JUAN LUNA, AMANDA LUNA and MARIA DEL CARMEN LOZADA, Plaintiffs-Appellants,
THE ESTATE OF MARTA GONZALEZ (Deceased), VICTOR MARCEDA, LAKEWOOD POLICE DEPARTMENT, LAKEWOOD POLICE DEPARTMENT-INTERNAL AFFAIRS, SGT. LOUIS SASSO, SGT. STEVE ALLAIRE, DEPUTY CHIEF CHARLES SMITH, LIEUTENANT WILLIAM ADDISON, BRICK TOWNSHIP, DIVISION OF STATE POLICE, DEPARTMENT OF THE TREASURY, DOVER TOWNSHIP, OCEAN COUNTY DIVISION OF HIGHWAY TRAFFIC SAFETY, OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LAW AND PUBLIC SAFETY, OCEAN COUNTY PROSECUTOR'S OFFICE, ALLSTATE INSURANCE COMPANY, ESTEBAN CELESTINO, Defendants, and LAKEWOOD TOWNSHIP and POLICE OFFICER JOSEPH PREBISH, Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued March 11, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3103-08.
Daniel N. Epstein argued the cause for appellants (Epstein Arlen, LLC, attorneys; Mr. Epstein, of counsel and on the briefs; Carol Matula, on the briefs).
Guy P. Ryan argued the cause for respondents (Secare, Ryan & Hensel, attorneys; Mr. Ryan, on the brief).
Before Judges Messano, Lihotz and Ostrer.
Plaintiffs, three surviving passengers in a fatal automobile accident, appeal from the trial court's grant of summary judgment in favor of defendants Lakewood Township, its police department, and various officers, including officer Joseph Prebish. The court dismissed with prejudice plaintiffs' complaint seeking compensatory and punitive damages arising out of Prebish's actions after he arrested the driver of plaintiffs' vehicle less than an hour before the accident. Prebish entrusted the car keys to one of the arrestee's companions, Marta Gonzalez, who stated she had made arrangements for the passengers of the stopped vehicle to be picked up. Instead, she drove the vehicle herself, later colliding with a pole, killing herself and injuring plaintiffs. Gonzalez had a blood alcohol level of .092 at the time of death. Following our review of the arguments presented in light of the record and applicable law, we affirm.
We discern the following facts from the record. In the early morning hours of September 9, 2006, plaintiffs — Maria Del Carmen Lozada, Juan Estrada Luna, and his sister, Amanda Luna — socialized with Gonzalez and Amanda's boyfriend, Esteban Celestino, at Amanda's and Celestino's Toms River apartment. The three women got off work about 1:00 a.m. or 2:00 a.m. Celestino picked up the women after he got off work, between 2:00 a.m. and 3:00 a.m. The group consumed beer during the evening.
Celestino had the 1992 Saturn of a friend, Victor Marceda, who lived in Seaside Heights. As morning approached, all five individuals were in the vehicle while Celestino was on the way to take home Gonzalez and Lozada. Celestino stopped at the Lakewood Blue Claws Stadium parking lot in Lakewood shortly before 6:30 a.m. because the women wanted to relieve themselves.
Prebish spotted the vehicle in the stadium parking lot. He entered to investigate. He saw the two men on a hill near the woods holding open beer bottles. The women were also outside the car. He called dispatch to report the vehicle and the public drinking. Prebish did not activate his mobile video recorder (MVR).
Prebish testified that both men appeared intoxicated. He asked who drove the car, and Juan said he did. Then, Celestino said he was the driver and handed Prebish the car keys. Although both men were Spanish-speaking, Prebish concluded that both men could speak and understand "a little" English. Celestino confirmed in his deposition that he was able to communicate with Prebish.
According to Prebish, Gonzalez said she was Celestino's sister, although Prebish did not take her name. She also spoke English and translated for the group.
Prebish learned that neither man was a licensed driver. Celestino had an active arrest warrant. By that time, another officer had arrived. He assisted Prebish in arresting Celestino, who was placed in a patrol car. The assisting officer stood nearby. According to Prebish, Amanda protested.
Although he did not yet reach any conclusions about the women's sobriety at that point, Prebish observed in his report that the three women did not appear intoxicated. He did not observe any other alcoholic beverages besides the two beers the men had.
In response to Prebish's questions, Gonzalez told him that none of the women had a driver's license. Prebish said he advised them repeatedly that they could not drive the vehicle, and asked Gonzalez if she could get a licensed driver to retrieve the vehicle. She made a cell phone call and advised Prebish that "she could get somebody to come get the car, " and "they were coming from Seaside and they would take it[.]" Gonzalez also retrieved the registration and insurance from the vehicle for Prebish, who confirmed they were valid.
Prebish gave the keys to Gonzalez. He testified he did not believe she was intoxicated. He did not notice "anything unusual about her gait or her walk that would lead [him] to conclude that she would have been drunk or intoxicated." He also did not notice "anything about her motor skills, " when she went to retrieve the registration and insurance documents from the car, "that would lead [him] to believe she was intoxicated or drunk." Neither did Prebish notice Gonzalez "slur[ring] her words, " nor did he remember Gonzalez's eyes being "blood shot." He did not perform any psychomotor testing, nor did he obtain any identification documents from Gonzalez. Prebish then left the scene with Celestino.
After Prebish left, Gonzalez drove away in the vehicle, with plaintiffs as passengers. At 7:20 a.m., shortly after entering Dover Township, traveling south on Hooper Avenue, Gonzalez lost control of the vehicle. She was believed to be traveling around sixty-six m.p.h. in a thirty-five m.p.h. zone. She collided with a utility pole, and was killed at the scene. An open bottle of beer was found between her legs. Plaintiffs suffered serious injuries. A postmortem toxicology exam revealed that Gonzalez had a blood alcohol level (BAC) of .092, and a brain alcohol reading of .107. Plaintiffs claim Gonzalez was visibly intoxicated when Prebish gave her the keys.
They rely on an expert report of Richard Saferstein, Ph.D., who opined that Gonzalez, then twenty years old, would likely have reached an "intoxicated state at lower blood alcohol concentrations when compared to adult drinkers." He opined that Gonzalez was not drinking in the vehicle, despite the location of the open, partly consumed bottle. He asserted that "[a]n unsteady gait, poor balance, slow and uncertain hand movements, and possible slurred speech are commonly the most obvious behavioral changes in intoxicated people experiencing the blood alcohol levels of Ms. Gonzale[z]." He asserted that "[a] trained and reasonably perceptive police officer would have been able to observe Ms. Gonzale[z]' visible state of intoxication."
On the other hand, defendants' expert, John Brick, Ph.D., stated, "It would be difficult, in the absence of specific testing, to reliably detect overt symptoms of alcohol intoxication until blood alcohol levels reached 150 mg/dl (.15%) or higher." Although a person's relative tolerance to alcohol may increase or decrease signs of visible intoxication, the majority of people will show one or more signs of visible intoxication at .15 BAC. "Below that level (i.e., <.15%) the probability of detecting signs of visible intoxication (e.g., psychomotor impairment, decreased inhibitions, cognitive impairment) without special tests is less than chance, not reliably observed and does not reach any standard of reasonable scientific probability or certainty." However, Brick stated in his deposition that the odor of alcoholic beverages begins to be detectable in more than half the population once BAC exceeds .08.
No eyewitnesses clearly supported Saferstein's opinion that Gonzalez was visibly intoxicated. Lozada testified that Gonzalez was talking and walking as ...