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Hottenstein v. City of Sea Isle City

United States District Court, D. New Jersey

October 11, 2013

CHARLES S. HOTTENSTEIN, Administrator for the Estate of Tracy Hottenstein; CHARLES S. HOTTENSTEIN; and ELIZABETH K. HOTTENSTEIN, Plaintiffs,
CITY OF SEA ISLE CITY; et al., Defendants

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THE WESTCOTT LAW FIRM, P.C., By: Lynanne B. Wescott, Esq., Philadelphia, Pennsylvania, Counsel for Plaintiffs.

POWELL, BIRCHMEIER & POWELL, P.C., By: James R. Birchmeier, Esq., Tuckahoe, New Jersey, Counsel for Defendants City of Sea Isle City, Harold Boyer, Thomas McQuillen, and Vincent Haugh.

LAW OFFICES OF JAY J. BLUMBERG, ESQ., By: Christopher M. Wolk, Esq., Woodbury, New Jersey, Counsel for Defendants Zaki Khebzou and Atlantic Emergency Associates.

MAYFIELD TURNER O'MARA & DONNELLY, P.C., By: Michael J. O'Mara, Esq., Robert J. Gillespie, Jr., Esq., Cherry Hill, New Jersey, Counsel for Defendants Sea Isle Ambulance Corps and Phyllis Linn.

FOX ROTHSCHILD, L.L.P., By: Peter Sarkos, Esq., Epiphany McGuigan, Esq., Atlantic City, New Jersey, Counsel for Defendants Atlanticare Regional Medical Center, Atlantic City Medical Center, Atlanticare MICU Medics at Base 3.


HONORABLE JOSEPH E. IRENAS, Senior United States District Judge.

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This wrongful death / survivorship suit arises out of the untimely and tragic death of Tracy Hottenstein.[1] Presently before the Court are three Motions for Summary

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Judgment pursuant to Federal Rule of Civil Procedure 56(a) filed by: (1) Defendants Sea Isle Ambulance Corps (SIAC) and Phyllis Linn; (2) Defendants City of Sea Isle City, Thomas McQuillen, Vincent Haugh, and Harold Boyer; and (3) Defendants Zaki Khebzou and Atlantic Emergency Associates (AEA). The Court notes that Defendants Atlanticare Regional Medical Center, Atlanticare MICU Medics at Base 3, and Atlantic City Medical Center have not moved for Summary Judgment at this time, but have moved to limit damages as to their liability, which was decided in an Order and Opinion dated October 3, 2013. (Dkt. nos. 135, 136.)


Sometime after 2:15 a.m. on February 15, 2009, in Sea Isle City, Tracy Hottenstein, who was intoxicated at the time, fell off a public dock into the ocean below.[2] As a result of some of the events that occurred after her disappearance, Tracy died.

Tracy was discovered less than six hours after her fall, at approximately 7:52 a.m., when Francis Haney placed a 911 call to report a body found on the Sea Isle City Marina boat launching ramp. (Pls.' Ex. 15; Pls.' Ex. 16 at 1.) At the instruction of the 911 dispatcher, Haney got " pretty close" to Tracy's body and ascertained that she was not breathing because he could not see her chest moving, but he did not check her pulse because he was unsure how to do so. (Pls.' Ex. 20 at 30-31; Pls.' Ex. 16 at 1-3.)

Over the course of the next thirty minutes, police and rescue personnel responded to the scene. Shortly after Haney's 911 call, Sea Isle City police officers arrived - Officer Thomas McQuillen was first to respond, and Officer Vincent Haugh and Sergeant Harold Boyer arrived fifteen to twenty seconds later. (Defs.' Sea Isle City Br. Ex. A at 53-54.) Upon his arrival at the scene, McQuillen immediately brought out his first aid materials to render aid to Tracy. (Defs.' Sea Isle City Ex. A at 68.) McQuillen first attempted to locate a pulse at her carotid artery but failed to find one. ( Id. at 72-73.) Next, he looked at Tracy's chest and observed that it was not rising and falling. ( Id. ) In McQuillen's recollection, Boyer then attempted to locate Tracy's pulse, also at her carotid artery, but failed to find it as well. ( Id.; Pls.' Ex. 2.) At his deposition, Haugh also reported that he checked for Tracy's pulse, and like his fellow officers, failed to find her pulse and recorded that fact in his report. (Defs.' Sea Isle City Ex. E at 30:10-16; Pls.' Ex. 4.) All three officers also recorded that Tracy's body was a pale, grayish color and was obviously cold. ( See Pls.' Ex. 2-4.)

With these observations in hand, McQuillen and Boyer consulted with one another and concluded that Tracy was deceased.[3] (Defs.' Sea Isle City Ex. A at 77)

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After making this determination, McQuillen, Boyer, and Haugh closed off the area around Tracy's body for preservation, treating it as a crime scene. ( Id. at 106.)

Shortly after the scene around Tracy was cordoned off, Phyllis Linn, Assistant Chief of the Sea Isle Ambulance Corps, arrived in her personal vehicle, even before an SIAC ambulance arrived. (Pls.' Ex. 1 at 39; Defs.' Sea Isle Ambulance Corps Ex. D at 8.) However, because the area around Tracy was treated as a crime scene, neither Linn nor SIAC personnel were permitted to treat Tracy or approach her body. (Defs.' SIAC Br. at 5.) Linn was prohibited from getting any closer than fifteen to twenty feet from Tracy because of the yellow tape that the officers strung to preserve the scene. (Pls.' Ex. 1 at 41; Defs.' SIAC Ex. D at 8.) For the same reason, other members of the SIAC who arrived with the ambulance also failed to physically examine Tracy because they also could not cross the yellow tape; the SIAC report indicates that SIAC personnel were twenty feet away, and " EMS did not come in contact with the PT [patient]." (Pls.' Ex. 12 at 1.) In spite of the distance, the SIAC report recorded that Tracy's body showed lividity. ( Id. ). From her vantage point at the perimeter, Linn also observed lividity, which she confirmed in a conversation with Boyer, leading her to the conclusion that Tracy was deceased. (Pls.' Ex. 1 at 41, 45.)

Shortly after the arrival of the SIAC ambulance and personnel, paramedics also arrived at the scene. (Defs.' SIAC Ex. D at 9.) Like all the others at the scene, paramedics Michael Senisch and Frank Rocco were not permitted to come into physical contact with Tracy. (Defs.' Khebzou Ex. F at 78-81.) Senisch was, however, permitted to approach Tracy's body more closely, coming within six feet of her, according to his recollection. (Pls.' Ex. 17 at 46:10-11.) As described at his deposition, Senisch was called to the scene for a " pronouncement," which was reiterated to Senisch when he arrived at the scene, where Boyer informed him that Tracy was " pulseless and apneic," and " that [the paramedics] were called there for a pronouncement." ( Id. at 44-45.) At 8:21 a.m., nine minutes after the paramedics' arrival at the scene, Senisch called Dr. Zaki Khebzou for the official death pronouncement. (Defs.' Khebzou Ex. E-F) Following Senisch's description of Tracy's condition, Dr. Khebzou pronounced Tracy deceased by telephone at 8:22 a.m. (Pls.' Ex. 5.) It is unclear precisely when Tracy's body was finally removed from the scene on February 15.

In spite of this declaration of death, Tracy may not have been deceased at 8:22 a.m. Two experts, upon review of the facts and circumstances of the case, concluded that severe hypothermia may manifest symptoms that look akin to death. (Pls.' Ex. 7 at 11; Pls.' Ex. 6 at 10.) Moreover, the Plaintiffs point to inconsistencies between observations recorded in police reports (which omit statements regarding lividity, for example), as compared with the recollection of police officers, to suggest that Tracy's condition was not properly diagnosed. Regardless, there is no dispute that even prior to Dr. Khebzou's pronouncement, Tracy's body was cordoned off while the police investigated the scene and surroundings.

Defendants presently move for summary judgment on the claims remaining against them, including those asserted under state

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law theories of negligence and both federal and New Jersey state law civil rights claims.


" The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In deciding a motion for summary judgment, the court must construe all facts and inferences in the light most favorable to the nonmoving party. See Boyle v. Allegheny Pennsylvania,139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material only if it will affect the outcome of a lawsuit under the applicable law, and a dispute of a material fact is genuine if the evidence is ...

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