On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket Number L-011415-99.
Before Judges Petrella, Collester and Fuentes.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The principal issue raised in this appeal is whether the verbal threshold provision of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:9-2(d), bars a claim based on false arrest/false imprisonment where the only injury sustained by the plaintiff is the wrongful deprivation of his freedom. We hold that N.J.S.A. 59:3-3 exempts false arrest/false imprisonment claims from the limitations of section 59:9-2(d) of the TCA. In so doing, we express our disagreement with the holding in Marion v. Borough of Manasquan, 231 N.J. Super. 320 (App. Div. 1989). Plaintiff*fn1 brought suit seeking monetary damages against the municipal defendants, their respective police departments and individual police officers, alleging civil rights violations under 42 U.S.C.A. §1983 and state claims of false arrest/false imprisonment and excessive force. The case was tried before a jury. After both sides rested, the Law Division dismissed, as a matter of law, plaintiff's federal civil rights claims against the individual police officers and their respective municipal employers. The court also determined that the TCA threshold applied to plaintiff's claim of false arrest/false imprisonment.
Because plaintiff did not present any evidence to vault the threshold, the court dismissed the false arrest/false imprisonment claim.
The only claims permitted to reach the jury were those involving allegations of excessive force against defendants Novakowski and Schultz. The jury returned a verdict against these defendants, finding that each used excessive force against plaintiff. The jury awarded plaintiff $20,000 in compensatory damages, apportioning liability forty percent to Novakowski and sixty percent to Schultz. In a bifurcated proceeding, the same jury denied plaintiff's request for punitive damages. The trial judge awarded plaintiff $71,195 in attorneys' fees and $3,099.43 in costs.
On appeal plaintiff argues that the trial court erred in (1) dismissing his federal claims under §1983 by finding that defendants were entitled to qualified immunity; (2) dismissing his state false arrest/false imprisonment claim because he failed to meet the TCA threshold for recovery; (3) barring plaintiff from testifying about receiving psychiatric treatment; (4) failing to respond to a jury question during the punitive phase of the trial; and (5) calculating the amount of counsel fees. Defendants' cross-appeal challenges the jury verdict.
We gather the following facts from the evidence presented at trial.
In the summer of 1997, the Saddle River Police Department spearheaded the creation of a multi-jurisdictional task force to combat a rash of residential burglaries that had been plaguing the community. The boroughs of Hillsdale and Ho-Ho-Kus and the Township of Washington were among the participating municipalities.*fn2 The task force consisted of forty police officers from the various participating municipalities.
Sergeant Robert Breese of the Saddle River Police Department was assigned to the task force. According to Breese, the task force was designed to provide a rapid response to a report of a burglary by establishing a perimeter around Saddle River,"to try either [to] catch a vehicle going out or to catch a vehicle coming in," that the police believed was being used to pick up or drop off the burglars. The police did not have any information, however, as to the type of vehicle, if any, used by the burglars. In fact, police investigators had been unable to determine whether the burglaries were the product of a coordinated organized crime operation or a series of disjointed events.
On October 24, 1997, the Saddle River Police Department received reports of two burglaries. The first one occurred on Werimus Brook Road. It was discovered by the homeowner upon her return from work at 6:20 p.m. She had originally left her residence at 11:00 a.m. Therefore, there was no way of pinpointing when the burglary actually occurred. While investigating the first burglary, Breese was advised of a residential alarm sounding about one block away on Old Woods Road. The investigation by the police into both burglaries did not uncover any information as to the number or identity of the burglars, their means of conveyance, or the direction of their travel. This was made clear during Breese's cross-examination:
Q. Dealing with the two [burglaries] that took place on October 24th,'97, did you have any information, in fact, that they were perpetrated by the same people?
A. The two that happened that night?
Q. Did you have any way of knowing if they had been perpetrated by the same offender or offenders?
Q. Did you have any way of knowing if they had been perpetrated by the people who were responsible for the burglaries you were investigating on other dates?
Q. Did you have any way of knowing whether the burglary of either of them on October 24th,'97 were committed by one person or more than one person?
Q. Did you have any way of knowing whether the person or persons who had committed the burglaries, either of them on October 24th,'97 were white, black, Hispanic, or otherwise?
Q. Did you have any way of knowing if they were male or female?
Q. Did you have any way of knowing whether they arrived by car or foot?
Q. Did you have any way of knowing if they were leaving by car or foot?
Q. Did you have any way of knowing what direction they were going in?
Notwithstanding this informational void, Breese sent out a general-assistance call to all of the participating municipalities in an effort to seal the borders of Saddle River. The call included a request to the Rockland County Sheriff's Department to deploy its helicopter for the purpose of conducting air surveillance. The goal, according to ...