No Cause of Action for “Negligent Identification as a Suspect”

Morris v. T.D. Bank, ___ N.J. Super. ___ (App. Div. 2018).  This case arose out of a robbery at a T.D. Bank in Union, New Jersey.  Plaintiff, an African-American man, was waiting before a teller to make a withdrawal.  Another African-American man approached the teller before plaintiff and, unbeknownst to plaintiff, gave the teller a note that said “[b]ig bills please this is a hold up.”  The teller gave him a stack of bills, and the robber left the bank.  Plaintiff then moved up to the teller’s window.

Another bank employee saw the note, determined that there had been a robbery, and called 911.  Mistakenly believing that plaintiff was the robber, the bank employee told the police that the perpetrator was still in the bank.  Other employees locked the bank’s doors.  Meanwhile, plaintiff sat down in the bank’s lobby area.  When the police arrived, they were admitted to the bank.  Plaintiff testified at his deposition that the police had their guns drawn and pointed at him, but video showed that no guns were drawn.  Plaintiff was never arrested, but merely interviewed by the police.  He remained calm during the interview, provided information about the suspect, and left the bank to go home about 90 minutes after the incident.

Plaintiff sued the bank and the Union Township Police Department.  His theories were based in negligence, false imprisonment, assault, and violation of the  New Jersey Law Against Discrimination (“LAD”).  The Law Division granted summary judgment to both defendants.  Plaintiff appealed only as to the bank, and only as to the negligence and LAD claims.  Applying de novo review, the Appellate Division today affirmed summary judgment for the bank in an opinion by Judge Messano.

Plaintiff’s key argument was based on “the employee’s admitted departure from defendant’s policy regarding procedures to be followed in the event of a robbery.  The employee handbook provided: “FOLLOWING A ROBBERY only AFTER the Robber has left … Call Police to Report Robbery.”  Since the employee thought that plaintiff was the robber, calling the police while he was still in the bank violated that policy.  But Judge Messano observed that the actual robber had left the building,  and that, in any event, “a defendant’s internal policies– standing alone– cannot demonstrate an applicable standard of care for a negligence claim,” quoting Cast Art Industries, LLC v. KPMG LLP, 416 N.J. Super. 76 (App. Div. 2010).

Judge Messano agreed with the Law Division judge that plaintiff’s claim was in fact for a cause of action for “negligent misidentification,” a theory that our courts have never recognized.  On the contrary, he noted, businesses have potentially breached their duty to customers when they fail to summon police.  Judge Messano cited cases from other jurisdictions that likewise declined to create a cause of action for negligent misidentification.  And, recognizing that only the Supreme Court can create a new cause of action, the panel refused to take that step, which would have been “inconsistent with our State’s strong public policy encouraging citizen cooperation with law enforcement officials in the investigation of criminal activity.”

Plaintiff’s LAD claim fared no better.  He contended that because he was the only African-American customer in the bank at that time, racial animus by the bank employee led to the conclusion that he was the robber.  Judge Messano found that argument unworthy of extended discussion, citing Rule 2:11-3(e)(1)(E), the “that’s ridiculous” rule.  No record evidence supported the notion that the employee’s identification of plaintiff was racially motivated.  “The assumption that the man standing in front of the teller, who had the robber’s note on her keyboard at the time, was the robber was entirely logical.  No reasonable fact finder could conclude otherwise.”

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