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Denis v. City of Newark and Newark Police Department

January 15, 1998


On appeal from Superior Court of New Jersey, Law Division, Essex County.

Before Judges Petrella, Skillman and Eichen.

The opinion of the court was delivered by: Eichen, J.A.D.

Argued December 1, 1997

No other parties participated in this appeal.

This is an action brought under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the Tort Claims Act). Plaintiff Janet Denis appeals from a directed verdict entered in favor of defendants City of Newark (the City) and the Newark Police Department (the Department) after the close of plaintiff's case. R. 4:37-2(b).

The appeal arises out of an incident in which plaintiff was unjustifiably struck on the head with a police radio by an on-duty police officer, Keith B. Jordan, Sr., in Newark after the officer issued her a careless driving ticket. *fn1 Plaintiff was charged with assault and resisting arrest and was detained overnight in jail after Jordan falsely reported to his fellow officers that plaintiff had attacked him. *fn2 The following is plaintiff's uncontested version of the event.

On Sunday, October 17, 1993, at approximately 5:30 p.m., plaintiff, then twenty years old and a junior at Rutgers University in Newark, was approached by Jordan after making an illegal U-turn on Broad Street. Apparently, Jordan had observed plaintiff's illegal maneuver from a police kiosk located across the street. After plaintiff made the U-turn and while she was stopped at a traffic light, Jordan approached her car on foot. As plaintiff was searching for her credentials, plaintiff asked Jordan if he "could possibly not issue [her] the ticket" because her "insurance rates [were] high." Jordan responded, "Shut the fuck up. I don't want to listen to your bullshit story." Jordan then took plaintiff's credentials and went into the police kiosk. Approximately ten minutes later, Jordan returned to plaintiff's car and threw two tickets into the car. As Jordan walked away, plaintiff asked him to "hear [her] out." Jordan again responded, "I don't want to listen to your bullshit story, get the fuck out of here." Plaintiff claimed she was "shocked" and "couldn't understand why he was ... being irrational." After Jordan walked away from the car, plaintiff looked at the tickets and noticed that one ticket was for an illegal U-turn and one ticket for careless driving. Plaintiff then decided to speak to Jordan in the kiosk to determine why she was given a careless driving ticket. When plaintiff asked Jordan to explain why she had been issued two tickets, he once again responded with obscenities and demanded that she leave the kiosk. At that point, plaintiff requested to speak with a superior officer. An argument ensued which quickly escalated to the point where Jordan pulled plaintiff by the shoulder and, when she did not move, "struck [her] on the [fore]head with his [police] radio" and "punched her in her left cheek and under her right breast." Plaintiff, who described herself as 5'2" and 120 pounds, testified that Jordan was "stocky" and appeared to be 5'10". Plaintiff described what happened after Jordan struck her as follows:

"I started crying. Actually, as soon as he struck me, I started bleeding a lot. I bled profusely and the blood was gushing down the left side of my face, so I thought I was blind. So [the] first words out of my mouth [were], "I'm blind, I'm blind, look what you've done to me." And [then] I put my hands over my head because he continued to struggle with me.... [I]t seemed like he still wanted to hurt me."

I thought he was going to kill me or rape me or something, because he wouldn't ... stop and then there was blood all over the place. He finally managed to restrain me. He put my hands behind my back and then he pushed me up against the glass door and then he locked the door.

He told me to shut the fuck up that I was under arrest.

Plaintiff testified that, after a few minutes, Jordan radioed for back-up assistance, and when the other police officers arrived, he told them that plaintiff had attacked him because he gave her two tickets. Accordingly, plaintiff was taken into custody and transported to the hospital where she received stitches for her head injury, after which she was formally processed at police headquarters and detained overnight in jail.

Plaintiff instituted this action against Jordan and defendants seeking tort damages for assault and battery and false imprisonment. Plaintiff also asserted a claim against the public entity defendants for negligently hiring and retaining Jordan as a police officer alleging that they "knew or should have known" that Jordan "was a person of mean and vicious temperament ... [because] he had previously committed assaults and batteries upon other persons." Prior to trial, the court dismissed the negligent hiring and retention claims after examining the documents in Jordan's personnel file in camera because plaintiff failed to present expert testimony to support their admissibility.

At the Conclusion of plaintiff's case, the court entered a default judgment against Jordan for $100,000 in compensatory damages and $250,000 in punitive damages. *fn3 However, the court dismissed the action against defendants, determining that as public entities, they could not be liable for Jordan's willful misconduct under N.J.S.A. 59:2-10. In addition, the court determined that plaintiff had failed to present proof that she suffered injuries from the alleged false imprisonment.

On appeal, plaintiff argues that the trial court erred (1) in removing from the jury's consideration the question of whether Jordan's conduct was willful; (2) in rejecting plaintiff's claim of liability for negligent retention of Jordan as a police officer; (3) in denying plaintiff complete access to Jordan's personnel records; (4) in determining that defendants were immune from liability ...

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