April 25, 2008
ESTATE OF ANDREW CRAWFORD, JR., DECEASED, ANDREW CRAWFORD, SR., HIS PARENT, INDIVIDUALLY, AND AS ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ANDREW CRAWFORD, JR., AND DECEDENT'S PARENT, CATHERINE CRAWFORD, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
CITY OF NEWARK, CITY OF NEWARK POLICE DEPARTMENT, CITY OF JERSEY CITY, CITY OF JERSEY CITY POLICE DEPARTMENT, ESSEX COUNTY PROBATION DEPARTMENT, ADMINISTRATIVE OFFICE OF THE COURTS, ANTWAN SMITH, ISAAC DYKES, DEFENDANTS, AND EMANUEL MIRANDA AND FELIBERTO PADILLA, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9390-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 10, 2008
Before Judges Parrillo and S.L. Reisner.
Plaintiffs' decedent, Andrew Crawford, Jr., was killed in an automobile collision with a carjacked vehicle. In addition to the criminal defendants, plaintiffs sued the City of Newark and its police department for wrongful death resulting from the police pursuit, but did not timely sue the two police officers involved in the chase, nor name the officers as fictitious party defendants. Consequently, plaintiffs' later amended complaint against the two officer defendants was dismissed as barred by the applicable two-year statute of limitations, N.J.S.A. 59:8-9, which the Law Division found was not tolled by the discovery rule. Plaintiffs appeal, and for the following reasons, we affirm.
The pertinent facts are not substantially in dispute. On the evening of November 14, 2002, Isaac Dykes and Antwan Smith carjacked a Lexus vehicle in Jersey City and were pursued by Jersey City police to the Newark city limits, where Newark police officers Emanuel Miranda and Feliberto Padilla, who were alerted by radio dispatch that the carjackers were armed, took over the chase in their marked patrol car. Miranda and Padilla spotted the carjacked vehicle on McCarter Highway at a red light at the intersection of Emmet Street. When the light turned green, the vehicle turned off its headlights, turned left proceeding the wrong way down one way non-divided Emmet Street and accelerated. With their lights and sirens turned on, Miranda and Padilla followed down Emmet Street where, within seconds, the carjacked vehicle collided with Crawford's car at the intersection of Emmet Street and Pennsylvania Avenue, two blocks from Emmet's intersection with McCarter Highway. Crawford died fourteen days later from injuries sustained in the accident.
Shortly thereafter, plaintiffs*fn1 filed a notice of claim for damages under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3, against the City of Newark Police Department, alleging that the Newark police operated their police vehicle in "[a] high speed pursuit of a stolen vehicle [that] . . . caused a high speed collision with [Crawford's] vehicle" that resulted in Crawford's death, and claiming that the pursuit was "[u]nnecessary and dangerous." Plaintiffs subsequently filed a second notice of claim against the City of Newark.*fn2
On November 3, 2004, shortly before the expiration of the TCA's two-year statute of limitations, plaintiffs filed a twelve-count wrongful death complaint against the City of Newark and its police department.*fn3 The complaint alleged, among other things, that (1) the City of Newark Police Department operated its police vehicles in a negligent, careless and reckless manner that caused a collision of the carjacked vehicle being pursued and resulted in Crawford's death; (2) the City of Newark, as owner of the police vehicles driven by its employees, gave permission and approval to its employees to operate the police vehicle and is liable for its employees' actions while operating the police vehicles; and (3) defendants John Does 1-10 controlled their vehicle in a negligent manner, which ultimately caused the fatal collision with Crawford's vehicle. Officers Miranda and Padilla were not named in either the original or first amended complaint; nor did plaintiffs preserve any action against any unidentified officers by way of a fictitious "John Doe" designation.
Following discovery,*fn4 which had been delayed presumably on account of the criminal matters pending against Dykes and Smith, plaintiffs, on April 3, 2006, were granted leave to amend their complaint to include Miranda and Padilla. In doing so, the motion judge reasoned that statute of limitations issues are affirmative defenses that are more properly raised after a defendant is joined. Consequently, plaintiffs filed their amended complaint on April 7, 2006, alleging in counts 13 through 16 that Miranda and Padilla committed willful misconduct in their pursuit of the carjacked vehicle, thereby removing them from the immunity that otherwise shields the simply negligent acts of public employees acting within the course of their official employment. See N.J.S.A. 59:3-3; N.J.S.A. 59:3-14(a).
Thereafter Miranda and Padilla filed a motion to dismiss the amended complaint, pursuant to Rule 4:6-2, on statute of limitations grounds.*fn5 In granting the motion, the judge found that plaintiffs were not entitled, under the discovery rule, to toll the two-year statute of limitations because they were aware of an injury and knew, or should have known, that such injury was the fault of these identifiable police officers. Specifically, the judge concluded:
Plaintiffs [argue] that they didn't know that there was willful misconduct, until . . . October 2005, and by reasonable diligence they could not have known before . . . and . . . they took . . . the testimony of . . . defendants now, the two officers, to . . . bolster . . . and . . . an expert report saying that [the officers] . . . did violate police procedures and . . . it is not too late to now join them on the discovery rule.
[T]he case law is very clear that it's simply knowledge of an injury, and that such injury is the fault of another, and that it's the fault of another simply means it's a possibility or reason to suspect that somebody was a contributing cause, or for the fault.
[I]t's admitted that the City was brought in on theories that they were at fault . . . and . . . [plaintiff brought] them in . . . [under] negligent training and supervision. . . .
[Plaintiffs] started the suit . . . because if there's a high speed [chase] that contributes to an accident, I think that's enough that that would be the fault of those parties responsible for the high speed chase . . . [and] I think the people responsible for a high speed chase . . . should be brought into the case. . . .
[This] is about negligent hiring. . . . It does not have to be whether or not [plaintiffs] have enough information to meet affirmative defenses that might be raised by certain parties, such as public entities . . . , including that there's specific immunities because of high speed chases.
. . . . [Plaintiffs] had reason to suspect from the get go that the police officers engaged in the high speed chase, which caused, now a fatal accident, that they likely were doing something wrong, and obviously [plaintiffs] then have to find the information as to what . . . would be [their] best cause of action . . . . to get [them] over any of the immunities under the Tort Claims Act.
But I don't find that the discovery rule is the right vehicle. I think the fictitious party rule would have been the right vehicle. . . .
I will grant the motion to dismiss as brought by those two officers.
We agree and affirm substantially for the reasons stated by Judge Lombardi in his oral opinion of August 4, 2006. We add only the following comments.
Plaintiffs contend that they are entitled to the benefit of "discovery rule" tolling because it was not until the tape disclosure of October 2005 that they first learned of the officers' willful misconduct in violation of standard operating "police pursuit" procedure. Plaintiffs, however, misstate the standard. The pertinent inquiry is not when plaintiffs determined to a "legal certainty" that defendants committed willful misconduct in their official duties. Rather, the standard for discovery rule tolling is awareness of fault that is merely possible -- and not legally certain, provable, or even probable. Savage v. Old Bridge-Sayreville Med. Group, P.A., 134 N.J. 241, 248 (1993).
The discovery rule "doctrine . . . provides that in an appropriate case a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim." Lopez v. Swyer, 62 N.J. 267, 272 (1973) (emphasis added). "[W]henever a plaintiff claims a right to relief from the bar of the statute of limitations by virtue of the so-called 'discovery' rule, the question as to whether such relief is properly available shall be deemed an issue for determination by the court rather than by the jury." Ibid.
An individual "might sue for [tort] injuries . . . , more than two years after the event, if [they] could establish that
[they] had not previously known, nor could [they] reasonably have known, that [they] might have a basis for an actionable claim." Id. at 273 (citing Yerzy v. Levine, 57 N.J. 234, 235 (1970)). In other words, the discovery rule "doctrine 'postpon[es] the accrual of a cause of action' so long as a party reasonably is unaware either that he [or she] has been injured, or that the injury is due to the fault or neglect of an identifiable individual or entity." Mancuso v. Neckles, 163 N.J. 26, 29 (2000) (quoting Vispisiano v. Ashford Chem. Co., 107 N.J. 416, 426-27 (1987)).
For purposes of the discovery rule, "fault" simply connotes causative conduct that is "itself unreasonable or lacking in due care." Savage, supra, 134 N.J. at 248. "[K]nowledge of fault does not mean knowledge of a basis for legal liability or a provable cause of action; knowledge of fault denotes only facts suggesting the possibility of wrongdoing." Ibid. (emphasis added). Consequently, knowledge of fault for purposes of the discovery rule has a circumscribed meaning: it requires only the awareness of facts that would alert a reasonable person exercising ordinary diligence that a third party's conduct may have caused or contributed to the cause of the injury and that conduct itself might possibly have been unreasonable or lacking in due care. [Ibid.]
"The discovery rule is essentially a rule of equity." Lopez, supra, 62 N.J. at 273. "[I]t seems inequitable that an injured person, unaware that he has a cause of action, should be denied his day in court solely because of his ignorance, if he is otherwise blameless." Id. at 274. By the same token,
[i]t may . . . be unjust . . . to compel a person to defend a law suit long after the alleged injury has occurred, when memories have faded, witnesses have died and evidence has been lost. After all, statutes of limitations are statutes of repose and the principal consideration underlying their enactment is one of fairness to the defendant. So in each case the equitable claims of opposing parties must be identified, evaluated and weighed. [Ibid. (citations omitted).]
Here, within a short time after the November 14, 2002 accident, plaintiffs were aware of Crawford's death, of an alleged high speed pursuit by members of the Newark police department, and of the possible causal connection between the two. Indeed, this was evidenced by plaintiffs' TCA notice of claim filed less than one month after the accident wherein plaintiffs claimed that the Newark police operated their police vehicle in "[a] high speed pursuit of a stolen vehicle [that] . . . caused a high speed collision with plaintiff's vehicle" that resulted in plaintiffs' decedent's death. In addition, on November 3, 2004 before the statute of limitations ran, plaintiffs filed a twelve count complaint alleging, among other things, that:
CITY OF NEWARK POLICE DEPARTMENT . . . were operating vehicles at an excessively high rate of speed during a high speed pursuit of a stolen vehicle in the same area as plaintiff.
Thus, before the statute of limitations had run, plaintiffs had "facts suggesting the possibility of wrongdoing" to indicate their "knowledge of [defendant officers'] fault." Yet, despite such knowledge, and knowing the specific identities of Miranda and Padilla, plaintiffs nevertheless failed to name these officers as party defendants until February 2006, far beyond the expiration of the two-year statute of limitations. Contrary to plaintiffs' contention, they did not require full discovery to appreciate the possibility of the officers' liability or fault, which was reasonably apparent shortly after the accident's occurrence. Thus, as did the motion judge, we find no basis for the application of the discovery rule in this instance.
Moreover, considerations of essential fairness to the proposed defendants dictate the same result.
"When a plaintiff knows or has reason to know that he [or she] has a cause of action against an identifiable defendant and voluntarily sleeps on his [or her] rights so long as to permit the customary period of limitations to expire, the pertinent considerations of individual justice as well as the broader considerations of repose, coincide to bar his [or her] action." [Mancuso, supra, 163 N.J. at 29 (quoting Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115 (1973)).]
Here, this policy consideration is heightened. Even after defendant City of Newark provided substantial discovery on June 24, 2005, including the City's police vehicle pursuit policy,*fn6 and even after plaintiffs' own expert concluded on November 22, 2005 that Miranda and Padilla's "misconduct" was a "substantial factor" in Crawford's death, plaintiffs still waited until February 2006 to amend their complaint to name the individual officers. In the meantime, however, each of the proposed defendants had been deposed, not as parties, but as fact witnesses, and sequestered, without benefit of being present at the other's deposition, a right otherwise accorded to party defendants. See N.J.R.E. 615; R. 4:10-3; Lopez v. House of Coffee, Inc., 332 N.J. Super. 364 (Ch. Div. 1998). Accordingly, we conclude that allowing these officers to be named as defendants in this action, so late in the day and under these particular circumstances, would be unduly prejudicial to them. Considerations of individual justice and repose weigh in their favor, warranting dismissal of plaintiffs' action against defendants as time-barred.