WESTFIELD, NJ — The state police trooper who hit a 14-year-old Westfield girl while driving on Central Avenue in 2017 was texting in the moments leading up the fatal crash, evidence contained in the court record for a civil lawsuit against the trooper shows.
While investigators cleared state Trooper Alexander Gelfand of criminal charges at the time, the lawsuit filed by the family of the girl, Terry DiFalco, claims Gelfand did not have his eyes on the road when he hit the girl with his patrol car on the night of March 4, 2017.
“Gelfand failed to maintain a proper look out and did not perceive and react in a timely manner to the presence of the ‘the group’ crossing Central Avenue and Ms. DiFalco,” writes Donald R. Phillips, a consulting engineer with National Forensic Engineers, an accident reconstruction firm hired by the plaintiff.
Phillips details his findings in a Feb. 15 report filed with the court. His findings are based on his review of police reports from the case, an examination of damage to the vehicle and testimony Gelfand gave in a 2018 deposition, the report says.
In the deposition, Angel DeFilippo, attorney for the DiFalco family, references a text message from Gelfand as being received at 8:29 p.m. Police reports show that the 911 call was received at 8:31 p.m.
DeFilippo attempts to pin down Gelfand’s specific location when he composed the message: “I had fun. You’re sweet and I want to see you again.” And while Gelfand says he was not at a Terminal Avenue stoplight or on the Garden State Parkway when he sent the message, he maintains he was not texting when he hit DiFalco.
“I don’t recall if the phone was in the cup holder or if it was against my leg, but I know that prior to the accident and during the accident the phone was not being looked at, and I was not holding on to it,” Gelfand says.
In the 144 pages of testimony, Gelfand discusses the moments leading up to the crash and the events that follow in extensive detail.
“Just prior to the crash, I was looking straight ahead and honestly, if I wasn’t looking straight ahead, I would feel very different about the situation and I’d have a much more difficult time because I’d feel like it was my fault for not paying attention,” he says.
Gelfand’s attorney did not return requests seeking comment for this story, nor did Gelfand himself, who is now 36 and a resident of Cranford. At the time of the crash, he was living in Scotch Plains, the police report shows.
Are Schools Liable?
The lawsuit also lodges claims of negligence against the Westfield Board of Education and the Westfield High School theater director, Daniel Devlin, as the plaintiffs say DiFalco was participating in a scavenger hunt for theater department students.
They are claims that Superior Court Judge Karen M. Cassidy at a hearing in Elizabeth on Friday said must go before a jury. Cassidy denied a motion that would have dismissed the Westfield Board of Education and Devlin from the lawsuit.
At issue is what school officials knew about the extracurricular activity.
“The fact that Mr. Devlin says ‘I have no idea,’ maybe he did in fact have no idea,” Cassidy said. “But I believe that is an issue that needs to go to the jury.”
Cassidy cited a contract the students had signed in connection with the scavenger hunt and said that the significance of the extra-curricular activity may have prompted students to feel obligated to participate.
The judge’s decision to deny the school board’s summary judgment motion follows nearly two years of discovery between the parties, something Cassidy referenced when she lifted a thick stack of papers from the bench.
“This type of case is very fact sensitive,” Cassidy said. “And I think what I have seen develop in this case is that there are significant issues of material fact in terms of this event and the obligations of the student to attend the event.”
The plaintiffs characterized the scavenger hunt as school sponsored.
“Whether or not you believe this is a privately organized versus a school function, that is the issue. We have numerous witnesses testifying that this is a school function,” DeFilippo said.
Attorney for the Westfield Board of Education Roshan Shah, however, portrayed the scavenger hunt as privately organized, and not one Devlin or the schools bore responsibility for — even if school officials were aware of it.
“You hear lots of different things about students during the course of the day,” Shah said. “That doesn’t mean that it is the responsibility of the school.”
While Cassidy denied the school board’s motion, she granted a motion dismissing the New Jersey State Police and the New Jersey Turnpike Authority, the owner of the patrol vehicle Gelfand was driving, from the case.
“He was not on duty,” Cassidy said. “He was not acting on the purpose of his employer. He was not acting as an agent of his employer.”
Gelfand was not at Friday’s court hearing, nor was DiFalco’s mother, Maureen DiFalco, the plaintiff in the lawsuit.
Although previously set for Dec. 2, a trial date has yet to be determined, court records show.
“I do think it will head to trial because of the way it was fought,” DeFilippo said shortly after Friday’s hearing. “It was so hard fought.”