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Lascurain v. City of Neward

March 12, 2002


On appeal from the Superior Court of New Jersey, Essex County, Law Division, ESX-L-688-99.

Before Judges Kestin, Steinberg and Alley.

The opinion of the court was delivered by: Alley, J.A.D.


Argued January 22, 2002

Plaintiff appeals from summary judgment orders of a Law Division judge in Essex County dismissing her complaint against the City of Newark as the owner of certain cemetery property described below, various officials of the City, and defendant Kingsland Drum and Barrel with respect to their alleged liabilities for failure to properly maintain the grave of her father in a cemetery in Newark. Other parties to the action have been dismissed as defendants and this appeal does not involve them. The orders appealed from are final because, ultimately, all of plaintiff's claims against all remaining parties were disposed of. We affirm.


Plaintiff was born in 1914. She was placed in foster care by her father, together with her brother and sister, at an early age, her mother having died when she was one. In 1921, when she was seven, her father, who had remarried, was murdered by his new wife. He was buried in the cemetery in 1921. It was then known as City Cemetery but was also referred to as Potter's Field, a burial ground for indigent persons. Plaintiff learned of her father's death from a newspaper but was never told where he was buried.

Plaintiff left school after ninth grade, subsequently married and worked in a factory. She and her sister, now deceased, as is her brother, tried for years to locate their father's grave. In the 1960s they visited the Hall of Records and other offices in Newark, in search of details. These efforts were unsuccessful. Plaintiff's sister also hired a detective to locate their father's grave, but the detective provided no information.

Ultimately, plaintiff determined through the efforts of her daughter Anna, an attorney, which are detailed below, that her father's body had been buried in City Cemetery in Newark. She alleges that the graves in the cemetery suffered neglect and misuse and that the City and others caused portions of the cemetery to be covered by trash and to be subjected to other forms of disrespect and neglect.

The history of the cemetery and its antecedents can be summarized as follows:

In 1869, the City purchased fifteen acres in the southern part of Newark which became known as City Cemetery, and in the 1940's as Floral Rest. In present-day Newark, City Cemetery comprises about 5.2 acres and is located south of Haynes Avenue, bounded on the west by an unnamed public road and on the east by Bessemer Street. It is behind the Anheuser-Busch plant on Routes 1 and 9 and under the Haynes Avenue bridge.

In 1903, and on an unknown date prior to that, the City sold two pieces of the cemetery property to United Jersey Railroad and Canal Company/Pennsylvania Railroad (Railroad). The sale in 1903, involved 10.23 acres at the western-most portion of the land, leaving 5.2 acres available for burial purposes. There are no records indicating that persons buried within the 10.23 acres were disinterred prior to or after the 1903 transaction but, as noted, plaintiff's father did not die until 1921.

City Cemetery was an active cemetery between 1869 and 1954. A cemetery superintendent was employed by the City, and some superintendents kept records of burials at the cemetery. Records indicate that the superintendent who was employed in that position from 1925 to 1939, Thomas H. Fairchild, kept a detailed ledger. In 1930, Owen A. Malady was appointed Overseer of the Poor within the Department of Welfare and was responsible for interring the City's indigent dead at the cemetery. During his tenure, Malady reportedly instituted a modern record system. In 1943, the City Cemetery's name was changed to Floral Rest. In 1949, the Spatola Funeral Home became responsible for burying all indigents for the City. The Spatola Funeral Home buried decedents in City Cemetery from 1949 to 1954 and maintained burial records for that time.

A newspaper article dating from approximately 1950 reported that conditions were poor at the City Cemetery. The article stated that human bones were strewn about the site and that some burial posts were marked with numbers but that most were not marked. In 1954, the City closed the cemetery. A preliminary assessment report of the site by an engineering firm estimated that by 1954, there had been approximately 20,200 burials within the 5.2 acres.

In 1958, Kingsland purchased land from the Railroad, located south of Haynes Avenue, east of an unnamed public road and west of Bessemer Street. At that time, Kingsland was aware that City Cemetery was east of the unnamed public road, but was unaware that a portion of the land it purchased from the railroad may have been part of City Cemetery. At the time of the purchase, City Cemetery was surrounded by hedges, separating it from the land purchased by Kingsland. Sometime between 1958 and 1975, the portion of City Cemetery directly adjacent to and east of the unnamed public road was paved over with asphalt.

In 1962, the City paid Kingsland $12,500 for an easement across Kingsland's property, in order to begin construction on the South Side Interceptor Sewer Project (the project). The project provided for the construction of sanitary sewer land pumping stations. The City began construction on the project in 1966, including the installation of sewer lines from the back of the Anheuser-Busch brewery to the Passaic Valley Sewerage Plant. The project involved excavation and digging on the easement, in the course of which workers discovered skulls and various human bones. As a result, work on the project was closed for the night, but then it was resumed. Although not included in the parties' appendices, apparently the Newark Star-Ledger reported on the discovery of the skulls found by the workers in 1967.

On April 15, 1975, Kingsland entered into a lease with the City for .58 acres of property contained within City Cemetery. The leased property was directly adjacent to and east of the unnamed public road dividing Kingsland's property from City Cemetery, and was covered by asphalt. The lease between Kingsland and the City for this paved property was drafted on a pre-printed standard form, except for four additional paragraphs, one of which, paragraph thirty, stated:

In the event that the landlord is hereafter required to exhume any graves located upon the leased premises, then and at the option of the Tenant, the lease may be terminated or in the alternative, the tenant may permit the Landlord to come upon the demised premises for the purposes of exhumation and reinterment and the Tenant shall bear all costs in connection with such exhumation and reinterment.

The Municipal Council of the City duly authorized the City's lease of the property. The July 16, 1975 resolution authorizing the execution of the lease identified the property as ".58 acres of Potter's Field." The Council members who voted in favor of the resolution were: Allen, Bottone, Guiliano, James, Martinez, Tucker, Villani and President Harris. The resolution indicated that the lease had been approved as to form and legality by the City's corporation counsel. Previously, on June 18, 1975, the Council had approved a resolution authorizing the lease of the property and the publication of the City's offer to lease, and on July 11 and July 14, 1975, the City had published a legal notice in the Newark-Star Ledger, soliciting "bids for offer to lease city-owned property, block 5090/lot 5, .58 acres of Potter's Field from the City of Newark."

In March 1980, a City official contacted Spatola Funeral Home for information about the date of the last burial at City Cemetery. The official explained that Newark was studying the feasibility of reinterment in order to convert the property to industrial use. That same month, the City's corporation counsel sent a memo to John Bugg, real estate officer, directing Bugg to take Block 5090/Lot 5 "out of the auction." The memo stated that corporation counsel had "not been able to verify that all the bodies have been removed. We cannot sell the property till we remove them."

From 1975 to 1990, Kingsland used the leased property as additional parking space. When Kingsland vacated the premises in 1990, there was no debris, trash or other storage material on the leased property. Irving Klein, an owner of Kingsland, observed in 1992 that that property was being used to store curbstones, salt piles, old street cleaning vehicles, and tires and in 1997 that a substantial amount of sand and dirt had been dumped on Kingsland's property. Kingsland's attorneys requested through the City's corporation counsel that the City cease and desist dumping debris on Kingsland's property. The City complied and removed the dirt and debris. Subsequently, dirt, debris, tires and garbage were again dumped on Kingsland's property.

In 1997, plaintiff asked her daughter Anna, an attorney, "to do some family research." After plaintiff furnished some information about her father, Anna obtained a copy of his death certificate from the Department of Health, which indicated that he was buried in City Cemetery. She also contacted several Newark agencies, including the Department of Welfare and the Department of Development, to determine where City Cemetery was located, but none of the departments had any maps or burial records prior to 1977.

Anna then reviewed a number of newspaper articles and old tax maps at the library, and was able to locate and visit the City Cemetery. At the time of her visit, a portion of the area was covered by asphalt and the property was filled with debris and garbage, although there were trucks moving dirt around. There were no grave markers or headstones.

Anna told plaintiff the results of her search, and plaintiff insisted on visiting the City Cemetery. In October or November of 1997, Anna and plaintiff went to the site where plaintiff was shocked at "all the dirt and the barrels and the rubbish." Plaintiff became very upset, "kind of hysterical," and became nauseous after the visit. Following plaintiff's visit, she had nightmares, was depressed and "very upset" because "I have images of my father in the garbage dump." Plaintiff's personal physician, Dr. Weinstock, observed her depression on several occasions. He opined that "the situation regarding her father's grave is having an adverse effect on her blood sugar and heart condition and is, at least in part, and possibly primarily, the cause of her depression."

Plaintiff asked Anna to learn whether her father's remains had been moved from the City Cemetery. Anna wrote to the Newark mayor's office, which directed her letter to the corporation counsel, which provided no information. At that time, Anna also informed the corporation counsel that she and plaintiff had formed a Friends and Family of Potter's Field Task Force and were willing to assist Newark in the cleaning of the site and the indexing and retrieval of burial records.

Anna next called the Department of Welfare, which eventually referred her to Glenn Grant of the Newark business manager's office. Grant informed Anna that the bodies had never been moved from the City Cemetery, that he would try to locate records, and would contact Anna in July 1998. Anna called Grant in July 1998 and learned that he was no longer employed at the business manager's office. She then ascertained from the Newark Historical Society, however, that the City intended to clear City Cemetery of all debris, in anticipation of a sale of the property at auction. Upon discovery of this information, plaintiff decided to bring this suit.

After proceedings that are unnecessary to detail here, the Law Division disposed of plaintiff's claims against all parties other than Kingsland, Klein, and the City and its officials, who then moved for summary judgment on the remaining claims. On May 12, 2000, the Law Division Judge granted Kingsland's motion and also granted the City's motion in part, dismissing plaintiff's claims against James, Villani, Tucker, Martinez and Carrino.

On October 20, 2000, the judge granted summary judgment to the City with respect to the remaining claims against it. With respect to Klein the trial judge also dismissed plaintiff's claims, but that aspect of the trial court's disposition is not the subject of this appeal. These latter orders disposed of all claims against all remaining parties.

Plaintiff claims that the trial court erred in: (1) failing to address her claim that defendants violated her due process rights; (2) failing to address her claims of statutory violations; (3) dismissing her claims of intentional and negligent infliction of emotional distress; (4) concluding that the individual City Council members were entitled to statutory immunity; and (4) failing to appreciate the public policy significance of plaintiff's complaint.


We first address plaintiff's contentions that the trial court erred in dismissing all of her claims against the City. In particular, we consider her assertion that the trial court failed to consider her due process and statutory claims, and that it erroneously decided her emotional distress claim.

Because this case comes before us on an appeal from a grant of summary judgment, we consider whether, reviewing the evidence in the light most favorable to the non-moving party, there was any issue of material fact, and whether the City was entitled to prevail as a matter of law. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 530 (1995); Prudential Prop. Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998).

We note initially that plaintiff is correct in asserting that the trial court appeared to determine, after dismissing plaintiff's claims against the individual City Council members on May 12, 2000, that her remaining claims against the City were limited to emotional distress. The trial court stated at the October 20, 2000 hearing that "the narrow issue here before me in the Law Division is whether or not there is a cause of action under the laws in the State of New Jersey for emotional distress under these circumstances."

Plaintiff's complaint alleged the following claims against the City:

(1) violation of N.J.S.A. 40:60-41, which requires the governing body of any municipality to provide for the removal of human remains if the municipality desires to devote the land for other purposes (count I);

(2) violation of N.J.S.A. 26:6-34, which requires persons in charge of burial grounds to maintain ...

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