MARY DIGENNARO, Individually and as Limited Executrix of the Estate of Albert DiGennaro, on behalf of all distributees, Plaintiff,
TOWN OF GATES POLICE DEPARTMENT, POLICE CHIEF DAVID R. DICARO, LT. JAMES VANBREDERODE, OFFICER CARL BONFERRARO, OFFICER DANIEL LOOMIS, TOWN OF GATES, and JOHN DOE,  being other unknown Gates Police Department Personnel, individually and in their official capacity, Defendants.
Jeffrey Wicks, Esq., Jeffrey Wicks, PLLC, Rochester, New York, For Plaintiff.
Michael B. Risman, Esq., Hodgson Russ LLP, Buffalo, New York, For Defendants.
DECISION AND ORDER
CHARLES J. SIRAGUSA, District Judge.
This is an action in which Mary DiGennaro ("Plaintiff" or "Mrs. DiGennaro") alleges that Defendants violated the constitutional rights of herself and her husband, Albert DiGennaro ("Albert"), and committed state-law torts, during the course of a police arrest in which Albert died. Now before the Court is Defendant's motion for summary judgment. (Docket No. [#77]). The application is granted.
Unless otherwise noted, the following are the facts of this case viewed in the light most-favorable to Plaintiff. At all relevant times, Lieutenant James VanBrederode ("VanBrederode"), Officer Carl Bonferraro ("Bonferraro") and Officer Daniel Loomis ("Loomis") were all employed as police officers by the Town of Gates Police Department in Gates, New York. At all relevant times, R.D. was an adult, mentally ill man who lived with his elderly parents, Albert DiGennaro and Mary DiGennaro, at their home in Gates. According to Mrs. DiGennaro, R.D. was "bipolar" and "schizophrenic, " and since 2006 had thought that "everyone was out to get him." Mary DiGennaro Dep. [#77-3] at 26-27.
The DiGennaro home was well-known to the Gates Police Department because of R.D.'s bizarre and threatening behavior, which was often directed at the DiGennaro's neighbors. See, e.g., Mary DiGennaro Dep. [#77-3] at 150-151. As examples of this, R.D. had damaged neighbors' vehicles and property, detonated home-made bombs and, on at least one occasion, sat on the hood of a car in his parents' driveway while cleaning a rifle. Diane Hayes Dep. [#77-4] at 92. R.D.'s behavior resulted in several of the neighbors installing video surveillance cameras on their homes. Id. at 22-25. Neighbors also called officers from the Gates Police Department to the DiGennaro residence on several occasions because of R.D.'s behavior. On one such occasion, police responded after R.D. had been "carrying a rifle around, " because he thought that "the mob was after him." Mary DiGennaro Dep. [#77-3] at 62.
On another occasion, in June 2006, Mrs. DiGennaro herself called the Gates Police after R.D. escaped from a mental hospital and returned home. In response to Mrs. DiGennaro's call, VanBrederode and Bonferraro, as well as other officers, went to the home to arrest R.D., and found him in the bathtub holding a pit bull dog. VanBrederode Aff. [#78-3] at ¶ 14. On that occasion, Albert attempted to prevent the officers from taking R.D. into custody. Id. at ¶ 16. During that incident, officers confiscated two hunting rifles and a BB gun. However, a few months later the officers returned the guns to the DiGennaro residence after Albert falsely indicated that the guns belonged to him and not R.D. Mary DiGennaro Dep. [#77-3] at 62-63.
From these contacts with the DiGennaro family, the Gates Police were aware that both R.D. and Albert were combative toward, and uncooperative with, the police. According to Mrs. DiGennaro, Albert, in particular, was "real excitable" and did not like police officers, because he thought that they were just "looking for trouble." Mary DiGennaro Dep. [#77-3] at 55-56. Because of Albert's and R.D.'s attitude toward the police, Mrs. DiGennaro worried about police visits to her house, and would retreat to her bedroom when they occurred, because she felt that the police visits, and her husband's reactions to them, were "scary." Id. at 98-99. Gates Police were also aware, from their prior contacts with the DiGennaros, that Albert and R.D. had access to the aforementioned rifles. In particular, VanBrederode was aware that Albert "routinely kept a rifle behind the front door." VanBrederode Aff. [#78-3] at ¶ 18.
According to Mrs. DiGennaro, between July 2006 and November 2006, R.D. was "way out of it, " "hallucinatory" and "talking crazy." Mary DiGennaro Dep. [#77-3] at 31. On or about October 28, 2006, R.D. intentionally damaged a video camera on a neighbor's property, which resulted in the Gates Police Department obtaining a warrant for his arrest. On or about October 28, 2006, a Gates Police Officer went to the DiGennaro residence to execute the warrant, but R.D. was not home, because he had left to stay at another family property for a few days. Id. at 103. On the morning of November 1, 2006, R.D. returned to the home, and a neighbor called the police to notify them that R.D. had returned. Later that morning, VanBrederode, Loomis and Bonferraro went to the DiGennaro home to arrest R.D., pursuant to the aforementioned warrant. Parts of the ensuing encounter were observed by at least two neighbors, and were also recorded by a video camera mounted on a house across the street from the DiGenarro residence.
On the day in question, Albert DiGennaro, a retired construction worker, was eighty years of age, and used a cane because of arthritis in his knees. Albert generally distrusted doctors, and did not have a regular physician. Mary DiGennaro Dep. [#77-3] at 33-34. In 1982, Albert suffered a heart attack, and was prescribed medication, but he eventually decided on his own to stop taking the medication. Id. at 36-37. Subsequently, Albert did not seek treatment from a cardiologist. Id. at 37. During the period between 2000 and 2006, Albert sought medical attention possibly twice - once to have fluid removed from his knee and once, on October 3, 2006, because of chest pains. Id. While seeking medical attention for chest pain in October 2006, at Park Ridge Hospital, Albert declined treatment because he did not want to stay overnight at the hospital. Id. at 33, 43. Albert generally took aspirin when he had chest pains, and early on the morning of November 1, 2006, he told Mrs. DiGennaro that he did not feel well, and took aspirin. However, Mrs. DiGennaro is not sure whether he did so because of his arthritis or because of chest pain. Id. at 52. Later that morning, Albert told Mrs. DiGennaro that he felt well enough to attend their senior citizen's center.
In any event, on the morning of November 1, 2006, at approximately 10:27 a.m., Officers VanBrederode, Loomis and Bonferraro arrived at the DiGennaro residence to execute the warrant. After Bonferraro surveilled the back of the house and confirmed that R.D. was inside, Van Brederode and Loomis went to the front door and knocked. R.D. told Albert not to let the officers in the house, and Mrs. DiGennaro retreated to her room because she did not want to witness the impending confrontation. After Albert opened the door a crack, VanBrederode and Loomis told Albert that they had a warrant, but Albert swore at them and closed the door. Mary DiGennaro Dep. [#77-3] at 128. During the events that immediately followed, Mrs. DiGennaro remained in her room, and R.D. remained in his room, where he was attempting to telephone his lawyer. Consequently, it does not appear that either Mrs. DiGennaro or R.D. witnessed the confrontation at the front door.
Moreover, video footage taken from across the street is grainy, and does not clearly show what happened inside the doorway. However, the video footage does clearly show VanBrederode kicking open the door, and then appearing to struggle with Albert in the doorway for many seconds. According to VanBrederode, after Albert refused to open the door, VanBrederode succeeded in kicking the door open some distance, though Albert, who was 5' 5" tall and weighed 192 pounds, continued to block the doorway with his body and to press against the door to prevent it from opening fully. VanBrederode attempted to move Albert out of the way, but Albert continued to block the doorway. VanBrederode then sprayed Albert twice in the face with pepper spray. Albert, though, seemed unfazed and continued to block the door. Van Brederode and Loomis then pulled Albert out the door, and down the steps of the house to the front yard.
The above mentioned videotape of the incident, which the Court has reviewed numerous times, while grainy, appears to show that as Van Brederode and Loomis pulled Albert down the small porch stoop, consisting of perhaps three steps, Albert's momentum carried him down to the lawn. It does not appear to the Court that the officers "threw" Albert on the ground. Plaintiff, though, contends that the videotape shows Albert being thrown to the lawn with such force that he "bounced." Pl. Memo of Law [#90-4] at 7-8. Moreover, Stacy Head ("Head"), a neighbor who claims to have witnessed the event from across the street indicates that the officers "threw" Albert on the ground with "a lot of force." Stacy Head Dep. at 11.
Once Albert was on the lawn, Loomis handcuffed him, though Albert resisted being handcuffed. While this was happening, Albert repeatedly yelled at the officers, calling them "heartless, " and demanding that they give him his cane. The officers placed Albert in a sitting or kneeling position on the lawn, and VanBrederode went inside the house to arrest R.D. According to Loomis, Albert did not appear to be injured or in any distress at that time. Loomis Aff. [#79] at ¶ 37. VanBrederode brought R.D. outside, placed him on the ground and handcuffed him. Bonferraro then began walking R.D. to a patrol car, when Albert slumped over. Upon seeing his father slump over, R.D. began yelling, "He's having a heart attack, call an ambulance." See, Report [#78-6] at 3. According to VanBrederode, he turned Albert from his side onto his back and removed the handcuffs,  and upon seeing that Albert had stopped breathing, performed "about 5 or 6 [chest] compressions, " whereupon Albert began breathing again. Id. at 4.
VanBrederode then called for an ambulance on his police radio, and shortly thereafter radioed again to expedite the ambulance. VanBrederode indicates that he and another officer, Sergeant Jonathan Ballard ("Ballard"), who had arrived in response to VanBrederode's call for additional help, began performing CPR together, and that while Albert initially began breathing again, he eventually stopped breathing and did not respond to further CPR. Within a few minutes, fire department personnel arrived and began making efforts to revive Albert.
The Court observes, from the time-stamped videotape footage (Affidavit of Scott D. Badaszewski, Ex. A, Docket No. [#93]), that the entire incident, from the time that VanBrederode knocked on Albert's door until the time that the Fire Truck arrived, lasted approximately twelve minutes and twenty-four seconds. The chronology is as follows: At 10:27 a.m.,  VanBrederode knocked on the door; at 10:27:48, VanBrederode began kicking the door; at 10:28:02, VanBrederode began struggling with Albert at the door; at 10:28:30, VanBrederode and Loomis brought Albert down the steps and to the lawn; at 10:29:10 VanBrederode entered the house, while Loomis remained outside with Albert; at 10:30:00, VanBrederode brought R.D. out of the house; at 10:31:01 Albert slumped to the ground; at 10:31:08, R.D. lunged at the officers, after which Loomis and/or Bonferraro took R.D. out of view of the camera; at 10:31:21, VanBrederode appears to bend over and assess Albert; at 10:31:52, VanBrederode knelt beside Albert and appears to begin administering chest compressions; at 10:32:20, VanBrederode stood up, then leaned over Albert; at 10:32:50 VanBrederode knelt down again and appears to be administering aid; at 10:34:22 a police or fire department sedan arrived; at 10:34:29 another police or fire department sedan arrived; at 10:34:52, Sergeant Ballard, reached the spot where VanBrederode was assisting Albert, and they together performed CPR; at 10:39:08 a Fire Engine arrived; at 10:39:24 fire fighters arrived at the spot where VanBrederode and Ballard were assisting Albert.
Significantly, the period between when Albert slumped and the Fire Engine arrived was approximately eight minutes. For most of that time, except for a period of less than one minute during which the officers were subduing R.D. and VanBrederode was apparently calling for an ambulance, VanBrederode was attending to Albert. See, id.  Moreover, according to fire department personnel, Albert was still alive when they arrived and began administering aid. See, [#79-4] at 33 ("Chief Harrington showed me a printout graph from his department's AED machine (Ventricular Fibulation machine/recorder). In the first reading, the data showed Albert DiGennaro's heartbeat was fluttering.' At about 10:39 AM, Zampatori gave Albert a shock' from the AED unit. At about 10:40 AM, the graph showed the heartbeat as being within the normal range.").
Defendants have submitted a "medical timeline, " taken from fire department records, to which Plaintiff has not objected, which shows the following chronology: 10:30 a.m., VanBrederode requested an ambulance; 10:31, VanBrederode called again to have ambulance expedited; 10:32, fire department was dispatched; 10:37, fire department arrived at the scene; 10:38, fire department reported a heart emergency; 10:39, ambulance arrived.
Nevertheless, R.D. contends, in conclusory fashion, that after his father collapsed, the officers "did nothing to assist him." R.D. Aff. [#90-1] at 37. That characterization, though, is contradicted both by the videotape and by R.D.'s further statements that he "observed a police officer who appeared to be bounding up and down on [his] father's torso and yanking him back and forth, " and that he "observed the police officer straddling [his] father at the level of his torso." Id. He further states that, "at one point [he] did observe someone bring what appeared to be a breathing bag to [his] father." Id. at 38. Nevertheless, R.D. insists that he has received CPR training, and that "[a]t no time... did [he] observe anyone perform CPR on [his] father." Id. at 37. Importantly, though, R.D. does not indicate how long he was at the scene. On the other hand, the affidavit of Officer Bonferraro, which is undisputed, indicates that he drove R.D. away from the scene after placing him in the police car, and on the way to the police station they passed the fire trucks and ambulance responding to VanBrederode's emergency call. See, Bonferraro Aff. [#78-7] at ¶ ¶ 20-22.
Neighbor Stacy Head, who watched the incident from her bedroom window across the street, also contends that VanBrederode appeared to be slow in providing any kind of treatment to Albert. For example, at deposition Head stated:
I know at some point someone did CPR on him, but it felt like a very long time.... [Y]ou could tell everyone got really nervous and didn't know what to do at first. There was a few minutes of I don't know what to do, just standing around him. And then I think at one point they realized now they have to do something. But I didn't see CPR happen for a while after he was down.... [It also took a very long time for the ambulance to arrive]. I mean, I don't know how long it was. I don't want to say that I know if I don't, but it was at least - I know it was more than 10 minutes, maybe even more than 15.
Head Dep. [#90-1] at 14-15. However, Head's estimation of time is clearly refuted by the videotape, which as mentioned earlier, shows that the entire incident, from the time that VanBrederode knocked on the door until the time that the Fire Truck arrived, lasted twelve minutes and twenty-four seconds. The videotape also shows that it was a matter of seconds, not minutes, between the time that Albert collapsed and VanBrederode began attending to him. Furthermore, Head agrees that VanBrederode and others performed CPR on Albert for "five, ten minutes before the ambulance got there." Id., [#90-1] at 15, Dep. p. 68.
As mentioned earlier, Mrs. DiGennaro found confrontations between her husband, son and the police to be very upsetting. Consequently, while the events were taking place on the DiGennaro's lawn, Mrs. DiGennaro remained in her bedroom, where she attempted to remain calm by reading poetry. Mary DiGennaro Dep. [#77-3] at 129-131. Mrs. DiGennaro could not see what was happening at the door or outside the house, although she could hear indistinct yelling. Id. Eventually, Mrs. DiGennaro did not hear any more noise, and she looked out the window and saw an ambulance in front of the house. Id. at 142. Mrs. DiGennaro "did not know what to think, " and went back to her room. Id. Eventually, a man whom Mrs. DiGennaro thought was a fireman came in the house, indicated that Albert had a heart attack, and asked if Albert had any medical problems. Id. Mrs. DiGennaro responded to his questions, but remained inside the house. Subsequently, a "man in a trenchcoat, " Gates Police Lieutenant Gordon Whitehair ("Whitehair"), came into the house to talk with her. Id. In that regard, upon learning of Albert's heart attack, Gates Police Chief David DiCaro had directed Whitehair to go to the residence and investigate the incident. Whitehair took a written statement from Mrs. DiGennaro,  and then asked her to help him locate any videotape of the incident that might exist from a video camera that R.D. had mounted on the DiGennaro home. Id. at 143-144. Mrs. DiGennaro indicates that Whitehair talked her for a total of about "15 or 20 minutes, " and then told her, "You better go see your husband, " and drove her to the hospital. Id. at 144. Whitehair estimates that the interview lasted "20 to 30 minutes, " and indicates that Mrs. DiGennaro never asked to stop the interview or to see her husband. Whitehair Aff. [#79-3] at ¶ ¶ 8, 16. At the hospital, staff informed Mrs. DiGennaro that Albert had died. Mary DiGennaro Dep. [#77-3] at 144, 148.
Albert was pronounced dead at 11:16 a.m. See, Docket No. [#90-1] at 25. The following day, pathologist Paul Gosink, M.D. ("Gosink"), performed an autopsy. Gosink determined that the cause of death was "hypertensive and arteriosclerotic cardiovascular disease." Id. Gosink indicated that the "manner of death" was "homicide, " stating: "The fact that Mr. DiGennaro was in a physical altercation with others immediately prior to his terminal collapse makes the recent physical altercation a contributory factor in his demise. Given this latter fact, the manner of death is therefore homicide." Id. at 29. Gosink, though, found only minor injuries to Albert's body, describing them as "minor blunt force injuries, including small abrasions and contusions fo the trunk and extremities." Id. at 25. Specifically, Gosink observed the following injuries: 1) a small "superficial abrasion" over the right clavicle; 2) a small "nearly vertical abrasion" on the lateral right mid chest; 3) four "superficial" "scratch marks" on the lateral left abdomen; 4) a ½ inch epidermal laceration of the right dorsal mid forearm; and 5) two "superficial abrasions" of the left ring finger. Id. at 27. There were no injuries to Albert's head, face or neck. Id.
On August 29, 2007, Plaintiff commenced this action. On February 25, 2011, Plaintiff filed the operative Amended Complaint [#52] against the following defendants: Town of Gates, Town of Gates Police Department, Police Chief David R. DiCaro, VanBrederode, Loomis, Bonferraro, and "John Doe Gates Police Department Personnel." Discovery is closed, and Plaintiff has ...