The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5602-14T3
BRANDON CAMACHO,
by his Guardian Ad
Litem, BEN CAMACHO,
and BEN CAMACHO,
individually,
Plaintiffs-Appellants,
v.
RIAZ MOTANI, JOSEPH
MARKULIC and HOWELL
TOWNSHIP,
Defendants-Respondents.
___________________________________
Argued January 18, 2017 – Decided September 25, 2017
Before Judges Espinosa, Suter and Guadagno.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County, Docket
No. L-5544—11.
Matthew G. Bonanno argued the cause for
appellants (Rebenack, Aronow & Mascolo, LLP,
attorneys; Mr. Bonanno, on the briefs).
Jared J. Monaco argued the cause for
respondents (Gilmore & Monahan, PA, attorneys;
Mr. Monaco, on the brief).
PER CURIAM
Plaintiff Brandon Camacho,1 a seventeen-year-old pedestrian,
was struck by an automobile driven by R.W. and seriously injured.
Defendant Riaz Motani, an officer with the Howell Township Police
Department (HTPD), issued a summons to Brandon for jaywalking,
N.J.S.A. 39:4-34, that was subsequently dismissed before trial.
Plaintiffs then filed the instant action against defendants
Motani; his supervisor, Joseph Markulic; and Howell Township,
alleging various causes of action including malicious prosecution,
malicious use of process, supervisor liability (against Markulic)
and a violation of the New Jersey Civil Rights Act (CRA), N.J.S.A.
10:6-1 to -2.2 He appeals from the dismissal of his complaint.
For the following reasons, we affirm.
I.
In determining whether a summary judgment motion was properly
granted, we review the evidence, drawing "all legitimate
inferences from the facts in favor of the non-moving party." Globe
1
This action was brought by Brandon Camacho's guardian ad litem,
Ben Camacho, on behalf of Brandon and on his own behalf
(collectively, plaintiffs). To avoid confusion when referring to
them individually, we refer to them by their first names and intend
no disrespect.
2
The complaint also alleged claims of negligence, invasion of
privacy, a violation of 42 U.S.C.A. § 1983 and a demand for
punitive damages. Counsel confirmed at oral argument that these
claims have been abandoned.
2 A-5602-14T3
Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016) (citing R. 4:46-
2(c)).
At approximately 6:19 p.m. on January 20, 2010, R.W. was
driving in Howell Township on Newtons Corner Road when he struck
Brandon. The section of the road where the accident occurred was
unlit, extremely dark and did not have a crosswalk.
At his deposition, R.W. stated he "was heading south on
Newtons Corner Road," on his way home. Newtons Corner Road is a
one-lane road and he was completely within the southbound lane.
He "never saw Brandon. . . . There was the impact and [he] hit
the brakes." He first saw Brandon as he came across the hood of
his car, from the passenger side of the front hood up to the
windshield. He pulled his car to the side of the road and got out
of the car. He saw Brandon lying in the street. R.W. stated
Brandon was dressed all in black – jacket, jeans, sneakers and a
baseball cap. Trying to provide a reason why he did not see
Brandon before the accident, R.W. stated how dark it was there and
referred to the fact Brandon's clothing was so dark.
Motani was the second officer to arrive at the crash scene.
Because he was senior to the other officer, he took control of the
investigation. Motani interviewed R.W., who reported that "an
image just appeared in front of his car." He repeatedly stated,
"this kid came out of nowhere," "he never saw him while he was
3 A-5602-14T3
driving down Newto[ns] Corner Road, and after hitting him, R.W.
"immediately stopped his vehicle where it was located." At
Motani's request, R.W. agreed to be transported to a hospital for
a medical evaluation and toxicology screening.
The Monmouth County Serious Collision Analysis Response Team
(SCART) arrived at the scene at approximately 8:00 p.m. SCART's
report states:
The following team members responded:
Sergeants Todd Gregory and John Green, Ocean
Township PD; and Patrolman John T. Fay,
Eatontown PD.
Patrolman Fay handled the administrative
responsibilities and photographed the crash
scene, while Sergeants Gregory and Green
measured the crash scene using the LTI Impulse
200 laser. Sergeant Green will complete the
scene diagram, which will be used by Howell
Police in their investigation.
One of the diagrams prepared by SCART depicts the impact
point in the southbound travel lane. The diagrams also depict a
white sock and a black sneaker in the southbound lane's shoulder,
approximately thirty-five to forty-two feet from Brandon's post-
impact position. A second black sneaker was located in the
northbound lane, approximately ten feet north of Brandon's post-
impact position.
4 A-5602-14T3
Based upon the information he had gathered at the time, Motani
told SCART he believed Brandon was "[c]rossing the northbound lane
to the southbound lane when he was struck . . . ."
R.W. was released from Jersey Shore Medical Center later that
evening and reported to the Howell Township Police Department,
where Motani interviewed him again. In his videotaped statement,
R.W. repeatedly stated he did not see Brandon prior to the impact.
At one point, Motani asked, "Can you definitively tell me what
direction the pedestrian was walking from? Was he walking from
the right or from the left?" R.W. replied he assumed Brandon was
"running" across the street from the left to the right. In his
report following this interview, Motani stated,
At impact Mr. R.W. remembers seeing a dark
object (possibly a jacket with fur) roll up
over the windshield, as all the glass
shattered. The guy that got hit just rolled
up, over the car, and onto the street he
believes. He stated it appeared that the guy
must've been walking from his left to right.
Motani reviewed video footage of the collision taken from a
security camera at the nearby Sovereign Bank and noted the
following at 18:18:29-30: "Pedestrian image was slightly distorted
due to the distance from the surveillance camera and the fact that
the immediate area of the crash was not illuminated. Pedestrian
appears to be approximately 2 ft east of the solid white fog line,
in the [southbound] lane of Newtons Corner Road . . . ."
5 A-5602-14T3
At his deposition, Motani conceded the only thing he saw on
the video that supported his conclusion that Brandon was crossing
the street was a frame on the fourth disc of the surveillance
video labeled at 18:18:29-30. The photograph taken of this frame
is dark and, viewing the evidence favorably to plaintiffs, Brandon
is not visible.
The hospital treating Brandon reported to Motani that Brandon
had sustained serious injuries to the right side of his body:
broken right humerus, broken right tibula and fibula injuries,
right side broken collarbone, possible broken right hip, swelling
and laceration over right eye, and head lacerations on right side.
Motani used this information to establish the direction Brandon
had been facing but acknowledged it did not establish whether
Brandon was moving in the moments before impact.
On February 11, 2010, Motani called Ben at his house to obtain
a medical update on Brandon. He said Ben was "extremely arrogant
and belligerent" and terminated the call after advising Motani "to
contact his attorney." Motani testified he had explained to Ben
that he believed Brandon had been crossing the roadway outside a
crosswalk when he was struck.
6 A-5602-14T3
On February 12, 2010, Motani concluded his investigation and
issued Brandon a summons for violating N.J.S.A. 39:4-34.3 He
described the "stepping stones" toward formulating his opinion as
to who was at fault: eyewitness statements, the "specific
measurements from the SCART team" to make "the best estimation of
where the pedestrian was in the roadway at the time of the crash,"
efforts to speak to persons Brandon was with prior to the accident
and the bank surveillance video, in which he saw "certain images
of the depiction of the crash." He said he made the determination
to issue the summons after speaking to the prosecutor's office.
Although he believed N.J.S.A. 39:4-34 fit the circumstances, after
discussing the matter with the prosecutor's office, Motani
compared that statute with N.J.S.A. 39:4-36(a)(2), which provides,
"No pedestrian shall leave a curb or other place of safety and
walk or run into the path of a vehicle which is so close that it
3
N.J.S.A. 39:4-34 provides:
Where traffic is not controlled and directed
either by a police officer or a traffic
control signal, pedestrians shall cross the
roadway within a crosswalk or, in the absence
of a crosswalk, and where not otherwise
prohibited, at right angles to the
roadway. . . . On all highways where there
are no sidewalks or paths provided for
pedestrian use, pedestrians shall, when
practicable, walk only on the extreme left
side of the roadway or its shoulder facing
approaching traffic.
7 A-5602-14T3
is impossible for the driver to yield or stop." He determined the
latter violation was more appropriate. The charge was amended to
a violation of N.J.S.A. 39:4-36(a)(2), and subsequently dismissed.
Defendant Sergeant Joseph Markulic of the HTPD played only a
supervisory role in the investigation. He reviews reports from
the officers he supervises to ensure they are complete and accurate
and that probable cause has been established; he reviewed and
signed off on Motani's report. Markulic concluded there was
probable cause for the complaint because Brandon crossed the road,
and failed to yield to the motor vehicle in the lane of travel.
He did not recall all the materials he relied upon to reach that
conclusion but noted it was supported by the driver's statement,
the SCART diagram and the review of the surveillance video.
Markulic did not review the surveillance video himself.
On February 16, 2010, Ben filed a complaint against R.W.
alleging he violated N.J.S.A. 39:4-97 (careless driving) because
he "[s]truck ped[e]strian during driving carelessly above speed
limit."
The Monmouth County Prosecutor's Office prepared a
memorandum, dated July 23, 2010, regarding "Assault By Auto – Case
#HM10-034, Victim: Brandon Camacho." The memorandum concluded
Brandon's actions, which included "improperly entering and
attempting to cross Newtons Corner Road while wearing dark
8 A-5602-14T3
clothing" were "the proximate causes of the collision which
resulted in his serious injuries." The memorandum recommended
that the case be closed. On May 3, 2011, the complaints against
Brandon and R.W. were both voluntarily dismissed. At the municipal
court dismissal hearing, the State's attorney noted for the record
that R.W. "has admitted that he doesn't know what happened. That
he feels like Mr. Camacho came out of nowhere. So, he would be
the worst witness possible for the State to proceed accordingly."4
Before the accident, R.W. knew two members of the HTPD.
Sergeant David Flaherty had lived in the house next to R.W.'s
since 1996, but R.W. characterized their relationship only as
"neighborly" and asserted they "are not close." Corporal Fred
Bauer, has a young daughter who had socialized with R.W.'s daughter
since 2008. R.W. characterized his relationship with Bauer as
"casual."
Motani testified he met Flaherty when he started working with
the HTPD in 1997. He had occasionally seen him outside work at a
"police-related function." Motani has known Bauer since joining
the HTPD and considers him a friend. Markulic knew both Flaherty
and Bauer, but he did not socialize with either.
4
After the ticket to Brandon was issued, R.W. contacted Motani
and asked that the ticket be dismissed because the "Camacho family
has enough to deal with."
9 A-5602-14T3
Ben sought compensation for Brandon's injuries from R.W.'s
automobile insurer, New Jersey Manufacturers Insurance Company
(NJM). Based on NJM's liability determination, it refused to
offer any money and the case proceeded to litigation. NJM took
its "no-pay" position partially in reliance on Motani's report
documenting that his investigation concluded with a determination
that Brandon was at fault for the crash and R.W. was not at fault.
After extensive discovery, NJM offered Brandon the full policy
limit of $100,000. According to the order memorializing the
settlement, $29,027 was to be paid to "Ben Camacho, Pro Se
representing litigation expenses and settlement of the Xerox
Healthcare lien."
In their appeal, plaintiffs argue the trial court erred in
denying their motion to compel discovery of the defendant officers'
internal affairs records and in granting summary judgment
dismissing his complaint. Plaintiffs contend they established: a
prima facie case of malicious prosecution and abuse of process
against defendant Motani, a prima facie case of supervisor
liability against Supervisor Markulic and a violation of the CRA.
They further argue the defendants are not entitled to qualified
immunity.
10 A-5602-14T3
II.
Plaintiffs first argue the trial court erred in denying their
motions to compel production of the internal affairs (IA) records
of defendants Motani and Markulic. An appellate court reviews a
trial court's discovery order for an abuse of discretion, and
"should generally defer to a trial court's resolution of a
discovery matter, provided its determination is not so wide of the
mark or is not based on a mistaken understanding of the applicable
law." State ex rel. A.B., 219 N.J. 542, 554 (2014) (internal
quotation marks omitted). We discern no abuse of discretion in
the courts' rulings.
The initial discovery period ended May 5, 2013, was extended
by consent to July 4, 2013 and extended once again by court order.
Plaintiffs appeal from discovery orders dated August 28, 2013,
June 11, 2014 and December 10, 2014.
The first of these orders addressed a motion by plaintiffs,
seeking to compel more specific answers to interrogatories and the
production of documents. In a written statement of reasons, the
trial court addressed each of plaintiffs' requests for more
specific answers to interrogatories, granting some requests and
denying others. Plaintiffs' request to compel documents was denied
because they failed to attach a copy of their Notice to Produce,
making the court unable to rule on the motion.
11 A-5602-14T3
The second discovery order concerned plaintiffs' motion for
reconsideration, which was heard by a different judge.
Reconsideration of the denial of their request for more specific
answers on certain interrogatories was denied. In support of
their motion for reconsideration, plaintiff submitted the Notice
to Produce previously omitted from their motion.
Plaintiffs contended Motani's deposition testimony was
inconsistent with his employment and discipline history and that
"any internal investigation reports and employment records" must
be compelled for use as substantive evidence of municipal
liability, for credibility purposes in cross-examining Motnai and
to determine if he is concealing any other disciplinary actions
or investigations. The motion for reconsideration was denied.
The third discovery order, December 10, 2014, denied
plaintiffs' motion to compel more specific answers to
interrogatories. To support their arguments, plaintiffs relied
on Groark v. Timek, 989 F. Supp. 2d 378 (D.N.J. 2013)5 and Groark
5
In Groark, the plaintiff alleged two Atlantic City Police
Officers beat him up without provocation and then filed false
criminal charges. Plaintiff learned in discovery that from 2001
to 2013, the two officers had collectively been the subject of
approximately 78 complaints similar to his - excessive force,
assault, threats, improper search and arrest, and malicious
prosecution, for which they were never disciplined. Groark, supra,
989 F. Supp. 2d at 383. The court found the requested documents
"directly relevant" to plaintiff's claim pursuant to Monell v.
12 A-5602-14T3
v. Timek, No. 12-1984, (D.N.J. July 18, 2014). The trial court
provided the following reasons on the order:
Defendants have complied with plaintiff's
reasonable discovery requests and info sought
by way of records is not relevant and not
discoverable under Bayer v. [Township of]
Union, 414 N.J. Super. 238 [(App. Div. 2010)].
Plaintiff misreads Groark which is not binding
on this court. Requested info unlike in
Groark is not relevant or likely to lead to
relevant information.
During the course of discovery, defendants produced Internal
Affairs index cards for Motani and Markulic for the five years
preceding the crash, which revealed only three complaints filed
against the two of them.
Despite these disclosures, plaintiffs argue they are
"entitled to discovery of investigations of dissimilar claims,"
including "the entirety of the IA index cards for the defendant
officers" and "both pre[-] and post-incident IA files, not only
files from five years preceding the incident . . . ."
Furthermore, they contend defendants must provide unredacted IA
index cards to cure their allegedly "vague and undefined" request
for "a representative sample of Howell Township's IA files for ten
Dep't of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d
611 (1978) and also noted the documents would "reveal whether
plaintiff can support his argument that Atlantic City's Internal
Affairs process and investigations are a sham." Groark, supra,
989 F. Supp. 2d at 400.
13 A-5602-14T3
(10) years preceding the incident." Plaintiffs claim this
discovery is essential to their claim for municipal liability
against Howell Township for alleged civil rights violations.
Defendants argue the discovery sought is irrelevant, the
Groark cases are distinguishable and non-binding, the discovery
requests were too vague, and this discovery issue is moot because
plaintiffs did not oppose defendants' motion for summary judgment
as it related to municipal liability.
To compel discovery of police personnel records to establish
a police officer's liability for civil rights violations, a
plaintiff must establish "some factual predicate making it
reasonably likely that information in the file could affect the
officer's credibility" and "that the file may reveal prior bad
acts that bear 'peculiar relevance' to the issues at trial." Bayer
v. Twp. of Union, 414 N.J. Super. 238, 273 (App. Div. 2010)
(quoting State v. Harris, 316 N.J. Super. 384, 387, 398 (App. Div.
1998)). This policy is attributable to the "significant public
interest in maintaining the confidentiality of police personnel
records." Ibid. (quoting State v. Kaszubinski, 177 N.J. Super.
136, 138 (Law Div. 1980)).
Plaintiffs make two principal arguments. First, they argue
the trial court erred in its application of the law by not
following the Groark cases. However, those cases are clearly
14 A-5602-14T3
distinguishable from the facts here and, in any case, New Jersey
courts are not bound by the decisions of federal district courts.
State v. Witczak, 421 N.J. Super. 180, 194 (App. Div. 2011)
(quoting State v. Coleman, 46 N.J. 16, 36 (1965), cert. denied,
383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966)); In re
Application of Summit & Elizabeth Tr. Co., 111 N.J. Super. 154,
166 (App. Div. 1970). The trial court's application of New Jersey
law was not an abuse of discretion.
Second, plaintiffs argue all the requested IA documents must
be produced to resolve "credibility issues" because testimony
provided by Motani and Markulic regarding their understanding of
the IA records pertinent to them was inconsistent with the
information in the IA records that were produced. During their
testimony, both officers noted they were unsure about those facts.
While any disparity between the officers' recollection and the
records provides some fodder for cross-examination, it falls far
short of establishing a factual predicate that makes it "reasonably
likely that information in the file could affect the officer's
credibility" on any significant point or "that the file may reveal
prior bad acts that bear 'peculiar relevance' to the issues at
trial." Bayer, supra, 414 N.J. Super. at 398.
15 A-5602-14T3
We therefore discern no abuse of discretion in the trial
court's denial of plaintiffs' motion to compel further production
of IA records.
III.
Plaintiffs next challenge the order granting summary
judgment, dismissing their claims. They contend the trial judge
failed to afford them the inferences to which they were entitled
pursuant to Rule 4:46-2; that they established a prima facie case
on each of their claims for malicious prosecution, abuse of
process, violation of the CRA, and supervisor liability; and that
defendants are not entitled to qualified immunity.
In reviewing a summary judgment decision, we apply the same
standard as the trial court. Murray v. Plainfield Rescue Squad,
210 N.J. 581, 584 (2012). Viewing the evidence "in the light most
favorable to the non-moving party," we determine "if there is a
genuine issue as to any material fact or whether the moving party
is entitled to judgment as a matter of law." Rowe v. Mazel Thirty,
LLC, 209 N.J. 35, 41 (2012) (citing Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 529 (1995)). We review questions of law
de novo, State v. Gandhi, 201 N.J. 161, 176 (2010), and need not
accept the trial court's conclusions of law. Davis v. Devereux
Found., 209 N.J. 269, 286 (2012).
16 A-5602-14T3
A.
The essential elements of a cause of action for abuse of
process are: "the filing of a complaint, without probable cause,
that was actuated by malice, that terminated in favor of the party
now seeking relief, and that caused the party now seeking relief
to suffer a special grievance." LoBiondo v. Schwartz, 199 N.J.
62, 72 (2009). This tort is based upon the alleged malicious
filing of civil litigation. Id. at 89-91; Pitcock v. Kasowitz,
Benson, Torres & Friedman, LLP, 426 N.J. Super. 582, 585 n.1 (App.
Div. 2012); see also Pressler & Verniero, Current N.J. Court Rules,
cmt. 4.2.7 on R. 4:6-2 (2017) (noting malicious prosecution claims
are based on criminal actions and malicious abuse of process claims
are based on civil actions). Because plaintiffs' allegations are
not based on the filing of any civil action,6 this claim is not
available and was properly dismissed.7
6
Violations of Title 39 are regarded as "quasi-criminal in
nature, despite the fact that a traffic offense is neither a crime
nor a misdemeanor." No Illegal Points, Citizens for Drivers
Rights, Inc. v. Florio, 264 N.J. Super. 318, 332 (App. Div. 1993).
7
Because we review judgments and not the reasons stated for
judgments, it is of no consequence if a trial judge employs
different reasoning to reach a conclusion that is correct. Do-
Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001).
17 A-5602-14T3
B.
We next turn to plaintiffs' malicious prosecution claim.
There are four essential elements to a claim of malicious
prosecution: "(1) a criminal action was instituted by this
defendant against this plaintiff; (2) the action was motivated by
malice; (3) there was an absence of probable cause to prosecute;
and (4) the action was terminated favorably to the plaintiff."
LoBiondo, supra, 199 N.J. at 90. Because a complaint was filed
against Brandon that was ultimately dismissed, our focus is on the
second and third elements of this cause of action, which are
interrelated.
Actual malice is "the intentional doing of a wrongful act
without just cause or excuse." Jobes v. Evangelista, 369 N.J.
Super. 384, 398 (App. Div.), certif. denied, 180 N.J. 457 (2004).
To satisfy the element of actual malice, "the underlying suit must
have been initiated primarily for a purpose other than that of
securing the proper adjudication of the claim on which it was
based." Westhoff v. Kerr S.S. Co., 219 N.J. Super. 316, 324 (App.
Div. 1987), certif. denied, 109 N.J. 503 (1987). Summary judgment
may be properly granted where the plaintiff presents only a tenuous
evidential basis for actual malice. Ibid.
As evidence that Motani acted with malice, plaintiffs cite
his heated conversation with Ben before he issued the complaint,
18 A-5602-14T3
in which Ben was screaming and using vulgarities and expletives.
While it is true that the complaint was issued shortly after
Motani's conversation with Ben, any nexus between that
conversation and the decision to issue the complaint is sheer
speculation, as the record shows Motani pursued an investigation
and gathered the information he stated he relied upon before the
conversation occurred. Plaintiffs also contend a jury could find
Motani issued the summons as a favor to R.W. and that he was
friendly with several officers who are friends and acquaintances
of R.W. These contentions are even more obviously dependent upon
speculation, which is insufficient to create a genuine issue of
fact that Motani was motivated by malice.
Malice may be inferred from a "finding that the defendant had
neither probable cause for the criminal complaint nor a reasonable
belief in probable cause." Jobes, supra, 369 N.J. Super. at 398.
This is the focus of plaintiffs' argument that Motani acted with
malice.
To determine whether probable cause existed, "a court must
look to the totality of the circumstances and view those
circumstances 'from the standpoint of an objectively reasonable
police officer.'" State v. Basil, 202 N.J. 570, 585 (2010)
(citations omitted) (quoting Maryland v. Pringle, 540 U.S. 366,
371, 124 S. Ct. 795, 800, 157 L. Ed. 2d 769, 775 (2003)).
19 A-5602-14T3
Probable cause cannot be defined with
scientific precision because it is a
practical, nontechnical conception addressing
the factual and practical considerations of
everyday life on which reasonable and prudent
men, not legal technicians, act. Probable
cause is a fluid concept--turning on the
assessment of probabilities in particular
factual contexts--not readily, or even
usefully, reduced to a neat set of legal
rules. Although probable cause is more than
a mere suspicion of guilt, it is less than the
evidence necessary to convict a defendant of
a crime in a court of law. Between those two
extremes, it is safe to say that a police
officer has probable cause to arrest a suspect
when the officer possesses a well grounded
suspicion that a crime has been or is being
committed.
[Ibid. (citations and internal quotations
omitted).]
In short, "[t]he substance of all the definitions of probable
cause is a reasonable ground for belief of guilt." Brinegar v.
United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed.
1879, 1890 (1949) (citations and internal quotation marks
omitted)).
In arguing that Motani lacked probable cause plaintiffs
attack the sources of information he stated he relied upon: (1)
the bank surveillance video, (2) SCART diagrams, (3) R.W.'s
statements and (4) Brandon's injuries. Plaintiffs contend these
sources of information are insufficient to form an objective basis
for probable cause.
20 A-5602-14T3
As we understand plaintiffs' criticism of Motani's reliance
upon the video, it is that the frame of the video cited did not
provide adequate support for Motani's conclusion that Brandon
appeared to be two feet east of the solid white fog line, in the
southbound lane of the road and approximately twenty feet south
of a utility pole.
Plaintiffs challenge Motani's reliance upon the SCART
diagrams on the ground that he admitted sharing his opinion with
the SCART team that Brandon was crossing the street from left to
right and was in the roadway when struck and assumed SCART took
his opinion into consideration.
Plaintiffs contend R.W.'s statements provide no support for
a finding of probable cause because he did not observe Brandon
prior to impact and could not tell if Brandon was moving or
crossing the street. They concede Brandon was struck in the
roadway, but cite a statement from Motani that the roadway consists
of both the travel lane and the shoulder.
Finally, plaintiffs challenge Motani's reliance upon
Brandon's injuries, which he conceded did not alone establish
whether Brandon was moving in the moments before impact.
The points plaintiffs raise about each of these sources of
information are valid grounds for challenging the probative value
of evidence to support a conviction. These isolated attacks do
21 A-5602-14T3
not, however, vitiate probable cause because they ignore credible
grounds for that determination both in the sources plaintiffs have
criticized and in other facts of the investigation that Motani has
cited.
Let us first acknowledge it is undisputed that Brandon was
not in a crosswalk when he was struck. Although R.W. did not see
Brandon before the impact, he consistently stated he was in the
southbound lane of the road when the accident occurred. There is
no evidence to the contrary. A logical inference, which Motani
was entitled to rely upon, was that Brandon was in the travel lane
when R.W. struck him. After he was hit, Brandon was lying in the
street, not on a shoulder of the road. Although the injuries on
the right side of his body did not establish he was crossing the
street from the left to the right, the injuries were consistent
with that theory. Moreover, it is immaterial whether Brandon was
walking from left to right or right to left or walking at all, in
light of the reasonable inference he was in the travel lane and
not in a crosswalk at the time of impact. Further, Motani's
reliance upon the diagrams prepared by SCART is not corrupted by
the fact he shared his impression with the SCART team because
there is no evidence that the diagrams were prepared based upon
his opinion. To the contrary, the report reflects that the SCART
team photographed the crash scene and measured the crash scene
22 A-5602-14T3
using the LTI Impulse 200 laser as part of the preparation of the
scene diagram. Motani testified that the "stepping stones" for
his determination of fault included the "specific measurements
from the SCART team, which were obviously not dependent upon his
opinion." In light of this support for a finding of probable
cause, it is of no consequence that Motani found additional support
in the "distorted" image he observed in the surveillance tape.
We are satisfied these facts support an "honest belief" there
was "a good or sound chance" of establishing that Brandon was
guilty of violating N.J.S.A. 39:4-36(a)(2). See LoBiondo, supra,
199 N.J. at 93. Because plaintiffs failed to present prima facie
proof of two essential elements of their malicious prosecution
claim, that the action was motivated by malice and that there was
an absence of probable cause to prosecute, summary judgment was
properly granted, dismissing the malicious prosecution claim.
C.
Plaintiffs' argument regarding supervisor liability merits
only limited comment.
In Schneider v. Simonini, 163 N.J. 336 (2000), cert. denied,
531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001), the
Supreme Court adopted a "recklessness or deliberate indifference"
standard for supervisor liability that is applicable to
plaintiffs' claim. Id. at 373. This requires the plaintiff to
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establish "that: (1) the supervisor . . . failed to supervise the
subordinate official; (2) a causal link exists between the failure
to . . . supervise and the violation of the plaintiff's rights;
and (3) the failure to . . . supervise amounts to deliberate
indifference" or recklessness. Ibid. (citation omitted). The
Court stated "[t]he knowledge element . . . requires proof that
the supervisor was aware of facts from which an inference could
be drawn that the subordinate was acting in an unconstitutional
manner that carried a substantial risk of causing serious harm."
Id. at 373-74.
Plaintiffs contend the requisite level of reckless
indifference was established here by evidence that purportedly
proved Markulic's "neglect and non-action" in signing off on
Motani's police report. They suggest Markulic should have
personally investigated the facts to confirm the accuracy of
Motani's report. No authority is cited to support the premise
that Markulic had a responsibility to personally verify the facts
contained in a subordinate's report or that the failure to do so
amounted to deliberate indifference. In any event, as we have
determined Motani did not lack probable cause for the issuance of
the complaint, there can be no causal link between any alleged
failure to supervise and a violation of Brandon's rights. In the
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absence of proof of this essential element, the claim was properly
dismissed.
D.
In arguing their claim for violation of the CRA was
erroneously dismissed, plaintiffs merely rely upon the arguments
they advanced regarding the dismissal of their malicious
prosecution and abuse of process claims. As we have noted, those
arguments lack merit.
Qualified immunity "shields government officials from a suit
for civil damages when 'their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known,'" Gormley v. Wood-El, 218 N.J.
72, 113 (2014) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818,
102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982)), providing
the officials with "immunity from suit," ibid. (quoting Mitchell
v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86 L. Ed.
2d 411, 425 (1985)).
The only constitutional transgression claimed by plaintiffs
is that the complaint was unsupported by probable cause. In light
of our conclusion that the complaint was adequately supported by
probable cause, the defendant officers were shielded from
liability under the CRA by qualified immunity.
Affirmed.
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