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New Jersey Intergovernmental Insurance Fund v. Almassy

Superior Court of New Jersey, Appellate Division

July 16, 2013

THE NEW JERSEY INTERGOVERNMENTAL INSURANCE FUND, as Subrogee to James Carkhuff and the Township of Chester, Plaintiff-Appellant,


Submitted February 27, 2013

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3320-08.

Eric J. Nemeth and Buglione, Hutton & De Yoe, L.L.C., attorneys for appellant (Mr. Nemeth, of counsel and on the brief; James M. LaBianca, on the brief).

Belsole and Kurnos, L.L.C., attorneys for respondent (Kevin Weinman, on the brief).

Before Judges Sapp-Peterson and Haas.


Plaintiff, The New Jersey Intergovernmental Fund, as subrogee to James Carkhuff and the Township of Chester (Township), appeals from the trial court order granting summary judgment to defendant Dane Almassy. We affirm.

Carkhuff, who is a Township police officer, sustained an injury to his right knee while responding to a call from a limousine driver who reported that his passenger had not returned to the limousine after initially requesting the driver to pull over on the road so that he could relieve himself. The passenger, later identified as defendant, came back to the vehicle and told the driver that some kids had thrown tomatoes at him and that he was going to look for them. When defendant failed to return fifteen minutes later, the driver contacted police.

Officer Carkhuff responded to the call, spoke with the driver and then proceeded to the residence where the limousine driver had planned to take defendant, which was located approximately one-quarter mile away. The home was owned by Eileen Hoffman (deceased) and managed by her daughter, defendant Gaylyn Bennett, a close friend of defendant. Defendant had been living with Bennett temporarily as he had done previously when his parents divorced. Bennett allowed the officer to search the home. Officer Carkhuff searched the residence for approximately twenty minutes but did not find defendant. He then, along with another officer handling a K-9 dog, searched the area where the limousine driver had let defendant out of the vehicle. Officer Carkhuff injured his knee during this search.

When police returned to Bennett's home, she informed them that defendant was in the house. He had pink insulation on his clothing because he had been hiding in the basement listening to his iPod to avoid conversation with Bennett, who had not gone to bed when he arrived home. He believed that he had told the driver he was going to walk the rest of the way home.

Officer Carkhuff sought medical attention for his knee. After seven surgeries, Carkhuff was unable to return to work. He collected workers' compensation, and plaintiff filed its complaint against Hoffman's estate, Bennett and defendant, seeking to recover funds it had paid to Officer Carkhuff. The estate and Bennett moved for summary judgment, arguing they breached no duty of care owed to the officer. The court granted their motion and indicated that had defendant also moved for summary judgment, it would have granted the motion. Defendant subsequently moved for summary judgment, also contending that he breached no duty of care owed to the injured officer. The motion judge agreed and granted the motion. The present appeal followed.

On appeal, plaintiff contends there are disputed issues of fact which are material and should have resulted in the denial of defendant's motion and that defendant's conduct contributed to Officer Carkhuff's injuries. We find no merit to either contention.

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Although the court views the evidence "in the light most favorable to the non-moving party, " where there exists a "single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact[.]" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 212 (1986)). Thus, "when the evidence 'is so one-sided that one party must prevail as a matter of law, ' . . . the trial court should not hesitate to grant summary judgment." Ibid.

On appeal, our review is de novo and we apply the same standard as the court below. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We first decide whether there is a genuinely disputed issue of fact, which is material. If there are none, we then decide whether the lower court's ruling on the law is correct. Walker v. Alt. Chrysler Plymouth, 216 N.J.Super. 255, 258 (App. Div. 1987).

Plaintiff urges that a question exists as to whether defendant had reason to know that the driver would call police and the police would begin to search for him. Even assuming defendant knew or should have known that the driver would become worried if he did not return to the vehicle and would call police out of concern, that knowledge imposed no duty of care upon defendant towards the officer nor established the foreseeability of any subsequent injury the officer would sustain in performing his duty.

In imposing a duty of care for purposes of assessing liability for negligent conduct, we continue to be guided by the four-part test enunciated in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993), twenty years ago. Estate of Desir ex rel. Estiverne v. Vertus, N.J. (2013) (slip op. at 21). We consider the relationship between the parties, the nature of the attendant risk in light of hazard presented, the ability and opportunity to exercise care, and public interest implicated. Davis v. Devereux Foundation, 209 N.J. 269, 293 (2012) (citing Hopkins, supra, 132 N.J. at 439).

Defendant and the officer had no relationship. He was not a suspect in any criminal enterprise for which he would reasonably expect police to be in pursuit. Defendant's relationship was with the driver of the vehicle, as his passenger. There is no indication in the record that Officer Carkhuff undertook the search for defendant under circumstances that subjected the officer to particularly dangerous conditions. Nor is there any evidence in the record that, as Officer Carkhuff undertook the search, he encountered any condition of the terrain that interfered with his ability to control how he was conducting the search.

Additionally, we perceive no public interest in imposing a duty upon a person mistakenly believed to be missing, the cost of injuries sustained while investigating a missing persons report, absent evidence of conduct purposely intended to disrupt police operations, which is indisputably not the case here. Costs associated with investigations of the type undertaken here have traditionally been assigned to society at large as a cost inherent in providing police services.

Finally, defendant did not own the property where Officer Carkhuff sustained his injury and, even as a temporary resident at the Bennett home, there is no evidence defendant was aware of any dangerous condition that existed on the property or its surrounding area about which he may have had a duty to warn the officer.

Nor does the Legislature's abrogation of the "fireman's rule, " with its enactment of N.J.S.A. 2A:62A–21 ("Act"), call for a different result. Under the Act, an injured police officer "may seek recovery and damages from the person or entity whose neglect, willful omission, or willful or culpable conduct resulted in that injury[.]" Here, defendant simply walked into the woods. Whether he did so to look for children who he believed threw a tomato at him or to walk the rest of the way home, his conduct did not put him in a position where he should have reasonably expected Officer Carkhuff to begin searching for him and sustain an injury during that search. In short, to impose a duty upon defendant towards the officer under these circumstances does not satisfy an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy.

"'[T]he essential question is whether 'the plaintiff's interests are entitled to legal protection against the defendant's conduct.' Duty is largely grounded in the natural responsibilities of social living and human relations, such as having the recognition of reasonable men; and fulfillment is had by a correlative standard of conduct.'" Wlasiuk v. McElwee, 334 N.J.Super. 661, 667 (App. Div. 2000). It is simply unreasonable to impose a duty upon defendant under these circumstances. It does not matter that defendant could have easily told the driver that he decided to walk home, thereby allaying the driver's concern. The fact that his failure to do so caused the driver to seek assistance from the police did not create a duty of care on the part of defendant towards Officer Carkhuff.


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