L.T. VS. TOWNSHIP OF OCEAN BOARD OF EDUCATION (L-1284-15, MONMOUTH COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0856-18T1
L.T., individually and as
Guardian Ad Litem of D.T.,
Plaintiffs-Appellants,
v.
TOWNSHIP OF OCEAN
BOARD OF EDUCATION,
OCEAN TOWNSHIP HIGH
SCHOOL, TOWNSHIP OF
OCEAN, and TOWNSHIP OF
OCEAN POLICE DEPARTMENT,
Defendants-Respondents.
_________________________________
Submitted December 3, 2019 – Decided January 28, 2020
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-1284-15.
Before Judges Fisher and Gilson.
Nelson, Fromer, Crocco & Jordan, attorneys for
appellants (Bruce Fromer, of counsel and on the brief;
Joseph A. Burke, on the brief).
Schwartz & Posnock, attorneys for respondents,
Township of Ocean and Township of Ocean Police
Department (David A. Schwartz, of counsel and on the
brief).
PER CURIAM
While walking to a snack bar during a high school football game, D.T.
(David), who was then fourteen years old, was tackled by another teenager and
injured.1 David's mother, on behalf of her son and herself, sued the town and its
police department alleging negligence under the Tort Claims Act (TCA),
N.J.S.A. 59:5-1 to -12. Plaintiffs appeal from an order granting summary
judgment to the Township and the Police Department. We affirm because
plaintiffs failed to establish facts showing proximate causation.
I.
We take the facts from the summary judgment record, viewing them in the
light most favorable to plaintiffs, the non-moving parties. In September 2013,
David, who was in the eighth grade, attended a high school football game as a
spectator.
David testified at his deposition that he was watching the football game
from the bleachers when he decided to meet some friends and go to the snack
1
To protect privacy interests, we use initials and fictious names because one of
the plaintiffs and one of the defendants were minors at the time of the incident.
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bar. As he was walking on a blacktop walkway to the snack bar, O.R. (Oran)
tackled him from behind. David fell forward and broke his arm in several places.
David explained that he knew Oran, but he had not been with Oran at the
game and he had not seen him before Oran tackled him from behind. David also
explained that approximately seventy people were in the area near the bleachers,
including a fair number of children playing football in the grass next to the
walkway.
Two of David's friends, M.N. (Max) and M.I. (Marvin), witnessed the
incident and were deposed. Max testified that he was walking approximately ten
yards behind David as David walked with a girl. As David was walking towards
the snack bar, Oran ran up from the other direction, asked Max "[w]here's
[David]," then "took off and hit [David]." Max described the hit as a "full speed
blind-side tackle."
Marvin testified that he was walking with David and a girl towards the
snack bar, when Oran called out David's name, and ran up and hit his body
against David's body. According to Marvin, David then fell over and landed on
his arm.
The only other witness to the incident who testified was Oran. His account
differed from the accounts provided by David, Max, and Marvin. Oran testified
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at his deposition that he was walking behind the bleachers when someone hit
him in the back of his head. Oran then spun around and pushed the person, who
turned out to be David. David fell and got up complaining of an injury to his
arm.
David, Max, Marvin, and Oran all testified that they were not engaged in
roughhousing before the incident. As already noted, David testified that just
before the incident he had been in the bleachers, which he left to visit the snack
bar. Both Max and Marvin testified that neither of them had been involved with,
nor witnessed any roughhousing. Oran also testified that he had no recollection
of engaging in roughhousing.
Two other witnesses observed a group of teenagers roughhousing before
David was injured. Both of those witnesses, however, testified at their
depositions that they did not actually see the incident during which David was
injured.
The first witness was D.B. (Dan), an adult friend of David's father, who
also knew David. Dan testified that as he was watching the game from the
bleachers, he would periodically turn around to look behind the bleachers where
a food truck was giving off carbon monoxide exhaust. When turned around,
Dan saw a group of teenagers behind the bleachers. One of the teenagers, who
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Dan did not know, was pushing and bear hugging others in the group. Dan went
on to testify that while he saw David "with" that teenager before the game
started, he never saw David roughhousing.
According to Dan, in the fourth quarter of the game he went to the
bathroom. On his way back, he saw two police officers standing by the fence
near the field. He told the officers: "[y]ou better go check because they [are]
roughhousing back there and it looks like it's getting out of hand." Dan
estimated that he made that statement to the police approximately fifteen
minutes before a "kid" came and told him that David had been hurt.
The second witness who saw roughhousing was D.T. (Deann). Deann is
the mother of five boys and one of her sons was a running back for the football
team. Another of her sons, a friend of David, was also at the game. Deann
watched the game from the bleachers. After half-time, she went to get a snack.
As she was walking towards the snack bar, she saw a group of boys without their
shirts jumping around. One of the boys bumped into her and she told the boys
to "chill out, relax."
As Deann walked back to the bleachers, she said to a group of police
officers: "[t]here's a group of boys back there. They're not doing anything to
harm anybody else, but they're probably going to harm someone or themselves
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because they're back there jumping all over the place." According to Deann,
one of the officers backed up, looked to his left, and then continued a
conversation he was having with another officer.
Deann testified that she did not see David get injured; rather, she heard
about it from a friend. She explained that she was told of David's injury
approximately twenty minutes to half an hour after she spoke to the police
officers. She also explained that she knew both David and Oran but did not
know any of the boys who had been jumping around. In that regard, Deann
testified that she did not know if the boys she saw roughhousing had anything
to do with the incident involving David.
Security for the football game was coordinated by the high school's
athletic director and the Township's head of security for the Board of Education.
The head of security testified that on the night of David's injury, five police
officers were at the game. During discovery, only four of those officers were
identified and deposed. Those officers testified that they were not alerted to any
roughhousing behind the bleachers during the game. They also testified that if
they had been alerted to or observed the roughhousing, they would have
responded.
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In April 2015, plaintiffs sued the Ocean Township Board of Education,
Ocean Township High School, Ocean Township, and the Ocean Township
Police Department. The High School and the Board of Education filed a third-
party complaint against Oran, as did the Township and the Police Department.
Thereafter, plaintiffs named Oran as a direct defendant.
After engaging in discovery, the Township, the Police Department, the
Board of Education, and the High School moved for summary judgment and to
strike plaintiff's expert report. After hearing oral argument, the trial court
granted both motions and explained the reasons on the record. The court then
memorialized its decision in two orders entered on September 13, 2018.
Specifically, the court ruled that plaintiffs' expert report was inadmissible as a
net opinion because it failed to identify the standard for the security that needed
to be provided at a high school football game. Independently, the court granted
the public entity defendants summary judgment, finding that the police had no
duty and there was no evidence establishing causation.
Plaintiffs appeals only from the order granting summary judgment to the
Police Department and the Township. Initially, that appeal was dismissed as
interlocutory, but thereafter plaintiffs dismissed with prejudice their claims
against Oran. The appeal was then reinstated.
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II.
As noted, plaintiffs are appealing only the order granting summary
judgment in favor of the Police Department and the Township. Plaintiffs argue
that the trial court erred because they established the elements for negligence
and there were genuine issues of disputed material facts. Plaintiffs also contend
that the trial court erred in striking their liability expert report as a net opinion.
We need not reach the net opinion issue because we find that the material
undisputed facts established that plaintiffs could not prove causation that would
make the police responsible for the injuries resulting from an intentional or
reckless act by a third party.
We review a trial court's decision to grant summary judgment de novo,
using the same standard that governed the trial court's ruling. Conley v.
Guerrero, 228 N.J. 339, 346 (2017) (citing Templo Fuente De Vida Corp. v.
Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)). Under that
standard, summary judgment will be granted if, viewing the evidence in the light
most favorable to the non-moving party, "there is no genuine issue of material
fact and 'the moving party is entitled to a judgment or order as a matter of law.'"
Ibid. (quoting Templo Fuente, 224 N.J. at 199); accord R. 4:46-2(c).
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"An issue of fact is genuine only if, considering the burden of persuasion
at trial, the evidence submitted by the parties on the motion, together with all
legitimate inferences therefrom favoring the non-moving party, would require
submission of the issue to the trier of fact." R. 4:46-2(c). Furthermore, "[i]f
there exists a single, unavoidable resolution of the alleged disputed issue of fact,
that issue should be considered insufficient to constitute a 'genuine' issue of
material fact for purposes of Rule 4:46-2." Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 540 (1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986)).
The TCA, which governs negligence claims against public entities,
provides "a public entity is 'immune from tort liability unless there is a speci fic
statutory provision' that makes it answerable for a negligent act or omission."
Polzo v. Cty. of Essex, 209 N.J. 51, 65 (2012) (quoting Kahrar v. Borough of
Wallington, 171 N.J. 3, 10 (2002)). "When both liability and immunity exist,
immunity prevails." Dickson v. Twp. of Hamilton, 400 N.J. Super. 189, 195
(App. Div. 2008) (citations omitted).
Neither a public entity nor a public employee is liable for "failure to
provide police protection . . . or . . . failure to provide sufficient police
protection." N.J.S.A. 59:5-4. Further, the TCA states "[a] public employee is
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not liable for an injury resulting from the exercise of judgment or discretion
vested in him [or her]." N.J.S.A. 59:3-2(a); see also N.J.S.A. 59:2-3(a) (the
parallel provision governing public entities using the same language). The TCA,
however, does not immunize public employees for negligence in carrying out
ministerial functions. N.J.S.A. 59:3-2(d); see also N.J.S.A. 59:2-3(d) (the
parallel provision governing public entities using the same language).
Accordingly, the TCA does not immunize police officers for negligence
in performing ministerial duties. S.P. v. Newark Police Dep't., 428 N.J. Super.
210, 230-31 (App. Div. 2012) (citations omitted); Suarez v. Dosky, 171 N.J.
Super. 1, 9-10 (App. Div. 1979) (citation omitted). A "discretionary act . . . calls
for the exercise of personal deliberations and judgment, which in turn entails
examining the facts, reaching reasoned conclusions, and acting on them in a way
not specifically directed." S.P., 428 N.J. Super. at 230 (quoting Kolitch v.
Lindedahl, 100 N.J. 485, 495 (1985)). In contrast, "a ministerial act is 'one
which a person performs in a given state of facts in a prescribed manner in
obedience to the mandate of legal authority, without regard to or the exercise of
his [or her] own judgment upon the propriety of the act being done.'" Id. at 231
(quoting Morey v. Palmer, 232 N.J. Super. 144, 151 (App. Div. 1989)). The
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public entity has the burden "to establish whether discretion was exercised."
Ibid. (citing Kolitch, 100 N.J. at 497).
If no immunity under the TCA applies, plaintiffs must establish the four
elements of negligence. See Henebema v. S. Jersey Transp. Auth., 430 N.J.
Super. 485, 503 (App. Div. 2013) (holding that under the TCA, liability for
ministerial functions is predicated on application of "ordinary negligence
principles"). Those elements are that: (1) defendants owed a duty of care; (2)
defendants breached that duty; (3) the breach was a proximate cause of the
injury; and (4) plaintiff sustained actual damages. Townsend v. Pierre, 221 N.J.
36, 51 (2015) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008)).
Plaintiffs' theory is that the police had a duty to investigate the reported
roughhousing and, had they investigated, Oran would not have tackled and
injured David. That theory, however, is not supported by the material
undisputed facts. In that regard, the facts do not support a finding of causation.
Initially, we note that the imposition of a duty here is questionable. When
assessing whether a duty exists, courts consider "the relationship of the parties,"
the foreseeability and nature of the risk of harm, "the opportunity and ability to
exercise care, and the public interest." J.H. v. R&M Tagliareni, LLC, 239 N.J.
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198, 239 (Rabner, C.J., dissenting) (quoting Hopkins v. Fox & Lazo Realtors,
132 N.J. 426, 439 (1993)).
This case is governed by the TCA and not the common law. Thus, any
duty must be found under the TCA. The TCA limits the duty of police to
breaches involving ministerial acts. The facts developed during discovery do
not clearly establish that the police were involved in ministerial acts while they
were monitoring the football game. We need not, however, decide that issue
because the facts clearly establish that there was no causation.
We recognize that causation is usually a question for the jury. L.E. v.
Plainfield Pub. Sch. Dist., 456 N.J. Super. 336, 350 (App. Div. 2018) (citing
Titus v. Lindberg, 49 N.J. 66, 76 (1967)). Nevertheless, a reasonable jury could
not conclude that the failure to act by the police proximately caused David's
injury. See Vega by Muniz v. Piedilato, 154 N.J. 496, 509 (1998) (finding
summary judgment appropriate where "no reasonable jury" could find proximate
cause).
The testimony given by all four witnesses to the incident established that
the incident arose out of a one-on-one incident, during which Oran tackled or
pushed David. David testified that he had come from the bleachers and was
simply walking along the pathway towards the snack bar when Oran tackled him
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from behind. Max and Marvin both corroborate that testimony. Oran testified
that he was walking when someone smacked him in the back of his head and he
turned and pushed that person, who turned out to be David. A jury could not
reasonably conclude that either of those scenarios arose out of roughhousing that
had been reported to the police fifteen minutes to half an hour before David was
knocked to the ground. No testimony described the incident as arising out of
ongoing roughhousing. Instead, the incident was isolated and unforeseeable.
Furthermore, the incident was described as an intentional or reckless act.
Whether Oran intended to injure David is not clear, but it is undisputed that Oran
intended to tackle or push David. Those material undisputed facts would not
allow a reasonable jury to conclude that the police's failure to investigate the
roughhousing had any causal connection to the injury suffered by David. In
short, no evidence linked the roughhousing to David's injury.
Affirmed.
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