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Nannay v. Rowan College

July 5, 2000

GRACE M. NANNAY, ETC.,
PLAINTIFF,
V.
ROWAN COLLEGE, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Rodriguez, J.

OPINION

This matter is before the Court on three separate motions for summary judgment. For the reasons that follow, the motion addressing the federal claims will be granted and the Court will decline to assert supplemental jurisdiction over any remaining claims.

JURISDICTION

The Complaint alleges that this Court has jurisdiction over this matter because relief is requested pursuant to 42 U.S.C. § 1983, as it has been alleged that "the defendants violated several rights and immunities of Cindy Ann Nannay arising under the Constitution of the United States of America." (Complaint, p. 2, Statement of Jurisdiction.)

FACTUAL BACKGROUND

This case was filed as the result of a murder-suicide which occurred on the campus of Rowan College, now Rowan University, in Glassboro, New Jersey on August 12, 1996.

On August 12, 1996, Cindy Ann Nannay was a twenty-two year old student at Rowan College in Glassboro, New Jersey, and was a volunteer announcer for the college radio station, WGLS. (Complaint, ¶¶ 1, 2; State Defendants' Statement of Material Facts, ¶ 4.) For approximately one year prior to August 12, 1996, Cindy Ann Nannay had been involved in a relationship with and had been sharing living accommodations with Scott Lonabaugh, age twenty-eight and not connected to Rowan College. (Complaint, ¶ 3; State Defendants' Statement of Material Facts, ¶ 5.) Their shared living accommodations were in Gloucester City, New Jersey and in Thorofare, New Jersey. (State Defendants' Statement of Material Facts, ¶ 11.) It is apparent that the relationship was an abusive one. (Complaint, ¶ 4.)

The record reflects that on or about December 19, 1995, Gloucester City Police were summoned to the home of Scott Lonabaugh as the result of a complaint that he was threatening children in the street with a weapon. (Complaint, ¶ 7; Gloucester City Police Department Investigation Report, attached as Exhibit C to Plaintiff's Opposition to The Sports Authority's Motion.) At that time, the police officers seized a .9 mm Ruger semi-automatic pistol, several rounds of ammunition, and a .177 pellet/BB rifle from Lonabaugh. (Complaint, ¶ 7.) As a further result of this incident, the Camden County Sheriff's Department and the Camden County Prosecutor's Office entered into a Forfeiture Consent Order with Lonabaugh, seizing Lonabaugh's weapons and ammunition. (Complaint, ¶ 8; Exhibit D to Plaintiff's Opposition to The Sports Authority's Motion.) The State-issued permit held by Lonabaugh for the purpose of purchasing a rifle or shotgun was not revoked. (Complaint, ¶ 8.)

On April 30, 1996, the Gloucester City Police Department was summoned to a domestic violence incident at Scott Lonabaugh's residence. (Complaint, ¶ 10.) Lonabaugh had tied up Cindy Nannay and was threatening her with a knife. (State Defendants' Statement of Material Facts, ¶ 13; Gloucester City Police Department Investigation Report, attached as Exhibit B to Plaintiff's Opposition to The Sports Authority's Motion.) As a result of the April 30, 1996 incident, Cindy Ann Nannay sought and obtained a restraining order against Scott Lonabaugh. (Complaint, ¶ 6; State Defendants' Statement of Material Facts, ¶ 14.) She subsequently requested that the charges and restraints be dropped, so the matter was dismissed. (Exhibit F to State Defendants' Counsel's Certification Submitted in Support of Motion; State Defendants' Statement of Material Facts, ¶ 15.)

Shortly after this incident, Cindy Nannay called defendant Frank Hogan, her manager at the radio station, at home and told him that she and Lonabaugh had had an argument, that Lonabaugh raised his voice and had tried to tie her to a chair. (Exhibit A to Plaintiff's Counsel's Certification in Opposition to State Defendants' Motion, Deposition of Frank Hogan, p. 14.) Hogan advised Nannay to consider getting out of the relationship and to take advantage of the counseling center at the college the following day. (Exhibit A to Plaintiff's Counsel's Certification in Opposition to State Defendants' Motion, Deposition of Frank Hogan, p. 14.) However, Cindy Nannay continued the relationship with Scott Lonabaugh and the two continued to live together. (State Defendants' Statement of Material Facts, ¶ 17.)

At some point, possibly in May of 1996, Scott Lonabaugh was treated for mental problems at the Shoreline Behavior Health Center in Toms River, New Jersey. (Statement of Rene DeBosscher, Gloucester County Prosecutor's Office Event Report, attached as Exhibit A to Plaintiff's Opposition to The Sports Authority's Motion, p. 5.) After his release from Shoreline, Scott Lonabaugh and Cindy Nannay took up residence with Lonabaugh's mother, defendant Sara Lonabaugh, and her boyfriend, defendant Rene DeBosscher, in Thorofare, New Jersey. (Statement of Rene DeBosscher, Gloucester County Prosecutor's Office Event Report, attached as Exhibit A to Plaintiff's Opposition to The Sports Authority's Motion, p. 5.)

On or about July 30, 1996, Cindy Ann Nannay broke off her relationship with Scott Lonabaugh and moved out of the shared living accommodations. (State Defendants' Statement of Material Facts, ¶ 12.) She moved in with a woman named Bonnie who was affiliated with her Church. (State Defendants' Statement of Material Facts, ¶ 18.)

On August 1, 1996, Cindy Nannay met with defendant Pearl Bartelt, Dean of Liberal Arts and Sciences at Rowan College, and requested the college's assistance in providing her with housing. (State Defendants' Statement of Material Facts, ¶ 19 (relying on Exhibit J to State Defendants' Counsel's Certification in Support of Motion, Deposition of Pearl Bartelt).) At that time, Cindy Nannay advised Dean Bartelt that there had been some single "physical incident" which precipitated her needing housing. (Exhibit J to State Defendants' Counsel's Certification in Support of Motion, Deposition of Pearl Bartelt, p. 8.) Dean Bartelt arranged, through the Director of Residence Life, for Cindy Nannay to receive emergency housing on campus free of charge and for her to receive counseling through the campus counseling center beginning on August 5, 1996. (Complaint, ¶ 13; Exhibit J to State Defendants' Counsel's Certification in Support of Motion, Deposition of Pearl Bartelt, p. 10-11, 13.)

During this time, approximately two weeks prior to August 12, 1996, Scott Lonabaugh attempted to commit suicide, by cutting his left wrist. (Complaint, ¶ 5; Statement of Rene DeBosscher, Gloucester County Prosecutor's Office Event Report, attached as Exhibit A to Plaintiff's Opposition to The Sports Authority's Motion, p. 5.) He was treated at Underwood Memorial Hospital and Crisis Intervention and released. (Complaint, ¶ 5; Statement of Rene DeBosscher, Gloucester County Prosecutor's Office Event Report, attached as Exhibit A to Plaintiff's Opposition to The Sports Authority's Motion, p. 5.) At some point, Scott Lonabaugh lost his home due to a bankruptcy associated with his divorce, and he began seeing a psychologist. (Statement of Rene DeBosscher, Gloucester County Prosecutor's Office Event Report, attached as Exhibit A to Plaintiff's Opposition to The Sports Authority's Motion, p. 5.)

On or about August 4, 1996, Cindy Nannay again called Frank Hogan at home and told him that Scott Lonabaugh had hit her, and that she was going to leave him, and that Dean Bartelt had arranged for campus housing for her. (Exhibit A to Plaintiff's Counsel's Certification in Opposition to State Defendants' Motion, Deposition of Frank Hogan, p. 19-20.) Hogan again advised Nannay to seek counseling, and Nannay informed him that she had an appointment for the following day. (Exhibit A to Plaintiff's Counsel's Certification in Opposition to State Defendants' Motion, Deposition of Frank Hogan, p. 20.) Dean Bartelt then called Hogan at home and confirmed that she had made arrangements for Cindy Nannay to obtain campus housing. (Exhibit A to Plaintiff's Counsel's Certification in Opposition to State Defendants' Motion, Deposition of Frank Hogan, p. 20-21.)

On August 5, 1996, Cindy Nannay did meet with a counselor who urged her to file a complaint with Rowan's Department of Public Safety for phone harassment and who arranged a meeting with a representative of People Against Spousal Abuse to discuss Nannay's options, such as her right to file a complaint against her abuser and her right to seek a restraining order. (Affidavit of Cynthia Kammer submitted in Support of State Defendants' Motion; State Defendants' Statement of Material Facts, ¶¶ 22, 23.) On August 6, 1996, Cindy Nannay again met with the counselor who personally escorted her to the meeting with the PASA counselor. (Affidavit of Cynthia Kammer submitted in Support of State Defendants' Motion, ¶ 4.)

On August 9, 1996, Scott Lonabaugh purchased a 12 gauge shotgun from defendant The Sports Authority located in Maple Shade, New Jersey. (Complaint, ¶¶ 9, 11; Sports Authority's Statement of Undisputed Material Facts, ¶ 1.) The sale was handled by a manager for The Sports Authority, Wayne Jacobsen. (Sports Authority's Statement of Undisputed Material Facts, ¶ 4.)

In order to complete the purchase, Scott Lonabaugh presented two necessary forms of identification, his New Jersey Driver's License and his State of New Jersey Firearms Purchaser Identification Card issued November 11, 1991. (Sports Authority's Statement of Undisputed Material Facts, ¶ 2.) In addition, Lonabaugh signed a Certificate of Eligibility as required by the State of New Jersey, and in doing so certified that he was not subject to any of the disabilities, which a firearms purchaser is obligated to be familiar with, set forth in N.J. Stat. Ann. § 2C:58-3c. *fn1 (Sports Authority's Statement of Undisputed Material Facts, ¶ 3.) Finally, Scott Lonabaugh completed and signed the appropriate portion of the Bureau of Alcohol, Tobacco, and Firearms -Firearms Transaction Record. *fn2 (Sports Authority's Statement of Undisputed Material Facts, ¶ 3; Exhibit G to Plaintiff's Opposition to The Sports Authority's Motion.) On this form, a copy of which is attached to the Attorney's Certification in Support of Defendant The Sports Authority's Motion for Summary Judgment, Lonabaugh filled out his name and gender, height, weight, race, residence address *fn3 , date of birth, and place of birth. Under the heading "CERTIFICATION OF TRANSFEREE (Buyer)--An untruthful answer may subject you to criminal prosecution. Each question must be answered with a 'yes' or a 'no' inserted in the box at the right of the question.", Lonabaugh wrote "No" in the indicated box following each of the following separately lettered questions:

(a) Are you under indictment or information in any court for a crime punishable by imprisonment for a term exceeding one year?

(b) Have you been convicted in a court of any crime punishable by imprisonment for a term exceeding one year?

(c) Are you a fugitive from justice?

(d) Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, or narcotic drug, or any other controlled substance?

(e) Have you ever been adjudicated mentally defective or have you ever been committed to a mental institution?

(f) Have you been discharged from the armed forces under dishonorable conditions?

(g) Are you an alien illegally in the United States?

(h) Are you a person who, having been a citizen of the United States, has renounced his/her citizenship?

(i) Are you subject to a court order restraining you from harassing, stalking, or threatening an intimate partner or child of such partner? *fn4

Lonabaugh then signed the form, thereby certifying that the answers to the above questions were true and correct, and acknowledging that he understood that the making of any false oral or written statement or the exhibiting of any false or misrepresented identification with respect to the transaction was a felony.

Wayne Jacobsen completed the remainder of the form, listing the identification used to establish the identity and address of the buyer as Lonabaugh's New Jersey Firearms Purchaser Identification Card and New Jersey Driver's License. Wayne Jacobsen has testified that he has no independent recollection of the date of the sale, of the sale itself, or of speaking to Scott Lonabaugh. (Jacobsen Dep. 39:15-18; 41:16-18; 44:23-25; 45:13-16, attached as Exhibit F to Plaintiff's Opposition to The Sports Authority's Motion.)

On August 12, 1996, Cindy Ann Nannay arrived for work at the college radio station at approximately 1:00 p.m. for a 1:00 to 3:00 shift. (Complaint, ¶ 14; State Defendants' Statement of Material Facts, ¶ 24 (relying on Hogan Deposition, attached as Exhibit H to State Defendants' Counsel's Certification in Support of Motion).) At approximately 2:00 p.m., she asked Frank Hogan if he would still be at the station at 3:00 p.m., because Scott Lonabaugh was supposed to be meeting her to return some of her personal belongings and she wanted to be sure that Lonabaugh "didn't try to hit her or anything like that." (Complaint, ¶ 15; State Defendants' Statement of Material Facts, ¶ 25 (relying on Hogan Deposition, attached as Exhibit H to State Defendants' Counsel's Certification in Support of Motion).) Hogan stated that he would still be around at 3:00, but offered to give Nannay some money to replace her belongings so that she would not have to meet with Lonabaugh. (State Defendants' Statement of Material Facts, ¶ 26 (relying on Hogan Deposition, attached as Exhibit H to State Defendants' Counsel's Certification in Support of Motion).) She declined the offer. (State Defendants' Statement of Material Facts, ¶ 26 (relying on Hogan Deposition, attached as Exhibit H to State Defendants' Counsel's Certification in Support of Motion).)

At approximately 3:25 p.m., Scott Lonabaugh drove onto the Rowan College campus and parked 25-50 yards from the doors of the radio station. (Complaint, ¶ 16; Gloucester County Prosecutor's Office Event Report, attached as Exhibit A to Plaintiff's Opposition to The Sports Authority's Motion, p. 1.) Shortly thereafter, Cindy Ann Nannay walked out to Lonabaugh's car, which was parked in Lot E between Bozarth and Bunce Halls, on the campus. (Complaint, ¶ 17.) Frank Hogan and another student waited outside the radio station building. (State Defendants' Statement of Material Facts, ¶ 27; Gloucester County Prosecutor's Office Event Report, attached as Exhibit A to Plaintiff's Opposition to The Sports Authority's Motion, p. 3.) Lonabaugh and Nannay had a calm conversation, and Lonabaugh removed Nannay's bags from the passenger compartment of the car and placed them on the grass. (Complaint, ¶ 18; Gloucester County Prosecutor's Office Event Report, attached as Exhibit G to State Defendants' Counsel's Certification in Support of Motion and Exhibit A to Plaintiff's Opposition to The Sports Authority's Motion, p. 4.) He then proceeded to the trunk of the car, opened it, removed the shotgun and shot Cindy Ann Nannay in the shoulder, knocking her to the ground. (Complaint, ¶ 18; Gloucester County Prosecutor's Office Event Report, attached as Exhibit G to State Defendants' Counsel's Certification in Support of Motion and Exhibit A to Plaintiff's Opposition to The Sports Authority's Motion.) Lonabaugh then aimed the shotgun at Cindy Nannay's head and fired, killing her. (Complaint, ¶ 18; Gloucester County Prosecutor's Office Event Report, attached as Exhibit A to Plaintiff's Opposition to The Sports Authority's Motion.) Immediately thereafter, he turned the gun on himself and committed suicide. (Complaint, ¶ 18; Gloucester County Prosecutor's Office Event Report, attached as Exhibit A to Plaintiff's Opposition to The Sports Authority's Motion.) A suicide note was found in the car by investigators. (Gloucester County Prosecutor's Office Event Report, attached as Exhibit A to Plaintiff's Opposition to The Sports Authority's Motion, p. 5.)

At no time did Cindy Ann Nannay, or any other person, contact Rowan's Department of Public Safety or any other law enforcement agency (including Rowan's escort service) to request assistance prior to the shooting. (State Defendants' Statement of Material Facts, ¶ 29.) Further, it is not disputed that neither defendant Kevin Mannix nor any other member of the Public Safety Department was ever notified of any domestic violence situation existing between Cindy Nannay and Scott Lonabaugh. (State Defendants' Statement of Material Facts, ¶ 30.)

It also is uncontested that after the incident, the Bureau of Alcohol, Tobacco, and Firearms conducted a trace of the firearm as standard policy, and that The Sports Authority did not thereafter receive any sort of notice that the sale of the shotgun to Scott Lonabaugh was in violation of any law. (Sports Authority's Statement of Undisputed Material Facts, ¶ 6.)

PROCEDURAL HISTORY

Plaintiff, Grace M. Nannay, General Administratrix and Administratrix Ad Prosequendum of the Estate of Cindy Ann Nannay, deceased, instituted this lawsuit on August 6, 1998 against defendants Rowan College, the State of New Jersey, Kevin Mannix, Pearl Bartelt, Frank Hogan, the County of Camden, the Camden County Prosecutor's Office, the Camden County Sheriff's Office, Gloucester City Police Department, Patrolman Robert Reynolds, Det. Lt. William P. James, Rene DeBosscher, Sarah Lonabaugh, Tammy Lonabaugh, Traci Lonabaugh, Our Lady of Lourdes Hospital, Underwood Memorial Hospital, and The Sports Authority.

Count One alleges that defendants Rowan College, the State of New Jersey, Kevin Mannix, the Public Safety Director for Rowan College, Pearl Bartelt, Dean of Liberal Arts and Sciences for Rowan College, and Frank Hogan, the General Manager of the college radio station, WGLS, knew or should have known of the propensity for Scott Lonabaugh to commit acts of violence upon Cindy Nannay, had a duty to exercise reasonable care and diligence for the personal safety of the college community, including Cindy Nannay, *fn5 and failed to take the necessary measures to protect Cindy Nannay from the attack by Scott Lonabaugh. Thus, Count One states a claim for negligence.

Count Two asserts a claim against Rowan College for voluntarily assuming, through its employees, the protection of Cindy Nannay from domestic violence by Scott Lonabaugh, and then violating Cindy Nannay's Fourteenth Amendment Substantive Due Process Rights. The reasoning is that Rowan College, through its employees, was aware of the domestic violence situation which existed between Cindy Nannay and Scott Lonabaugh, and made arrangements, such as the provision of temporary campus housing, in an effort to protect Cindy Nannay from the violent acts of Scott Lonabaugh. By creating dangerous conditions, including permitting Lonabaugh to enter the campus and come in close physical contact with Cindy Nannay without a weapons search or other security queries, when Rowan College, through its employees, knew of Lonabaugh's propensity to commit violent acts with a weapon against Cindy Nannay, it is alleged that the College deprived Nannay of her liberty interest in personal security and her liberty interest to be free from bodily harm. This Count also mentions a failure to train in proper security measures, and failure to take proper security measures to protect Nannay in willful disregard of the voluntarily assumed duties to protect and safeguard Nannay against the violent actions of Lonabaugh. The demand for damages is asserted against defendants Rowan College, the State of New Jersey, Kevin Mannix, Pearl Bartelt, and Frank Hogan.

Count Three asserts a claim against Frank Hogan for, while acting under color of State law, violating Cindy Nannay's substantive due process rights by depriving her of her liberty interests in personal security and freedom from bodily harm in voluntarily assuming responsibility for the safety of Cindy Nannay in a pending encounter with Scott Lonabaugh, creating dangerous conditions and the danger of bodily harm, isolating her from a private or public source of rescue, condoning, ratifying, and/or instigating a physical encounter between Nannay and Lonabaugh, permitting Nannay to enter into close physical proximity with Lonabaugh, and otherwise showing willful disregard.

Count Four similarly asserts a claim against Pearl Bartelt for violating Cindy Nannay's constitutional rights because she knew that Scott Lonabaugh posed a special danger to Cindy Nannay and she voluntarily assumed responsibility for Nannay's safety in a pending encounter with Lonabaugh because she had arranged for temporary campus housing and had made other arrangements to protect Nannay from Lonabaugh.

Count Five asserts the same type of claim against Kevin Mannix as Director of Public Safety for Rowan College.

Count Six asserts a claim against the County of Camden, the Camden County Prosecutor's Office, and the Camden County Sheriff's Department based upon their failure, after seizing guns already in Lonabaugh's possession, to take adequate steps to prevent Lonabaugh from purchasing ...


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