because of the unusual circumstances of this case but disagreeing with the Court's application of principles of comparative fault rather than causation to guide the remand.

JUSTICES HANDLER, POLLOCK and GARIBALDI join in JUSTICE COLEMAN's opinion. JUSTICE O'HERN filed a separate Concurring and Dissenting opinion, in which JUSTICE STEIN joined. CHIEF JUSTICE PORITZ did not participate.

The opinion of the Court was delivered by

COLEMAN, J.

The question presented in this wrongful death case is whether comparative negligence is available as a defense to a wrongful death claim alleging police negligence in failing to provide immediate medical care to an arrestee who, unbeknownst to the police, had taken a lethal drug overdose shortly before his arrest. The trial court declined to provide a comparative negligence instruction, and the jury returned a verdict for the plaintiff. The Appellate Division reversed in a reported decision, concluding that the jury should have been instructed to weigh decedent's negligence against the police's negligent failure to summon immediate medical assistance. Del Tufo v. Township of Old Bridge, 278 N.J. Super. 312, 322, 650 A.2d 1044 (App. Div. 1995).

We granted certification, 140 N.J. 328 (1995), and now affirm.

I

On August 10, 1986, at 10:58 p.m., the Old Bridge Township Police Department received notice of a vehicular accident in a residential complex in Old Bridge. Officers Thomas Collow and Robert Maher arrived at the scene at 11:04 p.m. in separate patrol cars. A group of people had congregated around the accident site. Several damaged vehicles, which appeared to have been parked at the time of impact, lined the roadway.

A white Cadillac, also damaged, was situated partially on the sidewalk and partially on a lawn. The decedent, Donald Kiken, was sitting at the wheel of the Cadillac with its engine running. Officer Collow approached and told Kiken that the police had arrived and that everything was under control and instructed Kiken to shut off the Cadillac's engine. Suddenly Kiken backed the vehicle off the sidewalk, striking both Collow and Maher and knocking them to the ground. Kiken continued to drive in reverse up to the top of the street. Collow pursued on foot but lost sight of the Cadillac.

The officers split up to search for Kiken. Within a few minutes, Maher located the Cadillac in the driveway of Kiken's nearby residence where Kiken had driven the car into his closed garage door. Maher approached and asked Kiken if he was all right. Kiken responded, "Yes, I'm fine. I did nothing wrong. I did nothing wrong." Maher noticed a one-eighth inch laceration on the bridge of Kiken's nose, which he presumed was caused by the motor vehicle accident. Officer Maher asked Kiken to exit the vehicle and Kiken complied.

As Kiken was exiting his vehicle, Sergeant Crowley, the Patrol Supervisor, arrived at the scene. Sergeant Crowley asked Kiken if he needed medical attention, to which Kiken responded, "No, sir." Sergeant Crowley and Officer Maher placed Kiken under arrest presumably for striking the officers with the Cadillac. As a result of the arrest, Kiken became excited and a minor struggle ensued as the police handcuffed Kiken. At 11:09 p.m. Officer Maher radioed headquarters to report that the arrest was completed. Pursuant to Sergeant Crowley's directions, Officer Maher then placed Kiken in the back seat of the patrol car.

After Kiken was placed into the patrol car, Officer Collow observed Kiken turn his body and kick the rear side windows of the patrol car. Officer Maher also observed Kiken kick the back window. Sergeant Crowley heard a "thumping" noise coming from the back seat of the patrol car but did not observe what was causing it. A nearby neighbor testified that he observed Kiken "undulating" in the back seat, "vigorously shaking" his body without uttering a sound and causing the patrol car to move back and forth.

Pursuant to Sergeant Crowley's direction, Officer Maher left the scene at 11:20 p.m. and transported Kiken to police headquarters. Upon arriving at headquarters, Lieutenant Stenger and Patrolman Nobel assisted Officer Maher in removing Kiken from the patrol car. Kiken began walking, stopped as if he was about to fall, then regained his footing and continued. After taking a few more steps with the assistance of the police officers, Kiken stepped on his own feet and collapsed. The officers removed the handcuffs and transported Kiken to the cell area. One officer administered cardiopulmonary resuscitation (CPR) and another radioed for first aid. The Cheesequake First Aid Squad received that call at 11:29 p.m. An ambulance arrived at the station at 11:36 p.m. and transported Kiken to Old Bridge Regional Hospital. Kiken died in the hospital at 12:03 a.m. of cardiac failure. According to plaintiff's expert, the cause of the cardiac failure was an overdose of between one and one-half and three and one-half grams of cocaine, an amount well in excess of a lethal dosage. According to medical testimony, the intake of cocaine occurred through a combination of snorting and swallowing probably within an hour of death, which was the approximate time of the accident.

II

The executor of decedent's estate filed a wrongful death action pursuant to N.J.S.A. 2A:31-1 to -6 against individual police officers, the police department, and the Township of Old Bridge, alleging negligence on the part of the police in failing to summon emergency medical assistance upon decedent's arrest. Plaintiff's expert on police procedures testified that the arresting officers should have recognized from decedent's behavior in the police car and the surrounding circumstances, that decedent was in need of medical assistance from the time of the arrest and should have summoned medical assistance immediately.

According to plaintiff's medical expert, the fact that decedent was involved in a motor vehicle accident and had sustained an injury to his nose indicated that he was in need of medical assistance. The expert further stated that the undulating motions decedent made in the patrol car were probably symptoms of a seizure. Plaintiff's expert concluded that decedent would have had a seventy-five percent chance of survival if assistance had been summoned at 11:09 p.m. and if Kiken had reached the hospital by 11:35 p.m. Further, Kiken would have had a fifty percent chance of survival if assistance had been summoned at 11:20, when the order was given to transport decedent to police headquarters, and if Kiken had arrived at the hospital at 11:40 p.m.

According to the defendants' expert on police procedure, nothing in decedent's behavior or the surrounding circumstances indicated to the arresting officers or to Sergeant Crowley that decedent was in need of immediate medical assistance. The expert further stated that decedent's act of kicking the patrol car windows was not unusual and could be understood as an expression of his anger or remorse. The expert expressed the view that given decedent's conscious reply that he did not need medical assistance and the absence of any obvious critical injury, the actions of the ...


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