On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2911-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 11, 2012
Before Judges Axelrad, Sapp-Peterson and Ostrer.
The opinion of the court was delivered by AXELRAD, P.J.A.D.
In this appeal we address the interplay of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3, and the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-1 to -35. We consider whether a victim and her attacker, boarders in a rooming house, can be considered "household members" under the PDVA. We also consider whether the PDVA, N.J.S.A. 2C:25-21, expressly creates an exception to the immunity provisions of the TCA such that the failure of police to arrest the attacker subjects the public entity to liability for subsequent damages to the victim, where the officers determined she was not a victim of domestic violence and exhibited no visible injuries.
On leave granted, the City of Newark (City) appeals denial of a motion for summary judgment seeking to dismiss the complaint of a sexual assault victim for damages based on its police officers' earlier failure to arrest and remove the assailant pursuant to the PDVA, N.J.S.A. 2C:25-21. Noting both sides "concede that the [PDVA] provides an express exception to the [TCA] immunity N.J.S.A. 59:5-5 provides to public entities and public employees" for "failure to make an arrest," the motion judge found the PDVA applied to the instant case and was "an exception to general immunity." He concluded that S.P. and her attacker, boarders in a rooming house, were "household members" within the PDVA. The judge rejected the City's defense of absolute immunity and found material factual issues as to whether S.P. exhibited "signs of injury" to the responding officers that imposed an obligation to arrest under the PDVA, N.J.S.A. 2C:25-21, and whether the officers acted in good faith to afford them qualified immunity under the PDVA, N.J.S.A. 2C:25-22. We affirm the court's finding that these boarders were members of the same household within the intendment of the PDVA. We are satisfied, however, that the immunity provisions of the TCA apply as a matter of law because the officers did not have a ministerial duty to arrest pursuant to the PDVA under these circumstances. Accordingly, we reverse the denial of summary judgment, and grant judgment in the City's favor dismissing the complaint. Based on this determination, we need not reach the City's defense of qualified immunity under the PDVA.
In January 2010, plaintiff S.P. filed suit against the City, alleging it was negligent, careless, and reckless when its police officers failed to arrest and remove Louis Alfredo Santiago, Jr. pursuant to the PDVA, N.J.S.A. 2C:25-21, after S.P. reported to police that Santiago had groped and propositioned her sexually.*fn1 S.P. claims she would not have been sexually assaulted by Santiago the following day if police had arrested him when they initially responded to the scene.
After discovery, the City moved for summary judgment, arguing the PDVA was inapplicable because S.P. and Santiago were not "household members," and asserting absolute immunity under the TCA and qualified immunity under the PDVA. S.P. filed opposition. Following oral argument, the court issued an order denying summary judgment on May 27, 2011, accompanied by a written opinion. By order of July 25, 20ll, we granted the City's motion for leave to file an interlocutory appeal.
This case arose from the alleged sexual assault of S.P. by Santiago that occurred on February 17, 2008. Portions of S.P.'s and Officer Joseph Bernal's deposition testimony were submitted in connection with the summary judgment motion. The facts are not in dispute.*fn2
S.P. stated in depositions that she moved into a three-floor boarding house on Milford Avenue in Newark about two weeks before the incident. Santiago was already a resident. They were the only residents on the third floor. They shared a bathroom at the end of their common hallway, but each bedroom had a lock on the door. All boarding house residents also shared a kitchen with communal appliances. About four days before the incident, S.P. first observed Santiago when they passed on the stairwell.
Shortly after midnight on February 17, 2008, as S.P. was walking from her bedroom to the shared bathroom, Santiago called to her from his open bedroom and invited her to have a drink with him. S.P. declined the invitation and went into the bathroom. As S.P. returned to her bedroom, Santiago approached her in the hallway, grabbed her breast and buttocks, told her she was wearing a nice shirt, and said, "I want to f--k." S.P. pushed Santiago away and locked herself in her bedroom. Santiago then tried to open S.P.'s door by jiggling the door knob.
S.P. promptly called the police and told the dispatcher her roommate was trying to get into her room, he would not leave her alone, and he was drunk. Santiago continued turning the doorknob, and S.P. again called the police. When Officers Bernal and Felicia Ellison of the Newark Police Department arrived, S.P. went downstairs to let them in. She told them what had occurred, including the groping, unwanted sexual advance, and attempts to gain access to her room. S.P. related that she told them, "he grabbed me twice and he told me that he wanted to have sex and I pushed him away and I got back in my room and he tried to open the door, he wouldn't stop trying to open the door and that's when I called the cops." S.P. elaborated that she told them Santiago had "grabbed [her] breast" over her clothes and demonstrated to the officer how he did it by touching the officer in the chest area, and that Santiago had also "grabbed" her buttocks. S.P. also told them she was scared of Santiago and afraid to stay in the boarding house with him.
The officers then went upstairs to speak with Santiago. S.P. overheard the officers ask Santiago if he knew S.P. and if they were "a couple," to which he responded "no." Santiago admitted he had "touched" S.P., tried to get into her room, and was drinking. The officers told Santiago to stay away from S.P. and not to bother her again, and told S.P. to call the police if she had any more problems. S.P. stayed in her room for the rest of the night.
At about 11:00 the next morning, S.P. went to the bathroom to shower. As she exited the bathroom wearing a bathrobe, Santiago was standing outside the door, naked from the waist down. Santiago punched S.P. in the face, choked her, and raped her in the hallway. Santiago then pushed S.P. into his bedroom and continued to sexually assault her. S.P. managed to escape and run to a neighbor's home. The neighbor called the police. The Newark Police Department responded to the scene, arrested Santiago, and filed criminal charges against him.
Officer Bernal testified in depositions that the Newark Police Department provided him with training on domestic violence matters; his understanding of his responsibilities as a police officer on domestic violence calls was to "[t]ake action if there's any substantial or any signs of injury or things of that nature"; if there was an "allegation of a violation of one of a variety of criminal statutes in the context of a domestic violence," he would "probably make an arrest"; and the decision to arrest would be "based on [his] training" and "tak[ing] all the facts into consideration." He explained that S.P.'s call was logged by dispatch as a "disorderly conduct" call, he did not make an arrest because there were "no grounds of domestic violence [and] no physical signs of injury," and where the two individuals "did not have any dating relationship . . . live under the same roof [and] [t]hey're renting rooms," "based on [his] training and experience that's not a situation that would be domestic violence."
On February 21, 2008, S.P. applied for a temporary restraining order (TRO) against Santiago listing their relationship as "living in the same house." The court issued a TRO on that date with the qualifying relationship listed as "household member." On March 4, 2008, the court entered an ex parte indefinite continuance order, continuing all restraints previously ordered in the temporary restraining order, because defendant had not been served.
S.P. filed this lawsuit in January 2010. She alleged the City's police officers were negligent, careless, and reckless in failing to arrest and remove Santiago pursuant to the PDVA after he groped her and propositioned her sexually, which would have prevented the subsequent sexual assault. She also alleged the City was negligent, careless, and reckless in failing to properly train, educate, and supervise its officers under the PDVA and for its officers' failure to arrest.
The City moved for summary judgment, arguing its police officers were absolutely immune from liability for their failure to arrest Santiago pursuant to the TCA, N.J.S.A. 59:5-5. The City also argued the PDVA did not apply because S.P. and Santiago were not "household members" under the PDVA. Alternatively, the City argued that even if the PDVA applied, the officers had discretion not to arrest Santiago during the initial police response because none of the four statutory factors mandating arrest as delineated in N.J.S.A. 2C:25-21(a) were present: S.P. did not "exhibit signs of injury," there was no warrant or restraining order, and no weapon was used. The City relied upon the following sections of the TCA: N.J.S.A. 59:3-2(a) ("A public employee is not liable for an injury resulting from the exercise of judgment or discretion vested in him."); N.J.S.A. 59:3-5 ("A public employee is not liable for an injury caused by his . . . failure to enforce any law."); N.J.S.A. 59:2-2(B) ("A public entity is not liable . . . where the public employee is not liable.").
In opposition, S.P. argued the PDVA created an exception to the absolute immunity provision of N.J.S.A. 59:5-5, and required the officers to arrest Santiago when S.P. reported the initial incident and to offer her a restraining order. Specifically, S.P. contended Santiago qualified as a "household member" under the PDVA because they lived in the same boarding house and shared a common bathroom and kitchen, thereby rendering her a "victim of domestic violence" entitled to the protections of the PDVA. S.P. further argued she exhibited bodily injury as her "fear and trauma" were a clear indication of an impairment of her physical condition under N.J.S.A. 2C:25-21(c). She urged that even if the officers concluded she did not exhibit a bodily injury, Santiago's admissions to the police that he touched her breast and buttocks and tried to break into her bedroom were sufficient relevant factors for the officers to determine there was probable cause to make an arrest. Ibid. S.P. asserted that she would not have been raped had the officers provided her with the protections provided in the PDVA.
In reply, the City raised the good faith immunity provision of the PDVA, N.J.S.A. 2C:25-22. It argued that such provision would immunize the non-party police officers and, derivatively, the City, for the officers' failure to arrest Santiago.
The court denied the City's motion for summary judgment by order of May 27, 20ll. Noting the apparent concession by the parties and determining "the only remaining issue is whether the [PDVA] applies in the instant case," the motion judge found the PDVA did apply and was "an exception to general immunity." Specifically, he concluded the living arrangement between S.P. and Santiago fell under the liberal definition of "household member," N.J.S.A. 2C:25-19(d), as interpreted by our courts, specifically, Hamilton v. Ali, 350 N.J. Super. 479 (Ch. Div. 200l) (applying the PDVA to college suitemates who had separately locked bedrooms but shared a common area and bathroom), and S.Z. v. M.C., 417 N.J. Super. 622 (App. Div. 2011) (applying the PDVA to an adult male visitor who resided in the plaintiff's home for seven months and committed the predicate offense ten months later). Relying on the criteria considered in Hamilton, the judge found: (1) there was a constancy in the relationship due to the "close proximity of the parties' rooms and the reality of living in a boarding house, which necessitates interaction between the parties"; (2) the boarding ...