The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
This matter arises from a fatal automobile collision between
Plaintiffs and an off-duty police officer, Defendant Charles E.
Klein, III, who, at the time of the accident, was allegedly
intoxicated. Before the Court are the motions for summary
judgment by Defendants City of Egg Harbor City, the Egg Harbor
City Police Department, and Mayor James E. McGeary (collectively
"Municipal Defendants") [Docket Item 74,] Defendant Richard
Jankowski, Director of Public Safety for Egg Harbor City from
1996 to 2001*fn1 [Docket Item 75,] and Defendant Patrolman
Keron Kevin Derod Craig. [Docket Item 73.]
For the reasons now explained, the motions for summary judgment
will be granted in their entireties and judgment will be entered
in favor of these Defendants and against Plaintiffs. I. BACKGROUND
On the night of May 21, 2000, Defendant Patrolman Keron Kevin
Derod Craig, a part-time/full-time officer with the Egg Harbor
City Police Department, was "out on patrol" alone. (Craig Dep.
Tr. at 38, 41.) At approximately 1 a.m., Craig made a routine
traffic stop of a car operated and owned by Defendant Charles E.
Klein, III, an off-duty police officer with the Egg Harbor City
Police Department. (Id. at 46:1-4.) Craig pulled Klein over,
without any apparent difficulty on Klein's part, after visually
observing his car to be speeding roughly 20 miles per hour over
the posted speed limit. Craig did not observe Klein's car to be
swerving, and did not believe at the time that Klein was
intoxicated. (Id. at 47:19-21.) Plaintiffs allege, however,
that Klein was visibly intoxicated.
As Patrolman Craig pulled over Klein's car, Klein held his
police badge out of the window for Craig to see. (Id. at
48:21-49:4) Craig then exited his car and approached Klein's, at
which point Klein stuck his head out of the window and said
"what's up." (Id. at 49:1-4.) Craig, recognizing the driver to
be Klein, issued a verbal warning to slow down and then returned
to his patrol car. (Id. at 49:5-8.) During this brief
encounter, Craig never got closer than 30 feet to Klein. (Id.
at 52:4-5.) Craig testified that he at no point believed that
Klein was intoxicated. (Id. at 41:9-12.) Craig testified at his deposition that it would have been "a
problem" for him within the department to have issued a ticket to
a superior police officer, such as Klein. (Id. at 54:16-20.)
According to Patrolman Craig, there was an unwritten
understanding in the Egg Harbor City Police Department that
professional courtesy would be extended to other officers who
were pulled over for minor vehicle violations. (Id.
About one hour later that same evening, Plaintiffs Freddi
Bilbili and Pjerim Gjecaj were passengers in an automobile
operated by Gazmend Cena. Freddi Bilbili's brother, Plaintiff
Ervin Bilbili, was seated in the passenger seat, (F. Bilbili Dep.
Tr. at 23; 2-4,) and Freddi Bilbili was seated in the rear seat
along with Mr. Gjecaj. (Id. at 23; 2-4.) Freddi Bilbili was
seated directly behind Mr. Cena and Mr. Gjecaj was seated behind
the passenger seat. (Id. at 17; 14-15.) At approximately 2:12
a.m., the automobile operated by Mr. Cena was struck from behind
by Klein's car. Mr. Cena died following the crash he was
pronounced dead at the Atlantic City Medical Center at 4:10 a.m.
The other passengers in the car sustained serious
injuries.*fn2 C. History of Klein's Misconduct and Related Discipline
Defendant Klein has a long history of poor driving. (Pls. Ex.
A.) Among other things, Defendant Klein has been involved, as the
driver, in at least five accidents and has committed several
moving violations. (Id.) On or about November 5, 1996, for
example, Klein was served with a written notice of disciplinary
action for failing to notify his commanding officer that his
personal car registration and New Jersey driver's license had
been suspended. On December 19, 1996, a hearing was conducted at
which Klein was represented by counsel. (Mun. Def. Stat. Facts ¶
15(a).) Klein was ultimately found guilt of "misconduct,"
"driving while driving privileges suspended" and "allowing his
vehicle to be operated on the public highways while his
registration privileges were suspended," for which he was
suspended for a 30 day period beginning on February 1, 1996.
(Pls. Ex. B.) A three-page decision accompanying the suspension
order was issued by Defendant Jankowski. (Id.)
Defendant Klein has been disciplined for other conduct as well.
On or about August 4, 1997, Defendant Jankowski filed a
Preliminary Notice of Disciplinary Action against Klein, seeking
his removal effective September 13, 1997, based on charges
arising from an off-duty incident whereby Klein discharged his
gun at his home. (Mun. Def. Stat. Facts ¶ 15(b).) A hearing was
convened, at which Klein was represented by counsel, and Klein was found guilty of conduct unbecoming an officer, and of
violating police department rules regarding the handling of
firearms. Klein was suspended for 45 days. (Id.)
On or about April 5, 2000, Director Jankowski again filed a
Preliminary Notice of Disciplinary Action against Klein, seeking
his removal, based on charges that he was in possession of a
controlled dangerous substance. (Id. at ¶ 15(c).) A hearing was
scheduled for May 11, 2000 at which Klein was represented by
counsel. Meanwhile, on or about April 26, 2000, Director
Jankowski issued another Notice of Disciplinary Action against
Klein based on an incident involving reckless driving while
off-duty.*fn3 (Id. at ¶ 15(d).) A disciplinary hearing on
this matter seeking Klein's suspension or removal was scheduled
for June 8, 2000.*fn4 The fatal accident at issue here
occurred on May 21, 2000.
In total, Klein was disciplined on roughly 17 different
occasions between 1992 and 2000. (Mun. Def. Ex. 6.) There is,
however, no dispute in this case that Klein was off duty at the time of this accident, and there is no evidence that any
Municipal Defendant had knowledge that Klein was drinking and
driving on the night of the accident.
Plaintiffs here are Freddi Bilbili, Ervin Bilbili, Pjerim
Gjecaj, Anjaeza Bilbili (the wife of the Ervin Bilbili) and
Shygyrie Cena, both as Administratrix of the Estate of Gazmend
Cena and in her individual capacity. Plaintiffs filed two
separate complaints in Superior Court, Atlantic County, on May
20, 2002, alleging federal § 1983 causes of action and
supplemental state law claims. Notice of removal pursuant to
28 U.S.C. § 1446 was filed by Defendant Egg Harbor City on or about
June 21, 2002. The two actions were consolidated in this Court by
order dated August 14, 2002. [Docket Item 13.] This Court has
subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
II. SUMMARY JUDGMENT STANDARD OF REVIEW
Summary judgment is appropriate when the materials of record
"show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the
evidence is such that a reasonable jury could return a verdict
for the non-moving party." See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it
might affect the outcome of the suit under the ...