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ABRAHAM v. RASO

March 5, 1998

VANESSA ABRAHAM, in her own right and as Administratrix of the Estate of Robert Abraham, deceased, and on behalf of Robert Christopher Abraham, Jr., Labreea Von Abraham and Taquan Carey, the minor children of decedent, Plaintiff,
v.
KIMBERLY RASO, et al., Defendants. KIMBERLY RASO and JORIS HOOGENDOORN, Plaintiffs, v. THE ESTATE OF ROBERT C. ABRAHAM, et al., Defendants.



The opinion of the court was delivered by: IRENAS

OPINION

 IRENAS, District Judge:

 I. INTRODUCTION1

 On October 15, 1994, in the early evening, Robert Abraham and his cousin, Dennis Redding, were observed stealing clothing from the men's department in Macy's department store in the Cherry Hill Center ("the Mall") in Cherry Hill, New Jersey. One Macy's guard followed Abraham and Redding out of Macy's and into the Mall parking lot. Another Macy's guard called Mall security for back-up assistance. Mall security called the off-duty Cherry Hill police officers working at the Mall as security guards. One of the two officers responding was Kimberly Raso.

 The shoplifting suspects walked through the parking lot towards their car while Mall security, Raso and another off-duty police officer approached the scene. In a rapidly evolving sequence of events, Abraham was able to get into the driver seat of his car before he could be apprehended. Abraham put the car into reverse and backed out abruptly and at a high rate of speed, slamming his car into a parked car in the process. Raso, now in front of the car, ordered Abraham repeatedly to stop and to get out of the car. At some point Abraham pressed his foot down on the accelerator and drove forward towards Raso. Raso, who had drawn her gun as the car moved towards her, jumped to her right while being hit or nearly hit by the car, and fired a shot which shattered the driver-side window. The bullet struck Abraham in his left arm, passed through his arm and entered his chest, fatally wounding him. Abraham's car swerved to the right and continued through the parking lot before striking another car, ramming into a parking lot island curb, hitting a sign and a small tree and coming to a rest. Abraham apparently was pronounced dead after his arrival at Cooper Hospital.

 Vanessa Abraham ("plaintiff"), in her own right, as Administratrix of the Estate of Robert Abraham, and on behalf of Robert Abraham's children, Robert, Labreea and Taquan, has filed a complaint pursuant to 42 U.S.C. § 1983 alleging that Raso and the Township of Cherry Hill violated Abraham's Fourth Amendment and Fourteenth Amendment right to be free from unreasonable seizures. In addition, plaintiff alleges that Raso, the Cherry Hill Center, Inc., the Rouse Company of New Jersey, Inc., the Rouse Company, and Macy's East, Inc. are liable for various forms of negligence under New Jersey state law. Plaintiff also seeks punitive damages against all defendants except the Township of Cherry Hill.

 Raso and her husband, Joris Hoogendoorn, have filed a complaint alleging that the Estate of Robert Abraham and Vanessa Abraham are liable to them for negligent actions which have caused harm to Raso and Hoogendoorn. Raso and Hoogendoorn also allege that Macy's East, Inc. is liable to them based upon negligent conduct. *fn2"

 CNA Insurance Company ("CNA") has filed an intervening complaint in this action. CNA's complaint seeks a judgment that Raso is not covered under the terms of the uninsured-motorist provision of her CNA automobile insurance policy for injuries arising out of the October 15, 1994, shooting incident. CNA has named Liberty Mutual Insurance Company ("Liberty Mutual") as a third-party defendant, alleging that Liberty Mutual will be liable to CNA -- under the terms of the Rouse Company's Liberty Mutual insurance policy -- for a portion of any payment CNA might be required to make to Raso in the event she is deemed to be covered for her injuries under her CNA policy.

 This Court has jurisdiction over Raso's constitutional claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. Now before this Court are a number of motions for summary judgment filed by the parties. *fn3"

 As will become evident, this Court's core holding is that Raso's use of deadly force against Abraham was justified as a matter of law because Raso reasonably believed that Abraham was a dangerous fleeing criminal who had threatened her life and who posed an immediate threat of serious harm to the public. For the reasons set forth below, this Court will: (1) grant Raso's motion for summary judgment on plaintiff's § 1983 excessive force claim; (2) grant the Township of Cherry Hill's motion for summary judgment as to plaintiff's § 1983 claims; (3) grant Raso's, the Cherry Hill Center's, the Rouse Company of New Jersey, Inc's, the Rouse Company's and Macy's East, Inc.'s motions for summary judgment as to plaintiff's assault and battery claims; (4) grant Raso's, the Cherry Hill Center's, the Rouse Company of New Jersey, Inc.'s, the Rouse Company's and Macy's East, Inc.'s motions for summary judgment as to plaintiff's negligence, gross negligence and negligence per se claims; (5) grant the Cherry Hill Center's, the Rouse Company of New Jersey, Inc.'s, the Rouse Company's and Macy's East, Inc.'s motions for summary judgment as to plaintiff's negligent hiring claim; (6) grant the Cherry Hill Center's, the Rouse Company of New Jersey, Inc.'s, the Rouse Company's and Macy's East, Inc.'s motions for summary judgment as to plaintiff's negligent supervision claim; (7) grant Raso's, the Cherry Hill Center's, the Rouse Company of New Jersey, Inc's, the Rouse Company's and Macy's East, Inc.'s motions for summary judgment as to plaintiff's punitive damages claim; (8) grant Macy's East, Inc.'s motion for summary judgment as to Raso and Hoogendoorn's negligence claim; (9) grant CNA's motion for summary judgment as to Raso's non-coverage under the uninsured-motorist provision of Raso's CNA insurance policy, and deny Raso's cross motion for summary judgment; and (10) grant Liberty Mutual's motion for summary judgment as to Raso's non-coverage under the uninsured-motorist provision of the Rouse Company's Liberty Mutual insurance policy.

 II. BACKGROUND

 On Saturday, October 15, 1994, in the early evening, Robert Abraham and Dennis Redding were taking clothes from the men's department at Macy's and stuffing them into bags. Macy's security guard Mary Jane Thomulka observed this activity on Macy's security monitors. Thomulka alerted another Macy's security guard, Shawn Waters. Waters began to follow Abraham and Redding through Macy's and, as he followed them out of the store and out of the Mall, he radioed Thomulka and directed her to call Mall security for back-up assistance. Thomulka contacted Mall security guard Carmen Inverso. Inverso put out a call for the off-duty Cherry Hill police officer(s) working as Cherry Hill Mall security officers.

 There were two off-duty Cherry Hill officers working in the Mall when Inverso made this call: Kimberly Raso and David Washick. Raso acknowledged Inverso's call, reporting that she already was near Macy's. She says she was "advised" over the radio "that the [suspects] were possibly intoxicated or under the influence." (Dep. of Kimberly Raso at 297). Washick responded to the call and moved towards the Macy's exit at the southeastern corner of the Mall parking lot. Waters, meanwhile, flagged down Mall security guard Gary Saraceni who was driving a Mall security pick-up truck, and joined Saraceni in that vehicle in order to follow or observe Abraham and Redding. Mall security guard Eriberto Aviles also moved towards the scene.

 After Abraham and Redding exited Macy's, they began making their way to a car parked in aisle sixty-eight, northwest of the Macy's exit, in the crowded Mall parking lot. Initially they walked together, but soon they separated and walked apart. Raso and Aviles, who had joined together at some point, similarly walked together and then apart in order to follow and approach Abraham and Redding from different directions. Abraham's car was parked facing west in a lined-off parking space in a row of parked cars. Redding moved towards the passenger-side front door while Abraham approached the driver-side front door. Aviles attempted to grab Abraham, but Abraham was able to open the driver-side door and get into the car. Redding then attempted but was unable to enter the car by the front passenger-side door.

 As these events unfolded, Raso was approaching Abraham's car from the southeast. As she approached, Raso apparently commanded Abraham not to enter the car or to exit the car. She was advancing towards the driver-side door but was still at the rear driver-side of the car when Abraham got in the car. Abraham started his car, put it in reverse, and accelerated abruptly, backing his car out of the lined-off parking space in an east-southeast direction. By the time Abraham backed out, Raso had reached the rear end of the car's driver-side. Raso says the car backed up fast and she "had to jump out of the way." (Dep. of Raso at 320). Another witness has said that Abraham was driving the car "out of control" at this point. (Dep. of Shawn Waters at 62). Abraham backed his car across the parking lot aisle and slammed into the rear of a Ford Mustang ("the Mustang") parked behind his car. One witness says the Mustang actually was moved from its spot by the force of the impact. (Id. at 63). Another witness has stated that Abraham's car "banged into someone's car really bad." (Grand Jury Testimony of Lisa Brittingham at 100). *fn4" Both the Mustang and Abraham's car sustained minor damage in the collision. (See Photographs, Abraham's Brief in Opp. to Cherry Hill Ctr. et al.'s Motion for Summary Judgment, Ex. 8). Abraham pulled forward after hitting the Mustang, backed up again -- clearing the Mustang -- and stopped. After this maneuver, the front of his car was pointing northwest.

 Within a matter of seconds after Abraham had backed up his car, hit the Mustang, pulled forward, and backed up again, Raso was situated in front of Abraham's car, if not directly in front of the center of Abraham's car, then slightly towards the driver-side. *fn5" Raso began slowly to move closer to the car, at all times remaining in front of the car, and commanding Abraham to exit and to stop. One witness estimates that Raso commanded Abraham to get out of the car eight to ten times. "The first couple times . . . he kept inching the car forward at her." (Dep. of Gary Saraceni at 64). At some point Raso stopped moving forward and began to back up slowly from Abraham's car. Abraham was inching his car towards Raso, then stopping, then inching forward. Based on the accounts of all witnesses whose views of Raso were not obstructed at this point, it is clear that Raso was in the car's path and that her ability to get out of its way appeared to be limited owing to the closeness of other parked cars, the narrowness of the aisle and the width of Abraham's car.

 According to Raso, "it was like -- he kept inching and inching up towards me. And it was a standoff. And I was looking to go -- and I couldn't get out of his way." (Dep. of Raso at 342). She perceived that the parked cars blocked her escape to the right, and that moving left would have put her more squarely in front of the advancing car. (Id. at 343). One witness describes how, after Raso told Abraham six or seven times to leave the car, Raso drew her weapon, pointed it at Abraham's car, and said: "Please, please don't make me do this. Just get out. Just shut the car off. Get out of the car. Please, don't make me do this. She was pleading with him." (Dep. of Saraceni at 65-66). Raso remained in front of the driver-side headlight with her gun "definitely pointed at the windshield." (Id. at 66). Raso says that Abraham stopped for "half a second" and looked at her: "Our eyes. Just -- he looked right at me. And all I heard and saw was he slammed the accelerator to the floor. And I could see him go back as one would when the vehicle excels, and you're sitting in the driver's seat." (Dep. of Raso at 344). Saraceni states that "after about the fourth plea from Officer Raso, I heard a distinct sound of Abraham's foot hitting the floorboards in the car, like stomping down on the accelerator. The car lunged forward. It didn't spin the wheels or anything." (Dep. of Saraceni at 66). "In my opinion, I was given the impression that, you know, it was a . . . . He knew what he was doing. He was getting out of there and he wasn't stopping. And if she was in the way it was too bad. He was going to run her down." (Grand Jury Testimony of Gary Saraceni at 114). Similarly, Waters has described how Abraham "accelerated from a high rate of speed from where he struck the first car and aimed his vehicle directly at her." (Dep. of Waters at 66). "The driver of that vehicle definitely intended to hit Officer Raso. The vehicle was aimed right at her and he accelerated at a high rate of speed directly in her direction." (Grand Jury Testimony of Shawn Waters at 118). Raso has stated consistently that "[Abraham] was determined he was going to run me over," (Transcribed 10/31/94 Statement of Raso to Police Investigator Edward Slimm, Raso's Brief in Opp. to CNA's Motion for Summary Judgment and in Support of Raso's Cross Motion for Summary Judgment, Ex. H at 17; see id. at 9), that he "had every intention of running me over," and that "this man was going to kill me, and he was going to leave me there," (Grand Jury Testimony of Kimberly Raso at 54).

 A second or split-second after Abraham accelerated towards Raso, Raso fired a single round as she jumped to her right. Saraceni says that "when Officer Raso fired the shot, everything was in motion. So she was moving out of the way. She was being struck at the same time. The car was moving forward. And the shot was fired at that point." (Dep. of Saraceni at 70). Waters says, "it appeared that [the car] was right on top of her. From what I saw, it appeared that her legs were underneath the driver's side, the front driver's side tire of that vehicle. She was on an angle heading down towards the ground. The vehicle had struck her. And she was going down, and one round was discharged from her gun into the driver's side window." (Dep. of Waters at 74).

 Despite this testimony, it is not certain whether, as she fired her gun, Raso actually was "hit" by the car, "caught" on the hood, or simply carried off to her right by the momentum of her jump. But it is undisputed that Raso fired her gun within an instant of the impact or near-impact as she jumped out of the car's path, and that the bullet shattered the driver-side window. The bullet struck Abraham in the back of his left arm, traveled through his arm and armpit, entered his chest at a slight front-to-back and downward trajectory, causing what proved to be a fatal wound. Raso regained her equilibrium and, after ascertaining that Avilez had Redding under control, Raso began to run after Abraham's car. His car collided with another car and a parking island before clearly going completely out of control, hitting a sign and a tree and then coming to rest with Abraham slumped unconscious over the wheel.

 Prior to October 15, 1994, Raso had been the subject of several citizen complaints alleging improper conduct which ranged from discourtesy to assault and battery. She also had been disciplined for acts of insubordination including "mouthing off" at roll call, getting in verbal altercations with other officers, and appearing at roll calls in a gym suit and going to her gym when she was supposed to be on patrol. Additionally, Raso's authorized secondary employment hours had been limited in early 1991 due to concerns about stress and fatigue. At the time of the shooting, Raso had been receiving treatment for psychological problems relating to depression, anxiety and panic which had bothered her for years. She was taking prescribed medication on a daily basis as part of her treatment. The Township of Cherry Hill Police Department was aware of her problems and her treatment. On several occasions the Police Department had consulted with Raso's treating mental health professionals and had been advised that Raso's problems and medication would not render her unfit to perform her police duties.

 According to Raso, as a result of the October 15, 1994, shooting, she has developed post-traumatic stress disorder syndrome symptoms and other psychological problems and has become unable to work. The New Jersey Division of Pension appears to have made a formal determination that Raso is disabled owing to her psychological problems.

 III. SUMMARY JUDGMENT STANDARD

 Under Federal Rule of Civil Procedure 56(c), "summary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248. Where the moving party has carried its initial burden of demonstrating the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Idus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 S. Ct. 1348 (1986). A genuine issue for trial does not exist "unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring). If the non-moving party's evidence is merely colorable, or is not significantly probative, summary judgment may be granted. See Bixler v. Central Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292 (3d Cir. 1993); Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 980-91 (3d Cir. 1992).

 IV. DISCUSSION

 A. Excessive Force

 The First Count of Vanessa Abraham's ("plaintiff") complaint states a claim against Raso under 42 U.S.C. § 1983 for use of excessive force. *fn6" Raso has moved for summary judgment on this claim.

 
Section 1983 provides a remedy for the violation of federal constitutional or statutory rights. Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985)). To establish a prima facie case under § 1983, a plaintiff must show: "(1) a person deprived him of a federal right; and (2) the person who deprived him of that right acted under color of state or territorial law." Id. (citing Gomez v. Toledo, 446 U.S. 635, 640, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980)).

 Williams v. Lacombe, 1996 U.S. Dist. LEXIS 2196, Civ. No. 94-7046, 1996 WL 84257, at *3 (E.D. Pa. Feb. 27, 1996) (footnote omitted). *fn7"

 1. Under Color of State Law

 Raso cannot be held liable under § 1983 unless she acted under color of state law.

 
"The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" West v. Atkins, 487 U.S. 42, 49, 108 S. Ct. 2250, 2255, 101 L. Ed. 2d 40 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 1042-43, 85 L. Ed. 1368 (1941)). Accordingly, acts of a state or local employee in her official capacity will generally be found to have occurred under color of state law. Id.

 Barna v. City of Perth Amboy, 42 F.3d 809, 815-16 (3d Cir. 1994). "One who is without actual authority, but who purports to act according to official power, may also act under color of state law." Id. at 816.

 It is well-settled that "whether a police officer is acting under color of law does not depend on his on-or off-duty status at the time of the alleged violation." Laughlin v. Olszewski, 102 F.3d 190, 192 n.1 (5th Cir. 1996). Indeed, even "off-duty police officers who purport to exercise official authority will generally be found to have acted under color of state law." Barna, 42 F.3d at 816 (emphasis added). Moreover, an off-duty police officer can act under color of state law by exercising actual police authority. Id. at 817 (fact that officer was off-duty "is not dispositive of whether [she] was exercising actual police authority). "Deciding whether a police officer acted under color of state law should turn largely upon the nature of the specific acts the police officer performed, rather than on merely whether he was actively assigned at the moment to the performance of police duties." Pickrel v. City of Springfield, 45 F.3d 1115, 1119 (7th Cir. 1995); accord Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.), cert. denied sub nom. Martinez-Rodriguez v. Colon Pizarro, 516 U.S. 987 116 S. Ct. 515, 133 L. Ed. 2d 423 (1995) (determination turns on "nature and circumstances of the officer's conduct to the performance of his actual duties"); Barna, 42 F.3d at 817 (court looks for evidence that officer was on official police business to determine whether she exercised actual authority). Put another way, the search is for an "actual or purported relationship between the officer's conduct and his duties as a police officer." Roe v. Humke, 128 F.3d 1213, 1216 (8th Cir. 1997). Thus, police officers working as private security guards often will be found to be acting under color of state law where they identify themselves as police officers, wear their police uniforms, flash their badges, threaten to use power conveyed upon them by their status as police officers in order to make arrests, call in other officers, drive police cars, take actions consistent with municipal or state regulations governing police, etc.. See Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423 (10th Cir. 1984) (subsequent history omitted); Traver v. Meshriy, 627 F.2d 934 (9th Cir. 1980); Robinson v. Davis, 447 F.2d 753 (4th Cir.), cert. denied, 405 U.S. 979, 31 L. Ed. 2d 254, 92 S. Ct. 1204 (1972); Watkins v. Oaklawn Jockey Club, 183 F.2d 440 (8th Cir. 1950); Crowder v. Jackson, 527 F. Supp. 1004 (W.D. Pa. 1981); cf. Griffin v. Maryland, 378 U.S. 130, 135, 12 L. Ed. 2d 754, 84 S. Ct. 1770 (1964) (deputy sheriff employed by private park operator acted under color of state law when he ordered person to leave park, escorted him out and arrested him for criminal trespass) (Fourteenth Amendment state action analysis).

 Here, Raso wore her police uniform. She responded to a call from Mall security addressed specifically to off-duty Cherry Hill police officers working at the Mall. She identified herself to Abraham as a police officer by virtue of being dressed in uniform and ordering him repeatedly to get out of the car and to stop the car. She was attempting to apprehend and arrest a person whom she had probable cause to believe had just committed a misdemeanor. She also was trying to prevent a person whom she had been advised was intoxicated from operating a car. Finally, Township of Cherry Hill Ordinance 8-19 provides that members of the Bureau of Police "shall at all times take appropriate police action to protect life and property, preserve the peace, prevent crime, detect and arrest violators of the law, and enforce all Federal, State, Local Laws and Ordinances coming within the jurisdiction of the Bureau of Police." (See Brief of Cherry Hill Ctr. et al. in Support of Motion for Summary Judgment, Ex. N).

 Under these circumstances, there can be no doubt that Raso acted under color of state law when she shot Abraham. The discussion now turns to whether Raso ...


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