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Amos v. City of Newark

July 20, 2009

FRANK AMOS, PLAINTIFF-RESPONDENT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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