August 25, 2008
PHILIP A. BESLER, PLAINTIFF/CROSS-RESPONDENT, AND CAROLANN S. BESLER, PLAINTIFF, AND JENNIFER J. BESLER, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
BOARD OF EDUCATION OF WEST WINDSOR-PLAINSBORO REGIONAL SCHOOL DISTRICT, A BODY CORPORATE ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEW JERSEY, AND/OR ITS SERVANTS, AGENTS AND EMPLOYEES, DANIEL HUSSONG, MICHAEL CARR, AND RAY J. BANDLOW, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY; INDIVIDUALLY, JOINTLY AND SEVERALLY, DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS, AND LORI HUSSONG AND ROBERT BANKS, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY; TOWNSHIP OF PLAINSBORO, A MUNICIPAL CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEW JERSEY, AND/OR ITS SERVANTS, AGENTS AND EMPLOYEES, JOHN J. LOMELA AND RICHARD FURDA, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY; AND TOWNSHIP OF LONG BEACH, A MUNICIPAL CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEW JERSEY, AND/OR ITS SERVANTS, AGENTS AND EMPLOYEES, AND MATTHEW PETERSON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; INDIVIDUALLY, JOINTLY AND SEVERALLY, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0236-98.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 16, 2008
Before Judges Cuff, Lisa and Simonelli.
This appeal involves a claim by plaintiff Jennifer J. Besler (Jennifer) that she suffered emotional distress from an eating disorder and amenorrhea*fn1 she developed as a result of the actions of her high school basketball coach, defendant Daniel Hussong (Hussong), during her senior year basketball season in 1995-96. A jury found Hussong liable for negligence, reckless infliction of emotional distress, and extreme and outrageous conduct; and found defendants Board of Education of West Windsor-Plainsboro Regional School District (Board), Ray J. Bandlow (Bandlow), the district's former superintendent, and Michael Carr (Carr), the former principal of West Windsor-Plainsboro High School (WWPHS), liable for negligent supervision of Hussong, for breach of their parens patriae role, and for their failure to have in place well-publicized, effective, and informal and formal complaint structures.
The jury also found Jennifer proved she sustained a permanent loss of a bodily function consisting of emotional distress resulting from amenorrhea, and awarded her $3 million in damages, which it reduced by 51% (to $1.47 million), finding she failed to mitigate her damages. The jury allocated damages as follows: the Board %50; Carr 20%; Hussong 15%; and Bandlow 15%.
The jury rejected Jennifer's claim she sustained a permanent loss of a bodily function consisting of emotional distress resulting from an eating disorder; her intentional infliction of emotional distress and punitive damages claims against Hussong; her claim the Board, Bandlow and Carr intended Hussong's conduct; and her claim the Board, Bandlow and Carr violated the child abuse reporting statute. The jury also rejected Jennifer's claims against Hussong's wife, defendant Lori Hussong (Lori).*fn2
Defendants' cross-appeal concerns a claim by Jennifer's father, plaintiff Philip A. Besler (Philip), that the Board violated his right to free speech when he tried to address Hussong's conduct at a Board meeting. Finding Philip proved his claim, the jury awarded him $100,000. The trial judge later awarded him $45,850 in prejudgment interest.
Jennifer, Philip and defendants filed motions for directed verdicts at the close of all evidence. R. 4:40-1. The trial judge reserved decision and submitted the case to the jury. After trial, the judge granted defendants' motion for a directed verdict as to Jennifer's eating disorder and amenorrhea claims, finding she failed to prove she suffered a permanent loss of a bodily function, as required by N.J.S.A. 59:9-2(d); vacated Jennifer's damage award; and dismissed Jennifer's intentional infliction of emotional distress claim against Hussong.
The judge also denied defendants' motions for a directed verdict and/or remittitur and judgment n.o.v. against Philip;*fn3 and modified Philip's damages award from $100,000 to $170,561 and his prejudgment interest award from $45,850 to $78,202 to reflect the adverse tax consequences of receiving both his jury and prejudgment interest awards in one-time lump sums. The judge also awarded Philip $307,410 for attorney's fees and costs.
We affirm the judge's rulings as to Jennifer; and the denial of summary judgment, a directed verdict and judgment n.o.v. as to Philip. We reverse the modification of the damage award.
We do not address the following arguments raised for the first time:
(1) Jennifer's arguments the mitigation jury instruction was error, and the mitigation verdict was against the weight of the evidence; and (2) defendants' arguments the verdict cannot be reinstated because of erroneous jury instructions, and the judge erred by failing to overturn the jury's award to Philip. R. 2:6-2; R. 2:5-4; Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citing Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). We also do not address defendants' argument Philip's award was against the weight of the evidence because they never filed a motion for a new trial on this issue.
We limit our review to whether the trial judge improperly granted a directed verdict on Jennifer's eating disorder and amenorrhea, and intentional infliction of emotional distress claims; whether Jennifer's willful misconduct claim is subject to the Tort Claims Act (TCA); and whether the judge's award to Philip of tax-offset damages was inappropriate.
The following facts are summarized from the record. Jennifer has participated in sports since childhood, and from the record it appears she was an excellent athlete. Jennifer considered herself an athlete, and took her image from that fact.
From 1992 to 1996, Jennifer was a student at WWPHS, and played varsity soccer, basketball and softball. She was mainly a soccer player, and was the varsity soccer team's captain and goalkeeper her senior year. She became a member of the varsity basketball team her sophomore year, and was co-captain for the 1995-96 season, her senior year. Also, in her junior year, Jennifer was the starting catcher and captain of the varsity softball team.
Hussong was Jennifer's basketball coach for three years. Until her senior year, Jennifer "looked up" to Hussong and "respected" and "idolized" him, and "off the court he was very friendly and very charismatic, nice[.]" Jennifer worried about what her coach thought of her abilities, and "trusted" what he said was "golden." Also, Philip and Carol were friendly with Hussong and Lori and invited them to their shore home.
Something happened in Jennifer's senior year that changed things. Jennifer claims Hussong told her to lose weight and became abusive, eventually causing her to develop an eating disorder and amenorrhea. Hussong claims Jennifer and her parents had a vendetta against him because she lost her starting position and he cut her playing time.*fn4
We cannot describe Hussong's on-court and off-court coaching behavior as anything other than unacceptable. He got angry and yelled and screamed on the basketball court at players, parents and officials; he slammed the floor and lockers; he used profanity; he threw clipboards; he banged the bench; he kicked bleachers; he paced; he physically yanked players off and onto the court; and he even seemed to tear out his hair. One time in the locker room during half-time, Hussong was so angry he barged in, screamed at the players and then slammed the door, accidentally pinching one player's hand as a result. The injured player was so frightened by Hussong that she never said a thing about her injury during the game.*fn5
Also, Hussong got angry with anyone who broke the team code and would not play those who had complained to their parents and whose parents complained to the administration.*fn6 Hussong denied this and passed it off as his playing-time discretion.
In Jennifer's senior year, Hussong did something different from past years; he first addressed the team as a whole and then took each player inside his office for a chat. According to Jennifer, the following occurred between her and Hussong during their meeting:
Q: And what did you discuss during that meeting?
A: Mr. Hussong sat down with [me] and the other coaches were there at that meeting, and he said, first, you know, I want to tell you, you made the team, congratulations. What do you think? Where do you stand? What do you think are your goals for the season and what do you want to do? And I was really excited. I, you know, just came off a great soccer season, and was -- you know, was pretty confident. So, I was like, oh, you know, Coach, I want to be a starter. I want to play. I want to be a contributor. I know I need to work on my shot. I know I need to work on getting rebounds, and those kinds of things. Like, my goals for the team, I wanted to go all the way. I wanted to go to the same place I was with soccer. I wanted to go to the state finals. I wanted to win banners. You know, I had high hopes . . . . I really thought that, you know, I was going to be a key contributor, but also the team was going to be better. So, I was -- you know, I was interested in helping the team do as much -- you know, as much as we could that year. But I -- I mean, going to the states was one of the goals.
Q: What did he say to you?
A: You know, he said, oh, that's great, you know, I think that those are good goals, but there's -- you know, you really got to work on your speed. There's -- you got to get quicker, and there's one goal that I really have for you this season, you know, for the next two weeks before the final game. He said, is I want you to lose ten pounds. And then he went on and said, you know, it's real simple, just cut one thing out of your diet. Don't put butter on your bread, or cream cheese on your bagel. You know, don't eat late at night, and, you know, it will make you faster, it will make you quick, and it will make us better as a team, and this is one thing that you can really do to make our team better, to make our team stronger, and at that point I was humiliated. It was everything that I thought I was as an athlete. It was just stripped from me. You know, I felt that how can you be fat and be an athlete. They're two -- you can't. I had heard him, you know, make the comments before. I knew, you know, there was [sic] two groups of people, and I felt that I was huge. I felt disgusting. I felt embarrassed, and I never ever wanted to hear anybody say something like that to me again. And I just -- you know, I didn't cry. I didn't show him anything. I was like, okay, Coach. Okay, Coach. That was my only response to him, but in that instance I was completely humiliated.
After the meeting ended, Jennifer went to the locker room, got changed, told other players that Hussong said nothing to her, and left. She then went home and screamed at her mother:
[H]ow could you not tell me that I was fat?
How could you let me hear this from somebody else? Do you know how embarrassed I am? I can't believe you would let me eat all this stuff, you would let me go out and eat McDonald's and do all this. How -- it's your job to tell me that I'm fat. I can't believe you wouldn't tell me this. I can't believe you just would let me hear it from somebody else. Well, that's it. I'm not eating. I'm not eating. Whatever you make, you got to get low fat stuff. I'm not eating after seven o'clock. And I just went on this rampage and I was crying, and I couldn't even talk and then that was it. I ran up to my room and -- I mean, she tried to calm me down . . . she kept saying, you're not fat. You're not fat. And I didn't believe her. She was lying to me. I thought she was lying to me. She -- you know, she let me just be humiliated and, in my mind, it was her fault, nobody else's.
It was, you know, I let myself get to this disgusting weight, but it was her fault that I got, you know, that out of shape.
Jennifer was 5'8" and weighed 160-165 pounds at the time she met with Hussong. Hussong never weighed Jennifer or referred her to a nutritionist or a doctor. He only told her she needed to lose some weight, "like about ten pounds," because she was slower than the other players. Hussong later said he only asked Jennifer what her goals were, and that it was her idea to lose weight because she was slow on the court.
The day after meeting with Jennifer, Hussong held a team meeting and told all of the players "not to eat junk food, to look at nutrition labels, to look at fat grams, and no[t] to eat late at night, and to drink diet soda all the time, and not drink regular soda[.]" Jennifer believed that Hussong's comments were meant for her. She lost ten pounds by the first game, which was two weeks after the meeting. She stopped eating breakfast, putting cream cheese on her bagel at lunch, and drinking regular soft drinks; she also insisted her mother only buy low fat foods. She also started exercising and running instead of eating.
According to Jennifer, each year Hussong seemed to find one player to pick on. That season, Hussong made an example of her by focusing on her more than the other players. During practices, Hussong told the other players not to "be slow like [Jennifer], don't let [Jennifer] beat you." He also yelled at her "at least once a day." Jennifer claimed that during the season, her personality changed; her grades deteriorated; her sleeping became disordered, she started having nightmares about Hussong; she withdrew from her family and her teammates; and she looked very thin.
By the end of the season, Jennifer's parents began steadily complaining about Hussong's conduct. They claimed the Board and the school's administration did nothing about it. Defendants claimed that Hussong's prior evaluations had all been satisfactory, and that once they became aware of the parents' specific complaints about him, they took immediate action to mediate the matter and believed that all concerns had been resolved. Furthermore, in March 1996, Hussong was required to sign a "Memorandum of Understanding," which called for specific improvements in his conduct. Philip and Carol claimed they never knew about this document.*fn7
Jennifer gave a speech at the annual end-of-season banquet. Instead of a happy-departure speech, she apologized to her parents and siblings for yelling at them and to her teammates for not standing up to Hussong. Nevertheless, in a team card to Hussong, Jennifer wrote, "Mr. Hussong, it's been great playing for you these past three years. You've taught me a lot. Thanks. Good luck in years to come. Never forget this season. See ya. Jen, number 55." Some players said that after the banquet, Hussong called Jennifer a "traitor" to the Pirate family.
After the basketball season ended, Jennifer played softball and was captain of the team. After graduation, she ran all the time, was very irritable, did not have many friends, never kept eye contact, and had no boyfriends.
In the fall of 1996, Jennifer attended the University of Richmond, where she played varsity soccer and was coached by Peter L. Albright. When Albright first met Jennifer during her campus visit in January 1996, he thought she had "good size for a goalkeeper[,]" and she was his first choice for that position. Albright liked Jennifer's enthusiasm and her commitment to winning and being part of a team. He felt, after watching a videotape of her playing and meeting Jennifer, "she would be a very good player for us in the first year." Jennifer became the starting goalkeeper, she got along well with her teammates, and she was a team captain. Albright had "never had a first-year player as a captain, but [Jennifer] was a leader."
During the soccer season in the fall of 1996, Jennifer's teammates advised Albright of their concerns about her eating habits. Although Albright had invited Jennifer and other players to his house for home-cooked meals and had not witnessed anything out of the ordinary, Jennifer's teammates "were concerned about her well-being and that she may be anorexic and that she may be developing an eating disorder."
Albright noticed that Jennifer exercised on her own in addition to his practices, and he worried about her "developing a compulsive exercising habit that was going to be detrimental to her health." He spoke many times to her about her performance and loss of muscle tone, not about any eating disorder or her appearance. Unbeknownst to Jennifer, Albright advised her parents of his concerns.
By the fall of 1997, Albright noticed that Jennifer had considerable muscle loss and had become "physically weaker[,] [a]nd that was a factor in her ability to perform her duties as a goalkeeper." He had not observed any signs of an eating disorder, but Jennifer's speed, agility and quickness had all been affected to the point that, during her second season, Albright reduced her playing time, which did not seem to upset her. Albright explained:
[Jennifer] just struggled to perform physically. Her attitude was great. Her competitiveness was great, but she just wasn't able to move around the goalmouth the way that she was able to previously [in her freshman season].
Although Albright did not believe Jennifer had a hard time adjusting to college life, because "she handled it pretty well[,]" he admitted that coming to college "was a big adjustment" and that "it was a big transition for her." Also, Albright did not remember specifically referring Jennifer to Martha Henley, a registered dietician, but Henley spoke to the soccer team at the beginning of the season about general nutrition, and had players fill out an assessment form to identify any who were at risk for injury, poor performance or eating disorders. Since Jennifer's assessment indicated menstrual dysfunction and dieting, Henley scheduled a meeting with Jennifer to discuss nutritional concerns.
Henley met with Jennifer twice in October 1996, and once in November 1996. Jennifer weighed 147 pounds at the time. Jennifer told Henley she lost her appetite upon arriving at college; she lost three pounds since coming to college, but by the time of their last meeting she had lost, at least, ten more pounds; her soccer teammates were far too occupied with weight and fat content in foods, which contributed most to her change in eating habits; she was uncomfortable with the weekly weigh-ins; she was disappointed with how the soccer season went; and she was disappointed in her lack of playing time, which caused her not to want to eat after the games. Jennifer also told Henley she had some problems with her high school basketball coach, and her appetite changed after the coach told her to lose weight. Henley concluded Jennifer was suffering from an eating disorder which took effect prior to coming to Richmond.
Jennifer also told Henley she started experiencing menstrual dysfunction while in high school; she had not menstruated at college; and it was normal for her not to menstruate during a sport season.
In the spring of 1998, after her second year in college, Jennifer transferred to Cornell solely for academic reasons; that is, she wanted to study pre-med, and Richmond did not offer that program. Jennifer scrimmaged with the Cornell varsity soccer team for about a month when she first arrived there, but she never officially joined the team because she was not as good as she had once been and could not get back her conditioning.
Regarding her eating disorder and amenorrhea, Jennifer relies on the testimony of Elliott Saltstein, M.D., her pediatrician; Beth A. Howlett, Ph.D., a psychologist and certified sport psychology consultant; and particularly on the testimony of Dr. Susan W. Trout, an obstetrician, gynecologist and reproductive endocrinologist. Thus, we focus carefully on that testimony, especially that of Dr. Trout.
Dr. Saltstein testified at trial as a fact witness. He has treated Jennifer since she was three and one-half years old. He examined her in June 1992, when she was thirteen years old, 66 inches tall and weighed 135 pounds. At that time, the doctor was concerned because Jennifer had not yet had her menstrual cycle. Jennifer began her menstrual cycle shortly thereafter and she had her period during the summer of 1992, but it was irregular and stopped when she started to train again. The doctor told Jennifer and her mother "that someone who is sexually maturing, if they over-indulge in sports, it can affect their period, so [he] suggested to [Jennifer] she cut down on her training." In September 1992, Dr. Saltstein prescribed birth control pills for Jennifer "to make sure that she functionally was able to menstruate[,]" and "[b]ecause she seemed to have dysfunctional uterine bleeding, that her period was irregular, and [he] wanted to see if we could maintain a regular period with the birth control pills."
Jennifer graduated high school in June 1996. On July 8, 1996, she saw another doctor in Dr. Saltstein's office. She weighed 153.5 pounds and reported her appetite was good.
Jennifer began college in September 1996. She saw Dr. Saltstein on November 27, 1996, during college break. She weighed 139 pounds, and reported she had her last period in July and August 1996. The doctor diagnosed her with anorexia because she was not eating or gaining weight, she had a distorted body image, she thought she was too heavy, and she was over-exercising as a way to maintain her weight. The doctor suggested an evaluation by the Renfrew Center, an eating disorder clinic.
Because of the long waiting period at the Renfrew Clinic, Jennifer went to the Carrier Clinic, another eating disorder clinic, where she saw the head psychiatrist. Jennifer did not stay at the clinic and went back to school when her college break was over.
On July 13, 1998, Jennifer saw Anthony Jennings, M.D., an endocrinologist, to rule out a thyroid problem as the cause of her weight loss. She weighed 140 pounds at the time. Dr. Jennings concluded Jennifer had "no thyroid eye signs, and her thyroid was normal in size[,]" and that:
Based on her history, Jennifer most likely has weight loss and oligomenorrhea*fn8 related to her vigorous exercise schedule, weight loss, and stress . . . . I feel that Jennifer is clinically euthyroid [normal thyroid function] and that her manifestations are a reflection of her vigorous exercise schedule and a change in her weight. Her oligomenorrhea can be managed with no treatment as her estrogen levels are normal or alternatively she can take a cycling estrogen progesterone preparation [a birth control pill]. I discussed these issues at length with her and her mother and they are agreeable with this approach.
From Dr. Jennings's report, and from Jennifer's menstruation issues, Dr. Saltstein concluded in May 1999, she did not have any thyroid issues, and she "was not having her period because she lost too much weight, and as part of her anorexia and part of her general personality, she was exercising too much and that was [his] concern[.]"
Jennifer saw Dr. Saltstein on August 12, 1998. She was nineteen years old and weighed 142 pounds. On December 16, 1998, Jennifer, now twenty years old, reported to the doctor she had not had her period in three years.*fn9 In August 1999, another doctor associated with Dr. Saltstein's office diagnosed Jennifer with oligomenorrhea. At no time during his testimony did Dr. Saltstein say Jennifer suffered any emotional distress.
Dr. Trout testified as a fact witness, not an expert witness.*fn10 The doctor saw Jennifer on December 21, 1999.*fn11 Jennifer weighed 143 pounds and reported she had lost thirty pounds, experienced cold intolerance, was running three to five miles per day, and had not had her period since April 1999. Dr. Trout reviewed certain test results and determined Jennifer had low levels of follicle stimulating hormone (FSH) and luteinizing hormone (LH), meaning "[s]he was not making enough hormone to stimulate ovulation or egg production and this was the most likely cause of her not getting her period." The doctor diagnosed Jennifer with hypothalamic hypogonadotropic amenorrhea. The doctor explained there are three major causes of amenorrhea:
Probably the most common thing we see is extreme exercising, so professional ballerinas, or marathon runners, or triathletes, people like that who are exercising a large amount, have very low body fat, will -- in women -- will not get their period, will have [amenorrhea]. Also fairly common is extreme dieting, eating disorders. If you are not taking in enough calories to support your body fat and you get down to very low levels of body fat that will also stop menstrual cycles, stop the period, and then long-term, prolonged stress, extreme stress can do this, as well.
The doctor said the cause of Jennifer's amenorrhea was her very low body fat and her dieting and exercise.
Dr. Trout recommended Jennifer take birth control pills "until either she wanted to stop them to try to become pregnant, or she changed her lifestyle enough to raise her body fat in which case she might be able to get periods on her own." The doctor acknowledged if Jennifer continued her extreme exercise, and if her body fat did not increase, she would have to take birth control pills until menopause, "[o]therwise, she's going to have all the dangers that women in menopause have, osteoporosis, things like that."
Dr. Trout also advised Jennifer of the dangers of ignoring treatment, stating "that without the proper hormones that she would be at risk for mainly osteoporosis[,]" and that "[a]menorrhea, because she's not ovulating, would also make her infertile, as well." The doctor admitted to correct Jennifer's condition "[w]e would probably have to give her back the FSH and LH that her body's not making and in order to stimulate the ovaries to mature and ovulate an egg."
Dr. Trout also admitted she had not tested or treated Jennifer since 2000. At the time of her testimony on January 20, 2004, Dr. Trout did not know if Jennifer still suffered from low body weight,*fn12 and she did not testify Jennifer was still dieting, exercising, taking birth control pills or had amenorrhea. The doctor never testified Jennifer suffered any emotional distress.
Dr. Howlett testified as an expert in sports psychology and physiology with particular emphasis on eating disorders. The doctor saw Jennifer once in March 2000, specifically for the purpose of litigation, and not for treatment. She focused on Dr. Jennifer's weight loss history, noting Jennifer weighed 165 pounds in December 1995; she weighed 150 pounds throughout most of the spring of 1995; and she weighed 135 pounds at one point, indicating a weight loss of thirty pounds, but weighed 140 pounds "most of the time." The doctor also focused on the results of certain tests, which indicated Jennifer had difficulty trusting, thinking and concentrating; obsessional thinking; low self-esteem; lack of confidence; and susceptibility to episodes of depression. Jennifer was also "unusually preoccupied with and/or concerned about her body, bodily functions[,]" and had difficulty expressing emotions.
Dr. Howlett opined Jennifer had an "[e]ating disorder not otherwise specified[,]" which began when Hussong told her to lose weight. The doctor explained that with treatment, 60% of people fully recover, 20% have some improvement, and 20% do not recover at all. However, despite Dr. Howlett's recommendation for treatment, Jennifer "did not seek treatment on her own" and "did not want treatment." The doctor concluded "I believe [Jennifer] can be successfully treated if she should choose to engage in that treatment." Dr. Howlett did not re-examine Jennifer prior to trial.
Defendants' expert psychiatric, Jacob Jacoby, M.D., opined Jennifer had: a history of an adjustment disorder with mixed disturbance of emotions and conduct that have included an eating preoccupation and a prior diagnosis of an Eating Disorder  Not Otherwise Specified. And that has been resolved and secondary to multiple . . . stressors. She has a history of repeated non-compliance with treatment recommendations such as refusing to have psychological counseling for eating problems. She's had a history of relational problems not otherwise specified. That is with her basketball coach and with high school team basketball peers. She has a history of partner relational problems including the breakup of two romantic relationships for reasons that she was not sure about. She's had an element of Eating Disorders Not Otherwise Specified which was objectively mild and not clinically significant until her start at college.
The doctor concluded Jennifer did not currently suffer from an eating disorder, depression, or an other psychological or psychiatric condition.
Jennifer contends that the trial judge erred by failing to acknowledge that, for purposes of a directed verdict, she produced sufficient evidence that her eating disorder and amenorrhea were permanent and substantial, N.J.S.A. 59:9-2(d). We disagree.
A motion for judgment at the close of evidence, Rule 4:40-1, is governed by the following standard: "'[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied . . .'" Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)). A judge is not to consider "the worth, nature or extent (beyond a scintilla) of the evidence, but only" review "its existence, viewed most favorably to the party opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5-7 (1969). We must essentially adhere to the same standard when reviewing the trial judge's action. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003).
"In determining whether a directed verdict was properly granted under Rule 4:40-1, we apply the same standard that governs the trial courts." Ibid. (citing Luczak v. Twp. of Evesham, 311 N.J. Super. 103, 108 (App. Div.), certif. denied, 156 N.J. 407 (1998)). "As in a summary judgment motion, we must determine 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Ibid. (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995) (internal quotation marks and citation omitted)). "If, giving the [non-moving party] the benefit of the most favorable evidence and inferences to be drawn from that evidence, 'reasonable minds could differ' as to the outcome, the contested issues must be submitted to a jury." Ibid. (quoting Dolson, supra, 55 N.J. at 5-6). "However, if the evidence and uncontradicted testimony is 'so plain and complete that disbelief of the story could not reasonably arise in the rational process of an ordinarily intelligent mind, then a question has been presented for the court to decide and not the jury.'" Id. at 270 (quoting Ferdinand v. Agric. Ins. Co., 22 N.J. 482, 494, (1956)). With these standards in mind, we address Jennifer's contentions.
N.J.S.A. 59:9-2(d) precludes damages "against a public entity or employee for pain and suffering" except where there has been "permanent loss of a bodily function," or "permanent disfigurement or dismemberment." It is undisputed that Jennifer suffered no permanent disfigurement or dismemberment. Therefore, our inquiry is limited to whether she suffered a permanent loss of a bodily function.
To recover pain and suffering damages under the TCA, there must be "'(1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial.'" Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324, 329 (2003) (quoting Gilhooley v. County of Union, 164 N.J. 533, 540-41 (2000)); Kahrar v. Borough of Wallington, 171 N.J. 3, 12 (2002). In Brooks v. Odom, 150 N.J. 395, 406 (1997), the Supreme Court established a two-pronged test to determine whether a plaintiff's injuries constituted a permanent loss of a bodily function. First, the plaintiff must prove by objective medical evidence the injury is permanent. Id. at 402-03. "[D]amages for temporary injuries are not recoverable." Gerber v. Springfield Bd. of Educ., 328 N.J. Super. 24, 35 (App. Div. 2000) (citing Brooks, supra, 150 N.J. at 403). There must be objective medical evidence of the permanent injury, and "objective" means that the evidence must be verified by physical examination and observation and cannot be based solely on the plaintiff's subjective complaints. Ibid. (citing Mack v. Passaic Valley Water Comm'n, 294 N.J. Super. 592, 600 (App. Div. 1996)).
Second, the plaintiff must establish the permanent loss of a bodily function is substantial. Brooks, supra, 150 N.J. at 406. There is, however, no per se rule that either establishes or rejects a loss that is substantial. Kahrar, supra, 171 N.J. at 15 (citing Gilhooley, supra, 164 N.J. at 541). This prong focuses upon the degree of injury and impairment, and it requires a fact-sensitive analysis. However, like the first prong, an injury will not be deemed a permanent loss of a bodily function based solely upon a plaintiff's "'subjective feelings of discomfort.'" Brooks, supra, 150 N.J. at 403 (quoting Ayers v. Twp. of Jackson, 106 N.J. 557, 571 (1987)).
In Knowles, supra, the Supreme Court concluded "that there must be a 'physical manifestation of [a] claim that [an] injury . . . is permanent and substantial.'" Knowles, supra, 176 N.J. at 332 (quoting Ponte v. Overeem, 171 N.J. 46, 54 (2002)). "An injury causing lingering pain, resulting in a lessened ability to perform certain tasks because of the pain, will not suffice because '[a] plaintiff may not recover under the [TCA] for mere 'subjective feelings of discomfort.'" Ibid. (quoting Gilhooley, supra, 164 N.J. at 540).
In some instances, permanent, substantial psychological harm alone can vault the TCA's threshold. Hoag v. Brown, 397 N.J. Super. 34, 62 (App. Div. 2007). In Hoag, the plaintiff asserted claims under the New Jersey Law Against Discrimination and the TCA stemming from a co-worker's alleged threats and physical and verbal abuse. As a result of the co-worker's actions, the plaintiff suffered numerous and serious psychiatric problems requiring treatment. Id. at 45, 63. Expert evidence indicated she was treated for and diagnosed with post-traumatic stress disorder (PTSD) and major depression, requiring medication; suffered a serious, permanent psychological injury; and "her prognosis for returning to her pre-morbid level of functioning was very poor[.]" Id. at 46, 63. In reversing summary judgment dismissing the plaintiffs non-economic damages claim for failure to satisfy N.J.S.A. 59:9-2(d), this court concluded:
Given the totality of circumstances, a jury could conclude that [the co-worker's] conduct constituted an aggravated event, causing plaintiff severe, permanent psychological injuries so as to remove the limitation against her suing for pain and suffering damages under the TCA. [Id. at 63.]
Although an eating disorder not otherwise specified can be a permanent condition, the evidence has not established that Jennifer's eating disorder is permanent. The evidence also has not established that Jennifer's amenorrhea is permanent. In both instances, the condition can be reversed with proper treatment, which Jennifer failed or refused to obtain. Jennifer's amenorrhea can also be reversed by an increase in body fat, and discontinuance of her dieting and extreme exercise and proper treatment.
Also, there is no objective medical evidence of permanent and substantial psychological harm resulting from the eating disorder, the amenorrhea, or Hussong's conduct. Unlike the plaintiff in Hoag, Jennifer did not receive (and refused) any treatment for her alleged emotional distress, and she was never diagnosed as suffering from any psychological condition resulting from the eating disorder, amenorrhea, or Hussong's conduct.
Based upon our careful review of the record, we are convinced reasonable minds could not find that Jennifer's eating disorder, amenorrhea, and emotional distress were permanent and substantial. A directed verdict was proper.
We next address Jennifer's contention the trial judge erred in directing a verdict on her intentional infliction of emotional distress claim against Hussong. To prevail on such a claim, Jennifer must show that: (1) Hussong acted intentionally or recklessly, both in doing the act and in producing emotional distress; (2) the conduct was so outrageous in character and extreme in degree so as to go beyond all bounds of decency; (3) Hussong's actions were the proximate cause of the emotional distress; and (4) the distress was so severe that no reasonable person could be expected to endure it. Tarr v. Ciasulli, 181 N.J. 70, 77 (2004) (citations omitted); Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988) (citations omitted); Turner v. Wong, 363 N.J. Super. 186, 199 (App. Div. 2003). As stated by our Supreme Court:
Because the severity of the emotional distress raises questions of both law and fact, the court "decides whether as a matter of law such emotional distress can be found, and the jury decides whether it has in fact been proved." [Tarr, supra, 181 N.J. at 77 (citing Buckley, supra, 111 N.J. at 367).]
"Mere allegations of 'aggravation, embarrassment, an unspecified number of headaches, and loss of sleep,' are insufficient as a matter of law to support a finding of severe mental distress that no reasonable person could be expected to endure." Turner, supra, 363 N.J. Super. at 200 (citing Buckley, supra, 111 N.J. at 368). "The emotional distress must be sufficiently substantial to result in either physical illness or serious psychological sequelae." Ibid. (citing Aly v. Garcia, 333 N.J. Super. 195, 204 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001)).
To prove severity, there must be proof of treatment or counseling and corroborating medical proof. Turner, supra, 363 N.J. Super. at 203; Harris v. Middlesex County College, 353 N.J. Super. 31, 47 (App. Div. 2002); Lascurain v. City of Newark, 349 N.J. Super. 251, 280 (App. Div. 2002); Griffin v. Tops Appliance City, Inc., 337 N.J. Super. 15, 26-27 (App. Div. 2001); Aly, supra, 333 N.J. Super. at 204-05. There must also be proof "of dramatic impact on [the plaintiff's] every-day activities or on [the plaintiff's] ability to function daily."
Lascurain, supra, 349 N.J. Super. at 280; see also Buckley, supra, 111 N.J. at 369 (no recovery for intentional infliction of emotional distress when claimant did "not claim any interference with his every day routine as a result of his mental distress.").
Based upon our careful review of the record, we agree with the trial judge that Jennifer failed to prove her mental distress had any impact, let alone a dramatic impact, on her daily activities. As we previously stated, Jennifer received no treatment whatsoever for her alleged emotional distress. Also, there was no impact on her ability to function in her daily life. She continued to attend school and had no trouble with her teachers; she played basketball and softball; she attended her senior prom; she hosted and attended post-prom and graduation parties; she graduated and was accepted to college; she played soccer in college, and she transferred to Cornell, did well there and graduated. Reasonable minds could not find Jennifer's emotional distress was so severe that no reasonable person could be expected to endure, or there was a dramatic impact on Jennifer's every-day activities or on her ability to function daily. A directed verdict was proper.
Finally, Jennifer contends the trial judge erred because her willful misconduct claim was not governed by N.J.S.A. 59:9-2(d). She argues N.J.S.A. 59:3-14 applies because Hussong's conduct was outside the scope of his employment and was so egregious and malicious; and because Hussong, Bandlow and Carr violated their parens patrias and in loco parentis duties when they engaged in outrageous conduct by ignoring parents' complaints. We disagree.
N.J.S.A. 59:3-14 provides that:
a. Nothing in [the TCA] 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.
b. Nothing in [the TCA] shall exonerate a public employee from the full measure of recovery applicable to a person in the private sector 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.
This statute does not apply for several reasons.*fn13 First, the judge never applied N.J.S.A. 59:9-2(d) to the willful misconduct claims, and specifically found that claim not subject to this statute. Second, willful misconduct was never a part of Jennifer's case. Her case was tried and presented to the jury on these claims only: negligence; negligent supervision; and intentional/reckless infliction of emotional distress. In fact, during the charge conference, the trial judge reminded counsel that willful misconduct was "not in the case" and would only arise as an element to recover for punitive damages.
Third, there was no evidence any of the defendants acted outside their public employment or public positions. In Kelly v. County of Monmouth, 380 N.J. Super. 552 (App. Div. 2005), we explained that "[w]hat types of conduct are 'reasonably connected' to one's employment necessarily turns on the factual circumstances." Id. at 465. Here, the evidence clearly established that all of Hussong's actions occurred solely in connection with his coaching position, and Bandlow's and Carr's actions occurred in connection with their school administration positions. There was no evidence Hussong, Bandlow or Carr acted at any time outside their public employment or public positions. Significantly, during a discussion with the judge about the apportionment charge, Jennifer's counsel acknowledged, "I didn't understand why we couldn't give this [apportionment] charge directly to the jury since really no one is contending anyone acted outside the scope of their employment." (emphasis added.)
Fourth, Jennifer failed to establish that Hussong's conduct rose to the level of conduct in the cases she cites. See e.g. Hardwicke v. American Boychoir School, 188 N.J. 69, 99-100(involving sexual abuse of a child); Kelly, supra, 380 N.J. Super. at 559-60 (involving non-consensual touching); Frugis, supra, 177 N.J. at 270-71 (involving a school's principal's deviant abuse of students).
And finally, the term "'willful misconduct is not immutably defined but takes its meaning from the context and purpose of its use.'" Alston v. City of Camden, 168 N.J. 170, 185 (2001) (quoting Fielder v. Stonack, 141 N.J. 101, 124 (1995)). Evidence of carelessness of poor decision-making is insufficient to establish willful misconduct. Van Engelen v. O'Leary, 323 N.J. Super. 141, 151 (App. Div.), certif. denied, 162 N.J. 486 (1999). "Although willful misconduct need not involve the actual intent to cause harm, . . . there must be some knowledge that the act is wrongful." Fielder, supra, 141 N.J. at 124 (citation omitted). It "'is the commission of a forbidden act with actual (not imputed) knowledge that the act is forbidden.'" Ibid. (quoting Marley v. Borough of Palmyra, 193 N.J. Super. 271, 294-95 (Law Div. 1983)). While Hussong's conduct may have been objectionable, it did not rise to the level of willful misconduct.
And we reject Jennifer's contention she can vault the verbal threshold because Hussong, Bandlow and Carr engaged in willful misconduct by ignoring parents' complaints in violation of their in loco parentis and parens patriae obligations. Jennifer cites no authority supporting this contention; and there is no evidence these defendants engaged in willful misconduct or acted outside of their employment or public positions.
We now address Philip's free-speech claim. Beginning in March 1996, which was after Jennifer's senior-year basketball season, Philip spoke at eight Board meetings and, in addition to Carol, wrote numerous letters and attended individual meetings with Board members and school officials expressing dissatisfaction with Hussong's coaching methods; and noting the dichotomy between conduct of teachers and students in the classroom and coaches and team members on the athletic field. On April 23, 1996, Philip asked the Board about investigating coaching behavior, and he distributed an article about problems with some coaches' unsportsmanlike behavior. One of the Board members suggested Philip talk to Bandlow and get a copy of the school's coaching policies.
On April 26, 1996, Philip wrote to Lester Bynum, the Board's president, about his dissatisfaction with the coaching situation at WWPHS. Philip received no response.
On May 21, 1996, Philip attended a Board meeting and commented on what he saw as a two-tiered system, that is, a code of conduct for technology (i.e., computers and the internet) on the one hand for students and, on the other hand, allowing the use of inappropriate language by adult coaches on the playing field. He explained to the Board his concern about the inconsistencies in the two policies.
On May 28, 1996, Philip attended a Board meeting and requested an investigation of Hussong's behavior, suggesting Hussong had violated various ethical and coaching standards. According to Philip, the Board told him to see Bandlow.
On May 31, 1996, Philip and Carol met with Bandlow and complained about Hussong and his use of profanity, his singling out certain players to yell at, and his calling many of the players derogatory names. According to Philip, Bandlow said the Board did not investigate individual teachers, and that "[Jennifer was] going to be better for this situation," because "if you abuse the kid you're going to have a better kid."
On June 4 1996, Philip wrote to Bandlow: "This letter is to solidify and put into writing our complaint concerning the girls basketball coach (Dan Hussong) at West Windsor-Plainsboro High School." Philip received no response.
On June 11, 1996, Philip wrote to the Board, Bynum, Bandlow, Carr: "Enclosed is a comparison of students and coaches being controlled. In my opinion, the comparison highlights the inconsistency the School Board is exhibiting in strictly monitoring the students but allowing coaches to break those same rules."
On June 18, 1996, Philip attended a Board meeting because he had heard a rumor the Board would vote on renewing Hussong's contract, and because he wanted to complain about Hussong. A Board member told Philip that personnel matters were not subject to public comment at the meeting.
On June 25, 1996, Phillip attended a Board meeting, expressed his concern about Hussong's use of vulgar and abusive language, and again raised the two-tiered system between teachers and students. Philip advised the Board he had asked the administration to investigate Hussong, but was told this could not be done. Philip also advised the Board that one week after his complaint and request for an investigation, the police received an anonymous letter and telephone call, causing them to investigate Jennifer for underage drinking. Finally, Philip requested the Board vote to change its policy, and vote individually on the reappointment of each high school coach. Philip gave the Board a written copy of his statements. At the end of the meeting, the Board voted to reappoint Hussong and Lori to their coaching positions. According to Philip, Carr stood up at the meeting and announced he would look into parents' concerns about Hussong, so Philip decided to "wait and see."
Philip discovered the Board had formed an "Athletic Review Committee" to review new coaching conduct rules. On November 26, 1996, Philip attended a Board meeting and objected to Lori's appointment to the committee and to the appointment of a parent whose daughter Hussong was coaching. He also accused the committee of bias. A Board member said he would look into the matter.
On November 27, 1996, Philip wrote to Carr, again complaining about the Athletic Review Committee's bias. Attached to the letter was Philip's statements to the Board at the November 26, 1996 meeting. Philip received no response.
On January 21, 1997, Philip attended a Board meeting and raised a hypothetical question about coaching behavior discussed in the Board's new strategic plan. Carr and Bynum told Philip this issue had been discussed in the past; the Board and the WWPHS's administration had already responded to it; and there was no need to address the plan again. According to Philip, Carr stood up and said that "[Philip] should not be allowed to talk." However, Bynum allowed Philip to ask a question, answered it, and refused to permit Philip to address his comments to the author of the new plan.
Philip testified he became depressed and upset by the Board's treatment of him, especially since the Board had allowed other members of the public to speak without interruption. On January 22, 1997, Philip wrote to Carr that he was "deeply offended by your discourteous and unprofessional behavior at the school board meeting on January 21, 1997." Philip received no response.
On January 28, 1997, Philip attended a Board meeting about the new strategic plan. At the beginning of the meeting, Bynum stated, "This is the time in each regular monthly board of education meeting that we invite the thoughts and reactions on items of concern from members of our community who are present." He then asked each participant to give his or her name and address "prior to making a statement or asking a question," and said that "the rules of our regular meeting public comment section" dictated that the period could be no longer than thirty minutes and that each participant could have no more than five minutes "of comment time." Bynum gave no other instructions.
After a member of the public spoke on the equality of coaches' salaries, playing time and money spent on girls' versus boys' sports, Bynum said:
Before I recognize the next person, let me just make some clarifications on this public comment section of our meeting. This section of the meeting is not intended for personnel discussions of individuals. It's not intended for allegations or insinuations about staff behavior or staff performance.
It's for public comment only. It's not to allow people a stage or a forum to present their own personal views, particular views under litigation, on matters under litigation. So when those kind of things occur, the chair reserves the right to cut off any discussion of that nature.
Thereafter, Philip gave his name and address, and the following colloquy occurred:
[Philip] Besler: A few months ago, this board discussed policies for the use of technology in the system; specifically, you said that the use of harassing or abusive language or any obscenities on the Internet is strictly prohibited. Last week at the meeting of this board, this district's strategic plan was introduced. Within the parameters, it was stated that we will not tolerate behavior which diminishes the dignity, self worth, or safety of any individual. [sounds of a gavel]*fn14
Bynum: You are out of order. We've heard those comments before several times from you, and the board will not entertain those comments tonight again for the numerous times.
Besler: May I hand out my speech to you?
Bynum: You can hand out whatever you would like to say, but we are not going to entertain those comments.*fn15 Any other comments from the public?
Other members of the public spoke at the meeting without interruption.*fn16
Philip testified he had intended to speak about what happened to Jennifer; his view the Athletic Review Committee was biased; his view on preserving a student's self-worth; and his view the Board should include on the internet its coaching policies.
After the meeting, Philip went home and Carol noticed how upset he appeared. Philip testified it was the most embarrassing day in his life, and he became depressed and sick to his stomach. Jennifer testified when Philip talked about that day, his face would get white and she could sometimes see tears in his eyes, and that, during those times, he was not like the father she always knew.
In denying defendants' motion for a directed verdict, the trial judge concluded there was "sufficient evidence in the record from which reasonable minds could differ as to whether the interruption of [Philip's] speech was for a significant or compelling governmental reason or because the Board simply did not want to hear what plaintiff had to say."
Defendants contend the trial judge erred by denying their applications for summary judgment, directed verdict and judgment notwithstanding the verdict on Philip's $100,000 free-speech award. They argue that Philip failed to establish the Board violated his constitutional rights under the First Amendment of the United States Constitution*fn17 and the free-speech guarantees of the New Jersey Constitution,*fn18 and failed to establish the existence of an official policy or practice as a basis to impute liability.
The First Amendment's restriction on governmental interference with free speech is applicable to the states by virtue of the Fourteenth Amendment.*fn19 Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 264 (1998), cert. denied, 527 U.S. 1021, 119 S.Ct. 2365, 144 L.Ed. 2d 770 (1999). However, the New Jersey Constitution provides free speech guarantees "broader than the right against governmental abridgement of speech found in the First Amendment." N.J. Coal. Against War in the Middle E. v. J.M.B. Realty Corp., 138 N.J. 326, 353 (1994), cert. denied, 516 U.S. 812, 116 S.Ct. 62, 133 L.Ed. 2d 25 (1995). In State v. Schmid, 84 N.J. 535, 557 (1980), appeal dismissed, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed. 2d 855 (1982), the Supreme Court specifically cited two provisions of the New Jersey Constitution as "more sweeping in scope than the language of the First Amendment":
Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press . . . . [N.J. Const. of 1947. art. I, ¶6.]
The people have the right freely to assemble together, to consult for the common good, to make known their opinions to their representatives, and to petition for redress of grievances. [N.J. Const. of 1947 art. I, ¶18.]
Under these free-speech guarantees, "[t]he right to use government property for private expression depends on whether the property, by law or tradition, has been given the status of a public or nonpublic forum or has been designated for specific official use." Rutgers 1000 Alumni Council v. Rutgers, 353 N.J. Super. 554, 569 (App. Div. 2002) (citing Cornelius v. NAACP Legal Defendant. & Educ. Fund, 473 U.S. 788, 800, 105 S.Ct. 3439, 3447-48, 87 L.Ed. 2d 567, 578 (1985)). A school board meeting is considered a limited public forum; thus, content-based restrictions must be narrowly drawn to achieve a compelling governmental interest, Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 955, 74 L.Ed. 2d 794, 805 (1983) (citations omitted), while content-neutral restrictions may restrict the time, place and manner of the protected speech, as long as the restriction is "'narrowly tailored to serve a significant governmental interest'" and "'leave[s] open ample alternative channels for communication of the information.'" Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed. 2d 661, 675 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed. 2d 221, 227 (1984)).
In City of Madison, Joint School Dist. No. 8 v. Wis. Employment Relations Comm'n, 429 U.S. 167, 176 n.8, 97 S.Ct. 421, 426 n.8, 50 L.Ed. 2d 376, 385 n.8 (1976), the United States Supreme Court assessed a teacher's right to speak at a school board meeting open to the public but improperly closed to teachers, and considered it obvious that "public bodies may confine their meetings to specified subject matter . . . ." The Court declared, however, "when the [school] board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on . . . the content of their speech." Ibid. (citing Police Dep't of City of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed. 2d 212, 217 (1972)).
The critical issue here is whether Bynum's reasons for "gaveling" Philip was content-neutral or content-based. Defendants contend the Board's restricting Philip's speech on January 28, 1997 was a content-neutral action and that Bynum did not silence Philip due to the content of his message. Rather, Bynum properly restricted Philip's comments in order to conduct an efficient and orderly meeting, which constituted a significant governmental interest. Additionally, citing Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed. 2d 611 (1978), defendants claim Philip failed to establish the Board had any official practice allowing for public comment at their meetings.
In Monell, the Supreme Court held that public bodies could be sued for civil rights violations when an official policy was responsible for a deprivation of constitutional rights or when the body violated a "'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." Id. at 690-91, 98 S.Ct. at 2036, 56 L.Ed. 2d at 635.
Here, contrary to defendants' contention, the evidence indicated the Board had a policy permitting free speech for a limited period at each Board meeting. There clearly was a public comment section at all open-session Board meetings where members of the public could speak on any subject. Thus, there was an official or customary practice for allowing public comment at Board meetings.
Also, a question of fact existed about the motivation of Bynum, who was acting on the Board's behalf, when he restricted Philip's speech at the meeting. That question could not be answered as a matter of law, as Bynum's motivation was key to determining whether the action was content-based or content-neutral.
Furthermore, by its award to Philip, the jury determined the Board's restriction was content-based and not content-neutral. A jury verdict is entitled to a presumption of correctness, Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977), and a jury's evaluation of factual issues must be afforded "the utmost regard." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), certif. denied, 180 N.J. 355 (2004). On appeal, the court will overturn a jury verdict "'only if that verdict is so far contrary to the weight of the evidence as to give rise to the inescapable conclusion of mistake, passion, prejudice or partiality.'" Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 134 (1990) (quoting Wytupeck v. City of Camden, 25 N.J. 450, 466 (1957)). "The fact that the evidence may also support a different outcome does not render the jury's verdict irrational or against the weight of the evidence." Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 468 (1999). Thus, we conclude there was no error in the denial of summary judgment, a directed verdict, or judgment n.o.v. on Philip's claim.
Amicus curiae, the New Jersey School Boards Association, separately contends that Philip's award cannot stand because the judge, while providing the jury with "a clear, concise instruction on First Amendment analysis," failed to explain the Board's rights to exclude the public under the Open Public Meetings Act ("OPMA"), N.J.S.A. 10:4-6 to --21, and an employee's right to privacy. Specifically, amicus asserts the judge failed to instruct the jury on the Board's authority under N.J.S.A. 10:4-12(a), which permits it to control public participation during public meetings. School boards are public bodies under N.J.S.A. 10:4-8(a), and N.J.S.A. 10:4-12(a) states, in part:
Nothing in this act . . . shall be construed to limit the discretion of a public body to permit, prohibit or regulate the active participation of the public at any meeting, except that a municipal governing body and a board of education shall be required to set aside a portion of every meeting of the municipal governing body or board of education, the length of the portion to be determined by the municipal governing body or board of education, for public comment on any governmental or school district issue that a member of the public feels may be of concern to the residents of the municipality or school district.
Amicus further posits the judge never instructed the jury that the OPMA in N.J.S.A. 10:4-12(b) permitted the Board to preclude public observation of its discussion of certain matters; and the OPMA in N.J.S.A. 10:4-12(b)(8) permitted the Board to exclude the public from that portion of the meeting when it discussed:
Any matter involving the employment, . . . termination of employment, . . . evaluation of the performance of, promotion or disciplining of any . . . current public officer or employee employed or appointed by the public body, unless all the individual employees or appointees whose rights could be adversely affected request in writing that such matter or matters be discussed at a public meeting.
Accordingly, amicus concludes the jury did not properly consider whether the Board's restrictions on Philip's comments were for protecting an employee's right, i.e., Hussong's right, to privacy, and constituted a significant or compelling state interest.
Amicus is correct the judge never gave a specific OMPA instruction. However, this case was not about whether the Board could restrict certain access to its meetings or to parts of its meetings. It was about whether the Board could restrict persons from speaking at its meetings once those meetings were opened to public comment. Indeed, N.J.S.A. 10:4-12(a) requires the Board to "set aside a portion of every meeting . . . for public comment on any governmental . . . issue that a member of the public feels may be of concern to the residents of the municipality. . . ." (emphasis added).
Furthermore, as part of the First Amendment jury instruction, the judge instructed the jury that it was "appropriate for the Board to establish time, place and manner restrictions for those members of the public present to speak," and that "a school board has the authority to confine its meetings to specified subject matter." Consequently, viewing the charge as a whole, we find no error in the lack of an instruction on OPMA statutes applicable to a school board.
We, therefore, affirm the denial of summary judgment, a directed verdict and judgment n.o.v on Philip's free-speech claim.
Finally, we address the additional sums awarded to Philip to offset the tax consequences of his lump sum jury and prejudgment interest awards. The jury awarded Philip a lump sum $100,000 for emotional distress resulting from the Board's restriction on his right to free speech. Because the award is taxable, Philip sought an increase to $170,562 to reflect the adverse tax consequences, arguing the goal of 42 U.S.C.A. §1983 is to make an injured party whole. The Board argued that Philip was attempting to double his emotional distress damages and that his request must be denied as a matter of law.
Finding both the jury award and the pre-judgment interest on that award taxable pursuant to 26 U.S.C.A. §104(a), the judge liberally construed the "make-whole goal" of 42 U.S.C.A. §1983 and awarded the additional sums. The judge analyzed the holdings in Ferrante v. Sciaretta, 365 N.J. Super. 601 (Law. Div. 2003) (upward adjustment permitted for economic damages portion of back and front pay award in claims under the New Jersey Law Against Discrimination), and O'Neill v. Sears, Roebuck & Company, 108 F. Supp. 2d 443 (E.D. Pa. 2000) (no upward adjustment permitted for emotional distress in claims under the Age Discrimination Employment Act) and concluded that:
[G]iven that fact that unquestionably just as income, front pay and back pay, is subject to taxation under the federal scheme, and under the federal scheme emotional distress is taxable, that in order to make [Philip] whole in this matter that is appropriate that the award be modified from the $100,000 to $170,561 in order to reflect the adverse tax consequences of such a lump-sum award of damages and that the same application must be made with respect to the prejudgment interest that the Court has already ordered that [Philip] is entitled.
We agree with the Board's contention on its cross-appeal that there is no statutory or other legal basis for an enhanced award for negative tax consequences of non-economic damages. We recognize the differing views on this issue. However, absent clear direction from our Supreme Court, we decline to accept the trial judge's approach and reverse the award of additional tax-offset sums to Philip.
Affirmed in part, reversed in part, and remanded for recalculation of Philip's damages consistent with this opinion.