SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5118-95T1
JANET C. DENIS,
Plaintiff-Appellant/
Cross-Respondent,
v.
CITY OF NEWARK and
NEWARK POLICE DEPARTMENT,
Defendants-Respondents/
Cross-Appellants,
and
KEITH B. JORDAN,
Defendant.
_____________________________________________
Argued December 1, 1997 - Decided January 15,
1998
Before Judges Petrella, Skillman and Eichen.
On appeal from Superior Court of New Jersey,
Law Division, Essex County.
Elliot Scher argued the cause for appellant/
cross-respondent Janet C. Denis (Allen C.
Marra on the brief).
John Pigeon, First Assistant Corporation
Counsel, argued the cause for
respondent/cross-appellant City of Newark
(Michelle Hollar-Gregory, Corporation Counsel;
Kathleen C. Goger, Assistant Corporation
Counsel on the brief).
No other parties participated in this appeal.
The opinion of the court was delivered by
EICHEN, J.A.D.
This is an action brought under the New Jersey Tort Claims
Act, N.J.S.A. 59:1-1 to 12-3 (the Tort Claims Act). Plaintiff
Janet Denis appeals from a directed verdict entered in favor of
defendants City of Newark (the City) and the Newark Police
Department (the Department) after the close of plaintiff's case.
R. 4:37-2(b).
The appeal arises out of an incident in which plaintiff was
unjustifiably struck on the head with a police radio by an on-duty
police officer, Keith B. Jordan, Sr., in Newark after the officer
issued her a careless driving ticket.See footnote 1 Plaintiff was charged with
assault and resisting arrest and was detained overnight in jail
after Jordan falsely reported to his fellow officers that plaintiff
had attacked him.See footnote 2 The following is plaintiff's uncontested
version of the event.
On Sunday, October 17, 1993, at approximately 5:30 p.m.,
plaintiff, then twenty years old and a junior at Rutgers University
in Newark, was approached by Jordan after making an illegal U-turn
on Broad Street. Apparently, Jordan had observed plaintiff's
illegal maneuver from a police kiosk located across the street.
After plaintiff made the U-turn and while she was stopped at a
traffic light, Jordan approached her car on foot. As plaintiff was
searching for her credentials, plaintiff asked Jordan if he "could
possibly not issue [her] the ticket" because her "insurance rates
[were] high." Jordan responded, "Shut the fuck up. I don't want
to listen to your bullshit story."
Jordan then took plaintiff's credentials and went into the
police kiosk. Approximately ten minutes later, Jordan returned to
plaintiff's car and threw two tickets into the car. As Jordan
walked away, plaintiff asked him to "hear [her] out." Jordan again
responded, "I don't want to listen to your bullshit story, get the
fuck out of here." Plaintiff claimed she was "shocked" and
"couldn't understand why he was ... being irrational." After
Jordan walked away from the car, plaintiff looked at the tickets
and noticed that one ticket was for an illegal U-turn and one
ticket for careless driving. Plaintiff then decided to speak to
Jordan in the kiosk to determine why she was given a careless
driving ticket. When plaintiff asked Jordan to explain why she had
been issued two tickets, he once again responded with obscenities
and demanded that she leave the kiosk. At that point, plaintiff
requested to speak with a superior officer. An argument ensued
which quickly escalated to the point where Jordan pulled plaintiff
by the shoulder and, when she did not move, "struck [her] on the
[fore]head with his [police] radio" and "punched her in her left
cheek and under her right breast." Plaintiff, who described
herself as 5'2" and 120 pounds, testified that Jordan was "stocky"
and appeared to be 5'10". Plaintiff described what happened after
Jordan struck her as follows:
I started crying. Actually, as soon as he struck me, I started bleeding a lot. I bled profusely and the blood was gushing down the left side of my face, so I thought I was
blind. So [the] first words out of my mouth
[were], "I'm blind, I'm blind, look what
you've done to me." And [then] I put my hands
over my head because he continued to struggle
with me.... [I]t seemed like he still wanted
to hurt me.
* * * *
I thought he was going to kill me or rape me
or something, because he wouldn't ... stop and
then there was blood all over the place. He
finally managed to restrain me. He put my
hands behind my back and then he pushed me up
against the glass door and then he locked the
door.
* * * *
He told me to shut the fuck up that I was
under arrest.
Plaintiff testified that, after a few minutes, Jordan radioed
for back-up assistance, and when the other police officers arrived,
he told them that plaintiff had attacked him because he gave her
two tickets. Accordingly, plaintiff was taken into custody and
transported to the hospital where she received stitches for her
head injury, after which she was formally processed at police
headquarters and detained overnight in jail.
Plaintiff instituted this action against Jordan and defendants
seeking tort damages for assault and battery and false
imprisonment. Plaintiff also asserted a claim against the public
entity defendants for negligently hiring and retaining Jordan as a
police officer alleging that they "knew or should have known" that
Jordan "was a person of mean and vicious temperament ... [because]
he had previously committed assaults and batteries upon other
persons." Prior to trial, the court dismissed the negligent hiring
and retention claims after examining the documents in Jordan's
personnel file in camera because plaintiff failed to present expert
testimony to support their admissibility.
At the conclusion of plaintiff's case, the court entered a
default judgment against Jordan for $100,000 in compensatory
damages and $250,000 in punitive damages.See footnote 3 However, the court
dismissed the action against defendants, determining that as public
entities, they could not be liable for Jordan's willful misconduct
under N.J.S.A. 59:2-10. In addition, the court determined that
plaintiff had failed to present proof that she suffered injuries
from the alleged false imprisonment.
On appeal, plaintiff argues that the trial court erred (1) in
removing from the jury's consideration the question of whether
Jordan's conduct was willful; (2) in rejecting plaintiff's claim of
liability for negligent retention of Jordan as a police officer;
(3) in denying plaintiff complete access to Jordan's personnel
records; (4) in determining that defendants were immune from
liability under N.J.S.A. 59:2-10 as a matter of law; and (5) in
dismissing plaintiff's false imprisonment claim.
Defendants have filed a cross-appeal contending that the trial
court erred in releasing any part of Jordan's personnel file on the
grounds that (1) Jordan's personnel records are irrelevant because
a public entity cannot be found liable for negligent hiring and
retention under the Tort Claims Act; (2) the records are
confidential and absolutely privileged; and (3) defendants are
absolutely immune from liability for discretionary administrative
action or inaction in police disciplinary matters. Defendants also
argue that the court erred in allowing plaintiff's expert to
testify because plaintiff failed to furnish an expert's report and
in ruling that plaintiff's scar could be found to constitute a
"disfigurement" under the Tort Claims Act.See footnote 4
Although we do not agree with all of the reasons given by the
trial court for dismissing plaintiff's complaint against the City
and the Department, we affirm the order of dismissal for the
reasons set forth in this opinion.
We reject plaintiff's claim that the trial court erred in removing the issue of whether Jordan's conduct was willful from the jury's consideration. The applicable standard is whether "the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." R. 4:37-2(b). On such a motion, "[t]he trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only
with its existence, viewed most favorably to the party opposing the
motion." Dolson v. Anastasia,
55 N.J. 2, 5-6 (1969).
We have carefully reviewed the record in light of the
arguments advanced and the applicable legal principles and conclude
that the trial court properly granted defendants' motion to dismiss
because there was no competent evidence to support plaintiff's
argument that Jordan's assault on plaintiff was anything other than
willful. Jordan's conduct was not negligent or reckless, and no
reasonable jury could have concluded otherwise on the evidence
presented. Plaintiff's arguments are clearly without merit. R.
2:11-3(e)(1)(E).
We next address whether plaintiff's proofs set forth a prima facie case of liability against defendants for negligently retaining Jordan as a police officer knowing of his dangerous propensities and the risk of injury he presented to the public.
N.J.S.A. 59:2-2 establishes the liability of a public entity "for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances." A cause of action for negligent hiring/retention of employees in the private sector was first recognized by our Supreme Court in Di Cosala v. Kay, 91 N.J. 159 (1982), under the theory of respondeat superior.
Prior to the enactment of the Tort Claims Act, our highest court observed, in a similar vein, that claims against police
departments for negligent training and supervision of police
officers furnish separate and independent grounds for liability
against a public entity under principles of vicarious liability.
See McAndrew v. Mularchuk,
33 N.J. 172, 184 (1960). In that case,
after a police officer shot an unarmed juvenile in the back during
a police pursuit, the plaintiff filed a complaint against the
municipality for failing to provide firearm training to the
officer. In the course of its decision, the Supreme Court cited
with approval numerous out-of-state cases where liability was
imposed upon a municipality for injuries inflicted by police
officers, not only for their active wrongdoing, but for the
municipality's own independent negligence in hiring and/or
retaining an officer knowing he had dangerous propensities.
McAndrew v. Mularchuk, supra, 33 N.J. at 187-89. Quoting from the
Court of Appeals of New York in one such case, the Court stated:
It follows that where, in circumstances such
as those we are now considering, the retention
of an employee may involve a known risk of
bodily harm to others, the field in which that
discretion may be exercised by the head of a
department is limited. It is superseded by
the duty to abate that risk if in related
circumstances danger to others is reasonably
to be perceived.
[Id. at 187 (quoting McCrink v. City of New
York,
71 N.E.2d 419, 422 (N.Y. 1947)).See footnote 5]
Applying the foregoing rationale, the McAndrew Court concluded that
a jury question had been presented as to whether the municipality
was liable for the "active wrongdoing" of its chief of police,
stating:
In our judgment, the needs of the present-day
environment require us to move on to a
consideration of the broader ground of
responsibility of the municipality under the
doctrine of respondeat superior for the
negligent acts of commission of ordinary
agents or employees perpetrated in the course
and scope of their employment.
[Id. at 189.]
The Tort Claims Act did not change the well established body
of law enunciated in McAndrew. Indeed, the Attorney General's Task
Force on Sovereign Immunity Report, which accompanied N.J.S.A.
59:2-2, indicates that "[t]his provision specifically adopts the
general concept of vicarious liability expressed by the New Jersey
Supreme Court in Mc Andrew." Margolis & Novack, Claims Against
Public Entities, 1972 Task Force Comment on N.J.S.A. 59:2-2 (1997).
The report also states that "this section provides a flexible
liability provision which will permit the courts to adapt the
principles established in this act to the particular circumstances
of the cases coming before them." Ibid.
In this case, the Department knew or should have known of
Jordan's dangerous propensities. Jordan's personnel file contained
documents concerning three incidents in which Jordan was
disciplined for assaultive behavior on defenseless citizens. Two
of the incidents predated the assault in this case.See footnote 6 Additionally,
the file contained documents showing that Jordan had been suspended
nine times for violating police regulations between 1985 and 1995.See footnote 7
Accordingly, we conclude that plaintiff's proofs set forth a
prima facie case of liability against the public entity defendants
for negligently retaining Jordan as a police officer knowing of his
dangerous propensities and the risk of injury he presented to the
public. Recognizing that liability may exist against a public
entity under the Tort Claims Act for its negligent retention of a
police officer who presents a clear public danger not only serves
as an expression of societal disapproval of unjustifiable police
violence, but also encourages public entities to impose appropriate
sanctions in such circumstances.
We are also persuaded that plaintiff should have been permitted to review all documents pertaining to Jordan's disciplinary history in his personnel file and reject defendants' contention that those documents contain confidential information
protected by a privilege. Defendants argue that permitting
disclosure of Jordan's personnel file would impede the ability of
the law enforcement community to conduct internal investigations
and to assure candor and frankness of witnesses in those
investigations. We disagree.
After defendants objected to the disclosure of Jordan's
personnel file, the trial court reviewed all of the file documents
in camera.See footnote 8 The court concluded that the documents concerning the
three incidents of assault were relevant and would have been
admissible but for plaintiff's failure to present expert testimony
to support them. Regrettably, because the court did not record the
bases for his determination not to release all of the records, we
do not have the benefit of the court's reasons for its decision.
Such findings and conclusions are essential for meaningful judicial
review and should be routinely made when documents are reviewed in
camera; the findings and conclusions can then be placed under seal
of the court to preserve their confidentiality pending appeal. R.
1:7-4. However, since counsel for defendants furnished Jordan's
complete personnel file to us at oral argument, we have performed
our own independent review of the file documents, and conclude
that, except for the disciplinary records of other officers
contained in the file which are not relevant to these proceedings,
the trial court should have ordered full disclosure of its
contents. See Asbury Park Press v. Seaside Heights,
246 N.J.
Super. 62 (Law Div. 1990); see also Shuttleworth v. City of Camden,
258 N.J. Super. 573 (App. Div.), certif. denied,
133 N.J. 429
(1992).
For the most part, the materials we reviewed were incident
reports, complainants' statements, preliminary and final notices of
disciplinary action and reports on the dispositions taken. These
materials are the only evidence supporting plaintiff's claim that
defendants were aware of Jordan's past conduct. Without these
records, plaintiff could not show that defendants knew of his
dangerous propensities or his other derelictions of duty, and could
not establish a prima facie case of negligence against defendants.
Thus, plaintiff demonstrated a strong need for the documents. We
also note that the file contains no self-critical evaluative
reports or reports of remedial measures instituted after Jordan was
disciplined. Nor are there any statements by confidential
informants. In these circumstances, we perceive no impediment to
the complete release of Jordan's personnel file inasmuch as
plaintiff's need for the material clearly outweighs defendants'
claims of purported confidentiality. See Loigman v. Kimmelman,
102 N.J. 98, 104 (1986).
We next consider defendants' argument that even if defendants were negligent in retaining Jordan as a police officer, they are immune from liability under N.J.S.A. 59:2-3(b) because their
conduct constitutes discretionary administrative action or inaction
of a judicial nature.
N.J.S.A. 59:2-3 applies "[w]here immunity is claimed by a
public entity based upon discretionary activities." Longo v.
Santoro,
195 N.J. Super. 507, 515 (App. Div.), certif. denied,
99 N.J. 210 (1984). The relevant portions of that section of the Tort
Claims Act read as follows:
a. A public entity is not liable for an
injury resulting from the exercise of judgment
or discretion vested in the entity;
b. A public entity is not liable for
legislative or judicial action or inaction, or
administrative action or inaction of a
legislative or judicial nature.
Subsection (a) deals with "high-level policymaking decisions"
which are made at the planning level and involve the weighing of
competing policy considerations; subsection (b) deals with the
operational level of decisionmaking and does not implicate high
level policymaking decisions. See Costa v. Josey
83 N.J. 49, 55
(1980); see also Brown v. Brown,
86 N.J. 565, 577 (1981); Perona v.
Township of Mullica,
270 N.J. Super. 19, 29 (App. Div. 1994);
Pacifico v. Froggatt,
249 N.J. Super. 153 (Law Div. 1991) (holding
that liability for the tort of negligent hiring and retention is
not barred by N.J.S.A. 59:2-3(a)).
Whether to discharge or retain a police officer after he or
she has been charged with official misconduct is, of course, a
discretionary decision. However, whether a public entity should be
immunized from liability for exercising that discretion is a more
difficult issue and one which has not yet been addressed by this
court. Regrettably, the factual record before us on this important
question is sparse. We do not know, for instance, whether
disciplinary hearings were held for the prior assault charges. If
they were, we do not know whether the hearings were part of an
informal administrative process, or whether they were formal
proceedings presided over by the chief of police. Similarly, we do
not know what evidence, if any, was presented at such hearings.
Nor do we know whether Jordan's prior misconduct was ever
considered before he was disciplined.See footnote 9
In the absence of a fully developed record, we decline to
decide whether and under what circumstances a police department and
municipality may or may not be immune from tort liability for its
choice of sanction in the face of a known risk of danger to the
public by one of its own officers. Cf. Flodmand v. State Dep't of
Institutions & Agencies,
175 N.J. Super. 503, 510 (App. Div. 1980),
declined to be followed for other reasons in Tice v. Cramer,
133 N.J. 347 (1993).
We next consider whether plaintiff has sustained her burden of proving damages under the Tort Claims Act and conclude that she has not. N.J.S.A. 59:9-2d provides that "[n]o damages shall be awarded against a public entity or public employee for pain and suffering" except "in cases of permanent loss of a bodily function, permanent
disfigurement or dismemberment" where medical expenses exceed
$1,000. This provision has been interpreted to require plaintiff
to demonstrate objective, medical evidence of permanent injury to
recover damages against a public entity. See Brooks v. Odom,
150 N.J. 395, 402-03 (1997); see also Collins v. Union County Jail,
150 N.J. 407 (1997).
At trial, plaintiff focused her claim for damages on
allegations that she suffers from post-traumatic stress disorder.See footnote 10
Plaintiff's expert, Dr. Oscar Sandoval, testified that since the
assault, plaintiff suffers from feelings of helplessness and
hopelessness, nightmares, and has difficulty with her memory and
concentration. Dr. Sandoval also explained the nature of the
disorder and the course of treatment plaintiff followed. However,
because plaintiff failed to furnish a comprehensive expert report,
Dr. Sandoval was not permitted to testify concerning the permanency
of the condition.See footnote 11 In the absence of proof of permanency,
plaintiff's proofs on the element of damages were insufficient to
permit recovery under the Act. Ibid.
Because we conclude that the court properly dismissed the
action against defendants for failure to sustain her burden of
proving a permanent loss, it is unnecessary to decide whether the
court mistakenly exercised its discretion in dismissing plaintiff's
negligent retention claim because she did not present expert
testimony concerning Jordan's retention on the force. In tort
actions generally, expert testimony is indispensable where "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 a party was reasonable." Butler v. Acme Markets,
Inc.
89 N.J. 270, 283 (1982); see State v. Kelly,
97 N.J. 178, 208
(1984). In the absence of any foundation evidence concerning the
basis for the decision to retain Jordan as a police officer after
the prior assaults, we are unable to determine whether expert
testimony was required to assist the jury in evaluating the
reasonableness of defendants' retention of Jordan as an officer.
Lastly, we reject as clearly without merit plaintiff's argument that the court erred in removing her false imprisonment claim from jury consideration. Plaintiff maintains that questions of fact exist regarding whether the arresting police officers, other than Jordan, had probable cause to detain her on suspicion of assault and resisting arrest. Even if factual issues existed regarding the probable cause issue (and none appear in this record), in the absence of proof of permanent injury, the court properly dismissed plaintiff's false imprisonment claim.
The order of dismissal is affirmed; the cross-appeal is
dismissed.
Footnote: 1 Jordan was also named as a defendant in the action but did not appear and a default judgment was entered against him. Footnote: 2 The charges against plaintiff were later dismissed. Footnote: 3 The damage award against Jordan is not being appealed. Footnote: 4 The judgment on appeal was entirely in defendants' favor, and therefore, they lack standing to cross-appeal the court's rulings. Howard Savings Instit. v. Peep, 34 N.J. 494, 499 (1961). Moreover, since appeals are taken from orders and judgments, not rulings, we do not address defendants' challenge to the court's ruling allowing Dr. Sandoval's expert testimony or the ruling that plaintiff's scar could be found to constitute a "disfigurement" under the Tort Claims Act. However, because defendants' argument that Jordan's personnel file should not have been disclosed is responsive to plaintiff's contention that she was entitled to disclosure of the entire personnel file, we resolve that issue as part of plaintiff's appeal. Footnote: 5 In McCrink, the police officer was "a known alcoholic, and as such troublesome and vicious. He had repeatedly been subjected to disciplinary action because of excessive use of alcohol. While off duty, but carrying his revolver pursuant to regulations, he shot two people." McAndrew v. Mularchuk, supra, 33 N.J. at 187. Footnote: 6 The incidents are as follows: on January 12, 1990, Jordan punched a citizen in the mouth following an automobile accident in which Jordan's vehicle collided with the citizen's vehicle; and on January 30, 1990, Jordan slapped a woman following a motor vehicle accident. On March 6, 1995, he was again disciplined after pleading guilty to a simple assault. All three incidents consisted of unprovoked acts of violence on members of the public. Footnote: 7 These reports detailed adjudicated violations for neglect of duty for failing to dispatch police units on reports of serious crimes, for making false statements, for being absent without permission, for leaving his post, for failing to report the loss of his weapon, for sleeping while on patrol duty, and for corrupt practices (taking bribes) in dealing with the public. On August 25, 1995, Jordan was finally discharged from the force. Footnote: 8 We reject defendants' argument that they should not have been required to respond to plaintiff's notice in lieu of subpoena because she failed to move to compel defendants to produce Jordan's records after defendants asserted their claim of privilege. In these circumstances, we perceive no abuse of discretion. Footnote: 9 In addition, Jordan's personnel file contained no documents concerning plaintiff's charges. Hence, we do not know whether a hearing was held or whether Jordan was ever disciplined for this incident. Footnote: 10 Although the alleged post-traumatic stress disorder was accompanied by a scar on plaintiff's forehead, her damage claim against defendants appears to have been limited to the emotional harm she suffered from the assault. Footnote: 11 Plaintiff did not supply an expert's report in discovery. The court nevertheless permitted her to rely on a one-page invoice for psychiatric services rendered by Dr. Sandoval beginning on January 30, 1995 as her report. The invoice included a diagnosis of "post-traumatic stress disorder" and references to the treatment rendered. On appeal, plaintiff has not challenged the limitations the court placed on her expert's testimony. Accordingly, we consider the issue abandoned.