The opinion of the court was delivered by: Simandle, District Judge
This matter comes before the Court upon the motion for summary judgment of Defendants City of Brigantine and Officer Marc Lemonager (collectively "Defendants") [Docket Item No. 16], and the subsequent cross-motion of Plaintiffs Bernard Byrnes and Rita Byrnes (collectively "Plaintiffs") for partial summary judgment [Docket Item No. 17]. The Court has considered all submissions, and for the reasons detailed below, shall grant in part and deny in part Defendants' motion for summary judgment.
The Court will deny Plaintiffs' cross-motion for partial summary judgment.
On the evening of January 6, 2004, between seven and eight o'clock, Mr. Bernard Byrnes, an eighty-year-old retired steel worker, drove from his home in Brigantine, New Jersey to Atlantic City, New Jersey to retrieve his seventy-year-old wife, Mrs. Rita Byrnes, from her job at the Trump Plaza arcade. (Pls.' Br. at 1.) Mr. Byrnes picked up his wife, and on their way home, got caught in traffic on the Brigantine Bridge due to an emergency personnel response to a fatal car accident farther down the road towards Brigantine. (Id.)
At the foot of the bridge, Brigantine police officers were controlling traffic. Police Officer Marc Lemonager had positioned his police cruiser in portions of the two west-bound lanes, perpendicular to the flow of traffic, and was physically blocking traffic. (Dep. Tr. of Marc Lemonager at 60.) As vehicles approached Officer Lemonager's position, he informed them that traffic would not be resuming for at least twenty-five minutes, instructed them to make a U-turn in a predesignated turn-around area, and ordered them to return to Atlantic City. (Id. at 67.) Some vehicles complied, and a few ignored his orders and continued driving to Brigantine via a nearby alternate route, unblocked by police.
When the Plaintiffs' vehicle reached Officer Lemonager's position, Mr. Byrnes informed him that some cars were disobeying his instructions and asked if he too could continue on towards his home in Brigantine. (Dep. Tr. of Bernard Byrnes at 34.) Officer Lemonager refused, and after some continued discussion, instructed Mr. Byrnes to pull his car off to the side of the road. (Id.)
At first, Mr. Byrnes complied with Officer Lemonager's direction. (Id.) Still conducting traffic, however, Officer Lemonager did not immediately attend to him. (Id. at 40-41.) Mr. Byrnes became impatient, and complaining of an inability to sit due to chronic back pain, he exited his vehicle. (Id.) Mr. Byrnes proceeded to the rear of his car, retrieved his walker from the trunk, and began ambulating down the street towards Brigantine. (Id. at 41.)
According to the Plaintiffs, Officer Lemonager then left his post directing traffic and tackled Mr. Byrnes from behind. (Dep. Tr. of Rita Byrnes at 23.) Plaintiffs further contend that when Mrs. Brynes realized that her husband was in danger, she left the confines of their vehicle, approached Officer Lemonager, and began to plead with him not to hurt her aged, diabetic husband. (Id. at 23-25.) Then, say Plaintiffs, Officer Lemonager placed Mrs. Byrnes in a choke-hold around her neck, causing her to fall to the ground and rendering her momentarily unconscious. (Id. at 26.)
Officer Lemonager, however, denies tackling either of the Plaintiffs. He insists that he only grabbed Mr. Byrnes's right bicep in an attempt to effectuate his arrest. (Dep. of Marc Lemonager at 87-93.) He claims that as he was gaining control of Mr. Byrnes, he saw Mrs. Byrnes approach him with a raised arm; unsure of her intentions, he moved towards her. (Id.) He claims that Mr. Byrnes then intentionally and dramatically fell to the ground, loudly announcing his intention to bring suit. Contemporaneously, Officer Lemonager grabbed Mrs. Byrnes by the elbow and arm in an "escort hold" intending to take her back to his vehicle. According to Officer Lemonager, Mrs. Byrnes followed her husband's example by dramatically falling to the ground and echoing his intent to sue. (Id.) Officer Lemonager placed handcuffs on Mr. Byrnes but only fastened one of the two cuffs due to his perception that Mr. Byrnes suffered from "range of motion" problems. (Id. at 108.)
At this point several fellow officers, including Sergeant Ceann E. MacLean, responded to Lemonager's request for assistance. As soon as Sergeant MacLean arrived on the scene, Officer Lemonager indicated his intent to arrest Plaintiffs, voiced his growing concern that traffic was backing up dangerously close to the crest of the bridge, and returned to his post diverting that traffic. (Tr. 08/10/04 at 84). Officer P. Scott McClaskey placed one handcuff on Mrs. Byrnes (id.), and Sergeant MacLean began addressing the situation. (Tr. 08/10/04 at 70.) Sergeant MacLean instructed her subordinate officers that Plaintiffs would not be taken into custody because they were considered a low priority. Sergeant MacLean also tended to Mrs. Byrnes's scrapes and bruises and encouraged Mr. Byrnes to immediately take his wife to the hospital. (Id. at 30-31.) Accordingly, Plaintiffs proceeded to City Division of Atlantic City Medical Center. (Dep. of Bernard Byrnes at 55.) Following their departure, Sergeant MacLean solicited witness statements from several stopped motorists including Jamison McGibbery and Susan C. Johnson. (Tr. 08/10/04 at 71.)
At the medical center, Mrs. Byrnes underwent diagnostic imaging. (See Diagnostic Imaging Report of Dr. Jack Shakarsky at 1.) The imaging revealed "no evidence of fracture or intrinsic bony abnormality[, m]ild degenerative joint disease . . . [and] no evidence of fracture or intrinsic bony abnormality [of her right fourth finger]." (Id.) Mr. Byrnes was not examined by medical personnel at the hospital that night.
As a result of the incident, Mr. Byrnes was issued a disorderly conduct summons for violation of N.J. Stat. Ann. 2C:29-2a(1)*fn1 , a petty disorderly persons summons for violation of N.J. Stat. Ann. 2C:29-2a(1)*fn2 , and a motor vehicle ticket for failing to obey Officer Lemonager's orders in violation of N.J. Stat. Ann. 39:4-80*fn3 . Officer Lemonager issued the same disorderly and petty disorderly persons charges to Mrs. Byrnes.
Plaintiffs retained counsel and sought to have criminal charges brought against Officer Lemonager pursuant to N.J. Stat. Ann. 2C:12-1B(1) for "purposefully or knowingly attempting to cause bodily harm." (Tr. 02/24/04 at 3-9.) The Brigantine Municipal Court in Atlantic County, New Jersey held a hearing to determine if there was probable cause to issue the charge. (Id.) After hearing testimony from both Mr. and Mrs. Byrnes, Judge Gerard C. Gross held that there was not probable cause to issue the requested charges, reasoning that "[i]t is clear to me that whatever happened happened because you decided you didn't have to do what the officer wanted you to do . . . ." (Tr. 02/24/04 at 8.)
On August 10, 2004, Mr. and Mrs. Byrnes pled not guilty to their citations in Brigantine Municipal Court. (Tr. 08/10/04 at 6.) Following a trial on August 10, 2004, which featured the testimony of Officer Lemonager, Sergeant MacLean, Officer McClaskey, and eye-witness motorist Susan Johnson, Judge William S. Cappuccio found Mr. Byrnes guilty of violating N.J. Stat. Ann. 39:4-80 for failure to follow the lawful order of a police officer because "he was asked on various occasions, uncontradicted again, that he do certain things regarding an emergency condition, and he did not do so." (Tr. 08/10/04 at 139.) Judge Cappuccio also found Mr. Byrnes guilty of violating N.J. Stat. Ann. 2C:33-2a(1) for petty disorderly conduct because [h]e threatened not to continue as the officer requested, to obey the officer's directions. He threatened to sue. The falling on the ground I find that partially towards that, the fact of what he threatened the officer for.
(Id. at 140). Judge Cappuccio found Mr. Byrnes not guilty of violating N.J. Stat. Ann. 2C:29-2a(1) for disorderly conduct. (Id. at 139.)
With respect to Mrs. Byrnes, the judge found her not guilty of all charges, noting that [t]he charges against Rita Byrnes on the 29-2A, I find her not guilty beyond a reasonable doubt, and I find her almost guilty but not guilty on the other charge . . . [m]ost likely she did try to commit -- she tried -- her actions were that she almost committed this offense, and had there been more, she would have been guilty of such, but as to what is on the record, there is no proof beyond a reasonable doubt that she's guilty.
Shortly after the incident, on January 14, 2004, Mrs. Byrnes was seen by Atlantic Shore Orthopaedics ("Atlantic Shore") for knee and ankle pain.*fn4 (Pls.' Br. Ex. B 13-14.) Mrs. Byrnes continued to visit these doctors regularly after the incident, receiving at least eight examinations between January and December 2004. (Id. at 2-14.)
In addition, on December 2, 2004, Mrs. Byrnes was examined by Dr. Richard Cohen, a licenced psychologist, regarding her fear of police officers and blinking police lights. (Id. at 29-35.) Dr. Cohen reported, "prognosis for recovery is fair . . . she appears to have been frightened and initially traumatized by the events . . . it is the opinion of this examiner . . . that this event did not precipitate any permanent damage." (Id. at 30.)
Also shortly after the incident (as early as March 19, 2004), Mr. Byrnes began receiving medical treatment for pre-existing back pain that he alleges was exacerbated by his dealings with Officer Lemonager.*fn5 (Pls.' Br. Ex. A at 39.) From April 29, 2004 to July 22, 2004, Mr. Byrnes received three lumbar epidural steroid injections from Dr. Gregory M. Braccia of Atlanticare Surgery Center; ...