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Thigpen v. City of East Orange

July 29, 2009

SANFORD THIGPEN, PLAINTIFF/CROSS-APPELLANT, AND FRANCIS DEHERDE, PLAINTIFF-RESPONDENT, AND FRED KEARSE AND FRANK MICHETTI, PLAINTIFFS,
v.
CITY OF EAST ORANGE, EAST ORANGE BOARD OF POLICE COMMISSIONERS, EAST ORANGE POLICE DEPARTMENT, DEFENDANTS-APPELLANTS/CROSS-RESPONDENTS, AND VIRGINIA M. CROSS, WILLIAM A. GARVIN, AND NORMAN PRICE, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Essex County, L-10090-94.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted March 25, 2009

Before Judges Payne, Newman and Ashrafi.

Defendants, City of East Orange, East Orange Board of Police Commissioners and East Orange Police Department, appeal from a final judgment awarding damages in the amount of $592,628 to plaintiff, Francis DeHerde, a retired East Orange police officer, for back salary and past and future pension benefits owed to him for alleged service as a de facto police sergeant or lieutenant, supervising the Traffic Unit of the Police Department. Defendants contend that the trial judge erred in finding, as a matter of law, that DeHerde had performed the duties of a de facto officer, and also in failing to limit DeHerde's damage award to back pay.

Plaintiff, Sanford Thigpen, a current East Orange police officer, and a recipient of a $10,000 jury verdict for economic damages sustained as the result of malicious prosecution, cross-appeals from the dismissal of his non-economic damages claims for malicious prosecution and invasion of privacy. He argues that the trial judge erred in finding that such damages were barred by the injury threshold of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 14-4. We reverse the verdict in favor of DeHerde and remand the matter for a new trial. We affirm as to Thigpen. Because there is no commonality between the claims of the two appellants, they will be treated separately in this opinion.

DeHerde

DeHerde joined the East Orange Police Department in 1980. In July 1987, he was assigned to its Traffic Unit, which consisted of four patrolmen and approximately seventy-six civilian crossing guards, under the supervision of a sergeant and a lieutenant. The Traffic Unit was one of several departmental units under the general authority of a day captain. Rules and regulations applicable to crossing guards, adopted in 1991, provided in section four:

A superior police officer, to be known as the Traffic Supervisor or Lieutenant of the Traffic Unit shall be assigned to supervise traffic guards. Such Officer shall operate under the direction of the Day Captain.

Although DeHerde's primary responsibility at the outset of his assignment had been to track radar, eventually he began assisting the sergeant, Alvin Hayes, in hiring and supervising the crossing guards and in scheduling off-duty officers to work traffic details and around construction zones. At some point in time, the lieutenant assigned to the Unit was reassigned elsewhere, Sgt. Hayes was promoted to the position of lieutenant and assumed the responsibilities of Traffic Unit Supervisor. The position of sergeant remained vacant, and its duties were incorporated into those of Hayes. In 1993, Hayes suffered two strokes, and remained absent from work until his retirement in March 1994.

According to the testimony of DeHerde, at some time after Hayes ceased his employment, DeHerde was informed by Chief of Police Harmon that "they're not going to replace Lieutenant [Hayes's] position. They want me to fill the position of Traffic Supervisor, to be in charge of the operation of the Traffic Unit, the crossing guards." However, no formal steps were undertaken in this regard, and neither DeHerde's compensation nor his rank changed.*fn1

During the period from March 1994 until September 1995, no ranking officer was assigned to the Traffic Unit. From September 1995 to November 1996 and from November 1999 to October 2003, various sergeants were assigned to the Unit. Thereafter, and until DeHerde's retirement in September 2005, no sergeants were assigned. DeHerde was absent from work from November or December 2004 until his retirement as the result of surgery and periods of leave.

Prior to trial, the City of East Orange and the East Orange Police Department admitted the following:

30. Plaintiff was on July 1987 assigned to [the] Traffic Unit.

31. From July of 1987 until February of 1994 Lt. Alvin Hayes was plaintiff's supervisor. Plaintiff DeHerde's duties were working the street enforcing motor vehicle laws and later to assist Lt. Hayes in the supervision of 76 crossing guards, assist Lt. Hayes in assisting off duty Officers to work street construction and to insure the work zone[s] were correctly set up.

32. Lieutenant Hayes suffered two strokes. He was not replaced and missed about a year of work.

33. Plaintiff then became responsible for these duties.

34. Lieutenant Hayes retired in March of 1994 and he was not replaced until ...


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