July 20, 2009
FRANK AMOS, PLAINTIFF-RESPONDENT,
CITY OF NEWARK, DEFENDANT-APPELLANT, AND NEWARK POLICE DEPARTMENT; MAYOR SHARPE JAMES; POLICE DIRECTOR ROBERT RANKIN, JR.; CHIEF OF POLICE ANTHONY F. AMBROSE, III; AND OFFICER ED SUERO, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5867-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 16, 2009
Before Judges Carchman, Sabatino and Simonelli.
This appeal involves a lawsuit brought under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, ("the TCA" or "the Act"), against the City of Newark ("the City") and various other public entities and employees, alleging false arrest, false imprisonment and other related torts. The case was tried solely against the City. In its verdict, the jury found that plaintiff had failed to demonstrate that he sustained "a permanent loss of bodily function" and thereby did not surmount the TCA's verbal threshold, N.J.S.A. 59:9-2(d). Nevertheless, the jury awarded plaintiff monetary damages for other unspecified harm. Plaintiff acknowledges that the jury's award was not for any proven economic losses, but instead he characterizes the award as "the consequential impairment and disruption to [plaintiff's] liberty interest caused by his false arrest and imprisonment."
The City now appeals, raising numerous issues. Pursuant to the Supreme Court's holding in DelaCruz v. Borough of Hillsdale, 183 N.J. 149 (2005), we reverse the judgment awarding damages to plaintiff. We do so because, as DelaCruz instructs as a matter of law, a jury's finding that a plaintiff has not suffered a permanent loss of a bodily function arising out of false arrest or false imprisonment precludes the recovery of damages under the TCA for the inchoate loss of liberty associated with such wrongful conduct.
The record offers the following chronology of events and medical evidence relevant to our consideration of the issues raised on appeal.
This case arises from an incident that took place on June 26, 2004. The incident began in front of the Newark residence of plaintiff, Frank Amos. Plaintiff is an African-American male who, at the time of the incident, was thirty-six years old.
At approximately 3:30 p.m. that afternoon, Police Officer Edward Suero of the City of Newark "noticed two black males entering the basement window of his home." At the time, Suero was off duty, but he was wearing his police badge around his neck. Suero then identified himself as a police officer, showed his badge and, in the words of his report, "told the actors to freeze and place their hands up." In response, the actors began to run.
Suero started to chase the suspected burglars. Because he became physically unable to continue pursuit on foot, Suero started canvassing the area in his personal vehicle. At some point during that canvassing, Suero observed plaintiff.
Believing plaintiff to be one of the actors, Suero "called over for back up and arrested [plaintiff]."
According to plaintiff's testimony, as he was about to enter his apartment building that afternoon, he was suddenly grabbed from behind. He turned around and was repeatedly slammed against a glass door. During this initial part of the attack, his assailant, later identified as Officer Suero, allegedly said, "Oh, you like breaking into people's houses, huh?" Suero threw plaintiff onto the paved surface. He held him down by placing his knee on plaintiff's back. Plaintiff heard sirens, and Suero continued "beating [him] up."
Suero then took plaintiff to a police car, at which point plaintiff was handcuffed. Plaintiff was then transported to a location three or four blocks from his residence. He was left in the police car for approximately forty-five minutes to an hour and then taken to the police station.
Without being formally booked, plaintiff was placed in a holding cell at the police station with several other persons. He was held there for an estimated four or five hours. Plaintiff then observed Officer Suero bring in two individuals, later identified in a police incident report as the actors that Suero had observed breaking into his residence. Suero instructed another officer to place the two individuals in the cell and to take plaintiff to his desk. Plaintiff was released from the police station, less than six hours after his initial apprehension.
As described by the police incident report, after Officer Suero arrested plaintiff, Suero asked "another actor" about the location of the items that the burglars had stolen. The actor then stated to Officer Suero that the other supposed actor Suero detained was not the person who had been with him at the scene of the alleged burglary. Officer Suero then asked the actor where that other person was. The actor led Officer Suero to the location of the second actor, where Officer Suero observed the stolen property and arrested the second actor.
Following these events, plaintiff filed a complaint and a jury demand in the Law Division against the City of Newark, the Newark Police Department, Mayor Sharpe James, Police Director Robert Rankin, Jr., Chief of Police Anthony F. Ambrose, III, Officer Eddy (last name unknown) and John Does One through Ten. His complaint alleged false arrest, false imprisonment, negligence and assault and battery. By way of relief, plaintiff demanded compensatory and punitive damages, attorney fees, the costs of litigation, and other just and equitable relief.
With leave of court, plaintiff filed an amended complaint, adding Officer Suero as a party defendant, and expanding his complaint to include a claim for violation of his civil rights under 42 U.S.C. § 1983. Defendant Suero did not file an answer. Suero remains in default status, and his whereabouts are unknown.
Following a period of discovery, all defendants except for Suero moved for summary judgment on all counts. The trial court granted partial summary judgment, dismissing plaintiff's claims except for his state-law claims against the City of Newark. As part of that disposition, plaintiff's federal claims under Section 1983 were dismissed.*fn1 Other than Suero, the City of Newark was the only defendant remaining in the case.
The one-day jury trial began on February 20, 2008. Plaintiff testified on his own behalf. He described his encounter with Officer Suero, his ensuing arrest, and his temporary detention at the police department.
Plaintiff also described his limited medical treatment for his injuries. He noted that he had gone to the emergency room after he was released by the police, and that he was given medication for back pain and advised to follow up with his family doctor. Plaintiff indicated that he had "three or four months" of physical therapy that he underwent in 2004 and again in 2006. He acknowledged that he continued to work in a job that involves manual labor. He claimed that he continued, up through the time of trial, to experience back pain, numbness and tingling, and other residual symptoms.
Plaintiff also presented testimony from his common-law wife. She explained how she first had learned of plaintiff's encounter with Officer Suero. She confirmed that plaintiff has continued to complain of back pain, despite having gone to physical therapy sessions. She also recounted how, by her observations, plaintiff's activities at home and with the family have been limited since the incident, and how their sexual relations had been affected.
As his final witness, plaintiff called Joel Meer, M.D., a specialist in pain management and rehabilitation medicine. Dr. Meer testified that he had examined plaintiff in July 2006 and had also ordered various diagnostic tests, including MRI studies. Based upon that information, Dr. Meer opined that plaintiff had disc bulges at the C3-C4, C4-C5, C5-C6, and C6-C7 vertebral levels, and lumbar disc bulges at L2-3, L3-4, and L4-5. He diagnosed plaintiff with disc radiculopathy, spinal stenosis, and muscle spasms. Dr. Meer opined that these conditions were permanent and unlikely to be improved by surgery.
Following plaintiff's case-in-chief, the City moved for involuntary dismissal and/or judgment. The trial court denied that application.
As its sole witness, the defense called John Drohan, a business manager with plaintiff's employer, United Parcel Service ("UPS"). Drohan testified that plaintiff works in a "pre-load" capacity for UPS, typically loading 700 to 800 packages onto loading cars each shift. He noted that the job requires the lifting of packages up to seventy pounds. Drohan noted that plaintiff has been able to perform his job since the time of the incident with Officer Suero, and that plaintiff has not requested to be assigned to a less strenuous "light duty" position.
On February 21, 2008, the jury returned a verdict. After answering the liability questions on the verdict sheet in plaintiff's favor, the jury turned to the questions on the verdict sheet pertaining to damages. The damages questions were drafted in a fashion that attempted to track the special requirements for the recovery of damages under the TCA. Specifically, Questions 4 through 8 on the verdict sheet read as follows, with these associated written instructions:
4. Did the plaintiff, sustain injuries that were proximately caused by his false arrest/false imprisonment?
Yes _____ No _____ Vote _____
5. Has the plaintiff sustained an injury, caused by his false arrest/false imprisonment, consisting of a permanent loss of a bodily function?
Yes _____ No _____ Vote _____
If yes, proceed to #6.
If no, proceed to question #8.
6. Has the plaintiff proven that his medical treatment expenses incurred, as a proximate cause of his condition, exceeded $3,600.00?
Yes _____ No _____ Vote _____
If yes, proceed to question #7 and #8.
If no, ignore question #7 and proceed directly to question #8.
To receive money damages for pain and suffering, plaintiff must prove that an injury was a permanent loss of a bodily function and his medical treatment expenses exceeded $3,600.00. If plaintiff has not proven that his injury was a permanent loss of a bodily function and/or his medical expenses did not exceed $3,600.00, he may not receive money damages for pain and suffering, but may receive compensatory money damages for other injuries for loss of time, any physical injuries sustained by him and for mental and emotional stress resulting from the indignity to which he was subjected.
7. What sum of money will fairly and reasonably compensate the plaintiff, Frank Amos for injuries sustained as a proximate result of his false arrest/false imprisonment?
Pain and suffering
Amount $____________ Vote ___________
Proceed to question #8.
8. What sum of money will fairly and reasonably compensate the plaintiff, Frank Amos, for injuries, other than pain and suffering, sustained as a proximate result of his false arrest/false imprisonment?
Amount $___________ Vote ____________
By a vote of six to one, the jury answered "Yes" to Question #4, thereby finding that plaintiff sustained injuries that were proximately caused by the false arrest and imprisonment. However, on Question #5, which asked whether plaintiff had sustained an injury "consisting of a permanent loss of a bodily function," the jurors unanimously answered "No."
As a result of its negative answer to Question #5 on the issue of permanency, the jury skipped Questions #6 and #7 on the verdict sheet, consistent with the instructions. The jurors turned to Question #8, which asked "[w]hat sum of money will fairly and reasonably compensate the plaintiff, Frank Amos, for injuries, other than pain and suffering, sustained as a proximate result of the false arrest or false imprisonment?" On that final question, the jurors responded with the amount of $100,000. The vote on Question #8 was six-to-one.
The City then filed a notice of motion for judgment, notwithstanding the verdict or, alternatively, for a new trial. The trial court denied the motion.
This appeal ensued. The City raises the following points on appeal:
PART A - DAMAGES
SINCE THE JURY FOUND THAT PLAINTIFF'S INJURIES DID NOT MEET THE THRESHOLD OF N.J.S.A. 59:9-2(d) AND THE COURT ERRED IN ITS CHARGE TO THE JURY, WHICH PERMITTED RECOVERY FOR CLAIMS OF MENTAL AND EMOTIONAL STRESS, LOSS OF DIGNITY AND LOSS OF ONE'S TIME ARISING FROM A FALSE ARREST IN VIOLATION OF THE SUPREME COURT OPINION IN DELACRUZ V. HILLSIDE, THIS COURT SHOULD ENTER JUDGMENT IN FAVOR OF DEFENDANT CITY OF NEWARK.
IN THIS CASE, SINCE THE JURY DETERMINED THAT PLAINTIFF WAS NOT ENTITLED TO AN AWARD FOR PAIN AND SUFFERING AS HIS INJURIES DID NOT AMOUNT TO A PERMANENT LOSS OF A BODILY FUNCTION, DEFENDANT WAS ENTITLED TO JUDGMENT IN ITS FAVOR SINCE PLAINTIFF FAILED TO SET FORTH COMPETENT, ADMISSIBLE EVIDENCE OF ANY OTHER LOSS OR DAMAGES.
THE TRIAL COURT ERRED IN FAILING TO DISMISS THE CLAIMS OF PAIN AND SUFFERING AT THE CLOSE OF THE EVIDENCE SINCE PLAINTIFF FAILED TO SET FORTH COMPETENT, ADMISSIBLE EVIDENCE THAT HIS MEDICAL EXPENSES AMOUNTED TO $3,600.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT AT THE CLOSE OF PLAINTIFF'S EVIDENCE AND AT SUMMARY JUDGMENT SINCE IT WAS CLEAR THAT PLAINTIFF'S INJURIES HERE, DISC BULGES, DID NOT CONSTITUTE A PERMANENT LOSS OF A BODILY FUNCTION THAT WAS SUBSTANTIAL.
PART B - LIABILITY
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTIONS FOR JUDGMENT SINCE THE EVIDENCE IN THIS CASE WAS INSUFFICIENT TO SUPPORT A FINDING THAT SUERO WAS IN THE SCOPE OF HIS EMPLOYMENT.
THE TRIAL COURT'S CHARGE ON SCOPE OF EMPLOYMENT WAS ERROR SINCE IT FAILED TO TAKE INTO ACCOUNT THE FACT THAT THE EMPLOYEE IN QUESTION WAS A POLICE OFFICER.
THE TRIAL JUDGE ERRED IN DENYING DEFENDANT PUBLIC ENTITY'S MOTIONS FOR JUDGMENT PURSUANT TO N.J.S.A. 59:2-10 AS IT IS CLEAR THAT THE PLAINTIFF'S PROOFS ESTABLISHED THAT SUERO UNLAWFULLY ASSAULTED AND ARRESTED HIM.
SINCE THE EVIDENCE IN THIS CASE WAS OVERWHELMING THAT SUERO COMMITTED AN ASSAULT AND BATTERY ON THE PLAINTIFF, THE COURT'S FAILURE TO CHARGE THE JURY ON N.J.S.A. 59:2-10 CONSTITUTED A MISCARRIAGE OF JUSTICE.
THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE CERTAIN NEWARK POLICE DEPARTMENT REPORTS, UNDER N.J.R.E. 803(c)(6), SINCE THERE WAS ABSOLUTELY NO TESTIMONY TO ESTABLISH ITS FOUNDATION AS A BUSINESS RECORD.
The City's primary arguments on appeal, which prove to be dispositive, concern the propriety of the jury's damages award under the TCA. The so-called "verbal threshold" of the Act provides:
d. No damages shall be awarded against a public entity or public employee for pain and suffering resulting from an 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. For purposes of this section medical treatment expenses are defined as the reasonable value of services rendered for necessary surgical medical and dental treatment of the claimant for such injury, sickness or disease, including prosthetic devices and ambulance, hospital or professional nursing service. [N.J.S.A. 59:9-2(d).]
"To recover under the [TCA] for pain and suffering, a plaintiff must prove by objective medical evidence that the injury is permanent. Temporary injuries, no matter how painful and debilitating, are not recoverable." Brooks v. Odom, 150 N.J. 395, 402-03 (1997). Moreover, "the Legislature intended that a plaintiff must sustain a permanent loss of the use of a bodily function that is substantial." Id. at 406; see also Gilhooley v. County of Union, 164 N.J. 533 (2000). Consequently, in Brooks, supra, the Supreme Court reinstated the trial court's dismissal of a plaintiff's claims under N.J.S.A. 59:9-2(d) because the plaintiff could still function in both her employment and as a homemaker. 150 N.J. at 406. The Court reached that conclusion even though plaintiff still was experiencing post-accident pain and had permanent restrictions of her motion in her neck and back. Ibid.; see also Heenan v. Greene, 355 N.J. Super. 162 (App. Div. 2002) (finding that the TCA verbal threshold was not surmounted where the plaintiff, who had a herniated disk confirmed by MRI, did not miss a day of work and was substantially able to resume household and recreational activities).
For a number of years, it was uncertain whether the TCA verbal threshold applied to bar the recovery of non-economic losses for claims arising out of false imprisonment and false arrest. That legal issue was resolved conclusively in the Supreme Court's decision in DelaCruz, supra, 183 N.J. at 149.
The plaintiff in DelaCruz had been mistakenly arrested by police officers who thought he was one of the burglars who was at large in the community. Id. at 155-58. Several police officers ordered the plaintiff to get out of his van. Id. at 158. At gunpoint, the plaintiff was directed to kneel on the ground. Ibid. He was handcuffed and placed face down on the ground. Ibid. Eventually, the plaintiff was correctly identified by a third party and released. As the result of the police's "rough handling" of him, the plaintiff sought medical attention for pain to his shoulder and back. Id. at 159. Although his physical symptoms subsided, plaintiff and his wife claimed that the police encounter had adversely affected plaintiff's mental state in an ongoing manner. Ibid. He sued the officers and the municipality under the TCA. Id. at 159-60. He admitted that his claims did not satisfy the permanency criteria of N.J.S.A. 59:9-2(d), but argued that the threshold did not apply to harms caused by false arrest and false imprisonment. Id. at 161-62.
After considering the text of the TCA, as well as its legislative history and purposes, the Court held in DelaCruz that the statute's "verbal threshold applies to common law false arrest/false imprisonment claims." Id. at 153. The Court endorsed our reasoning in an earlier case, Marion v. Borough of Manasquan, 231 N.J. Super. 320, 331-32 (App. Div. 1989), in which we likewise held the requirements of N.J.S.A. 59:9-2(d) applicable to false imprisonment/false arrest claims. DelaCruz, supra, 183 N.J. at 154. The Court expressed confidence in that conclusion, noting that the Legislature had not acted in the intervening sixteen years to alter Marion's holding. Ibid.
Consequently, the Court directed the dismissal of DelaCruz's damages claims. Ibid. As the Court summarized its holding:
Nothing in the Act exempts false arrest/false imprisonment claims from the reach of the verbal threshold requirement of N.J.S.A. 59:9-2(d). Also, the effect of the verbal threshold is limited to pain and suffering claims; economic or consequential damages are not limited by the Act.
Finally, 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. The 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.]
Plaintiff focuses upon portions of the above-quoted passage from DelaCruz, in which the Court noted that the threshold is "limited to pain and suffering claims," and that "economic or consequential damages are not limited by the Act." Id. at 164. Attempting to fit into this exclusionary language, plaintiff characterizes the damages awarded by the jury here as representing "consequential" damages, rather than "pain and suffering" damages.
Plaintiff did not present at trial any claims for wage loss or other economic losses*fn2 that would correlate with the $100,000 sum awarded by the jury. The damages awarded by the jury appear to be non-economic in nature, even though they were not labeled as "pain and suffering." In fact, the jury was invited to consider such an award of non-economic damages in the verdict sheet, which advised the jurors that even if plaintiff did not prove that he had suffered a permanent loss of a bodily function, "he may not receive money damages for pain and suffering, but may receive compensatory money damages for other injuries for loss of time, any physical injuries sustained by him and for mental and emotional stress resulting from the indignity to which he was subjected." (Emphasis added). Similar guidance was provided in the jury charge.
In his brief on appeal, plaintiff states that "the jury awarded Mr. Amos $100,000 for the consequential impairment and disruption to Mr. Amos['s] liberty and interest caused by his false arrest and imprisonment."
However, such liberty interest claims, in the absence of a demonstrated permanent injury to a bodily function, were declared non-compensable under the TCA in DelaCruz. This point is made clear in Justice Long's dissent in DelaCruz, where she observes that "[t]he injury at the heart of false arrest is . . . the deprivation of liberty . . . [.]" Id. at 120 (Long, J., dissenting). Disagreeing with the majority that such liberty deprivations should be subject to the TCA verbal threshold, Justice Long goes on to say that "[b]y its opinion, the Court [majority] leaves that [liberty interest] violation essentially unremedied and undeterred save for cases that, by happenstance, involve permanent injury resulting from separately actionable claims of excessive force." Ibid.
Given the interplay between the DelaCruz majority and the dissent, it is unmistakable that the Court has subsumed "liberty interest" deprivations caused by false arrest and false imprisonment under the TCA verbal threshold, N.J.S.A. 59:9-2(d).
In Toto v. Ensuar, 196 N.J. 134 (2008), the Supreme Court reaffirmed and clarified its prior holding in DelaCruz. The plaintiff in Toto had an altercation with a sheriff's officer when he was passing through a metal detector at a courthouse entrance. Id. at 138. After the dispute escalated, the plaintiff was arrested, handcuffed, and slammed into a concrete wall. Id. at 138. He was then taken to a processing room where he was handcuffed to a bench. Ibid. About an hour later, the plaintiff was released. Ibid. Thereafter, he underwent surgery for neck pain that was aggravated by the incident. Ibid.
The plaintiff in Toto brought claims under the TCA for false arrest and false imprisonment. The plaintiff sued the individual public employees who had mistreated him. The plaintiff also sued the Monmouth County Sheriff's Office, a public entity, which was dismissed from the case before trial. The case was tried solely against two defendants, Michael Schulze and Rolando Ensuar, who were the individual sheriff's officers involved in the incident.
The plaintiff argued in Toto that the verbal threshold of N.J.S.A. 59:9-2(d) did not apply to his damage claims against the public employees, because they had engaged in willful misconduct. Id. at 141. The trial court disagreed, and subjected those claims of willful misconduct to the TCA verbal threshold. Id. at 141-42. The jury found that one of the two officers, Ensuar, had engaged in willful misconduct. However, the jury also concluded that Ensuar's wrongful behavior had not proximately caused a substantial permanent loss of a bodily function sufficient to vault the verbal threshold. Id. at 147. Consequently, no damages were awarded. Ibid.
The Supreme Court in Toto reversed the application of the TCA verbal threshold to defendant Ensuar's willful misconduct. Id. at 143-48. In its analysis, the Court repeated its holding in DelaCruz that claims of false arrest and false imprisonment are subject to the TCA threshold, provided that those claims are not asserted against public employees said to have engaged in willful misconduct. Id. at 147. In such cases of extreme wrongdoing or other circumstances enumerated in N.J.S.A. 59:3-14 that strip a public employee of the protections of the Act, the statute's verbal threshold does not apply. Ibid. Accordingly, the Court remanded the case for a new trial on damages solely as to defendant Ensuar. Id. at 148.
Toto thus leaves untouched the damage limitations of N.J.S.A. 59:9-2(d), which DelaCruz declared applicable to false imprisonment/false arrest claims against a public entity. Only claims against certain public employees were carved out of DelaCruz's mandate. Because the sole defendant in the present appeal is the City of Newark, a public entity, the limited exceptions to DelaCruz recognized in Toto clearly do not apply here.
A proper application of DelaCruz to the present case requires the denial of non-economic monetary damages against the City. That is so, because plaintiff had failed to sustain his burden of proving to the jury, under N.J.S.A. 59:9-2(d), that he had sustained a "permanent loss of bodily function" from his encounter with Officer Suero. Although plaintiff attempted to surmount the threshold with the expert testimony of Dr. Meer, as well as the lay testimony of himself and his wife, the jury unanimously found those proofs to be unpersuasive. Plaintiff does not argue that the jury's finding of a lack of permanency was manifestly against the weight of the evidence. Rather, plaintiff accepts that factual finding and attempts to reconcile it with DelaCruz on legal grounds. Because plaintiff's legal argument is incorrect, the jury's award must be set aside.
Plaintiff attempts to distinguish DelaCruz by citing to the Supreme Court's earlier opinion in Ayers v. Twp. of Jackson, 106 N.J. 557, 571 (1987). Ayers was a nuisance case involving exposure to toxic materials that emanated from a municipal landfill. The Court held that plaintiffs' claims for emotional distress arising from the nuisance were not viable because they did not surmount the TCA verbal threshold. Id. at 572-77.
However, the Court did allow plaintiffs to recover, in that particularized context, "quality-of-life" damages for personal "inconvenience, discomfort, and annoyance" associated with the damage to their property. Id. at 571-72. The Court further held that the TCA allowed plaintiffs to recover damages for the costs of medical surveillance to monitor their exposure to the toxic elements. Id. at 604-07.
Ayers is clearly inapplicable to the present case, which was not brought on a theory of public nuisance. Instead, the present case arises out of an episode of false arrest and false imprisonment, conduct that was specifically addressed in DelaCruz and again in Toto. As DelaCruz states, "[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." 183 N.J. at 164-65 (emphasis added). The limited gloss the Court thereafter placed on DelaCruz in Toto----for willful misconduct claims against public employees----does not alter the City's entitlement, as a public entity, to the clear precedential application of DelaCruz.
For these reasons, the jury's award of damages is reversed, and judgment in favor of the City shall be issued.
In light of our disposition of the damages issue in favor of the City, we need not address at length the balance of the arguments that it has raised on appeal. We simply note in passing that none of those arguments have any potential merit, see Rule 2:11-3(e)(1)(E), except for the City's arguments respecting its lack of vicarious liability under N.J.S.A. 59:2-10, for willful misconduct by Officer Suero.
The jury interrogatories in this case did not address willful misconduct, as the trial judge found no need to charge the jury on these issues. The judge specifically perceived the absence of any proofs that Officer Suero's behavior rose "to the level of willful misconduct, as that term is understood in the law." In making that assessment, the trial judge did not have the benefit of the Supreme Court's application of willful misconduct principles in the false arrest/false imprisonment context as set forth in its opinion in Toto, supra, 196 N.J. at 146-51, which was decided by the Court in August 2008, several months after the instant trial and the trial court's disposition of post-trial motions.
Had we not been reversing the damages award here on independent grounds, a remand of the willful misconduct issues back to the trial court for further consideration in light of Toto may have been warranted. However, there is no need for us to reach that question, given our disposition of the damages issue.
The judgment awarding damages to plaintiff is reversed, and the trial court is directed to enter final judgment in favor of the City consistent with this opinion.