UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CHARLES S. HOTTENSTEIN, :

Administrator for the Estate : HONORABLE JOSEPH E. IRENAS

of Tracy Hottenstein; : CIVIL ACTION NO. 11-740 

CHARLES S. HOTTENSTEIN; and : (JEI/JS)

ELIZABETH K. HOTTENSTEIN, :

:

 Plaintiffs, : OPINION

 : 

v. :

: 

CITY OF SEA ISLE CITY; :

et al., :

: 

 Defendants. : 

APPEARANCES:

THE WESTCOTT LAW FIRM, P.C.

By: Lynanne B. Wescott, Esq.

239 South Camac Street

Philadelphia, Pennsylvania 19107

Counsel for Plaintiffs

POWELL, BIRCHMEIER & POWELL, P.C.

By: James R. Birchmeier, Esq.

1891 State Highway 50

P.O. Box 582

Tuckahoe, New Jersey 08250

Counsel for Defendants City of Sea Isle City, Harold 

Boyer, Thomas McQuillen, and Vincent Haugh

LAW OFFICES OF JAY J. BLUMBERG, ESQ.

By: Christopher M. Wolk, Esq.

158 Delaware Street

P.O. Box 68

Woodbury, New Jersey 08096

Counsel for Defendants Zaki Khebzou and Atlantic 

Emergency Associates

1
MAYFIELD TURNER O’MARA & DONNELLY, P.C.

By: Michael J. O’Mara, Esq.

Robert J. Gillespie, Jr., Esq.

2201 Route 38, Suite 300

Cherry Hill, New Jersey 08002

Counsel for Defendants Sea Isle Ambulance Corps and 

Phyllis Linn

FOX ROTHSCHILD, L.L.P.

By: Peter Sarkos, Esq.

Epiphany McGuigan, Esq.

1301 Atlantic Avenue, Suite 400

Atlantic City, New Jersey 08401

Counsel for Defendants Atlanticare Regional Medical 

Center, Atlantic City Medical Center, Atlanticare MICU 

Medics at Base 3

IRENAS, Senior United States District Judge:

This wrongful death / survivorship suit arises out of the 

untimely and tragic death of Tracy Hottenstein.1 Presently 

before the Court are three Motions for Summary Judgment pursuant 

to Federal Rule of Civil Procedure 56(a) filed by: (1) 

Defendants Sea Isle Ambulance Corps (SIAC) and Phyllis Linn; (2) 

Defendants City of Sea Isle City, Thomas McQuillen, Vincent

Haugh, and Harold Boyer; and (3) Defendants Zaki Khebzou and 

Atlantic Emergency Associates (AEA). The Court notes that 

Defendants Atlanticare Regional Medical Center, Atlanticare MICU 

Medics at Base 3, and Atlantic City Medical Center have not 

moved for Summary Judgment at this time, but have moved to limit 

1 The Court exercises federal question subject matter jurisdiction pursuant to 

28 U.S.C. § 1331, and supplemental jurisdiction pursuant to 28 U.S.C. § 1367.

2

 
damages as to their liability, which was decided in an Order and 

Opinion dated October October 3, 2013. (Dkt. nos. 135, 136.)

I.

Sometime after 2:15 a.m. on February 15, 2009, in Sea Isle 

City, Tracy Hottenstein, who was intoxicated at the time, fell 

off a public dock into the ocean below.2 As a result of some of 

the events that occurred after her disappearance, Tracy died.

Tracy was discovered less than six hours after her fall, at 

approximately 7:52 a.m., when Francis Haney placed a 911 call to 

report a body found on the Sea Isle City Marina boat launching 

ramp. (Pls.’ Ex. 15; Pls.’ Ex. 16 at 1.) At the instruction of 

the 911 dispatcher, Haney got “pretty close” to Tracy’s body and 

ascertained that she was not breathing because he could not see 

her chest moving, but he did not check her pulse because he was 

unsure how to do so. (Pls.’ Ex. 20 at 30-31; Pls.’ Ex. 16 at 1-

3.) 

2 On February 14, 2009, Tracy attended the Polar Bear Plunge in Sea Isle City 

with friends, and afterwards went to LaCosta Lounge and Ocean Drive bars. 

She was last seen departing the Ocean Drive bar on surveillance video 

sometime around 2:15 a.m., and was not seen again until a bystander, Francis 

Haney, discovered her body early the next morning. For further details on 

Tracy’s activities following the Polar Bear Plunge, see Hottenstein v. Sea 

Isle City, 768 F.Supp.2d 688 (D.N.J. 2012).

3

 
Over the course of the next thirty minutes, police and 

rescue personnel responded to the scene. Shortly after Haney’s 

911 call, Sea Isle City police officers arrived - Officer Thomas 

McQuillen was first to respond, and Officer Vincent Haugh and 

Sergeant Harold Boyer arrived fifteen to twenty seconds later. 

(Defs.’ Sea Isle City Br. Ex. A at 53-54.) Upon his arrival at 

the scene, McQuillen immediately brought out his first aid 

materials to render aid to Tracy. (Defs.’ Sea Isle City Ex. A

at 68.) McQuillen first attempted to locate a pulse at her 

carotid artery but failed to find one. (Id. at 72-73.) Next, he 

looked at Tracy’s chest and observed that it was not rising and 

falling. (Id.) In McQuillen’s recollection, Boyer then 

attempted to locate Tracy’s pulse, also at her carotid artery,

but failed to find it as well. (Id.; Pls.’ Ex. 2.) At his 

deposition, Haugh also reported that he checked for Tracy’s 

pulse, and like his fellow officers, failed to find her pulse 

and recorded that fact in his report. (Defs.’ Sea Isle City Ex. 

E at 30:10-16; Pls.’ Ex. 4.) All three officers also recorded

that Tracy’s body was a pale, grayish color and was obviously 

cold. (See Pls.’ Ex. 2-4.) 

With these observations in hand, McQuillen and Boyer 

consulted with one another and concluded that Tracy was 

4
deceased.3 (Defs.’ Sea Isle City Ex. A at 77) After making this 

determination, McQuillen, Boyer, and Haugh closed off the area 

around Tracy’s body for preservation, treating it as a crime 

scene. (Id. at 106.) 

Shortly after the scene around Tracy was cordoned off, 

Phyllis Linn, Assistant Chief of the Sea Isle Ambulance Corps, 

arrived in her personal vehicle, even before an SIAC ambulance 

arrived. (Pls.’ Ex. 1 at 39; Defs.’ Sea Isle Ambulance Corps 

Ex. D at 8.) However, because the area around Tracy was treated 

as a crime scene, neither Linn nor SIAC personnel were permitted 

to treat Tracy or approach her body. (Defs.’ SIAC Br. at 5.) 

Linn was prohibited from getting any closer than fifteen to 

twenty feet from Tracy because of the yellow tape that the 

officers strung to preserve the scene. (Pls.’ Ex. 1 at 41; 

Defs.’ SIAC Ex. D at 8.) For the same reason, other members of 

the SIAC who arrived with the ambulance also failed to 

physically examine Tracy because they also could not cross the 

yellow tape; the SIAC report indicates that SIAC personnel were 

twenty feet away, and “EMS did not come in contact with the PT 

3 Though they failed to include it in their reports, Boyer and McQuillen each 

noted that they observed additional discoloration on Tracy’s body when 

recalling the scene at their depositions. (See Pls.’ Ex. 2-4.). 

Specifically, they observed areas of redness on Tracy’s back and side, which 

they believed to be lividity, a condition where blood pools at the lowest 

lying portion of the body, and a sign that both understood as a condition 

indicating death. (Defs.’ SIAC Ex. B at 128-29; Defs.’ SIAC Ex. C at 150-

53.).

5

 
[patient].” (Pls.’ Ex. 12 at 1.) In spite of the distance, the 

SIAC report recorded that Tracy’s body showed lividity. (Id.). 

From her vantage point at the perimeter, Linn also observed 

lividity, which she confirmed in a conversation with Boyer, 

leading her to the conclusion that Tracy was deceased. (Pls.’ 

Ex. 1 at 41, 45.) 

Shortly after the arrival of the SIAC ambulance and 

personnel, paramedics also arrived at the scene. (Defs.’ SIAC 

Ex. D at 9.) Like all the others at the scene, paramedics 

Michael Senisch and Frank Rocco were not permitted to come into 

physical contact with Tracy. (Defs.’ Khebzou Ex. F at 78-81.) 

Senisch was, however, permitted to approach Tracy’s body more 

closely, coming within six feet of her, according to his 

recollection. (Pls.’ Ex. 17 at 46:10-11.) As described at his 

deposition, Senisch was called to the scene for a 

“pronouncement,” which was reiterated to Senisch when he arrived 

at the scene, where Boyer informed him that Tracy was “pulseless 

and apneic,” and “that [the paramedics] were called there for a 

pronouncement.” (Id. at 44-45.) At 8:21 a.m., nine minutes 

after the paramedics’ arrival at the scene, Senisch called Dr. 

Zaki Khebzou for the official death pronouncement. (Defs.’ 

Khebzou Ex. E-F) Following Senisch’s description of Tracy’s 

condition, Dr. Khebzou pronounced Tracy deceased by telephone at 

6
8:22 a.m. (Pls.’ Ex. 5.) It is unclear precisely when Tracy’s 

body was finally removed from the scene on February 15.

In spite of this declaration of death, Tracy may not have 

been deceased at 8:22 a.m. Two experts, upon review of the 

facts and circumstances of the case, concluded that severe 

hypothermia may manifest symptoms that look akin to death. 

(Pls.’ Ex. 7 at 11; Pls.’ Ex. 6 at 10.) Moreover, the 

Plaintiffs point to inconsistencies between observations 

recorded in police reports (which omit statements regarding 

lividity, for example), as compared with the recollection of

police officers, to suggest that Tracy’s condition was not 

properly diagnosed. Regardless, there is no dispute that even 

prior to Dr. Khebzou’s pronouncement, Tracy’s body was cordoned 

off while the police investigated the scene and surroundings.

Defendants presently move for summary judgment on the 

claims remaining against them, including those asserted under 

state law theories of negligence and both federal and New Jersey 

state law civil rights claims.

II.

“The court shall grant summary judgment if the movant shows 

that there is no genuine dispute as to any material fact and the 

7
movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). In deciding a motion for summary judgment, the 

court must construe all facts and inferences in the light most 

favorable to the nonmoving party. See Boyle v. Allegheny 

Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The moving 

party bears the burden of establishing that no genuine issue of 

material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 

317, 322-23 (1986). A fact is material only if it will affect 

the outcome of a lawsuit under the applicable law, and a dispute 

of a material fact is genuine if the evidence is such that a 

reasonable fact finder could return a verdict for the nonmoving 

party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986).

III.

The Court first addresses the Motions for Summary Judgment 

regarding the civil rights claims under both § 1983 and the New 

Jersey Civil Rights Act. Next, the Court addresses the Motions 

for Summary Judgment regarding claims of negligence asserted 

against the City of Sea Isle City and individual police officers

(the “municipal Defendants”). Third, the Court addresses the 

claims for negligence asserted against Dr. Zaki Khebzou and 

Atlantic Emergency Associates, and then separately addresses 

8
claims for negligent hiring, supervision, and retention alleged 

against Sea Isle City and AEA. Fourth, the Court addresses the 

Motions for Summary Judgment on punitive damages. Finally, the 

Court addresses claims of premises liability asserted against 

Sea Isle City.4

A.

The Plaintiffs’ Amended Complaint alleges three separate 

claims of civil rights violations under 42 U.S.C. § 1983. Count 

Ten alleges the municipal Defendants violated § 1983, Count 

Eleven brings a wrongful death and survival action pursuant to 

the statute against both the municipal Defendants and Linn and 

the Sea Isle Ambulance Corps, and Count Twelve alleges the 

municipal Defendants are liable under a theory of state-created 

danger. The Court considers these three claims and the 

corresponding Motions for Summary Judgment together.

Consideration of the Defendants’ Motions for Summary 

Judgment on the Plaintiffs’ § 1983 claims ordinarily presents 

two separate legal issues for liability – first, whether the 

4 The Court will not permit the reinstatement of New Jersey Civil Rights Act 

claims as to Defendant Khebzou. While Rule 15(a) permits the amendment of 

pleadings before trial, the Plaintiffs have requested reinstatement of their 

NJCRA claim without the consent of the opposing party. Fed. R. Civ. P. 

15(a)(2). The Plaintiffs have not provided any rationale for why “justice so 

requires” the reinstatement of the claim. Id. Because the Plaintiffs cannot 

provide a rationale for the reinstatement of this claim at the close of 

discovery, even if this request for reinstatement were made in a Motion to 

Amend, it would be denied.

9

 
Defendants acted under color of law, and second, whether the 

Defendants violated a constitutional right. Because the 

evidence produced in discovery does not demonstrate that a 

constitutional violation occurred, the Court need not consider 

the color of state law analysis and grants summary judgment for 

all Defendants on each count alleged under § 1983.

The Due Process Clause of the Fourteenth Amendment does not 

impose an affirmative right to governmental aid, “even where 

such aid may be necessary to secure life, liberty, or property 

interest of which the government itself may not deprive the 

individual.” DeShaney v. Winnebago Cnty. Dept. of Social Svs., 

489 U.S. 189, 196 (1989). In particular, “there is no federal 

constitutional right to rescue services, competent or 

otherwise.” Brown v. Commonwealth of Pa. Dep’t of Health, 318 

F.3d 473, 478 (3d Cir. 2003). In light of DeShaney, there are 

two exceptions to the general “non-liability rule.” Id. 

“First, the state has a duty to protect or care for individuals 

when a ‘special relationship’ exists. Second, the state has a 

duty when a ‘state-created danger’ is involved.” Sanford v. 

Stiles, 456 F.3d 298, 304 (3d Cir. 2006) (internal footnote 

omitted).

Special relationships generally arise in custodial 

relationships; thus, the state and its “incarcerated or 

involuntarily committed citizens is the kind of ‘special 

10
relationship’” that might require the state to provide adequate 

medical care and ensure the “reasonable safety” of involuntarily 

committed mental patients. Morrow v. Balaski, 719 F.3d 160, 167 

(3d Cir. 2013) (citing Estelle v. Gamble, 429 U.S. 97, 103 

(1976); Youngberg v. Romeo, 457 U.S. 307, 324 (1982)). In other 

words, the state must affirmatively deprive the individual of 

the freedom to act “on his own behalf.” Morrow, 719 F.3d 168 

(citing DeShaney, 489 U.S. at 200).

Here, the Plaintiffs have failed to provide evidence that 

any of the Defendants entered into a comparable custodial 

relationship with Tracy. In particular, Linn testified at her 

deposition that by the time she arrived, the police had already 

cordoned off Tracy’s body and did not permit her to pass. 

(Pls.’ Ex. 1 at 41.) The SIAC ambulance run report, summarizing 

the actions of the SIAC personnel, reflects the same. (Pls.’ 

Ex. 12.) Though the Plaintiffs argue that Linn and SIAC 

personnel treated “Tracy’s situation . . . like that of a 

pretrial detainee, a prisoner or an involuntary commitment,” 

there is no actual indication that Linn or SIAC were the ones 

who were responsible for the cordon. (Pls.’ Br. at 22.) In 

other words, there is no evidence to suggest that Linn and SIAC 

were Tracy’s custodians when they arrived at the scene.

Similarly, claims alleging that the police officers or Sea 

Isle City resulted in a special relationship are not borne out 

11
in the facts produced in discovery. Though the Plaintiffs argue 

that the cordon surrounding Tracy was akin to creating a

custodial relationship, the cause of Tracy’s incapacity was 

separate from the actions of the police at the scene. (See

Pls.’ Ex. 6-7.) The Plaintiffs’ experts describe a tragic 

combination of alcohol and cold weather that resulted in Tracy’s 

death from hypothermia. (Pls.’ Ex. 6 at 12; Pls.’ Ex. 7 at 13-

14.) As the Plaintiffs’ experts explain, the alcohol and cold 

weather were the causes of Tracy’s incapacity, not the stringing 

of yellow tape. Thus, there was no special relationship between 

Tracy and the municipal Defendants that would impose a duty to 

render aid.

Returning to the state-created danger theory of liability 

under § 1983, a constitutional violation “can occur when state 

authority is affirmatively employed in a manner that injures a 

citizen or renders him ‘more vulnerable to injury’” than he 

would have otherwise been. Bright v. Westmoreland Cnty., 443 

F.3d 276, 281 (3d Cir. 2006) (quoting Schieber v. City of 

Phila., 320 F.3d 409, 416 (3d Cir.)). A state-created danger 

exists when the plaintiff can demonstrate each of the following 

four elements: 

(1) the harm caused was foreseeable and fairly 

direct, (2) a state actor acted with a degree 

of culpability that shocks the conscience, (3) 

a relationship between the state and the 

12
plaintiff existed such that the plaintiff was 

a foreseeable victim of the defendant’s acts 

. . . and (4) a state actor affirmatively used 

his or her authority in a way that create a 

danger to the citizen or that rendered the 

citizen more vulnerable to danger than had the 

state not acted at all. 

Morrow v. Balaski, 719 F.3d 160, 177 (3d Cir. 2013). 

The requisite culpability for a state-created danger claim, 

the “shocks the conscience” standard, depends upon the 

circumstances of the state official’s actions. Schieber v. City 

of Phila., 320 F.3d 409, 417 (3d Cir. 2003). “[C]ustomary tort 

liability” is insufficient for demonstrating the necessary 

culpability, as the “Constitution does not guarantee due care on 

the part of state officials,” while circumstances where state 

actors affirmatively intend to cause harm are on the opposite 

end of the spectrum, satisfying the “shocks the conscience” 

standard. Id. (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 

833, 848-49 (1998)). To determine the level of culpability 

necessary to shock the conscience, the Court must consider 

whether the state officials had the opportunity to deliberate 

and make unhurried judgments. Sanford v. Stiles, 456 F.3d 298, 

309 (3d Cir. 2006). Where such time exists, conscious disregard 

of a great risk of harm is all the culpability necessary. Id.

at 310. On the other hand, where state officials must make 

decisions in a “hyperpressurized environment,” an intent to 

13
cause harm is necessary to satisfy the culpability standard. 

Id. at 309.

Under the facts produced during discovery, none of the 

municipal Defendants’ actions approach the “shocks the 

conscience” standard. Upon arriving first at the scene,

McQuillen brought out his oxygen and medical bag from his trunk, 

(Defs.’ Sea Isle City Ex. A at 63:23-24), and then each of the 

police officers attempted to take Tracy’s pulse at the carotid 

artery. (Pls.’ Ex. 2-4.) Each observed her to be “grayish” in 

appearance and all three concluded that she was dead based on 

their observations. (Id.) Their actions upon arrival at the 

scene demonstrate that they attempted to render aid, and when 

such attempts appeared futile, treated the area as a crime 

scene. These actions manifest neither a conscious disregard of 

risk nor an intent to cause Tracy harm.5

5 Moreover, even if the Plaintiffs could demonstrate that the municipal 

Defendants’ actions shocked the conscience, these Defendants would still be 

entitled to the defense of Qualified Immunity, established under Saucier v. 

Katz, 533 U.S. 194 (2001). Expanding upon the two-part test for Qualified 

Immunity, the Saucier Court explained that “[t]he concern of the immunity 

inquiry is to acknowledge that reasonable mistakes can be made as to the 

legal constraints on particular police conduct.” Id. at 205. As the Court 

continued, “[i]f the officer’s mistake as to what the law requires is 

reasonable, . . . the officer is entitled to the immunity defense.” Id. The 

Plaintiffs have provided no evidence that the municipal Defendants undertook 

any unreasonable acts: the officers (including one who was a certified EMT) 

arrived on the scene, immediately checked for a pulse and observed Tracy’s 

grayish coloring and lack of movement, and determined that she was not alive. 

(Defs.’ Sea Isle City Ex. A at 69:23-24; Pls.’ Ex. 2-4.) Even assuming that 

Tracy were alive, as the Plaintiffs’ experts conclude was “possible,” the 

police acted reasonably under the circumstances by immediately responding and

checking Tracy’s pulse and breathing, thereby granting them the protection of 

Qualified Immunity.

14

 
Similarly, Linn and SIAC’s actions fail to reach the 

“shocks the conscience” culpability standard to satisfy a statecreated danger claim. As Linn’s deposition testimony explained, 

she responded in approximately ten minutes to the initial 911 

call. (Pls.’ Ex. 1 at 38:25.) Upon arriving at the scene, Linn 

walked up to the cordon, attempted to cross it and reach Tracy, 

but was stopped by a police officer before Sergeant Boyer 

approached her to relay the news that the area had been deemed a 

crime scene. (Id. at 41:2-19.) Linn and Boyer discussed their 

observations of lividity on Tracy’s body, and Linn knew that 

Boyer was a certified EMT who had been on scene for some time 

already. (Id. at 41:14–44:19.) None of these actions manifest 

a level of culpability suggesting that Linn consciously 

disregarded a great risk of harm to Tracy, nor do they suggest 

that Linn intended to harm Tracy. Similarly, the SIAC Report 

indicates that SIAC personnel received a report from the police 

that Tracy was dead upon their arrival. (Pls.’ Ex. 12.) The 

police reported to SIAC personnel that Tracy displayed lividity, 

had “foam coming from mouth, [and] eyes extremely dilated.” 

(Id.) Their failure to render aid was a result of the police 

judgment that the area should be a crime scene, not because SIAC 

personnel sought to consciously put Tracy at risk, nor because 

of an intent to harm her. In other words, the Plaintiffs have 

failed to produce any evidence suggesting that Linn or SIAC 

15
personnel manifest the culpability necessary to constitute a 

state-created danger.

In short, at the close of discovery, the Plaintiffs have 

failed to produce evidence that any of the Defendants held the 

culpable mindset necessary to commit a constitutional violation. 

In light of this, the Court will grant summary judgment in favor 

of all Defendants in the civil rights claims in Counts Ten, 

Eleven, and Twelve.

B.

Count Thirteen asserts a claim against the municipal 

Defendants, Linn, and SIAC for a violation of the New Jersey 

Civil Rights Act. Because the NJCRA is interpreted analogously

with § 1983 and the foregoing analysis explains that no 

predicate § 1983 claim exists, summary judgment will be granted 

in favor of all the Defendants.

In relevant part, the New Jersey Civil Rights Act provides:

Any person who has been deprived of any 

substantive due process or equal protection 

rights, privileges or immunities secured by 

the Constitution or laws of the United States, 

or any substantive rights, privileges or 

immunities secured by the Constitution or laws 

of this State, or whose exercise or enjoyment 

of those substantive rights, privileges or 

immunities has been interfered with or 

attempted to be interfered with, by threats, 

intimidation or coercion by a person acting 

16
under color of law, may bring a civil action 

for damages and for other injunctive or other 

appropriate relief.

N.J.S.A. 10:6-2(c). “This district has repeatedly interpreted 

NJCRA analogously to § 1983.” Pettit v. New Jersey, 2011 WL 

1325614, at *3 (D.N.J. 2011). The Plaintiffs properly point out 

that the NJCRA has a “broad remedial purpose.” Owens v. Feigin, 

947 A.2d 653, 656 (N.J. 2008). However, the NJCRA and § 1983, 

when pled together, are analyzed under the same standard; first, 

the Defendant must have acted under color of state law, and 

second, the Defendant must have violated a constitutional right. 

Pettit, 2011 WL 1325614 at *4; see also Hottenstein v. Sea Isle 

City, 793 F.Supp. 2d 688, 695 (D.N.J. 2011).

Putting aside the color of state law analysis, the record

and foregoing analysis do not demonstrate that any of the 

municipal Defendants nor Linn and the SIAC deprived Tracy of her 

constitutional rights. Thus, just as the Defendants have 

demonstrated they are entitled to summary judgment on Counts 

Ten, Eleven, and Twelve, they are similarly entitled to summary 

judgment on the accompanying NJCRA claim in Count Thirteen.

C.

Counts One, Six, and Seven allege claims of negligence 

against each of the municipal Defendants. Specifically, Count 

17
One alleges negligence against each Defendant, Count Six alleges 

a survival action based upon negligence, and Count Seven alleges 

a wrongful death action based upon negligence. The municipal 

Defendants argue that they are entitled to summary judgment on 

each of these counts because their actions are protected by the 

Good Faith Immunity provision of the New Jersey Tort Claims Act. 

Because the record demonstrates that the Defendants acted in an 

objectively reasonable fashion and with subjective good faith, 

they are entitled to the protection of good faith immunity and 

summary judgment is granted in favor of the municipal Defendants 

on these three claims alleging negligence.

The New Jersey Tort Claims Act provides public employees

immunity from suit. N.J.S.A. 59:3-3. Specifically, “[a] public 

employee is not liable if he acts in good faith in the execution 

or enforcement of any law. Nothing in this section exonerates a 

public employee from liability for false arrest or false 

imprisonment.” Id. A public employee can satisfy the good 

faith requirement either by demonstrating “objective 

reasonableness,” or that the public employee behaved with 

“subjective good faith.” Alston v. City of Camden, 773 A.2d 

693, 703 (N.J. 2001) (quoting Fielder v. Stonack, 661 A.2d 231, 

246 (N.J. 1995)).

However, even in spite of good faith immunity, public 

employees may lose the protection of immunity when they fail to 

18
provide emergency medical treatment to individuals in their 

custody. See Del Tufo v. Twp. of Old Bridge, 650 A.2d 1044 

(N.J. Super. App. Div. 1995). In Del Tufo, a decedent’s estate 

brought a wrongful death action against the police officers who 

arrested the decedent, on the theory that officers’ failure to 

provide emergency aid to the decedent was the proximate cause of 

death. Id. at 1046-47. In particular, the police observed the 

decedent’s erratic behavior and injuries, yet waited nearly an 

hour to summon medical care for treatment. Id. at 1046-47. The 

New Jersey Supreme Court rejected the police officers’ 

contention that they were entitled to good faith immunity, 

holding that “[t]heir duty to execute or enforce the law did not 

preclude them from providing emergency medical assistance to 

their arrestee. The immunity for enforcing and executing the 

law does not protect defendants.” Id. at 1051; see also Rosario 

v. City of Union City Police Dept., 131 Fed. Appx. 785, 790 (3d 

Cir. 2005) (explaining application of good faith immunity).

The municipal Defendants have credibly demonstrated that 

they acted with subjective good faith and objectively reasonable 

under the circumstances. For example, McQuillen was first to 

arrive on the scene and responded with oxygen and a medical bag 

that he carried in his trunk. (Defs. Ex. A at 69-70.) All 

three attempted to take Tracy’s pulse, and after failing to find 

one and observing her body to be “cold” and “grayish,” the 

19
officers determined that Tracy was deceased and began preserving 

the area as a crime scene. (Pls.’ Ex. 2-4.)

Moreover, in viewing the facts in the light most favorable 

to the Plaintiffs, there is no ground to reject the Defendants’

claim for good faith immunity. There is no allegation in the 

record that the officers affirmatively ignored Tracy’s 

condition. Rather, the record reflects that the officers 

immediately responded to the 911 call and attempted to render 

the necessary care to an unconscious victim, and after 

determining that Tracy lacked a pulse, they provided that 

information to Linn and the SIAC, as well as the paramedics when 

they arrived on scene. (See Pls.’ Ex. 1 at 41; Ex. 2-4; Ex. 17 

at 43.) In light of these circumstances, the officers did not 

fail to render medical care nor did they withhold medical care 

from an individual in their custody that obviously required such 

care. Thus, the officers are entitled to the protections of 

good faith immunity provided by N.J.S.A. 59:3-3 and therefore 

the Court will grant summary judgment in favor of McQuillen, 

Boyer, Haugh, and the City of Sea Isle City on Counts One, Six, 

and Seven.

D.

Defendant Zaki Khebzou seeks summary judgment in his favor 

on Counts One, Six, Seven, and Nine, each of which alleges that 

20
Kebzou was negligent. The facts produced in discovery do not 

provide grounds for granting Khebzou summary judgment on any of 

these claims.

Under New Jersey law, a plaintiff in a medical malpractice 

action must prove three elements: (1) there is an applicable 

standard of care, (2) a deviation from that standard occurred, 

and (3) the deviation was the proximate cause of the harm 

sustained by the plaintiff. Verdicchio v. Ricca, 843 A.2d 1042, 

1055-56 (N.J. 2004). Where a “defendant’s negligence combines 

with a preexistent condition to cause harm,” New Jersey has 

adopted the substantial factor standard. Id.; Flood v. AluriVallabhaneni, 70 A.3d 665, 571 (N.J. Super. Ct. App. Div. 2013). 

The substantial factor test requires the Court to inquire 

“whether the defendants’ deviation from the standard medical 

practice increased a patient’s risk of harm or diminished a 

patient’s chance at survival and whether such increased risk was 

a substantial factor in producing the ultimate harm.”

Verdicchio, 843 A.2d at 1056 (quoting Gardner v. Pawliw, 696 

A.2d 599, 608 (N.J. 1997)).

When appropriately applied, the substantial factor test 

requires the plaintiff to first demonstrate that the defendant’s 

negligence “actually increased the risk of an injury that later 

occurs.” Verdicchio, 843 A.2d at 1056. Following that, the 

jury must then determine whether “the increased risk was a 

21
substantial factor in bringing about the harm that occurred.” 

Id. In Verdicchio, the decedent and his survivors filed a 

lawsuit alleging medical malpractice in failing to provide a 

timely diagnosis of the decedent’s cancer. Id. at 1046. To 

satisfy the substantial factor test, the plaintiffs “were 

required only to show that [the doctor’s] failure to perform an 

examination that would have led to the discovery of the cancer 

increased the risk that [the decedent] would lose the 

opportunity for treatment at an earlier stage.” Id. at 1062. 

In other words, plaintiffs asserting a medical malpractice claim 

in a substantial factor case need to demonstrate that the 

defendant’s actions increased the plaintiff’s risk of harm; 

whether the defendant actually was a substantial factor in that 

harm is left to the jury.

Despite Khebzou’s arguments, the Plaintiffs have produced 

sufficient evidence in discovery to suggest that Khebzou’s 

behavior may constitute negligence increasing Tracy’s risk of 

harm. To pronounce a patient deceased outside of a hospital, 

“[a] physician may specify another physician or may arrange with 

a professional nurse (R.N.) or a paramedic in accordance with 

N.J.A.C. 8:41-3.9, which requires the relay of findings, 

including telemetered electrocardiograms, if feasible to attend 

to the presumed decedent and make the determination and 

pronouncement.” N.J.A.C. 13:35-6.2(d) (emphasis added). At his 

22
deposition, Khebzou acknowledged that he knew of the N.J.A.C. 

provision requiring that he receive such test results, if they 

could feasibly be provided. (Pls.’ Ex. 25 at 140-41.) 

Nonetheless, Khebzou declared Tracy deceased at 8:22 a.m., after 

Boyer, Haugh, and McQuillen checked unsuccessfully for a pulse, 

but without any physical contact or examination by SIAC 

personnel or paramedics. (Pls.’ Ex. 2-4.) Khebzou’s 

pronouncement was based upon a phone call from the paramedics, 

who indicated that “[p]olice wishes us to preserve the scene. . 

. . We have not hooked the patient up but I do see irreversible 

signs of death.” (Pls.’ Ex. 5). Given that Tracy may have been 

alive at 8:22 a.m., (Pls.’ Ex. 6 at 11; Pls.’ Ex. 7 at 11) 

Khebzou’s pronouncement of death may have been premature and cut 

off Tracy’s opportunity to receive medical care.6 The Plaintiffs 

therefore have produced sufficient evidence to suggest that 

Khebzou’s actions were a substantial cause of Tracy’s harm, 

6 For similar reasons, Khebzou’s argument that any liability should be reduced 

based on his portion of the fault is not appropriate for summary judgment. 

Assuming that the fact finder at trial determines that Khebzou’s negligence 

was a substantial factor in the Plaintiffs’ harm, “a defendant nonetheless 

has the ‘burden of segregating recoverable damages from those solely incident 

to the preexisting disease.’” Anderson v. Picciotti, 676 A.2d 127, 212 (N.J. 

1996) (quoting Fosgate v. Corona, 330 A.2d 355, 358 (N.J. 1974)). Khebzou 

argues that the Plaintiffs’ expert put Tracy’s chance of survival at 10-33% 

and thus Khebzou’s liability should be limited to this range. (Pls.’ Ex. 12 

at 5; Defs. Br. at 22.). However, such a judgment would be inappropriate at 

this time, as the defendant clearly bears the burden of segregating such 

damages and Khebzou has failed to produce any facts of his own apportioning 

liability.

23

 
thereby satisfying the substantial factor test. Summary 

judgment in Khebzou’s favor would therefore be inappropriate.

E.

Khebzou’s employer, Defendant Atlantic Emergency 

Associates, also moves for summary judgment on Counts One,

Three, Six, and Seven. Counts One, Six, and Seven allege 

negligence, a survival action premised upon negligence, and 

wrongful death premised upon negligence. Count Three alleges 

vicarious liability for AEA’s employee, Khebzou. Because the 

material facts regarding Khebzou’s negligence are still in 

dispute and principles of respondeat superior may apply to such 

claims, summary judgment for vicarious liability is 

inappropriate at this time. However, summary judgment will be 

granted in AEA’s favor as to all direct claims of negligence.

Respondeat superior permits the imposition of liability on 

an employer for the negligence of an employee that causes harm 

to a third party, “if, at the time of the occurrence, the 

employee was acting within the scope of his or her employment.” 

Carter v. Reynolds, 815 A.2d 460, 463 (N.J. 2003) (citing 

Lehmann v. Toys ‘R’ Us, Inc., 626 A.2d 445, 462 (N.J. 1993)). 

To properly establish such liability, a plaintiff must establish 

two elements: (1) a master-servant relationship existed, and (2) 

24
“the tortious act of the servant occurred within the scope of 

that employment.” Carter, 815 A.2d at 463.

At this time, there are no facts in dispute regarding the 

vicarious liability of AEA. AEA acknowledges that it was 

Khebzou’s employer “at the time of the incident at issue in this 

case and therefore may be vicariously liable for the defendant’s 

[Khebzou’s] actions.” (Def. Br. at 26 n.3.) In the event 

Khebzou is held liable for his own negligent acts at trial, the 

Plaintiffs may pursue claims of vicarious liability against AEA 

as Khebzou’s employer at the time of Khebzou’s negligent acts.

Therefore, this Court cannot grant summary judgment in favor of 

the Defendants for claims of vicarious liability for the acts of 

Khebzou that may ultimately be deemed negligence.

However, even viewing the evidentiary record in the light 

most favorable to the Plaintiffs, the record fails to 

demonstrate a link between AEA’s allegedly negligent behavior 

and the harm sustained by the Plaintiffs. The Plaintiffs point 

to the conclusions of their expert, Dr. Paul Auerbach, asserting 

that AEA “negligently breached [its] duty to implement policies 

to assure the proper treatment of this hypothermic patient.” 

(Pls.’ Ex. 7 at 13.) Dr. Auerbach’s conclusion, however, only 

acknowledges that it is “possible that [AEA] unnecessarily 

allowed the progression of a grievous medical situation,” and 

contributed to Tracy’s death. (Id.) This conclusion falls 

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short of explaining how AEA’s missing policies were a 

substantial cause of the hypothermia, contracted between 2:15 

a.m. and 7:52 a.m., which was ultimately determined to be the 

cause of Tracy’s death. (Pls.’ Ex. 6 at 12, ¶ 1.) Because the 

evidentiary record fails to demonstrate that AEA’s missing 

policies were a substantial cause of Tracy’s death from 

hypothermia, the Court will grant summary judgment in favor of 

Defendants for all direct claims of negligence alleged in Counts 

One, Six, and Seven.

F.

Defendants Sea Isle City and AEA each move for summary 

judgment in their favor on Count Two, which alleges a claim of 

negligent hiring, supervision, and retention. Because the 

Plaintiffs have failed to demonstrate that the Defendants had 

any knowledge about the unfitness or incompetence of their 

employees, summary judgment will be granted in their favor on 

Count Two.

Under New Jersey law, the tort of negligent hiring, 

supervision, and retention requires the satisfaction of two 

elements. First, the plaintiff must demonstrate that the 

employer “knew or had reason to know of the particular 

unfitness, incompetence or dangerous attributes of the employee 

and could reasonably have foreseen that such qualities created a 

26
risk of harm to other persons.” Di Cosala v. Kay, 450 A.2d 508, 

516 (N.J. 1982); Lingar v. Live-In Companions, Inc., 692 A.2d 

61, 65-65 (N.J. Super. App. Div. 1997). Second, the plaintiff 

must show that as a result of the employer’s negligent hiring, 

the employee’s “incompetence, unfitness or dangerous 

characteristics,” were the proximate cause of the plaintiff’s 

injuries. Di Cosala, 450 A.2d at 516.

At the close of discovery, the Plaintiffs have failed to 

produce any evidence demonstrating AEA’s knowledge of Khebzou’s 

unfitness, incompetence, or dangerous attributes as an employee. 

At most, the Plaintiffs have shown that their experts believe 

AEA failed to impose appropriate policies for treating 

hypothermic patients, thereby breaching AEA’s duty of care to 

Tracy. (Pls.’ Ex. 7 at 13.) However, even assuming that AEA 

did breach such a duty of care, any such breach would still fail 

to make out a prima facie case of negligent hiring, supervision, 

and retention. Therefore, the Court will grant summary judgment 

in favor of AEA on Count Two.

Similarly, the Plaintiffs have failed to produce any 

evidence demonstrating the City of Sea Isle City’s knowledge of 

its employees’ unfitness, incompetence, or dangerous attributes 

as employees. While the evidentiary record reflects the 

Plaintiffs’ expert’s opinion that the Sea Isle City Police 

Department failed put in place certain policies regarding the 

27
treatment of hypothermia victims, nothing in the record reflects 

any knowledge of McQuillen, Haugh, or Boyer’s unfitness, 

incompetence, or dangerous attributes as employees of the police 

department. Thus, the Plaintiffs have failed to demonstrate the 

prima facie case for the tort of negligent hiring, and Defendant 

Sea Isle City must be granted summary judgment in its favor on 

Count Two.

G.

Defendants Khebzou, AEA, Sea Isle City, Boyer, McQuillen, 

and Haugh seek summary judgment in their favor on claims seeking 

punitive damages. The Defendants argue that the Plaintiffs have 

produced no facts supporting a punitive damages award. The 

Court is skeptical of the Plaintiffs’ ultimate success on claims 

for punitive damages, but viewing the facts in the light most 

favorable to Plaintiffs, declines to grant summary judgment at 

this time.

Under New Jersey’s Punitive Damages Act, 

[p]unitive damages may be awarded to the 

plaintiff only if the plaintiff proves, by 

clear and convincing evidence, that the harm 

suffered was the result of the defendant’s 

acts or omissions, and such acts or omissions 

were actuated by actual malice or accompanied 

by a wanton and willful disregard of persons 

who foreseeably might be harmed by those acts 

or omissions. This burden of proof may not be 

satisfied by proof of any degree of negligence 

including gross negligence.

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N.J.S.A. 2A:15-5.12(a). Negligence, “no matter how gross,” 

cannot form the basis of an award for punitive damages, and 

therefore a plaintiff must demonstrate that the defendant’s act 

was “wanton and willful” by showing “a deliberate act or 

omission with knowledge of a high degree of probability of harm 

and reckless indifference to the consequences.” Smith v. 

Whitaker, 734 A.2d 243, 254 (N.J. 1999); see also Cruz v. Atco 

Raceway, 2013 WL 3283964, at *6-7 (D.N.J. June 27, 2013) 

(holding that defendant’s deliberate indifference to New Jersey 

safety regulations and knowledge of the severe consequences for 

failure to follow such regulations would permit a reasonable 

jury to find wanton and willful conduct).

The record evidence, viewed in the light most favorable to 

the Plaintiffs, supports a reasonable conclusion that Khebzou 

deliberately ignored New Jersey regulations for the 

pronouncement of death outside of a hospital.7 (Pls.’ Ex. 25 at 

140-41.) Khebzou learned from the paramedic that Tracy 

displayed signs of death, but had not been “hooked up.” (Pls.’ 

Ex. 5) Without asking any further questions, Khebzou elected to 

declare Tracy deceased anyway, even though he knew New Jersey 

regulations for declaring a patient deceased required such test 

results, if feasible, and therefore did not follow those 

7 N.J.A.C. 13:35-6.2 requires a paramedic or other medical professional to 

relay the findings of “telemetered electrocardiograms, if feasible” to the 

physician making the declaration of death. 

29

 
regulations. (Pls.’ Ex. 25 at 140-41.) Though the record is 

not clear whether Boyer, McQuillen, and Haugh deliberately 

ignored the regulation, the Plaintiffs have demonstrated that 

the Defendants cordoned off Tracy’s body and determined her to 

be deceased without a pronouncement of death. (Pls.’ Ex. 23 at 

49-50; see also Pls.’ Ex. 26 at 146-47; Pls.’ Ex. 29 at 30-31.) 

Rather, McQuillen and Boyer consulted with each other after 

failing to find a pulse on Tracy and concluded that she was 

deceased. (Defs. Sea Isle City Ex. A at 77) 

In short, the record evidence, viewed in the light most 

favorable to the nonmoving parties for summary judgment, permits 

a reasonable conclusion that the Defendants’ actions may have 

constituted a wanton and willful act within the bounds of the 

Punitive Damages Act. Whether the evidence adduced at trial

only demonstrates negligence, which would prohibit punitive 

damages under the terms of the statute, is unclear at this point

but may be addressed again upon appropriate motion at trial. 

H.

Defendant Sea Isle City moves for summary judgment on Count 

Four, which alleges premises liability based upon a dangerous 

and defective condition in the public marina where Tracy was 

discovered. Because the evidentiary record does not demonstrate 

that Tracy’s harm was the proximate cause of a dangerous 

30
condition in the Marina, summary judgment will be granted in 

favor of the Defendant.8

The New Jersey Tort Claims Act governs the liability of 

public entities for alleged dangerous conditions of public 

lands. To impose liability, a plaintiff must show that the 

property was in a dangerous condition at the time of the injury, 

the injury was proximately caused by the dangerous condition, 

and the dangerous condition created a “reasonably foreseeable 

risk of the kind of injury which was incurred.” N.J.S.A. 59:4-

2. In addition, a plaintiff must show that either an employee 

of the public entity acting within the scope of his employment 

created the dangerous condition, or that the public entity had 

actual or constructive notice of the dangerous condition with 

enough time to have corrected it before the incident in 

question. Id. Finally, the Act grants the public entity 

immunity from liability “if the action the entity took to 

protect against the condition or the failure to take such action 

was not palpably unreasonable.” Id.

8 Initially, Sea Isle City argues that the Plaintiffs’ expert report must be 

excluded as a net opinion under New Jersey law. A net opinion is an expert 

opinion that is not based “on a proper factual foundation.” Buckalew v. 

Grossbard, 435 A.2d 1150, 1157 (N.J. 1981). However, the admissibility of 

expert testimony in federal court is governed by the standards of Federal 

Rule of Evidence 702. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 

(1993). Whether New Jersey standards of admissibility should be followed in 

light of Rule 702 is moot, as the evidentiary record fails to demonstrate the 

alleged dangerous condition was a proximate cause of Tracy’s harm.

31

 
The Court focuses on issues of causation in determining 

that the record evidence, even when viewed in the light most 

favorable to the Plaintiffs, fails to satisfy the requirements 

of the Act. The Plaintiffs’ expert report fails to address how 

the allegedly dangerous conditions of the Sea Isle City Marina 

caused Tracy’s harm. (See Pls.’ Ex. 31.) While the report 

details both likely and unlikely scenarios, none of the 

scenarios actually explain how Tracy fell at the Marina. (Id.

at 10-11.) In the “likely scenario,” the Plaintiffs’ expert 

asserts that Tracy “fell from the bulkhead onto the edge of a 

floating dock below[,] near slip 73, and then fell from the 

floating dock into the water.” (Id.) Under the more unlikely 

scenarios, the Plaintiffs’ expert asserts that Tracy may have 

lost her balance or slipped between floating docks. (Id.) In 

either case, the expert testimony fails to determine the cause 

of Tracy’s fall or how she lost her balance and fell. In the 

absence of any evidence in the record demonstrating her fall, 

the Plaintiffs have failed to demonstrate that the dangerous 

condition of the Marina could have been a proximate cause of 

Tracy’s harm. Because the Plaintiffs have failed to show that 

the dangerous condition in the Marina was a proximate cause of 

Tracy’s harm, Sea Isle City is entitled to summary judgment on 

the premises liability claim in Count Four.

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IV.

In conclusion, the circumstances of Tracy Hottenstein’s 

death are undoubtedly tragic but remain unclear at the close of 

discovery. In light of the facts developed in the evidentiary 

record, and for the specific reasons stated above, (1) 

Defendants Sea Isle Ambulance Corps and Phyllis Linn’s Motion 

for Summary Judgment will be fully granted on the civil rights 

claims alleged against them; (2) Defendants City of Sea Isle 

City, Thomas McQuillen, Vincent Haugh, and Harold Boyer Motion 

for Summary Judgment will be fully granted, covering (a) the 

civil rights claims under both § 1983 and the New Jersey Civil 

Rights Act, (b) premises liability claims, and (c) negligent 

hiring, supervision, and retention, and (d) negligence alleged 

in Counts One, Six, and Seven; and (3) Defendants Zaki Khebzou 

and Atlantic Emergency Associates Motion for Summary Judgment 

will be granted as to claims of negligent hiring and direct 

negligence against AEA, and denied as to the direct negligence 

of Khebzou and the vicarious liability of AEA. An appropriate 

Order accompanies this Opinion.

Date: 10/11/13

/s/ Joseph E. Irenas _

JOSEPH E. IRENAS, S.U.S.D.J.

33