NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
KAREN MAFFUCCI and DAVID MAFFUCCI,
Plaintiffs-Appellants,
v.
THE STATE OF NEW JERSEY, DEPARTMENT OF CORRECTIONS, DEPARTMENT OF HUMAN SERVICES, DEPARTMENT OF MENTAL HEALTH SERVICES AND INTENSIVE TREATMENT CENTER OF THE LINCOLN COMPLEX OF THE TRENTON PSYCHIATRIC HOSPITAL OF
NEW JERSEY; and DAVID ELIASON and IFEYINWA EZEUKWU,
Defendants-Respondents. ______________________________________________________
Submitted February 22, 2011 - Decided April 7, 2011
Before Judges Kestin and Newman.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-935-08.
Advokat & Rosenberg, attorneys for appellants (Jeffrey M. Advokat, on the brief).
Paula T. Dow, Attorney General, attorney for respondents State of New Jersey, David Eliason and Ifeyinwa Ezeukwu (Robert Lougy,
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4369-09T3
Assistant Attorney General, of counsel; Gregory A. Spellmeyer, Deputy Attorney General, on the brief).
PER CURIAM Plaintiffs, Karen Maffucci and David Maffucci, appeal from
an order granting defendants' motion for summary judgment. On the entry of the order, the complaint was dismissed. We affirm.
The complaint alleges eleven causes of action, all arising from the escape of Edgar Del Cid-Perez from the Trenton State Psychiatric Hospital and the effects of that occurrence on the plaintiffs because of their prior encounter with him. The escape occurred on August 7, 2006, and Del Cid-Perez was apprehended in Irvington either the following day or the day after that.1
Del Cid-Perez had been in custody on criminal charges arising from the abduction of plaintiff Karen Maffucci from her home on November 30, 2005.2 He had been transported from the
1
There may be a difference between the parties regarding the date of Del Cid-Perez's apprehension following his escape. Plaintiffs alleged in the complaint that the capture occurred on August 9, 2006, two days after the escape. Defendants assert in their brief on appeal that the re-arrest occurred a day earlier, on August 8, 2006, the day following the escape. For the purposes of this motion for summary judgment, such factual difference is of no consequence given the issues of immunity and State amenability to suit that inform the matter.
2 According to the complaint, the inmate ultimately, on February 16, 2007, pled guilty to an indictment charging him with two (continued)
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Somerset County Jail to the State psychiatric facility for an in-depth medical evaluation to determine his competency to stand trial.
We take the details of plaintiffs' prior encounter with Del Cid-Perez as they were set out in the complaint. Shortly after her husband left their residence in the morning, Karen Maffucci was taken by Del Cid-Perez, armed with a handgun and a knife, from her Bernardsville home, in her own automobile, to a storage shed in a horse stable, and bound with duct tape. After several hours, she escaped and flagged down a passerby. At about 12:25 p.m., the police responded to a call for assistance. While plaintiffs were at police headquarters, shortly after 2:00 p.m., Mr. Maffucci received a call on his cell phone from his wife's stolen cell phone. The caller threatened to kill Ms. Maffucci if his demand for a ransom of one million dollars was not satisfied. Del Cid-Perez was apprehended by the police later that day, in the evening, leading to his incarceration, his eventual presence at the State psychiatric facility, and his escape from custody there.
(continued) counts of first-degree kidnapping; two counts of weapons possession, second-degree and third-degree; and one count of second-degree burglary. He was sentenced to a term of imprisonment for twenty years with parole ineligibility for seventeen years.
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Plaintiffs alleged in the complaint that they were traumatized by the news that Del Cid-Perez was at liberty. They
feared for their safety. They felt in 'shock'. David Maffucci sat in his truck on the family's driveway and said he would not leave his home. . . . [A]t this time the plaintiffs have the fear that security will never be sufficient, since the system has already failed them, in that, Del Cid-Perez has already escaped once.
They assert in their brief on appeal that, "[a]s to Karen Maffucci herself, . . . the knowledge and fear of an actual escape has had, and will have, lasting, direct injurious
effects. injuries The rejected
. . . [S]he has experienced psychiatric/physical as a direct result of the escape . . . ."
trial court, on the motion for summary judgment,
plaintiffs efforts to characterize their claim as inherently different from other tort claims that have been barred by the doctrine of sovereign immunity and the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to :12-3. See N.J.S.A. 59:1-2; Marcinczyk v. State of N.J. Police Training Comm'n, 203 N.J. 586, 594-95 (2010); Polzo v. County of Essex, 196 N.J. 569 (2008); Vincitore v. Sports & Exposition Auth., 169 N.J. 119 (2001).
The judge delivered an oral opinion in which he held that "the facts of this case fall within the immunity provisions of" N.J.S.A. 59:5-2b. He disagreed with plaintiffs that a
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distinguishing element was to be found because of "the injury being caused by somebody other than the escapee." He opined:
The judge
The embodied
It was the act of escaping and his not being confined that led to the alleged injury [of plaintiffs]. I think whenever there's an escape there's an assumption or there could be an argument that there is always negligence by the State or whatever law enforcement is in charge of keeping the inmate confined. So I feel like it clearly falls within the statute.
continued:
And then given the strong language in Tice[v. Cramer, 133 N.J. 347 (1993),] I also feel constrained . . . that essentially what Tice is saying is that the statute is very, very broad and they say it would plainly violate the legislative intent if particular words of the statute were given such technical meanings that a case fell between the cracks of the immunity. . . . [T]he negligence counts would fall within my previous rationale or whether it's a failure to pro[t]ect that would fall within immunity under [N.J.S.A.] 59:5-4. The [§]1983 [Fourteenth] Amendment claims . . . also fail because I ha[ve]n't seen a constitutional statutory right that was violated. In any event[,] it's clear that this is a straight negligence claim.
judge also disallowed a breach of contract claim
in the complaint, a ruling in respect of which plaintiffs make no argument on appeal. See Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2011) (issues not argued on appeal are deemed abandoned).
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We, too, reject plaintiffs' creative effort to place the facts of this case in a special category among those in which courts have not applied the concept of immunity, by characterizing this matter as different in kind – "unique" – and propounding an approach that suggests allowing recovery would have a very limited application. Plaintiffs argue:
First, the plaintiff Karen Maffucci was horribly victimized by the escapee before he was initially incarcerated. Second, the defendant Trenton State Hospital engaged in clearly negligent actions and inactions which directly led to the escapee's unauthorized escape. Third, after the escapee left the Hospital he did not directly engage in any additional act that directly caused injury to Karen Maffucci. (For instance, no "super[s]eding, intervening" act such as an escaping auto accident, that would remove liability from the State.)
As to Karen Maffucci only, as opposed to the general public at large, the negligence of allowing the escape itself is the cause for liability. As to Karen Maffucci herself, the only pre-escape victim, the knowledge and fear of an actual escape has had, and will have, lasting, direct injurious effects.
This litigation is based upon the negligence of the State and not any subsequent act of the escapee. Unlike all other cases, this case is not one where the escapee causes injury himself, after his escape, against the plaintiff. Just the negligence of the State itself (i.e., causing the escape to happen) has caused the damages to the plaintiff. For the rest of her life, Karen Maffucci must live with the
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arguments
on appeal: POINT I
THE STATE DEFENDANTS ARE NOT ENTITLED TO ABSOLUTE IMMUNITY UNDER THE [TCA].
POINT II
PLAINTIFFS' CLAIMS ARE NOT BARRED BY THE [TCA]'S POLICE PROTECTION IMMUNITY.
POINT III
DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT BASED ON PLAINTIFFS' CLAIM FOR EMOTIONAL INJURY UNDER THE [TCA].
POINT IV
PLAINTIFFS' CONSTITUTIONAL CLAIMS ARE NOT BARRED IN THIS CASE BASED UPON THE FACTS INVOLVED.
POINT V
THE DEFENDANTS IN THIS CASE INCLUDE THOSE AGAINST WHOM FEDERAL CLAIMS CAN BE MADE.
thought that Del Cid-Perez may escape, since we know he has already done so. This could only happen to Ms. Maffucci since she was personally victimized by the escapee before his arrest; she has experienced psychiatric/physical injuries as a direct result of the escape; and the escapee has done no further act after his escape that led to further injuries. It has just been the negligence of the State itself.
With this as qualifying background, plaintiffs advance five
Reflecting upon the record in the light of the arguments advanced by the parties, and applying the same summary judgment
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standards as the trial court, see Liberty Surplus Ins. Co. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995), we conclude that defendants – the State and its employees – were entitled to immunity under the provisions of N.J.S.A. 59:5-2b, which provides immunity from liability for any injury caused by an escape or escaping person, and N.J.S.A. 59:6-7a, which provides immunity for "an injury caused by an escaping or escaped person who has been confined for mental illness . . . ." Both eventualities are governed by the principle that liability theories yield to the concept of immunity and common law defenses. See Manna v. State, 129 N.J. 341, 347 (1992); Weiss v. New Jersey Transit, 128 N.J. 376, 381-82 (1992). The absence of any direct contact by the escaped person after the escape does not furnish a basis for holding otherwise. And, to the extent plaintiffs contend they were not properly protected from the escape and its consequences, the N.J.S.A. 59:5-4 immunity for police protection services also applies to insulate defendants from liability. Construing an exception for negligent performance of duties, as plaintiffs argue we should, especially in this case involving allegations of emotional injury, see Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324,
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332 (2003), would abrogate the legislative policies embodied in various immunity provisions.
With regard to any federal constitutional claims under 42 U.S.C.A. § 1983, the State or agents acting for the state are not "persons" under that section, subject to liability. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45, 58 (1989); Fuchilla v. Layman, 109 N.J. 319, 325, cert. denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988). See also Rizzo v. Goode, 423 U.S. 362, 370-71, 96 S. Ct. 598, 604, 46 L. Ed. 2d 561, 570-71 (1976) (barring § 1983 claims on the theory of respondeat superior). The federal Constitution reposes no affirmative duty on the State to protect its citizens from harm by another citizen. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 768-69, 125 S. Ct. 2796, 2810, 162 L. Ed. 2d 658, 676-77 (2005); DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189, 195- 202, 109 S. Ct. 998, 1002-07, 103 L. Ed. 2d 249, 258-64 (1989).
The order of the Law Division granting defendants' motion for summary judgment is affirmed.
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