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Capizzi v. Berkeley Township

Superior Court of New Jersey, Appellate Division

December 9, 2013

DENISE CAPIZZI, Plaintiff-Appellant,
v.
BERKELEY TOWNSHIP, THE BERKELEY TOWNSHIP POLICE DEPARTMENT, JOHN WEINLEIN, Individually and as Chief of Police of the Berkeley Township Police Department, TIMOTHY MCNICHOLS, Individually and as a member of the Berkeley Township Police Department, Defendants-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 14, 2013

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2573-09.

Robyn B. Gigl argued the cause for appellant (Stein, McGuire, Pantages & Gigl, attorneys; Ms. Gigl, of counsel and on the brief).

Eric M. Bernstein argued the cause for respondents Township of Berkeley, Berkeley Township Police Department, and John Weinlein (Eric M. Bernstein & Associates, LLC, attorneys; Mr. Bernstein, of counsel and on the brief; Philip G. George, on the brief).

Lori A. Dvorak argued the cause for respondent Timothy McNichols (Dvorak & Associates, LLC, attorneys; Ms. Dvorak, of counsel; Amanda E. Miller, on the brief).

Before Judges Fuentes, Simonelli and Fasciale.

PER CURIAM

Plaintiff appeals from a December 4, 2012 order granting summary judgment and dismissing her amended complaint against defendants Berkeley Township ("Township"), The Berkeley Township Police Department ("Police Department"), John Weinlein individually and as Chief of Police, and Timothy McNichols individually and as a member of the Police Department (collectively "defendants"). [1] We affirm substantially for the reasons expressed by Judge Mark A. Troncone in his thorough written opinion.

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013); Tymczyszyn v. Columbus Gardens, 422 N.J.Super. 253, 261 (App. Div. 2011), certif. denied, 209 N.J. 98 (2012). Thus, we consider, as the trial judge did, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). Against this standard, we discern the following facts from the record.

In February 2002, the Township hired plaintiff as a civilian police dispatcher. In November 2003, plaintiff began a romantic relationship with the then married McNichols, who impregnated her and insisted that she terminate the pregnancy. On March 8, 2004, McNichols took plaintiff to the Pleasant Woman's Pavilion clinic (the "clinic"), where she reluctantly received an injection of Methotrexate in order to terminate the pregnancy. Plaintiff immediately attempted on her own, however, to counteract that drug by taking large quantities of folic acid and by consulting her obstetrician/gynecologist, Dr. Robert J. Montemurro. Plaintiff certified that on March 18, 2004, Dr. Montemurro advised her that although there was a viable heart rate, she could still lose the fetus. Dr. Montemurro referred plaintiff to a medical specialist.

On March 30, 2004, plaintiff slipped and fell at work. The next day, she went to the emergency room and learned that she had a miscarriage. The hospital records do not reflect that plaintiff attempted to terminate the pregnancy before her fall. Upon release from the hospital, plaintiff had a medical evaluation at Ocean Bay Occupational Medical Center ("Ocean Bay"), a facility that provided medical treatment for Township employees for job-related injuries.

In April 2004, plaintiff ended her relationship with McNichols. Because she believed that the Township was protecting McNichols from discipline for his relationship with her, in "late April/early May 2004, " she reported to an investigator at the Ocean County Prosecutor's Office that McNichols would "come to [her] house while he was on duty." Plaintiff did not tell the investigator that she had attempted to end the pregnancy. After speaking to Weinlein about plaintiff's report, the investigator told plaintiff to "just relax and go back to work."

On May 18, 2004, plaintiff filed a workers' compensation claim petition indicating that she suffered a miscarriage related to the workplace slip and fall accident. She did not mention in the claim petition that she had attempted an abortion on March 8, 2004. The record does not indicate that plaintiff informed the workers' compensation claims adjuster that ...


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