finding that “when the subjective elements of willfulness, intent or good faith” are at issue, a conclusion that there is “no genuine issue of material fact will ordinarily be very difficult to sustain”
How later courts described this case
- finding that “when the subjective elements of willfulness, intent or good faith” are at issue, a conclusion that there is “no genuine issue of material fact will ordinarily be very difficult to sustain”
- finding allegations sufficient for liability and precluding immunities
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ESTATE OF SAULO DEL ROSARIO, et ai.,
Plaintiffs,
v. 14-cv-5167
PATERSON POLICE DEPARTMENT, ef al, OPINION
Defendants.
WILLIAM J. MARTINI, U.S.D.J.:
This matter arises out of the officer-involved death of Saulo Del Rosario in September
2012. The matter comes before the Court on Plaintiffs’! response, ECF No. 143 (“Response”),
to the Court’s Order to Show Cause, ECF No. 142. For the reasons set forth below, summary
judgment is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
The relevant facts were set forth in this Court’s January 23, 2020 Opinion (“January
Opinion”), familiarity with which is assumed. ECF No. 141. The that Opinion, the Court
required Plaintiffs to show “cause why summary judgment should not be entered . . . on (1) the
Estate’s state-law claims for failure to substantially comply with the [New Jersey Tort Claims
Act (‘TCA’)]’s notice requirements and (2) the Individual Plaintiffs’ state-law claims for failure
to meet the TCA’s claim threshold.” Jan. Op. at 12 (citations removed); Order, ECF No. 142.
Plaintiffs filed their Response and Defendant City of Paterson (“City”) filed an opposition, ECF
No. 144 (“Opposition”).?
II. TCA NOTICE REQUIREMENTS
To satisfy the TCA, plaintiffs must file a timely notice of claim. Jan. Op. at 10. However,
technical non-compliance is not fatal where plaintiffs show “substantially compliance.”
' Plaintiffs include Carmen and Yunior Gonzalez, as executors of the decedent Saulo Del Rosario’s estate
(“Estate”), with live claims under Section 1983 (Counts 1, 2, and 5), negligence (Count 4), wrongful
death (Count 6), survivorship (Count 7), and tortious conduct of an employee (Count 10). The remaining
Plaintiffs—Javier, Honey, Leidy, Steven (aka Styven), Elvio, Yaniris, Diosmendy, Martha (aka Marta),
Emely, Miguel, and Misael Del Rosario (“Individual Plaintiffs”}—have live claims under negligence
(Count 4), intentional infliction of emotional distress (“ITED”) (Count 8), and tortious conduct of an
employee (Count 10) theories. Javier, Honey, and Leidy have live Section 1983 claims (Counts 1, 2,
and 5) as well.
In addition to the City, the remaining defendants are Officers Kush, Petrazzoulo, Sandoval, Challice,
and Ciarla (“Individual Defendants”). Remaining claims against the Individual Defendants include
Section 1983 (Counts |, 2, and 5), negligence (Count 4), wrongful death (Count 6), survivorship (Count
7), and ITED (Count 8). While the City insists only Officer Kush remains, the other Individual
Defendants never moved for summary judgment on claims which survived the pleadings stage.
A. Lack of Notice Explicitly on Behalf of Saulo or the Estate
The City argues the Court need not address substantial compliance, as the doctrine cannot
save a plaintiff that failed to file any written notice. Opp. at 2-5. In support, the City cites
Alberts v. Gaeckler, in which the court found the plaintiffs husband could not piggy back on
her notice, when such notice did not mention potential bystander liability. 446 N.J. Super. 551,
557 (Law Div. 2014). This case is materially distinct, in that the later-named executors filed
notices which included that “Saulo Del Rosario was shot and killed by Paterson Police Officers”
and Paterson “caused [the] wrongful death of decedent.” Murphy Ex. 41 at 20-25, 38-43, ECF
No. 127-29 (“Executor Notices”). Unlike in Alberts, Plaintiffs’ submissions provided some
notice of claims for Saulo’s “wrongful death,” and derivative claims are commonplace. Id.
Accordingly, the Court will address whether Plaintiffs of substantially complied with the TCA.
B. Substantial Compliance
The party invoking the substantial compliance doctrine must show (1) lack of prejudice
to the defendant; (2) a series of steps taken to comply with the statute; (3) general compliance
with the purpose of the statue; (4) reasonable notice of the claim; and (5) a reasonable
explanation why there was not strict compliance with the statute. Lebron v. Sanchez, 407 N.J.
Super. 204, 215 (App. Div. 2009). The Parties focus on element 1—prejudice. Plaintiffs argue
the notices filed adequately alerted the City of the potential suit. Response at 5. The City
responds that by failing to file on Saulo’s behalf;it was deprived of (1) “the opportunity to assess
its potential liability” for the Estate’s claims, (2) the ability consider settlement thereof, and
(3) “advanced notice of the potential indebtedness or liability.” Opp at 6-7.
Quite simply, it strains credulity that the City would not expect to face wrongful death
(and derivative) claims when it received the Executor Notices describing the “wrongful death”
of Saulo. Further, the Passaic County Prosecutor’s Office (“PCPO”) was investigating. The
City acknowledges that it could not conduct its own investigation until “PCPO remanded the
matter back to the City,” regardless of any notices. Opp. at 6-7. Further, this suit has been
pending since 2014. The City has not been prejudiced in its ability to assess the claims.
Most importantly, the Executor Notices generally comply with the TCA’s purposes
(element 3), which are to: (1) allow six months for administrative review and the opportunity to
settle claims prior to suit; (2) provide prompt notification so claims can be adequately
investigated; (3) provide a chance to correct conditions giving rise to the claims; and (4) give
advance notice as to potential indebtedness or liability. Response at 4; Opp. at 5-6. The Executor
Notices reasonably alerted the City to the potential liabilities from Saulo’s alleged wrongful
death. The City had an adequate opportunity to review, investigate, and discuss settlement with
Plaintiffs’ counsel before suit was filed, or had no worse opportunity given the PCPO
investigation. And the ability to take corrective action was unaffected.
The remaining elements of substantial compliance are also satisfied. Plaintiffs
expeditiously hired counsel (element 2), who filed the notices at a time when the executors had
not been appointed (element 5). Response at 6. The notices provided the general outline of the
liability-creating event and mentioned Saulo’s “wrongful death,” as did the cover page (element
4). Id. Accordingly, the Court finds that the Estate substantially complied with the TCA’s notice
provisions, and summary judgment for failure to do so is DENIED.
Hil. TCA CLAIM THRESHOLD
A. Negligence (Counts 4 and 10, in part)
The Court ordered the Individual Plaintiffs to show cause why judgment should not be
entered against them on their state-law claims for failure to meet the TCA’s claim threshold.
Jan. Op. at 12. In response, “[P]laintiffs do not oppose the motion [sic] as to the state tort law
negligence claims. [They] acknowledge that they are subject to [the TCA claim requirements].”
Response at 9. Accordingly, summary judgment is GRANTED in favor of all Defendants on
the Individual Plaintiffs’ remaining state-law claims (Counts 4 and associated liability in count
10), with the exception of ITED (Count 8 and 10, in part).
B. ITED (Counts 4 and 10, in part)
As to the ITED claim (Count 8), only the Individual Plaintiffs’ claims against the
Individual Defendants remain active. Plaintiffs do not assert that they meet the claim threshold
requirements of N.J.S. § 59:9-2(d). Instead, they assert Section 59:9-2 of the TCA does not
apply to ITED claims. Plaintiffs point out that public employees lose TCA protection when “their
conduct constitutes willful misconduct, intentional conduct, or malice.” Response at 9 (citing
Leang v. Jersey City Board of Education, 198 N.J. 557, 584 (2009); see also N.J.S. § 59:3-14
(“Nothing in this act shall exonerate a public employee from liability if it is established that his
conduct... constituted a crime, actual fraud, actual malice or willful misconduct.”). Plaintiffs
essentially argue that because ITED claims require “intentional and outrage conduct,” Section
59:3-14 will necessarily strip away the TCA’s protections if liability would otherwise attach.
Response at 10; see also Leang, 198 N.J. at 587 (finding allegations sufficient for liability and
precluding immunities). In response, the City argues the claim threshold requirements in Section
59:9-2 do apply to IIED claims, citing a series of cases applying it. Opp. at 12-14.
Both Parties are partially correct. Sufficient evidence for an ITED claim would preclude
protection under the TCA. See N.J.S. § 59:3-14. Likewise, if conduct does not fit into one of
the categories in Section 59:3-13, the TCA’s claim thresholds would block ITED liability. Here,
the Court is not presented with any conduct by the Individual Defendants—besides Officer
Kush—that could satisfy either the elements of an ITED claim or preclude TCA protections via
Section 59:3-14. As no reasonable jury could rule against them, Plaintiffs have failed to show
cause why summary judgment should not be entered for their “failure to meet the TCA’s claim
threshold” as to all Individual Defendants, besides Officer Kush. Jan. Op. at 12.3
As to Defendant Kush, in the January Opinion, the Court declined to apply qualified
immunity because it could not “rule on the reasonableness of the force” at the summary judgment
stage, given remaining issues of fact. /d. at 6. Similar considerations militate against a finding—
before trial—that Officer Kush did not act with “actual malice” or that his alleged misconduct
was not “willful.” See N.J.S. § 59:3-14; see also Reading Tube Corp. v. Employers Ins. of
Wausau, 944 F. Supp. 398, 403 (E.D. Pa. 1996) (determining bad faith required “factual
3 Given the lack of evidence of misconduct, if Plaintiffs do not SHOW CAUSE why summary judgment
should not be entered for the Individual Defendants (besides Kush) on all remaining claims (Counts 1,
2, 4, 5, 6, and 7), the Court WILL enter judgment. See FRCP 56(f)(1)-(2). Plaintiffs should not attempt
to relitigate already-settled issues (e.g., the reasonableness of entering Saulo’s bedroom).
determinations by the jury of the state of mind of the defendant”); Liberty Surplus Ins. Corp. v.
Nowell Amoroso, P.A., 189 N.J. 436, 447 (2007) (finding that “when the subjective elements of
willfulness, intent or good faith” are at issue, a conclusion that there is “no genuine issue of
material fact will ordinarily be very difficult to sustain”). Accordingly, summary judgment is
DENIED as to Officer Kush, but GRANTED as to the other Individual Defendants.
IV. CONCLUSION
For the reasons set forth above, summary judgment is DENIED with respect to the
Estate’s failure to comply with the TCA’s notice provisions. Summary judgment is GRANTED
for the Individual Defendants on the Individual Plaintiffs’ state law claims (Counts 4, 8, 10),
except as to Officer Kush, for whom that judgment is DENIED with respect to the IED claim
(Count 8). For clarity, the following claims remain:
Counts 1, 2, 5: Section 1983 claims by the Estate, Javier, Leidy, and Honey against the
Individual Defendants.
Count 4: Negligence claims by the Estate only, against all remaining Defendants.
e Count 6: Wrongful death by the Estate against all remaining Defendants.
¢ Count 7: Survivorship by the Estate against the all remaining Defendants.
e Count 8: IIED by the Individual Plaintiffs against Officer Kush only.
e Count 10: Tortious conduct of an employee against the City only.
Summary judgment will be granted on all remaining claims against the Individual Defendants
besides Officer Kush (Counts 1, 2, 4, 5, 6, and 7) unless Plaintiff provides sufficient reason
otherwise. See supra nn.2-3.
Date: April 7, 2020 WILLIAMY. MARTINI, U.S.D.J.