August 8, 2013
RICHARD M. GORDON, Plaintiff-Appellant,
TOWNSHIP OF TOMS RIVER, TOMS RIVER POLICE DEPARTMENT, TOMS RIVER POLICE OFFICER ANTHONY SCALI #334, TOMS RIVER POLICE OFFICER S. EUBANKS #318, and TOMS RIVER POLICE OFFICER MALONEY #359, Defendants-Respondents, and BOROUGH OF LAVALLETTE and LAVALLETTE POLICE DEPARTMENT, Defendants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 11, 2013
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3840-10.
Robert B. Woods argued the cause for appellant.
Jared J. Monaco argued the cause for respondents (Gilmore & Monahan, P.A., attorneys; Mr. Monaco, on the brief).
Before Judges Sabatino, Fasciale and Maven.
Plaintiff Richard Gordon appeals from a May 25, 2012 order granting summary judgment and dismissing his complaint against various defendants, including the Township of Toms River, Toms River Police Department and several officers, based upon injuries he incurred from a K-9 officer bite. We affirm.
These are the most pertinent facts. On September 27, 2009, after consuming a few drinks that evening on the Seaside Heights Boardwalk, plaintiff decided to sleep on the couch at his ex-girlfriend's home a few miles away. Upon arrival, he discovered that she was not home and called her cell phone approximately fourteen times. After receiving no response, it is undisputed that plaintiff entered his ex-girlfriend's home through a bedroom window.
Plaintiff's ex-girlfriend arrived home and noticed his parked vehicle. She immediately contacted the Toms River Police Department. Toms River police officers arrived at the scene with their K-9 officer, Boris, and went inside the home. Borough of Lavallette police officers also responded. According to defendants, Toms River Officer Eubanks made the "Standard K-9 Announcement." Receiving no response after what he described as "a reasonable amount of time, " Officer Eubanks released the K-9 officer to locate plaintiff. According to the Toms River K-9 Patrol Report, "K-9 Boris made the initial apprehension on the . . . suspect's buttocks, [and] as he resisted, K-9 Boris re-apprehended the suspect on his left calf." The K-9 officer bit plaintiff on the right shoulder, buttocks, and twice on his left leg.
Plaintiff was later charged with burglary, harassment, stalking and trespassing. He ultimately pled guilty to criminal trespassing.
In the Notice of Claim served pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to -12-3, plaintiff alleged, among other things, that the police
use[d] excessive force upon the . . . claimant, including being repeatedly bitten and attacked by a police dog during the claimant's detainment, arrest, and continued detainment and, further, . . . the Toms River Police Department was negligent in the training, use, deployment, direction and control of said police dog . . . .
The subsequently filed complaint alleged negligent and careless handling of the canine officer.
Defendants subsequently moved for summary judgment on two bases. First, they alleged that the scarring that resulted from the K-9 bites was not "substantial" within the meaning of N.J.S.A. 59:9-2(d), and in light of
Brooks v. Odom , 150 N.J. 395 (1997), and Ayers v. the Township of Jackson , 106 N.J. 557 (1987). Second, defendants asserted that plaintiff failed to provide expert opinion necessary to establish that their handling of the K-9 officer was negligent.
At oral argument on March 16, 2012, Judge Joseph L. Foster, J.S.C., accepted an initial medical report prepared by plaintiff's medical expert, Floyd Krengel, M.D., in which the doctor concluded that the bites on plaintiff's calves, thighs and buttocks resulted in significant scarring. The judge also viewed certain black and white photographs of the injuries. The judge directed plaintiff to submit color photographs of the scars, and a supplemental medical expert report addressing the extent of the injuries and whether cosmetic surgery was recommended.
Next, the judge considered whether plaintiff had adequately proven that defendants acted negligently. Judge Foster stated that the need for an expert was "a significant issue, " and asked plaintiff's counsel:
[Counsel], how are you going to establish the officers here were negligent? Isn't this how these dogs were handled, the circumstances? Don't you need an opinion from a qualified expert to establish that there was some deviation from the standard of care in the way that the officers conducted themselves?
Counsel replied that he did not believe that an expert was necessary. The judge informed counsel, "I [do not] think a lay jury without the assistance of an expert can pass judgment on that. I think you need an expert. . . . I don't see how possibly you get this case to the jury without a qualified expert." The judge then provided counsel with an additional thirty days to procure an expert on police procedure and to submit the supplemental medical reports and photographs.
At the next motion hearing date on May 25, 2012, the court rendered its oral opinion on the motion. Having reviewed the color photographs submitted by plaintiff, the judge ruled that a jury could reasonably find that plaintiff's scars were substantial enough to meet the threshold requirements of the New Jersey Tort Claims Act. Plaintiff, however, failed to provide any expert report addressing the training or use of police dogs. Relying on
Butler v. Acme Markets, Inc ., 89 N.J. 270, 283 (1982), the judge considered whether an expert was required in this circumstance, noting that "'[t]he test of need of expert testimony is whether the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable.'" (Quoting Butler, supra, 89 N.J. at 283). The judge stated:
The [c]ourt is satisfied that in these circumstances, the report of an expert would, in fact, be necessary. The plaintiff appears to rely simply upon [his] allegations that the police officers released the dog in the circumstances there at hand, and as a result, he was bitten, and that their releasing the dog in an uncontrolled manner in the circumstances at hand would constitute negligence. As far as the [c]ourt is concerned, a lay jury would not . . . have sufficient training, expertise or skill to make a judgment as to whether or not the police officers behaved negligently in the circumstances.
The officers were responding to a call. It was late at night. They were responding to the complaint by plaintiff's ex-girlfriend. He had made [fourteen] calls to her or a number similar to that and suggested he was going to break her window. They arrived at the scene. He didn't respond to their call -- or no one in the house responded to their attempting to get plaintiff's attention. The question . . . of negligence in these circumstances involves issues as to what is the appropriate procedure to be followed by police officers in those circumstances in the management of a K-9?
It seemed to the [c]ourt that only a qualified expert would be in a position to establish the applicable standard of care in handling a K-9. In the circumstances at hand, what would be the appropriate procedure? After all, the officers at the point where the K-9 was released, didn't know where plaintiff was, [and] didn't know whether or not he was armed. Their information was that he had threatened to break into the house or break a window. Whether or not it was appropriate to release the dog in those circumstances is a matter only someone educated and trained in the management of K-9's by police officers would be able to render an opinion.
So, the [c]ourt is satisfied, and under the criteria established by Butler, an expert opinion would, in fact, be necessary. The plaintiff has failed to provide an expert's opinion. Apparently, [plaintiff's counsel] has made a determination not to provide an expert's opinion at trial. . . .
Since plaintiff had not provided the court with an expert opinion supportive of his negligence claim, the motion judge concluded that there was no genuine issue of material fact and granted summary judgment in favor of defendants.
We review the trial court's grant of summary judgment de novo, using the standards set forth in
Brill v. Guardian Life Insurance Co. of America , 142 N.J. 520, 540 (1995). See R. 4:46-2(c). Having reviewed the record in light of that standard, we find no basis to disturb Judge Foster's decision.
Plaintiff claims that expert testimony is not required in this case for a jury to make a determination whether the police acted reasonably in using the K-9 officers when, at the time of the incident, plaintiff had surrendered himself to the police and was not resisting arrest. He relies on his deposition testimony in which he stated that he was already on the ground when the police entered the apartment. Defense counsel argued that most citizens have not experienced K-9 officers and have no knowledge of the police procedures or training requirements for the dogs.
We agree with the trial judge and defense counsel that an expert was required in this particular case. Generally, an expert report can support a finding of a genuine issue of disputed fact entitling the party opposing summary judgment to present the matter to a jury for determination.
See Ziegelheim v. Apollo, 128 N.J. 250, 264 (1992). Using expert testimony to discuss police decision-making and procedure is helpful to a jury, because "most citizens . . . have no personal knowledge of how the police should ordinarily . . . conduct themselves." McKinney v. E. Orange Mun. Corp ., 284 N.J.Super. 639, 654 (App. Div. 1995), certif. denied, 143 N.J. 519 (1996). Use of expert testimony often is necessary in cases involving claims of faulty police conduct because the average citizen has no experience with police techniques and methods. See id. at 653-54; cf. Mayer v. Once Upon a Rose , 429 N.J.Super. 365, 369 (App. Div. 2013) (holding, by contrast, that a liability expert was not necessary to support a plaintiff's claims that the defendant negligently caused a glass bowl to shatter).
In the situation presented here, where the police were seeking to find a trespasser, it is plausible that the appropriate use of the K-9 is to seek out the interloper freely. Plaintiff's suggestion that the dog instead should have been on a leash foretells the challenge that jurors would have, as laypersons, in assessing the appropriateness of the police conduct. We discern therefore that an expert would have been able to provide the critical insights necessary for the jury to determine if the K-9 was used appropriately in this context. A trial jury could not have fairly assessed the reasonableness of defendants' conduct in the absence of expert testimony on the subject of police canine training and procedure. Likewise, plaintiff could not have established that the police conduct amounted to negligence solely on the basis of his own statements. Therefore, summary judgment was properly granted.
Finally, plaintiff asserted at oral argument that the dog-bite statute, N.J.S.A. 4:19-16, should apply to this case; however, plaintiff's brief does not mention this issue.
See Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2013) ("It is, of course, clear that an issue not briefed is deemed waived."); see, e.g., In re Bloomingdale Convalescent Ctr., 233 N.J.Super. 46, 49 n.1 (App. Div. 1989) (refusing to decide an issue raised for the first time during oral argument). Nor was the issue raised below. See Pressler & Verniero, supra, comment 2 on R. 2:6-2; see also
Nieder v. Royal Indem. Ins. Co. , 62 N.J. 229, 234 (1973) ("[A]ppellate courts [generally] will decline to consider questions or issues not properly presented to the trial court."). Accordingly, we need not address it.