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New Jersey Appellate Court Refuses to Recognize Tort Claim for Negligent Misidentification of Suspect

By on April 13, 2018 in Other with 0 Comments

Plaintiff Dwight Morris was at his bank to make a withdrawal when the male in front of him handed the teller a robbery note. The teller handed the robber a stack of bills and the robber then left the bank. The teller called 9-1-1 and, when the police came, the plaintiff claims that they questioned him, treating him as if he was the “perpetrator.” In Morris v. T.D. Bank, 2018 WL 1720652 (App. Div. April 10, 2018), the plaintiff Morris sued the bank, asking the court to impose liability based upon a “negligent misidentification” cause of action. The Appellate Division, in a published decision, refused to recognize this claim as a viable cause of action under New Jersey law.

The plaintiff, an African American male, had entered the bank’s Union Township branch to make a withdrawal. Unbeknown to him, the male in front of him (also an African American male), had approached the teller with a slip which stated: “[b]ig bills please this is a hold up.” The teller handed the robber the bills and the robber walked out of the bank.

While plaintiff was standing before the teller, another bank employee exited the break room, saw the note, discerned that it had to do with a robbery, and called 9-1-1. She thought that the plaintiff was the robber and told the police that the robber, an African American male, was still in the bank. While she was on the phone with the operator, other employees locked the bank’s doors. Meanwhile, plaintiff took a seat in the bank’s lobby area.

According to the bank’s employee handbook, in the event of a robbery, employees were directed as follows: “FOLLOWING A ROBBERY only AFTER the Robber has left … Call Police to Report Robbery.” The plaintiff claimed that the bank employee was negligent for her failure to follow this policy.

Within minutes after the 9-1-1 call, the police arrived and the bank’s doors were unlocked. The police claim that they questioned plaintiff at the scene as a witness and he provided information about the suspect. According to the police, the plaintiff remained calm during the questioning and the police officer testified in his deposition that the plaintiff should have known he was not under arrest.

After plaintiff left the bank, he returned home but was “pretty upset about the situation.” Six months after the incident, he sought counselling from a social worker due to “emotional distress” and “fear of the police.” The social worker diagnosed the plaintiff with post-traumatic stress disorder and opined that his condition was related to the robber.

Plaintiff claimed that the bank breached its duty to provide a reasonably safe environment for its customers, “including protection from foreseeable criminal activity on and around the business’ premises.” Plaintiff contended that the defendant bank breached its duty because “it failed to properly train its employees not to call 9-1-1 until after the robber left the bank,” which led the police to treat him as the “perpetrator,” point their weapons at him, causing his PTSD.

The trial court granted summary judgment to the defendants, finding that the bank did not breach any duty owed to the plaintiff to “maintain reasonably safe premises or the duty to exercise reasonable care in the supervision of its employees.” The Appellate Division affirmed.

The key to plaintiff’s negligence argument was the breach of the internal policy by the bank’s employee. However, the Appellate Division pointed out that, based upon prior case law, “a defendant’s internal policies – standing alone – cannot demonstrate an applicable standard of care.” Further, the Court noted that, regardless, the policy was not actually violated. In fact, the 9-1-1 call was not made until the robber had left the bank. Thus, even if a violation of the bank’s policy could be used to establish a negligence claim against the bank, the policy was not breached.

As the trial court explained, the plaintiff was essentially asking the court to impose liability for “negligent misidentification.” The Appellate Division emphasized that the New Jersey courts have never recognized such a cause of action. Based upon public policy in support of citizens cooperating with law enforcement, recognizing such a claim would have a chilling effect on criminal investigations.

To the contrary, the Court noted that case law has found a potential breach of duty to its customers when a business fails to summon police. Prior cases have found a business potentially liable when police have not been called based upon criminal activity of others.

The Appellate Division refused to recognize this claim as a cause of action because it “is inconsistent with our State’s strong public policy encouraging citizen cooperation with law enforcement officials in the investigation of criminal activity.” Hence, the Court affirmed the trial court’s decision, dismissing the plaintiff’s negligence cause of action.

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Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

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