On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket Nos. L-1165-06, L-3577-07 and L-2358-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Waugh.
We granted the motion of defendant/third-party plaintiff Waterview Pavilion, Inc. (Waterview), for leave to appeal the order of the Law Division dismissing its third-party complaint against third-party defendant Point Pleasant Beach Police Department (Department) and six of its members, third-party defendants Daniel DePolo, Scott Alan Nase, Richard Otto, Andrew T. Meany, Michael T. Fioretti, and William Ippolito. The appeal also includes the subsequent order denying Waterview's motion for reconsideration. We affirm the dismissal as to all defendants except Ippolito and the Department as to his conduct, as to which we reverse.
This litigation arose out of an automobile accident that occurred on June 25, 2005. In March 2006, plaintiff Corrie A. Allen filed suit against Defendant Patrick B. Flynn, seeking damages for injuries attributable to the accident.*fn1 Flynn, who was a member of the Department at the time of the accident, was the driver of the vehicle that hit Allen's vehicle from behind. Allen alleged that Flynn was intoxicated at the time of the accident. Allen added Waterview and other defendants in an amended complaint filed in May 2006. He alleged that Flynn had become intoxicated at a wedding reception held at Waterview's banquet facility.
Waterview filed an amended third-party complaint in August 2008, alleging that the individual third-party defendants attended the reception, observed that Flynn was intoxicated, and failed to take appropriate police action to prevent Flynn from driving his car. It further alleged that the Department is liable for the wrongful conduct of its employees.
In support of its position, Waterview relies on deposition testimony by DePolo, who was the Chief of Police for Point Pleasant Beach at the time of the accident.
Q: At the wedding itself was there any discussion about somebody taking [Flynn's] keys or otherwise preventing him from driving?
Q: And with whom was that?
A: First would have been Sergeant William Ippolito from my department.
Q: What was discussed in that conversation?
A: I believe I was leaving the wedding and I remember having a face-to-face conversation with Sergeant Ippolito. I just said, hey, make sure he doesn't drive or attempt to drive tonight.
Q: And what did Sergeant ...