CAROL ANN CONFORTI, ETC. VS. COUNTY OF OCEAN (L-2340-15, OCEAN COUNTY AND STATEWIDE) ( 2021 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-0817-18
    CAROL ANN CONFORTI,
    individually and as administratrix
    ad prosequendum of the estate of
    KENNETH CONFORTI and
    as parent natural guardian and
    guardian ad litem of A.C., a minor,
    Plaintiff-Respondent/
    Cross-Appellant,
    v.
    COUNTY OF OCEAN, OCEAN
    COUNTY BOARD OF CHOSEN
    FREEHOLDERS, in their
    individual and official capacities,
    OCEAN COUNTY DEPARTMENT
    OF CORRECTIONS, WARDEN
    THEODORE J. HUTLER, in his
    individual and official capacity,
    and CORPORAL PETRIZZO,
    Defendants-Appellants/
    Cross-Respondents,
    and
    CORRECTIONAL HEALTH
    SERVICES, LLC, PRISON
    HEALTH SERVICES, INC., and
    KELLY CLOUGH,
    Defendants.
    ______________________________
    Argued March 24, 2021 – Decided August 2, 2021
    Before Judges Sumners, Geiger, and Mitterhoff.
    On appeal from the Superior Court of New Jersey, Law
    Division, Ocean County, Docket No. L-2340-15.
    Eliyahu S. Scheiman argued the cause for
    appellants/cross-respondents (Porzio, Bromberg &
    Newman, PC, and Berry, Sahradnik, Kotzas & Benson,
    attorneys; Eliyahu S. Scheiman, Thomas J. Reilly,
    Mary Jane Lidaka, and Christopher A. Khatami, on the
    briefs).
    Donald F. Burke argued for respondent/cross-appellant
    (Law Office of Donald F. Burke, attorneys; Donald F.
    Burke and Donald F. Burke, Jr., on the briefs).
    PER CURIAM
    Following a jury trial arising from Kenneth Conforti's suicide while he
    was confined in the Ocean County Jail (OCJ or jail), defendants County of
    Ocean, Ocean County Board of Chosen Freeholders, Ocean County Department
    of Corrections (DOC), Warden Theodore J. Hutler, and Corporal Peter Petrizzo
    (collectively "the County defendants") appeal from a final judgment awarding
    A-0817-18
    2
    plaintiff Carol Ann Conforti $1,550,000.1 Plaintiff cross-appeals arguing that
    the trial judge James Den Uyl erred in his pre-trial summary judgment dismissal
    of her claims under the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1
    to -2, seeking both compensatory damages and punitive damages.              Having
    considered the record, the parties' arguments, and the applicable law, we reject
    the appeal and cross-appeal and affirm all aspects of the final judgment.
    I
    On September 8, 2010, Kenneth,2 while estranged from his wife, plaintiff
    Carol Ann, Administratrix ad Prosequendum of the Estate of Kenneth Conforti
    and Parent Natural Guardian and Guardian ad Litem of A.C., a minor, was
    arrested and jailed for violating a restraining order by breaking into the former
    marital home to see his nine-year-old son A.C., who is deaf and afflicted with
    Down's Syndrome. At his OCJ intake, the forty-five-year-old Kenneth advised
    a CHS staff member that he was experiencing feelings of hopelessness and
    1
    Defendants Correctional Health Services, Inc. (CHS), a contractor providing
    medical and mental health services to OCJ inmates, its successor-in-interest
    Prison Health Services, Inc., and its employee Kelly Clough settled with
    plaintiff prior to trial. (2T31;4T18;4T90-4T93;9T127). We refer to them
    collectively as the "CHS defendants."
    2
    To avoid confusion, we refer to him by his first name because he shares a last
    name with plaintiff. We mean no disrespect.
    A-0817-18
    3
    helplessness because of: (1) the deterioration of his marriage; (2) his inability to
    control his alcoholism and daily consumption of a half-gallon of vodka; and (3)
    unsuccessful back surgery leaving him in pain and with rods and screws in his
    back. He denied having any thoughts of suicide or that he had ever been
    diagnosed with depression.      Kenneth was consequently kept in the OCJ's
    medical housing unit under critical observation because of alcohol withdrawal
    and was prescribed medication for five days to mitigate his withdrawal
    symptoms. He was also scheduled for a psychiatric evaluation.
    On September 10, Kenneth was cleared for housing in the jail's general
    population and was provided a doctor's order giving him an extra mattress and
    pain medication and directing that he was not to work or be assigned to a top
    bunk. Kenneth was released from OCJ on October 4.
    Over a week later, on October 13, Kenneth was arrested again and returned
    to OCJ because he went back to the marital home. Clough, a CHS nurse,
    conducted Kenneth's intake but did not review his September intake paperwork
    and took him at his word that he had never been previously jailed. He denied
    any medical or mental health issues or any feelings of hopelessness or
    helplessness and claimed that he only drank socially. Yet, because Kenneth was
    given the same inmate number he had during his recent jailing, his records from
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    4
    that confinement were readily available to Clough to contradict his
    representations. Kenneth was not referred by medical staff as a suicide risk.
    CHS progress notes dated October 14 revealed
    [Kenneth] was last seen [September 10] for
    same offense. [He] has no psych[iatric]
    [history]. He has a [history] of binge
    drinking but denies recent use. [He] denies
    any current sui[cidal] harm. He is alert
    w[ith] relevant thought process.        No
    current mental health issues/concerns. [He
    is] psych[ologically] clear for general
    population.
    On October 16, Kenneth filled out a medical/dental request form
    requesting "medical" attention for "back pain." Two days later, Clough wrote
    on the bottom of the form "you can order [M]otrin or Tylenol from commissary."
    On October 20, Corporal Petrizzo, filling in as a floor officer in Kenneth's
    housing unit, was required to walk the 130-inmate units once every hour and
    perform health and welfare checks to ensure that the inmates were safe and
    abiding by OCJ policies. This included making sure nothing was obscuring cell
    door windows. Records showed that the officer made his checks at 8:03 a.m.,
    9:02 a.m., 9:56 a.m., 11:02 a.m., and 12:03 p.m.
    At 9:32 a.m., Kenneth wrote a suicide note to his parents. At some point
    thereafter, he shut the door to his cell, causing the door to lock automatically,
    A-0817-18
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    and placed a sheet over the cell door window. He then tied bedsheets together
    and hung himself from a ceiling light fixture over the toilet.
    Just before 1:00 p.m., inmate Edward Soto spotted Kenneth hanging in his
    cell. Soto thought Kenneth was alive because his eyes were open. After the cell
    was unlocked, Kenneth's body was taken down and CPR was performed, but he
    could not be revived. At 1:24 p.m., emergency medical personnel arrived and
    within minutes took Kenneth to the hospital. At 1:47 p.m., doctors declared
    Kenneth dead. An autopsy confirmed that he died of asphyxiation by hanging.
    Exactly when DOC staff first responded to the suicide was unclear
    because the relevant timed entry in the health and welfare log was overwritt en.
    The log was maintained by an officer in the West Tower control room tower,
    and any change was supposed to be initialed and reported to a supervisor.
    Although the log reflected that Petrizzo began his check at 12:03 p.m., the entry
    that followed was obliterated and overwritten with an entry that noted a 12:55
    p.m. "possible suicide." The DOC admitted that someone tampered with the log.
    Surveillance cameras in the housing unit were not positioned to look inside cells.
    Nonetheless, the recordings could have revealed the activities of jail staff and
    decedent prior to the suicide. However, although the DOC produced copies of
    the recordings in 2016, they could not be viewed because they were
    A-0817-18
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    incompatible with the new technology at the jail. The DOC insisted that there
    was no intentional tampering with the recordings. Notably though, the 2010
    surveillance system was put in by vendor Black Creek, and, as of the date of
    trial, they remained the contractor.
    Plaintiff filed suit seeking compensatory and punitive damages, including
    punitive damages against the County defendants alleging Kenneth's suicide was
    the result of their negligence, and violations of the NJCRA, the Wrongful Death
    Act (WDA), N.J.S.A. 2A:31-1 to -6, and the New Jersey Survival Act (SA),
    N.J.S.A. 2A:15-1 to -6. The County defendants denied plaintiff's claims and
    asserted immunity under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-
    1 to -13-10.
    Prior to trial, the County defendants moved for summary judgment
    dismissal of the lawsuit. Judge Den Uyl granted partial summary judgment to
    the County defendants, dismissing plaintiff's NJCRA and punitive damages
    claims.
    Trial occurred over several days in June 2018. At the conclusion of
    plaintiff's case, the County defendants unsuccessfully moved for a directed
    verdict. The jury later returned a verdict in favor of plaintiff, awarding her
    $150,000 in WDA damages and $1,400,000 for pain and suffering under the SA,
    A-0817-18
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    finding the County defendants sixty percent liable and the CHS defendants forty
    percent liable. The County defendants unsuccessfully moved for judgment
    notwithstanding the verdict (JNOV), or, alternatively, a new trial or remittitur.
    II
    We first address the County defendants' contention that Judge Den Uyl
    erred in denying their pre-trial, trial, and post-trial motions to dismiss plaintiff's
    negligence claims. The judge denied summary judgment, ruling that plaintiff
    had presented sufficient evidence to raise an issue of material fact as to whether
    special circumstances were present, decedent's suicide was foreseeable, and the
    County defendants were negligent. In denying the County defendants' motion
    for JNOV, the judge rejected their argument that they were entitled to TCA
    immunity, determining the OCJ was not a "medical facility" given immunity for
    certain actions under N.J.S.A. 59:6-4, -5, and -6. Medical facilities were limited
    to "a hospital, infirmary, clinic, dispensary, mental institution or similar
    facility," N.J.S.A. 59:6-1, and do not include a jail's medical intake process and
    services. By contrast any protections for "Corrections and Police Activities"
    were specifically addressed in N.J.S.A. 59:5-1 to -6 (Da21). As for the TCA's
    general immunity provisions, N.J.S.A. 59:2-1, and -2(b), N.J.S.A. 59:-3-2(a)
    A-0817-18
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    and -3-5, and N.J.S.A. 59:5-1, the judge determined that the County defendants
    could not overcome the clear ruling "in Hake [v. Manchester Twp., 
    98 N.J. 302
    ,
    318 (1985)], wherein [our] Supreme Court approved the trial court's charge that
    'expressly permitted the jury to find liability if the suicide was foreseeable .'"
    Before us, the County defendants contend that they were entitled to
    absolute immunity under N.J.S.A. 59:6-4 (failure to make physical or mental
    exam), N.J.S.A. 59:6-5 (failure to diagnose mental illness or substance abuse),
    and N.J.S.A. 59:6-6 (determination on terms of confinement). They assert that
    such immunities applied because plaintiff's "overarching claim" was that they
    committed psychiatric and medical malpractice in failing to diagnose Kenneth's
    severe depression, alcoholism, and back pain, and, thereby not recognizing him
    as a suicide risk when assigning him to a cell in the OCJ's general population.
    The County defendants' arguments misconstrue plaintiff's claims against
    them. The thrust of plaintiff's claims alleges that they failed to follow DOC
    policies and rules for the prevention of inmate suicide. Plaintiff's corrections
    liability expert, Martin Horn, testified that a prisoner such as Kenneth was
    totally dependent on jail administration to keep him safe from other inmates and
    himself. After detailing nationally recognized suicide prevention protocols,
    OCJ suicide records between 2005 and 2010, and OCJ's suicide prevention
    A-0817-18
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    policy and training materials, Horn opined the County defendants were negligent
    by: (1) failing to reexamine DOC suicide prevention policy; (2) relying upon an
    inadequate suicide prevention policy; (3) offering inadequate staff training; (4)
    failing to follow or enforce their own policies, such as keeping cell windows
    unobscured, performing random patrols and maintaining an accurate log; and
    (5) failing to accurately track the number of suicides at the OCJ. Horn testified
    that if DOC staff had followed policies, the risk of Kenneth committing suicide
    would have been substantially lowered or prevented. Because they had not done
    so, Horn asserted that the County defendants DOC staff had exhibited deliberate
    indifference towards Kenneth.3
    Moreover, given the jury's assessment of forty percent liability on the
    CHS defendants who conducted Kenneth's jail intake, the County defendants'
    3
    In contrast, defense expert Jeff Eiser opined that: (1) there was no evidence
    that anyone at OCJ had actual knowledge that Kenneth was going to kill himself;
    (2) DOC staff did not disregard risk or exhibit deliberate indifference to the
    safety or mental health of Kenneth; (3) Kenneth had the opportunity to see a
    mental health professional; (4) Kenneth was housed appropriately in October
    2010; and (5) the OCJ staff was adequately trained and there was no evidence
    that a lack of training contributed to Kenneth's death. (5T187). Eiser
    emphasized that a jail could still have suicides despite following all applicable
    policies.
    A-0817-18
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    contention that the jury verdict should be set aside because they are not liable
    for a failure to diagnose is without support. Seemingly, the jury held the CHS
    defendants were liable for misdiagnosing Kenneth's mental condition, not the
    County defendants.     And because N.J.S.A. 59:6-4 provides immunity for
    medical services to a very specific set of public health examinations not
    applicable here, the County defendants have no immunity regarding Kenneth's
    medical intake, which was done to assess his OCJ confinement and not
    conducted for treatment purposes. See Parsons v. Mullica Twp. Bd. of Educ.,
    
    440 N.J. Super. 79
    , 87 (App. Div. 2015) (holding that except for the purpose of
    treatment, N.J.S.A. 59:6-4 provides immunity to public entities and public
    employees involving inadequate public health examinations, i.e., "public
    tuberculosis examinations" and "eye examinations for vehicle operator
    applicants," to protect the public and the examined person).
    The County defendants also contend the judge erred in not affording them
    discretionary act immunity under N.J.S.A. 59:2-3(a) and N.J.S.A. 59:3-2(a)
    (Db36-Db41). We disagree.
    Public entity immunity is the general rule under the TCA and liability is
    the exception. Lee v. Brown, 
    232 N.J. 114
    , 127 (2018). The TCA states:
    a. Except as otherwise provided by this act, a public
    entity is not liable for an injury, whether such injury
    A-0817-18
    11
    arises out of an act or omission of the public entity or a
    public employee or any other person.
    b. Any liability of a public entity established by this act
    is subject to any immunity of the public entity and is
    subject to any defenses that would be available to the
    public entity if it were a private person.
    [N.J.S.A. 59:2-1.]
    N.J.S.A. 59:2-3(a) states that "[a] public entity is not liable for an injury
    resulting from the exercise of judgment or discretion vested in the entity." "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. v.
    Newark Police Dep't, 
    428 N.J. Super. 210
    , 230 (App. Div. 2012) (alteration in
    original) (citation omitted). Based on our review of the record, defendants did
    not present any evidence that their actions relating to Kenneth's suicide involved
    the exercise of discretionary acts. There was no testimony regarding competing
    demands that forced the DOC staff to make one decision or another related to
    Kenneth's suicide.
    Furthermore, N.J.S.A. 59:2-3(d) provides, that "[n]othing in this section
    shall exonerate a public entity for negligence arising out of acts or omissions of
    its employees in carrying out their ministerial functions." We have defined "a
    A-0817-18
    12
    ministerial act [a]s '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 own judgment upon the propriety of the act being done.'"
    S.P., 428 N.J. Super. at 231 (quoting Morey v. Palmer, 
    232 N.J. Super. 144
    , 151
    (App. Div. 1989)). Our review of the record reveals no evidence presented by
    the County defendants that their failure to perform a discretionary act was a
    contributing factor in Kenneth's suicide.
    III
    The County defendants argue that plaintiff failed to establish their
    "medley of negligence claims" were the proximate cause of Kenneth's suicide.
    (Db46). They maintain "[p]laintiff failed to introduce any expert psychiatric
    testimony regarding [their] failure to recognize and properly respond to
    [Kenneth's] physical and mental health problems." (Db46-47). The County
    defendants point out the jury was thus unable "to undertake an informed analysis
    regarding whether [Kenneth's] suicide followed logically from[] and was . . .
    proximately caused by [their] negligence." (Db 54).
    In Hake, the Court recognized that "'[s]pecial circumstances' form the
    basis of most decisions involving a jailer's liability for a prisoner's acts of self -
    destruction." 
    98 N.J. at 318
    . The arrest and jailing of a teenager under "the
    A-0817-18
    13
    influence of alcohol or . . . depression" close to the Christmas holiday
    constituted "special circumstances of care" that required heightened scrutiny of
    him. 
    Ibid.
     Liability is imposed on the defendant jailer based on "[o]ur concepts
    of causation for failure to act . . . [where] the conduct may be viewed as a
    'substantial factor contributing to the loss.'" 
    Id. at 311
     (quoting Francis v. United
    Jersey Bank, 
    87 N.J. 15
    , 44 (1981)). "Proximate cause consists of 'any cause
    which in the natural and continuous sequence, unbroken by an efficient
    intervening cause, produces the result complained of and without which the
    result would not have occurred.'" Townsend v. Pierre, 
    221 N.J. 36
    , 51 (2015)
    (quoting Conklin v. Hannoch Weisman, 
    145 N.J. 395
    , 418 (1996)). "Proximate
    cause has been described as a standard for limiting liability for the consequences
    of an act based 'upon mixed considerations of logic, common sense, justice,
    policy and precedent.'" Fluehr v. City of Cape May, 
    159 N.J. 532
    , 543 (1999)
    (quoting Caputzal v. The Lindsay Co., 
    48 N.J. 69
    , 77-78 (1966)).
    Here, the judge––with no objection from the defense––charged the jury
    on what it must determine to find the County defendants liable for Kenneth's
    suicide. After stating the County defendants' responsibility to the inmates under
    their control and the negligence standard, the judge advised jurors "[t]o find
    proximate cause, [they] must first find the [County] defendant[s'] negligence
    A-0817-18
    14
    was a cause of the suicide," and if they do, they "must find the defendant's
    negligence was a substantial factor that singly or in combination with other
    causes brought about the suicide. By substantial it is meant that it is not a
    remote, trivial or inconsequential cause."
    Contrary to the County defendants' assertions, plaintiff presented relevant
    evidence showing their knowledge of the increased risk of jail suicides, the
    OCJ's history of numerous suicides and suicide attempts, and their apparent
    limited response. Equally important, plaintiffs provided direct evidence of
    proximate causation where the County defendants failed: (1) to recognize
    Kenneth had been incarcerated just a week earlier at the OCJ and that relevant
    records offering insight into his physical and mental conditions were accessible
    to determine his custody status; (2) to adequately respond to Kenneth's medical
    needs; (3) to enforce precautionary measures designed to ensure inmate safety,
    such as varying the time of health and welfare checks, which allowed Kenneth
    to find an opportunity to hang himself; and (4) to notice by direct observation
    from the control tower or by indicator light that decedent had closed and locked
    his cell door and obscured his cell door window enabling him to hang himself
    without being seen or interrupted. Moreover, defendants disregard that the
    conveniently overwritten log entry and unavailable security footage allowed the
    A-0817-18
    15
    jury to infer culpability from the actual timing of the welfare checks; the amount
    of time Kenneth's cell door was closed, locked, and obstructed; and the time it
    took DOC staff to respond to the hanging.
    We also conclude there was no error in the judge's denial of the County
    defendants' motion for JNOV based on his reasoning "there was sufficient
    evidence from which a jury could make the legitimate inference that [Kenneth's]
    suicide was reasonably foreseeable to the County [d]efendants and that [their]
    actions were a proximate cause of [Kenneth's] death based on the testimony of
    [p]laintiff's expert, Martin Horn."
    IV
    The County defendants next argue the judge erred in not granting their
    JNOV motion to dismiss plaintiff's SA claim because the period for recovery of
    conscious pain and suffering damages was limited to the time between the act
    of hanging and death, and there was no lay or expert testimony establishing that
    decedent was conscious and experiencing pain and suffering during this period.
    They maintain the only evidence of any pain Kenneth experienced was related
    to his back injury, which was not compensable under the SA and, as such, the
    jury award of $1,400,000 must be set aside.
    Damages for pain and suffering are permitted under the SA, but only if
    A-0817-18
    16
    the decedent experienced conscious pain and suffering between the time of the
    injury and his or her death. Smith v. Whitaker, 
    160 N.J. 221
    , 236 (1999). It is
    essential for a successful pain and suffering claim that the pain and suffering be
    consciously experienced. Carey v. Lovett, 
    132 N.J. 44
    , 67 (1993). Additionally,
    damage awards for pain and suffering may not be based on mere speculation or
    conjecture. See Model Jury Charge (Civil), 1.12(O), "Damages." ("The plaintiff
    has the burden of proving each item of damages that he/she claims [such as, that
    death was not instantaneous]."); Smith v. Whitaker, 
    313 N.J. Super. 165
    , 186
    (App. Div. 1998) (citing John P. Ludington, Annotation, When Is Death
    "Instantaneous" for Purposes of Wrongful Death or Survival Actions, 
    75 A.L.R.4th 151
    , § 2(b), at 158-59 (1990)). Nonetheless, our Supreme Court
    acknowledged there is "a presumption that life continues 'until evidence is
    presented sufficient to establish that death occurred at some specific time. '"
    Smith, 
    313 N.J. Super. at 187
     (quoting Hake, 
    98 N.J. at
    312 n.3).4
    In Hake, the Court specifically addressed the impending death caused by
    hanging stating:
    A hanging victim ordinarily dies from asphyxia or loss
    of oxygen to the brain resulting from the strangulation.
    The process of dying spans an undefinable amount of
    4
    The Court also recognized that "[w]hile death rarely may be instantaneous in
    fact, instantaneous death can occur." Id. at 188.
    A-0817-18
    17
    time, but there are two factors that weigh heavily in the
    determination. These factors are "the severity of the
    constricting force and the point of application of that
    force." J. Glaister & E. Rentone, "Hanging," Medical
    Jurisprudence and Toxicology, p. 166 (12th ed. 1966).
    The effect of these two factors produces variables of as
    much as several minutes in the time necessary for death
    to occur. Id. at 166-67. In general, however, when
    death occurs from asphyxia, "the heart continues to beat
    for a few minutes after the cessation of respiration, and,
    therefore, artificial respiration on a suspended person
    may prove successful if the body is cut down within
    five or six minutes after the commencement of
    suspension. [Id. at 167.]"
    [
    98 N.J. at 312-13
    . (alteration in original).]
    In rejecting the County defendants' argument to dismiss plaintiff's pain
    and suffering claim, Judge Den Uyl reasoned that based on the holdings in
    Smith, Falzone v. Busch, 
    45 N.J. 559
    , 569 (1965) ("where negligence causes
    fright from a reasonable fear of immediate personal injury, which fright is
    adequately demonstrated to have resulted in substantial bodily injury . . .
    [damages are recoverable] if such bodily injury . . . occurred as a consequence
    of direct physical injury rather than fright"), and other jurisdictions, the jury
    could infer that Kenneth had some pain and suffering and some brief but distinct
    anticipation of his impending death. The judge found:
    In this case, [d]efendants['] reading of the [Survival Act]
    is too narrow and restrictive and not supported by the
    plain language of the statute which allows the estate to
    A-0817-18
    18
    recover for "injuries for which the deceased would have
    had a cause of action if he had lived" and, in addition,
    "to damages accrued during the lifetime of the
    deceased." Hypothetically, "if he had lived" following
    a failed suicide attempt because the ligature broke,
    [Kenneth] would have a viable damage claim for the
    emotional distress or stress that precipitated the
    extreme act of attempting to take his life. It would be
    a claim that "accrued during his lifetime." There is no
    support for [d]efendants' assertion that the claim for
    damages accrued when [decedent] started hanging from
    the light fixture in his cell in the context of suicide.
    ....
    A juror may not know from his or her personal
    experience the nature of pain and suffering incident to
    suicide.    However, by common knowledge and
    common experience they understand and appreciate the
    strong basic human instinct to survive. Without the
    benefit of expert testimony, they can reasonably infer
    the depths of emotional distress and stress to which a
    person sinks to plan and orchestrate their own death.
    In sum, the judge found that because Kenneth died of asphyxiation, "[t]he
    testimony of an eye[]witness or medical expert extrapolating on death by
    asphyxiation would have been helpful but was not required for the jury to draw
    such an inference."
    We conclude the jury's award on pain and suffering pursuant to the
    Survival Act was not speculative and permissible under Smith and Hake based
    A-0817-18
    19
    on Kenneth's death by asphyxiation from hanging. Accordingly, the judge's
    ruling should not be overturned.
    V
    In her cross-appeal, plaintiff contends Judge Den Uyl erred in granting
    summary judgment dismissal of her NJCRA claim for compensatory and
    punitive damages. She asserts that based upon inadequate training, the high rate
    of inmate suicides, and knowledge of Kenneth's medical needs, the County
    defendants were deliberately indifferent to the deprivation of Kenneth's rights,
    privileges, or immunities secured by the state law, the New Jersey Constitution,
    Article I, paragraph 12, and the Eighth Amendment of the United States
    Constitution.
    In granting summary judgment to the County defendants on plaintiff's
    NJCRA claims, the judge explained in his written decision:
    The evidence presented, when viewed in the light
    most favorable to [p]laintiff, would not permit a
    rational fact finder to infer the conduct of the . . .
    County [d]efendants violated [Kenneth's] constitutional
    rights. The evidence does not support the level of
    culpability required for a violation under any of the
    theories presented nor the characterization of the
    conduct by [p]laintiff's expert as "deliberate
    indifference." These reasons include that the medical
    and mental health services at the [OCJ] were provided
    A-0817-18
    20
    by the [CHS defendants]. During the initial booking
    process, medical and mental health screenings and
    assessments were contracted by the medical provider.
    Their personnel made the determination as to whether
    an inmate is suicidal.      The [OCJ] policies and
    procedures manual contains a section on suicide
    prevention.      Corrections officers at the [OCJ]
    conducted regular health and welfare checks of
    inmates. Corrections officers at the [OCJ] received in-
    house training with regard to suicide prevention in
    October or November each year. The training at the
    OCJ was continual and included suicide prevention
    training by the psychiatric staff. The OCJ suicide
    prevention policy was reviewed by the warden on an
    annual basis.      Health and welfare checks were
    conducted in accordance with the N[ew] [J]ersey
    Administrative Code . . . . In 2010[,] the OCJ was
    accredited by the National Commission on Correctional
    Health Care . . . . The OCJ also passed the state
    inspection. The initial intake and mental health
    screening evaluations were completed by employees of
    . . . [CHS] and [Kenneth] was not identified as a suicide
    risk and was cleared for general population.
    We review a ruling on a summary judgment motion de novo, applying the
    same standard governing the motion court.         N.J. Transit Corp. v. Certain
    Underwriters at Lloyd's London, 
    461 N.J. Super. 440
    , 452 (App. Div. 2019)
    (quoting Bhagat v. Bhagat, 
    217 N.J. 22
    , 38 (2014)). A motion judge should
    grant summary judgment when "the pleadings, depositions, answers to
    interrogatories and admissions on file, together with the affidavits, if any, show
    that there is no genuine issue as to any material fact challenged and that the
    A-0817-18
    21
    moving party is entitled to a judgment or order as a matter of law." R. 4:46-
    2(c). In deciding whether a genuine issue of material fact exists, "the motion
    judge must 'consider whether the competent evidential materials presented,
    when viewed in the light most favorable to the non-moving party, are sufficient
    to permit a rational factfinder to resolve the alleged disputed issue in favor of
    the non-moving party.'" Green v. Monmouth Univ., 
    237 N.J. 516
    , 529 (2019)
    (citing Brill v. Guardian Life Ins. Co. of Am., 
    142 N.J. 520
    , 540 (1995)).
    However, this court owes "no deference to the motion judge's conclusions on
    issues of law." Bove v. AkPharma Inc., 
    460 N.J. Super. 123
    , 138 (App. Div.
    2019) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 
    140 N.J. 366
    , 378 (1995)). We consider these principles when addressing plaintiff's
    arguments to overturn the summary judgment order.
    The NJCRA in pertinent part states:
    Any person who has been deprived of . . . any
    substantive rights, privileges or immunities secured by
    the Constitution or laws of this State, or whose exercise
    or enjoyment of those substantive rights, privileges or
    immunities has been interfered with or attempted to be
    interfered with, by threats, intimidation or coercion by
    a person acting under color of law, may bring a civil
    action for damages and for injunctive or other
    appropriate relief.
    [N.J.S.A. 10:6-2(c).]
    A-0817-18
    22
    Thus, the NJCRA provides a cause of action to any person who has been
    deprived of any rights under either the federal or state constitutions by a
    "person" acting under color of law. 
    Ibid.
     It "is not a source of rights itself."
    Lapolla v. Cnty. of Union, 
    449 N.J. Super. 288
    , 306 (App. Div. 2017) (citing
    Gormley v. Wood-El, 
    218 N.J. 72
    , 97-98 (2014)). By its terms, "[t]wo types of
    private claims are recognized under this statute: (1) a claim when one is
    'deprived of a right,' and (2) a claim when one's rights have been 'interfered with
    by threats, intimidation, coercion or force.'" 
    Ibid.
     (quoting Felicioni v. Admin.
    Off. of Cts., 
    404 N.J. Super. 382
    , 400 (App. Div. 2008)).
    The NJCRA, modeled after the Federal Civil Rights Act, 
    42 U.S.C. § 1983
    , affords "a remedy for the violation of substantive rights found in our State
    Constitution and laws." Brown v. State, 
    442 N.J. Super. 406
    , 425 (App. Div.
    2015) (quoting Tumpson v. Farina, 
    218 N.J. 450
    , 474 (2014)), rev'd on other
    grounds, 
    230 N.J. 84
     (2017). The NJCRA has been interpreted by our Supreme
    Court to be analogous to Section 1983; thus, New Jersey courts "look[] to federal
    jurisprudence construing [Section 1983] to formulate a workable standard for
    identifying a substantive right under the [NJCRA]." Harz v. Borough of Spring
    Lake, 
    234 N.J. 317
    , 330 (2018).
    A governmental unit "may not be sued under [Section] 1983 [and by
    A-0817-18
    23
    extension, the NJCRA] for an injury inflicted solely by its employees or agents."
    Monell v. Dep't of Soc. Servs. of City of New York, 
    436 U.S. 658
    , 694 (1978).
    It cannot be held liable for the actions of its employees solely based on the
    doctrine of respondeat superior. 
    Id. at 691-95
    . Rather, "it is when execution of
    a government's policy or custom, whether made by its lawmakers or by those
    whose edicts or acts may fairly be said to represent official policy, inflicts the
    injury that the government as an entity is responsible under [Section] 1983 [and
    by extension, the NJCRA]." 
    Id. at 694
    . See Besler v. Bd. of Educ. of W.
    Windsor-Plainsboro Reg'l Sch. Dist., 
    201 N.J. 544
    , 565 (2010) (stating that a
    municipality can "be held liable for acts committed by one of its employees . . .
    pursuant to a governmental policy or custom . . . that violate[s] the
    Constitution").
    A plaintiff can show the existence of a policy or custom by presenting
    proof that the municipality: (1) adopted an official policy that deprived citizens
    of their constitutional rights; (2) tolerated or adopted an unofficial custom that
    deprived citizens of their constitutional rights; or (3) failed to affirmatively act
    to train or supervise its employees so as to prevent them from unlawfully
    depriving citizens of their constitutional rights, although the need to do so was
    obvious. See Natale v. Camden Cnty. Corr. Facility, 
    318 F.3d 575
    , 584 (3d Cir.
    A-0817-18
    24
    2003). However, "a municipality's failure to train its employees in a relevant
    respect must amount to 'deliberate indifference to the rights of persons with
    whom the [untrained employees] come into contact.'" Connick v. Thompson,
    
    563 U.S. 51
    , 61 (2011) (alteration in original) (quoting Canton v. Harris, 
    489 U.S. 378
    , 388 (1989)).
    It is only when officials are "on actual or constructive notice that a
    particular omission in their training program [is causing public] employees to
    violate citizens' constitutional rights," that the public employer "may be deemed
    deliberately indifferent" if the program is retained. 
    Ibid.
     (citation omitted). This
    inaction in spite of notice "is the functional equivalent of a decision by the city
    itself to violate the Constitution." Id. at 61-62 (quoting Canton, 
    489 U.S. at 395
    ).
    The suicide of a pretrial detainee can support a recovery in a Section 1983
    action if: "(1) the detainee had a 'particular vulnerability to suicide,' (2) the
    custodial officer or officers knew or should have known of that vulnerability,
    and (3) those officers 'acted with reckless indifference' to the detainee's
    particular vulnerability." Colburn v. Upper Darby Twp., 
    946 F.2d 1017
    , 1023
    (3d Cir. 1991).
    "Particular vulnerability to suicide" means that there must be "a strong
    A-0817-18
    25
    likelihood, rather than a mere possibility, that self-inflicted harm will occur."
    
    Id. at 1024
    . "[S]hould have known" refers to more than "a negligent failure" to
    recognize a high risk of suicide, but "less than a subjective appreciation of that
    risk." 
    Id. at 1025
    . Rather, "the risk of self-inflicted injury" must be both "great"
    and "also sufficiently apparent that a lay custodian's failure to appreciate it
    evidences an absence of any concern for the welfare of his or her charges." 
    Ibid.
    To establish municipal liability for an alleged "failure to train" claim
    brought in the context of a prison suicide, a plaintiff cannot simply show that
    the "employees could have been better trained or that additional training was
    available that would have reduced the overall risk of constitutional injury." 
    Id. at 1029-30
    .    Rather, a plaintiff must: (1) identify the specific training not
    provided that could reasonably be expected to prevent the suicide that occurred
    and (2) demonstrate that the "risk reduction associated with the proposed
    training is so great and so obvious that the failure of those responsible for the
    content of the training program to provide it can reasonably be attrib uted to a
    deliberate indifference to whether the detainees succeed in taking their lives."
    
    Id. at 1030
    .
    There is no merit to plaintiff's contentions that her NJCRA claim should
    not have been dismissed on summary judgment. Plaintiff did not demonstrate
    A-0817-18
    26
    that the County defendants had a de facto policy, practice, or custom of
    discouraging the prevention of suicides by OCJ inmates that deprived Kenneth
    of his rights. As noted above, we concluded there was no basis to disregard the
    jury verdict that the County defendants' negligence was the proximate cause of
    Kenneth's suicide. Nevertheless, plaintiff did not establish a prima facie NJCRA
    claim to avoid summary judgment dismissal as there was no showing the County
    defendants' conduct satisfied the statute's higher standard that the existence of a
    policy or custom at the OCJ evidenced a deliberate indifference towards the
    strong likelihood that Kenneth would commit suicide. Moreover, identifying
    and addressing Kenneth's particular medical needs during his OCJ confinement
    was, for the most part, the responsibility of the settling CHS defendants whom
    the jury assessed forty percent negligent for his suicide.
    To the extent we have not addressed any of the parties' arguments raised
    on appeal or cross-appeal, it is because we have determined that they are without
    sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
    Affirmed.
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    27