June 22, 2007
BLASE J. TOTO AND BETTY TOTO, PLAINTIFFS-APPELLANTS,
SHERIFF'S OFFICER ROLANDO ENSUAR, SHERIFF'S OFFICER MICHAEL SCHULZE, DEFENDANTS-RESPONDENTS, AND MONMOUTH COUNTY SHERIFF JOSEPH W. OXLEY, MONMOUTH COUNTY SHERIFF'S OFFICE, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, MONL-1836-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically May 15, 2007
Before Judges Winkelstein, Fuentes and Baxter.
Plaintiff Blase Toto claims that on May 3, 2001, he was assaulted and falsely arrested in the Monmouth County Courthouse by defendant sheriff's officers Rolando Ensuar and Michael Schulze.*fn1 He alleged in his complaint that his injuries met the verbal threshold requirements of the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-1 to 12-3.
The case was tried from February 22 through March 1, 2006; the jury returned a verdict for defendants.*fn2 On appeal, plaintiff claims that the trial judge erred by instructing the jury that his willful misconduct claims were subject to the verbal threshold; and, that even if his claims were subject to the verbal threshold, he demonstrated "significantly-restricted neck movement, and back pain, which meet the requirement for a substantial bodily function loss" and thus vaulted the threshold. Having reviewed the record and applied the applicable law, we affirm.
On the morning of May 3, 2001, plaintiff, a chiropractor, arrived at the Monmouth County Courthouse to provide expert testimony in a pending case. He arrived late because he first mistakenly went to another courthouse. Officer Schulze was assigned to the access station of the courthouse where plaintiff entered.
Plaintiff testified that after he placed his bag on the conveyor belt, Schulze asked him to step aside. While he was waiting for Schulze to look through his briefcase, he went to the restroom. When he returned, Schulze told him to put out his hand; Schulze "dropped something in it, which [plaintiff] didn't recognize." Schulze said, "you have two choices, either take it to your car or I'm going to confiscate it." Plaintiff testified that he was confused because he had just gone through security in the other courthouse without incident.
Plaintiff described what happened next:
So I took my hand and I went to go turn it over to see what it was and at that point he was like on a heightened alert. He just stood back and he said, don't touch that. I mean it was just like that. It was that startling and it startled me.
I said, well look, I'm a doctor here to testify in a case. I said, could you hold it for me? And he said, very angrily, very rudely, don't you speak English? And at that point I realized I was not dealing with somebody in their right mind.
He told Schulze, "well you don't have to be so rude," and took the knife back to his car. When he returned, Schulze searched his bag again and told him, "you think I was rude to you before?"
I said, yeah, I think you were very rude. He goes, well don't you think it's inappropriate to bring a knife into a courthouse?
I said, look, I didn't even know it was in there. He said, don't you raise your voice at me. I'll lock you up. I said, well, you know, do whatever you feel you need to do. If that makes you feel important, do whatever you need to do.
And he said to me, one more word -- I'll never forget this -- he said, one more word out of your mouth and I'm going to arrest you. . . . I didn't back down. I said, if that makes you feel like a man, go ahead and do it.
[I] [g]ot on the elevator and then he asked me, he goes, where are you going?
I'll let them know you're coming. I said, don't do me any favors.
As plaintiff was sitting outside the courtroom preparing to testify, Schulze approached him with three other officers and arrested him. The officers handcuffed him, grabbed him by the arms and led him away. When they passed a visiting group of students in the hall, plaintiff remarked, "when you grow up, get an education. Don't wind up like these guys."
He testified that the officers' "hands [were] on [him], literally like lifting [him] up. . . . literally moving [him]." He could not move or turn. Ensuar told him to "shut" his mouth, and when they rounded the corner and were out of view, Ensuar "body slammed" him into the wall. Ensuar told him, "[n]ow you're going to be charged with assaulting [a] police officer." At that point he experienced pain in his upper back and neck and felt "woozy."
They arrived at a processing room in the courthouse, where plaintiff was handcuffed to a bench for approximately an hour. He was not fingerprinted or charged before he was released. He was subsequently charged with a petty disorderly persons offense.
Schulze provided a different version of what occurred. As plaintiff's briefcase went through the X-ray machine, Schulze spotted what appeared to be a knife. After he searched the bag and removed a Swiss army knife, he instructed plaintiff to take the knife back to his car or have it confiscated.
Schulze testified that plaintiff responded, "this is fucking ridiculous." When he returned the knife to plaintiff, plaintiff raised it and began to open it, as if, Schulze presumed, to demonstrate that it was a small knife. When he told plaintiff not to open the knife, plaintiff said, "you don't have to be so fucking rude."
When plaintiff returned to the building and again went through security, Schulze told him he did not mean any offense. Plaintiff responded that he was offended, and told Schulze that he was "very fucking rude." Schulze stated that a woman and her young daughter, who were seated nearby, heard plaintiff's remarks.
After plaintiff retrieved his bag and got into the elevator, he yelled, "you have nothing fucking better to do." At that point, Schulze decided to arrest plaintiff as a disorderly person. After watching the elevator to see what floor it stopped on, Schulze went to the second floor to arrest plaintiff. When he arrived, plaintiff was seated, preparing for trial. Schulze handcuffed him and told him he was under arrest.
Ensuar joined Schulze after plaintiff was handcuffed, and they led plaintiff to an office for processing. Schulze carried plaintiff's bag in one hand while guiding plaintiff down the hall with his other hand on plaintiff's left elbow; Ensuar was on plaintiff's right. Schulze provided a similar account of their encounter with the students in the hall; plaintiff slowed down and yelled at the students, "don't be like these morons, useless. Get an education, go to school. Don't be like these guys." The officers told plaintiff to "knock it off" and kept him moving down the hall with "enough force to keep him walking." They did not lift plaintiff to keep him moving.
Schulze testified that when the hallway narrowed, he needed to drop slightly behind plaintiff and Ensuar. At that point, plaintiff suddenly stopped and turned his shoulder into Ensuar's chest, stating, "this is bullshit." Ensuar responded by grabbing plaintiff's arm and pivoting plaintiff to face the wall. "He had his arm so that he basically turned him, and he had a hold of him, and he basically had him in a position where he was stopped." At that point, plaintiff stated, "you guys are going to pay when I sue."
Ensuar testified that when they rounded the hallway corner, plaintiff turned his right shoulder into him in a "quick and violent motion." He stated, "I bladed my body, I turned my right leg f[a]rther back to almost defend myself at that point, and then I was able to, with my left hand, which was holding [plaintiff], start moving him toward the wall with my right hand placed on his shoulder, and place him into the wall to secure him." Ensuar claimed he did not push or slam plaintiff into the wall. "I placed him on the wall, and I said, don't do it again or I'm going to give you additional charges, and he just looked at me and said, you guys are going to pay when I sue."
Plaintiff presented medical testimony that although he had had prior neck surgery, he suffered disk herniations in his thoracic spine as a result of defendants' actions. Defendants' expert testified that plaintiff had pre-existing medical conditions and was not injured in the incident.
At the charge conference, plaintiff's counsel urged the court not to charge the verbal threshold, arguing that it did not apply to public employees who were found to have committed willful misconduct, such as, according to plaintiff's claims, Schulze and Ensuar. The judge determined that the verbal threshold did apply, relying primarily on the New Jersey Supreme Court's decision in DelaCruz v. Borough of Hillsdale, 183 N.J. 149 (2005). Consequently, the court instructed the jury as follows:
Even if there was a false imprisonment or a battery was committed [and] such conduct was not a proximate cause of the injuries complained of, there cannot be any recovery for compensatory damages. If you find that such conduct was a proximate cause of plaintiff's injuries, he would be entitled to a verdict for compensatory damages in such an amount as would constitute reasonable compensation . . . for any physical injury sustained by him and/or emotional distress resulting from the indignity to which he was subjected, subject to the Tort Claims Threshold, which I'm about to discuss.
. . . To recover for damages for pain and suffering when you're suing a governmental entity and these defendants are agents of the government, the plaintiff must prove . . . that he sustained injury that constitutes a permanent loss of a bodily function.
. . . . . . . Plaintiff is required to prove that the injuries he sustained have [had a] substantial impact on his ability to perform many of the functions he previously enjoyed. That's what we mean by a permanent loss of a bodily function.
. . . [T]he loss need not be total, but must be substantial. Mere limitation is insufficient. By that I mean the plaintiff must prove this loss by a demonstration of objective, credible, medical evidence of permanent injury, because damages for temporary injury are not recoverable. But proof must be both objective and credible.
The jury interrogatories incorporated the verbal threshold separately as to each defendant. For both Schulze and Ensuar, the jury questions as to liability and proximate cause read as follows:
1. Did defendant['s] actions constitute willful misconduct? [yes or no]
2. Did the willful misconduct of defendant . . . proximately cause a substantial permanent loss of a bodily function, resulting in a substantial inability to perform many of the functions Plaintiff Toto previously enjoyed? [yes or no]
The judge instructed the jury regarding willful misconduct:
The plaintiff contends that the defendants['] . . . conduct constituted willful misconduct. So I will give you the law on willful misconduct now.
The defendants as public employees are not liable if they acted in good faith in the execution and enforcement of the law I'm about to discuss with you.
In order to find that the defendants acted in good faith it is necessary to find that the defendants demonstrated either objective reasonableness or behaved with subjective good faith. . . .
Whether the defendant[s'] conduct was subjectively reasonable, in which case [they are] not liable, should be based on the totality of the circumstances. That's the subjective one.
The objective element involves a presumptive knowledge of and respect for basic unquestioned constitutional rights. The subjective element component refers to permissible intentions, referring both to the objective and subjective elements.
Immunity would be defeated if an official knew or should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of plaintiff. Or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury.
A defendant's actions may be negligent, but negligence does not necessarily prevent a finding of good faith. Willful misconduct requires much more than mere negligence.
Willful misconduct will fall somewhere in the continuum between simple negligence and the intentional infliction of harm. It's somewhere between the two.
. . . In order to recover for injuries allegedly produced by willful and wanton misconduct . . . it must appear that the defendant with knowledge of existing conditions and conscious from such knowledge that injury will likely or properly result from this conduct and with reckless indifference to the consequences conspicuously and intentionally does some wrongful act or omit to discharge some duty which produces the injurious result.
. . . . . . . Even if you find the offense was committed in the defendant's presence and because of that he arrested the plaintiff, you must still consider whether he restrained the plaintiff only for a reasonable period of time.
If the arrest was proper and the confinement reasonable, according to the rules I've explained, then you must find for the defendant. It's not an unlawful arrest then.
The jury concluded that Schulze's actions did not constitute willful misconduct. Consequently, it did not consider whether his actions proximately caused plaintiff's injuries. While the jury found that Ensuar's actions did constitute willful misconduct, it also found that his conduct did not proximately cause "a substantial permanent loss of a bodily function, resulting in a substantial inability to perform many of the functions plaintiff Toto previously employed."
Plaintiff moved for a new trial, primarily claiming that the verbal threshold did not apply to Schulze's or Ensuar's willful misconduct. The court denied plaintiff's motion.
Against this background, we first determine whether the verbal threshold applies to the sheriff's officers' alleged willful misconduct. A public employee's liability for a plaintiff's injuries is subject to the provisions of the Act. The Act's immunities prevail over its liability provisions. Tice v. Cramer, 133 N.J. 347, 370-71 (1993) (legislative policy establishes "immunity as the general and superseding rule" over liability).
What has become known as the verbal threshold provision of the Act states:
No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00. [N.J.S.A. 59:9-2d.]
In deciding that this provision is applicable to intentional torts, like those claimed by plaintiff, the trial judge relied on DelaCruz, supra, where, in dicta, addressing a false arrest and false imprisonment case instituted against individual police officers, the Supreme Court stated: "the need to vault the verbal threshold is not limited to false arrest or false imprisonment claims; the Act makes no such distinctions and, instead, treats all torts similarly." 183 N.J. at 164. The court was emphatic - "[t]he clear terms of the Tort Claims Act require that all claims - including those for false arrest and false imprisonment - must vault the verbal threshold in order to be cognizable." Id. at 164-65.
Despite this language, plaintiff argues, quite reasonably, that N.J.S.A. 59:3-14, which was not discussed by the DelaCruz Court, provides an exception to a public employee's immunity by precluding the application of the verbal threshold to intentional torts. The statute states:
Nothing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct. [N.J.S.A. 59:3-14a.]
Another panel of this court recently concluded that this section precludes the application of the verbal threshold when the public employee "not only acts willfully, or within the terms of N.J.S.A. 59:3-14(b) [the terms of which are nearly identical to N.J.S.A. 59:3-14(a)], but also . . . outside the scope of employment." Kelly v. County of Monmouth, 380 N.J. Super. 552, 563 (App. Div. 2005).
Here, plaintiff never argued in the Law Division that Schulze or Ensuar were acting outside the scope of their employment. In fact, in his complaint, he claimed they were acting within the scope of their employment when the incident occurred. We therefore decline to entertain plaintiff's argument before this court that the verbal threshold does not apply because defendants were acting outside the scope of their employment when they arrested him. Nevertheless, if we did address the argument substantively, we would conclude no reasonable factfinder could find that either sheriff's officer acted outside the scope of his employment when arresting plaintiff and taking him into custody.
That said, we do not read N.J.S.A. 59:3-14 as providing an exception to public employee immunity only if the employee acts outside the scope of his or her employment. The statute says that the employee is not exonerated from liability if "his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct." Ibid. (emphasis added). We read the word "or" in the disjunctive, providing a potential exception to immunity if either condition is met.
Nonetheless, despite our understanding of what appears to be the reach of the statutory exemption to immunity embodied in N.J.S.A. 59:13-14a, based on existing case law, we are constrained to conclude that this statute does not eliminate the necessity of a plaintiff vaulting the verbal threshold, even when the plaintiff's injuries were sustained as a result of a public employee's willful misconduct. A contrary conclusion would conflict with not only the language of the Supreme Court in DelaCruz, but also with the following decisions, which, while not analyzing N.J.S.A. 59:13-14a, have required the plaintiff to satisfy the verbal threshold when injured by a public employee's willful misconduct: Collins v. Union County Jail, 150 N.J. 407, 412-21 (1997) (inmate's action against county jail and others for injuries sustained when he was raped by corrections officer governed by verbal threshold); Leopardi v. Twp. of Maple Shade, 363 N.J. Super. 313, 322-23, 331-34 (App. Div. 2003) (plaintiff, who claimed physical injuries as a result of allegedly excessive force used by police officer during an arrest where the officer lacked probable cause, only entitled to recovery if injuries satisfied verbal threshold), appeal dismissed, 187 N.J. 486 (2005); Thorpe v. Cohen, 258 N.J. Super. 523, 525-26 (App. Div. 1992) (finding the verbal threshold applicable after police officer assaulted plaintiff with gun during motor vehicle stop); Marion v. Borough of Manasquan, 231 N.J. Super. 320, 323-24, 330-32 (App. Div. 1989) (plaintiffs' claims for false arrest against municipality and its employees still subject to N.J.S.A. 59:9-2d even where court found defendants unlawfully detained plaintiffs, who had not committed an arrestable offense). Cf. Velez v. City of Jersey City, 180 N.J. 284, 294 (2004) (despite N.J.S.A. 59:3-14, intentional torts, not just negligence, subject to notice requirements of the Tort Claims Act).
Federal courts have also concluded that the verbal threshold is applicable to intentional torts under the Act. Hansell v. City of Atlantic City, 152 F. Supp. 2d 589, 592, 611-12 (D.N.J. 2001) (applying verbal threshold to both negligent and intentional infliction of emotional distress claims), aff'd, 46 Fed. Appx. 665 (3d Cir. 2002); Ramirez v. United States, 998 F. Supp. 425, 428-29, 437-38 (D.N.J. 1998) (applying verbal threshold to claims of false arrest, false imprisonment, and intentional infliction of emotional distress). While we recognize that these decisions were not directly faced with the application of N.J.S.A. 59:3-14a, the cases can only be read for the proposition that the Act's verbal threshold is applicable to intentional torts, as well as torts based upon negligent conduct.
As an intermediate appellate court, our role "is to follow the dictates of the Supreme Court." RSB Lab. Servs., Inc. v. BSI Corp., 368 N.J. Super. 540, 560 (App. Div. 2004); Moscatello v. Univ. of Med. & Dentistry of N.J., 342 N.J. Super. 351, 363-64 (App. Div.), certif. denied, 170 N.J. 207 (2001). Here, while the New Jersey Supreme Court did not address N.J.S.A. 59:3-14a in either DelaCruz or Collins, given the application of the verbal threshold to intentional torts, as well as the emphatic language the court applied in DelaCruz, which we concede is dicta, we agree with the trial judge that under the facts here, the verbal threshold is applicable.
We are mindful that other decisions of this court have concluded that a public employee's intentional actions are not subject to the verbal threshold. See Jobes v. Evangelista, 369 N.J. Super. 384, 400 (App. Div.) (fire chief who wrongly filed criminal arson charges against firefighters not protected by verbal threshold), certif. denied, 180 N.J. 457 (2004); Taglieri
v. Moss, 367 N.J. Super. 184, 187-88, 195-96 (App. Div. 2004) (doctor who ignored state and federal regulations in prescribing narcotics to patient not protected by verbal threshold). These cases, however, predated DelaCruz, and cannot be reconciled with either DelaCruz's broad language, see, supra, 183 N.J. at 164-65, or Collins's application of the verbal threshold to injuries sustained from a corrections officer's sexual assault. Supra, 150 N.J. at 412-21.
Plaintiff also claims that the judge erroneously instructed the jury that "defendants as public employees are not liable if they acted in good faith." As to defendant Schulze, plaintiff is correct. The claim against Schulze was for false arrest. A public employee is not exonerated from liability for false arrest even if that employee acts in good faith. N.J.S.A. 59:3-3. We do not, however, conclude that this error entitles plaintiff to a new trial as to Schulze; the error was not clearly capable of producing an unjust result. See R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38 (1971).
We arrive at this determination by analyzing the jury's verdict as to Ensuar. While the jury found that his actions did constitute willful misconduct, it concluded that the willful misconduct did not proximately cause injuries to plaintiff sufficient to vault the verbal threshold. According to plaintiff's testimony, he felt pain in his back and neck after Ensuar "body slammed" him into the wall; as a result, he lost motion in his neck and continues to experience upper back pain. Plaintiff's expert testified that Ensuar's misconduct led to an exacerbation of plaintiff's pre-existing neck condition, which required additional surgery, including a fusion of two vertebrae in plaintiff's spinal column at his neck. It was Ensuar's conduct, therefore, that plaintiff claims caused him physical injuries sufficient to satisfy the threshold. Plaintiff presented no evidence of an injury caused by Schulze's actions that could meet the threshold requirement of a "permanent loss of a bodily function, permanent disfigurement or dismemberment." N.J.S.A. 59:9-2d. Thus, even if the jury had concluded that Schulze acted willfully in falsely arresting plaintiff, in the absence of any testimony proximately connecting that conduct to an injury to plaintiff sufficient to meet the threshold requirements, he was not entitled to damages as to Schulze.
Plaintiff claims another error with regard to the charge. He asserts that the judge should have charged the jury that the burden of proof in establishing good faith is carried by defendants. Plaintiff is correct. N.J.S.A. 59:3-3 provides that a public employee enforcing a law must prove good faith to be entitled to the good faith immunity. Marley v. Borough of Palmyra, 193 N.J. Super. 271, 293 (Law Div. 1983). Thus, we agree with plaintiff that the instruction should have been provided to the jury, but we disagree that, under the facts, it was harmful error to not have provided the instruction. First, the jury did find that Ensuar failed to act in good faith, so the failure to give the charge vis-à-vis Ensuar is moot. As to Schulze, even had the jury concluded that he failed to act in good faith, given that plaintiff's physical injuries were caused by Ensuar's actions, and plaintiff did not prove psychological injuries sufficient to satisfy the threshold, there were no grounds for damages against Schulze. The failure to provide the charge was therefore harmless as to both defendants.
Finally, we address plaintiff's claim that if the verbal threshold applies, his injuries were sufficient to vault the threshold. The jury found to the contrary, and we cannot conclude that the verdict was against the weight of the evidence. Defendant's expert, a board certified orthopedic surgeon, testified that plaintiff's physical injuries were not the result of the conduct of the sheriff's officers, but rather were the result of a long-term degenerative process. Accepting this testimony as true as we are required to do on such a motion, see McConkey v. Aon Corp., 354 N.J. Super. 25, 33 (App. Div. 2002), certif. denied, 175 N.J. 429 (2003), we cannot say that the verdict that plaintiff's injuries failed to vault the verbal threshold was against the weight of the evidence.