Patrick F. Cooney

Full title: PATRICK F. COONEY, III, Plaintiff, v. VINCENT ALBERTO and VICTORIA ALBERTO…

Court: UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Date published: Nov 12, 2013

Facts

Plaintiff alleges that on June 1, 2012, he was driving his vehicle on Forest Avenue in Paramus, New Jersey, when he passed by Vincent Alberto (“Mr. Alberto”), who was jogging at the time. Plaintiff claims that Mr. Alberto began to shout obscenities at him and that Plaintiff then turned left onto Ross Road and parked his vehicle. Plaintiff states that when he exited his vehicle, Mr. Alberto approached him, continued to shout obscenities, and began to strike him.  Plaintiff claims that Mr. Alberto then pinned him to the ground, repeated to strike him, and twisted his arm behind his back in a violent manner. Plaintiff states that Mr. Alberto took these actions despite the fact that Plaintiff told Mr. Alberto that he would not harm him and the fact that Defendant, Mr. Alberto’s wife, repeatedly told him to stop.

Plaintiff claims that upon observing the attack, Defendant, who is a police officer but was off-duty at the time, dialed 9-1-1. Plaintiff states that Defendant advised the operator that the altercation was only a “dispute” and failed to advise the operator that her husband was striking Plaintiff. Plaintiff alleges that Defendant “intentionally minimalized the attack by her husband” because she knew that the call was being recorded. Plaintiff has attached a transcript of the 9-1-1 call to his Opposition to Defendant’s Motion to Dismiss as evidence that Defendant identified herself as a police officer and failed to respond to the operator’s question of whether the dispute was violent. The plaintiff has also attached a transcript of a call made to the police by a neighbor who viewed the altercation.

The plaintiff filed a Complaint against the Defendant and Mr. Alberto on March 25, 2013 (ECF No. 1).

Issue

Whether Defendant used her authority as a police officer “to create a dangerous situation” or to make Plaintiff “more vulnerable to danger” than he would have been had Defendant not intervened.

Decision

The fourth element of the state-created danger test is to determine whether a police officer used their authority to create a dangerous situation or make the plaintiff more vulnerable to danger. This test is based on cases like Kneipp v. Tedder and Reed v. Garner, where the officer intervened to protect a woman from hypothermia and other injuries. In Brown v. Grabowski, the court found that the officer did not limit the woman’s freedom or exacerbate the danger she faced.

In the present case, the plaintiff claims that element four of the state-created danger test is present because the officer intentionally misled the operator about the altercation, delaying police and medical assistance. However, the plaintiff has not shown that the officer made him more vulnerable to danger than he would have been had he not acted. The defendant did not delay the arrival of police or medical assistance, and even if assistance would have arrived sooner had the call been made, it did not make the plaintiff worse off than he would have been had the call not been made. Therefore, the plaintiff has not adequately alleged element four of the state-created danger test.

For the foregoing reasons, Defendant’s Motion to Dismiss is granted. An appropriate order follows this Opinion.

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