Before Judges King, Wallace and Fall.
The opinion of the court was delivered by: Wallace, Jr., J.A.D.
 Submitted: October 28, 1998
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Plaintiff Arthur Wildoner, a seventy-year-old disabled veteran, was arrested for domestic violence against his wife by defendants police officers, Kane Zuhone and Brian O'Donahue, employees of defendant Ramsey Police Department and of defendant Borough of Ramsey, (together the defendants). Defendant Helen Gannon, a neighbor of plaintiff, reported a disturbance to defendant Margaret Diefert, the manager of the senior citizens' apartment complex where they resided, who in turn called the police. Plaintiff was arrested.
Plaintiff filed suit against each party who played a role in his arrest. He subsequently dismissed his negligence claims against Gannon and Diefert. In his complaint, he claimed that defendants falsely arrested and imprisoned him; mistreated him; improperly obtained a temporary restraining order (TRO) against him; and maliciously prosecuted him for assault. The motion Judge granted summary judgment in favor of defendants.
On appeal, plaintiff contends the Judge erred in (1) finding probable cause; (2) determining that defendants were immune under 42 U.S.C.A. § 1983; (3) dismissing plaintiff's state tort claims of false arrest and false imprisonment; (4) dismissing his malicious prosecution claim under state and federal law; (5) discounting a finding by the Judge who heard the domestic violence matter that the police improperly obtained the TRO against plaintiff; and (6) determining that defendants were immune under N.J.S.A. 59:9-2(d).
We conclude plaintiff raised genuine issues of material facts necessary to determine whether there was probable cause for his arrest and whether defendants were protected by good faith immunity under § 1983. Because plaintiff's claims of false arrest and false imprisonment depend on whether there was probable cause for the arrest, it was error to dismiss those claims and the claim for malicious prosecution. We affirm the dismissal of the state-law claim for damages for pain and suffering against all defendants and affirm the dismissal of the claim for punitive damages and malicious prosecution against the Ramsey Police Department and the Borough of Ramsey.
This case arises out of the arrest of plaintiff by Ramsey police officers Kane Zuhone and Brian O'Donahue. Plaintiff and his wife Cecilia resided in a senior citizen complex in Ramsey. On September 15, 1993 Helen Gannon, a neighbor, reported to Margaret Diefert that she heard a disturbance coming from plaintiff's apartment. Gannon claimed she heard plaintiff use loud and abusive language and threaten to throw a knife at Cecilia. Diefert then called the police.
A short while later, Zuhone and O'Donahue arrived at the complex. After speaking with Gannon and Diefert the police knocked on plaintiff's apartment door. Cecilia let the police enter. After interviewing Cecilia, the police arrested plaintiff, obtained a temporary order restraining him from going back to his home, and filed a criminal complaint against him for assault and battery.
Cecilia had not sought a restraining order against plaintiff and checked the block on the Bergen County Domestic Violence Rights Form indicating that "she did not want a restraining order at this time."
The next day, at a hearing on the domestic violence complaint, the temporary restraining order was dismissed with a notation on the order that:
Testimony in Court. No complaint filed by [Cecilia]. Police improperly obtained TRO. Later, when the assault and battery complaint filed in Ramsey Municipal Court was heard, it was dismissed at the end of the State's case.
In September 1995, plaintiff filed his complaint against defendants alleging assault and battery, intentional infliction of emotional distress, mistreatment, false arrest, false imprisonment and malicious prosecution claiming violations of both state law and 42 U.S.C.A. § 1983. Plaintiff alleged he suffered mental anguish, ridicule and embarrassment, expense incurred in his defense, and deprivation of his civil rights. He sought compensatory and punitive damages, along with costs, interest, and attorney's fees. Defendants answered, denying the material allegations.
Following discovery defendants moved for summary judgment, claiming immunity from suit because the arresting officers acted in good faith and with probable cause. In support of their motion, pursuant to R. 4:46-2, defendants submitted, in part, the following facts:
4. Officers Kane ZuHone and [Brian] O'Donahue of the Ramsey Police Department were dispatched to the Woodlands Senior Homes after receiving a call from Ms. Diefert regarding the domestic situation in the Wildoner's apartment.
5. Officers ZuHone and O'Donahue consulted Ms. Diefert and Ms. Gannon before investigating the Wildoner's residence.
6. Upon the officers' arrival, Mrs. Wildoner admitted the officers into her apartment and told them that Plaintiff had been drinking, and that she did not want him to drive the car.
7. Officers ZuHone and O'Donahue observed a red mark on Mrs. Wildoner's arm.
8. When Mrs. Wildoner was questioned about the red mark on her arm, she pointed to Plaintiff and said, "He did it to me."
9. Mrs. Wildoner reported that her husband had thrown a knife at her.
10. Officers ZuHone and O'Donahue observed a knife on the kitchen floor of the Wildoner's apartment.
11. After being placed under arrest, Plaintiff was wheeled out of the apartment in a wheelchair, covered by a blanket.
12. Complaining of dizziness, plaintiff was driven to the Ramsey Police Station in an ambulance.
13. A criminal complaint charging simple assault (N.J.S.A. 2C:12-1a) was signed by Officer ZuHone against Plaintiff Wildoner.
14. Plaintiff, Cecilia Wildoner, refused to sign a domestic violence complaint.
15. Ramsey Police Officers applied to the Municipal Court Judge for a Temporary Restraining Order. Judge Leddy issued a Temporary Restraining Order for Mrs. Wildoner's protection.
16. Plaintiff was released into the custody of his son, Arthur Wildoner, Jr., a ...