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Opinion of the Court


SUPREME COURT OF NEW JERSEY

196 N.J. 134; 952 A.2d 463

BLASE J. TOTO AND BETTY TOTO, PLAINTIFFS-APPELLANTS,  v.  SHERIFF'S OFFICER ROLANDO ENSUAR AND SHERIFF'S OFFICER MICHAEL SCHULZE, DEFENDANTS-RESPONDENTS, AND MONMOUTH COUNTY SHERIFF JOSEPH W. OXLEY, MONMOUTH COUNTY SHERIFF'S OFFICE AND "JOHN DOES # 1-3" (THESE NAMES BEING FICTITIOUS AS TRUE IDENTITIES ARE UNKNOWN), DEFENDANTS.

On certification to the Superior Court, Appellate Division.

No. A-53 September Term 2007  Argued: April 7, 2008 --- Decided: August 4, 2008

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the con-venience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the inter-ests of brevity, portions of any opinion may not have been summarized).

Blase J. Toto, et al. v. Sheriff's Officer Rolando Ensuar, et al. (A-53-07)

Argued April 7, 2008 — Decided August 4, 2008

WALLACE, J., writing for a unanimous Court.

The verbal threshold of the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-1 to 12-3, requires that a plaintiff sus-tain an objective permanent injury to recover damages. In this case, the Court considers whether the verbal threshold applies to a willful misconduct claim against a public employee. The Court considers also whether the trial court erred in failing to instruct the jury that the Act's good faith defense does not apply to false arrest/false imprisonment claims.

On May 3, 2001, plaintiff Blase Toto entered the Monmouth County Courthouse to provide expert testimony in a pending matter. During the security screening process, defendant Sheriff's Officer Michael Schulze found a pocket knife in Toto's briefcase. Schulze told Toto to take the knife to his car or it would be confiscated. Toto informed Schulze that he was there to testify and asked the officer to hold the knife until he left the courthouse. Schulze respond-ed, "Don't you speak English?" Toto complained that the officer was rude, but took the pocketknife to his car. After Toto returned, he again passed through security. Toto re-asserted that Schulze had been rude. In response to Toto's raised voice, Schulze threatened to lock him up. When Toto responded, "do whatever you feel you need to do," Schulze replied, "one more word out of your mouth and I'm going to arrest you."

Toto took the elevator to another floor, where he met the attorney who had retained him as an expert witness. While Toto was explaining the incident to the attorney, Schulze exited the elevator and approached, arrested, and handcuffed Toto. Schulze and defendant Sherriff's Officer Rolando Ensuar then escorted Toto down the hall to a processing room. On the way, as they passed a group of students, Toto yelled to the students, "When you grow up, get an education. Don't wind up like these guys." Toto testified that as soon as they turned the corner, Ensuar demanded that he shut his mouth and then slammed him into a wall and exclaimed, "Now you're going to be charged with assaulting a police officer." Toto was handcuffed to a bench in the processing room. He was released after about an hour. Toto was treated for neck pain, including undergoing surgery in December 2001. Ensuar and Schulze offered an account of the events that differed in several respects, including asserting that Toto used profanity profusely, stopped suddenly as they were transporting him to the processing room and turned his shoul-der into Ensuar's chest, and that they did not slam or push him into the wall.

The trial court concluded that a plaintiff must vault the verbal threshold in order to recover damages even when the public employee's misconduct was willful. As a result, the trial court's instructions to the jury incorporated the verbal threshold requirement. The jury found that Schulze's actions did not constitute willful misconduct, but that Ensuar's did. The jury concluded, however, that Ensuar's willful misconduct did not proximately cause a substantial permanent loss of a bodily function, as required by the verbal threshold, so no damages were awarded.

The Appellate Division affirmed in an unpublished decision in which it found that the verbal threshold applies to a public employee's willful misconduct. The panel found also that the trial court erred in its instructions on the good faith defense contained in the Act, but determined that the error was harmless.

HELD: When a public employee's actions constitute willful misconduct, the plaintiff need not satisfy the verbal threshold of the New Jersey Tort Claims Act and may instead recover the full measure of damages applicable to a per-son in the private sector. The trial court's failure to give that instruction to the jury was error. The failure to instruct the jury that the good faith defense incorporated into the Act does not apply to claims for false arrest or false imprisonment also was error and the error was clearly capable of producing an unjust result.

  1. The jury charge should set forth in clear understandable language the law that applies to the issues in the case. In construing a jury charge, a reviewing court must consider the charge as a whole to determine whether the charge was correct. When a party objects at trial, a reviewing court should reverse on the basis of that challenged error unless the error is harmless. However, when the party failed to object, the reviewing court must determine whether the error was clearly capable of producing an unjust result. If not, it is deemed harmless and disregarded. (P. 12).
  2. The Court previously established a two-prong test for the verbal threshold provision of the New Jersey Tort Claims Act. Under that test, a plaintiff may collect pain and suffering damages if he or she demonstrates (1) an objec-tive permanent injury; and (2) a permanent loss of a bodily function that is substantial. However, in unambiguous and specific terms, N.J.S.A. 59:3-14 creates an exception to the verbal threshold if the public employee's conduct was willful. A public employee guilty of outrageous conduct cannot avail himself or herself of the limitations as to liability and damages contained in the Act. Additionally, although N.J.S.A. 59:3-3 provides that a public employee is not liable if he or she acts in good faith in the execution of the enforcement of any law, it also states that "nothing in this section ex-onerates a public employee from liability for false arrest or false imprisonment." This section makes clear that the good faith defense is not available when a public employee is liable for false arrest or false imprisonment. (Pp. 13-15).
  3. Here, Toto requested a jury charge explaining that if either defendant was found to have committed willful mis-conduct, then the verbal threshold did not apply. The trial court's failure to give that instruction was error. The trial court should have explained to the jury that if it found either defendant committed willful misconduct, Toto was entitled to recover the full measure of damages without regard to the verbal threshold. The jury found that Ensuar committed willful misconduct, therefore the verbal threshold did not apply to Toto's claim against Ensuar. Because the jury was denied the opportunity to evaluate the full extent of Toto's damages, the jury instruction was clearly capable of producing an unjust result. A new trial is necessary for the sole purpose of procuring a jury determination on the issue of proximate cause and damages as to Ensuar. (Pp. 15-19).
  4. With regard to Toto's claims against Schulze and Ensuar for false arrest/false imprisonment, the objective good faith defense provided in N.J.S.A. 59:3-3 does not apply to these claims. The failure of the trial court to instruct the jury that the good faith defense did not apply was clearly erroneous and may have influenced the jury in its finding that Schulze did not commit willful misconduct. Noting that Toto did not object to the charge that was given, the Court concludes that the instruction, coupled with the erroneous charge to the jury that the verbal threshold applies to claims of willful misconduct and false arrest, had the capacity to taint the entire verdict in favor of Schulze and to produce an unjust result. The Court remands for a new trial as to Schulze. (Pp. 19-23).

The judgment of the Appellate Division is REVERSED, in part, and the matter is REMANDED for a new trial on liability and damages as to Schulze and for a new trial limited to proximate cause and damages as to Ensuar.

JUSTICE WALLACE, JR., delivered the opinion of the Court. CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO, and HOENS join in JUSTICE WALLACE's opinion.

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