NJ Court Dismisses Lawsuit by Alleged Abuser Against Those Who Reported and Investigated Claims of Elder Abuse and Neglect

A New Jersey trial judge dismissed a lawsuit asserted by an alleged abuser against a group of defendants who had either reported or investigated claims of elder abuse and neglect by the abuser. Rizzo v Bergen County Board of Social Services, Docket No. BER – L – 2926 – 12 (Law Div., June 10, 2014).

Octogenarian Fred Rizzo and his brother defendant Emil Rizzo operated a very successful family business, a tool shop called Madison Sprocket & Gear, Inc., for many years. During the latter years of his life, Fred became increasingly unable to care for himself or the business. In 2007, Fred signed a Power of Attorney in favor of his only child, plaintiff Douglas Rizzo. Thereafter, Douglas attempted to act on his father’s behalf in the operation of the family business.

Emil Rizzo filed a lawsuit against Douglas in 2009 asserting that his brother Fred was incapable of executing a Power of Attorney. During the litigation, defendant John Dunnigan, Emil’s son-in-law, contacted the Bergen County Board of Social Services (hereafter “BCBSS”) alleging financial exploitation of Fred by Douglas. BCBSS investigated, and found no evidence of exploitation, although the agency determined Fred was suffering from dementia.

After the lawsuit concluded, Emil and his son-in-law John Dunnigan again contacted BCBSS about Fred after discovering that (1) a reverse mortgage in the amount of $900,000 was taken out on Fred’s Franklin Lakes, NJ home; (2) vast credit card debt; (3) taxes were due on Fred’s home for 2008 and 2009 that were not satisfied for over a year; and (4) creditors were calling Mr. Dunnigan’s house looking for Fred Rizzo. In addition, Emil and John were also concerned because Fred was being isolated from his family.

BCBSS assigned this second referral to social worker and defendant William Oserin. Mr. Oserin visited Fred Rizzo at Douglas Rizzo’s home on several occasions. On one occasion, Mr. Oserin visited the Rizzo home accompanied by BCBSS intern and defendant Fatamata Savage. As part of BCBSS’s investigation, defendant Dr. Eli Forman visited the Rizzo home to perform a competency exam. Eventually, BCBSS filed a Complaint to remove Doug Rizzo as Fred’s power of attorney because Douglas interfered with the investigation and had failed to rectify concerns that BCBSS had about Fred’s isolation.

Douglas filed a lawsuit on behalf of Fred, himself individually and his two minor children who were in the Rizzo home at the time of the visits by the BCBSS investigators and Dr. Forman against defendants for an alleged violation of their civil rights under the federal and state constitutions based upon civil trespass.

All the defendants ultimately filed motions for summary judgment which were all granted by the Court. The Court ruled that the actions of defendants Emil Rizzo and John John Dunnigan in reporting possible elder abuse and neglect were based upon many facts giving rise to a good faith belief that Fred was being financially exploited belief and isolated from family. The New Jersey Adult Protective Services Act (hereafter the “Act”) provides immunity for good faith reports of abuse to the authorities. The Act provides, in pertinent part, as follows:

A person who reports information pursuant to this Act, or provides information concerning the abuse of a vulnerable adult to the county adult protective services provider, or testifies at a grand jury, judicial or administrative proceeding resulting from the report, is immune from civil and criminal liability arising from the report, information, or testimony, unless the person acts in bad faith or with malicious purpose.

The court then ruled that plaintiffs’ action for civil trespass against defendants BCBSS, Dr. Forman, Mr. Oserin and Ms. Savage (collectively the “BCBSS defendants”) was without merit:

Trespass is ‘an unlawful act committed with violence, actual or implied, causing injury to the person, property, or relative rights of another.’ … The BCBSS defendants were employed to investigate potential abuse and neglect of Fred Rizzo. Their reasonable behavior [in investigating the claim] does not constitute a trespass. … Mr. Oserin, Ms. Savage and Dr. Forman were not behaving unreasonably when they entered the home to interview Fred Rizzo. … There is no claim that there was damage to any property, [and] … when told to leave by Doug Rizzo they promptly complied. … Additionally, this Court has determined that the BCBSS defendants are afforded qualified immunity from liability for civil damages … .

The case is annexed here – Rizzo v Bergen County Board of Social Services, Docket No. BER – L – 2926 – 12 (Law Div., June 10, 2014)

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