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Toto v. Ensuar

June 22, 2007

BLASE J. TOTO AND BETTY TOTO, PLAINTIFFS-APPELLANTS,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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