NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4935-13T3

LINDA LEONE,

Plaintiff-Appellant,

v.

BOROUGH OF BELMAR, BOROUGH

OF BELMAR POLICE DEPARTMENT,

PATROLMAN M. ALLEN, BADGE #150

and SERGEANT SEAN R. PRINGLE,

BADGE #135,

Defendants-Respondents.

__________________________________

Argued September 16, 2015 Decided

Before Judges Ostrer and Haas.

On appeal from the Superior Court of New

Jersey, Law Division, Monmouth County,

Docket No. L-1729-12.

Robert A. Conforti argued the cause for

appellant (Mr. Conforti and Jeff Thakker,

attorneys; Mr. Conforti and Mr. Thakker, on

the briefs).

Jennifer A. Passannante argued the cause for

respondents (Hoagland, Longo, Moran, Dunst &

Doukas, attorneys; Christopher J.

Killmurray, of counsel; Reid H. Eder, on the

brief).

PER CURIAM

This appeal involves a tort claim against the Borough of

Belmar and two borough police officers, Patrolman Michael R.

October 1, 2015

A-4935-13T3 2

Allen and Sergeant Sean R. Pringle.1

Plaintiff Linda Leone

alleges that defendants failed to exercise reasonable care of

her while she was in custody after an arrest for driving under

the influence (DUI). Leone alleges she was highly intoxicated

and repeatedly fell off a chair in the Alcotest room. As a

result, she suffered a broken hip.

After a period of discovery, the court granted defendants'

motion for summary judgment. The court found defendants were

immune under two provisions of the Tort Claims Act (TCA),

N.J.S.A. 59:3-3, and 59:4-2. The court also granted defendants'

motion to bar plaintiff's expert. The expert offered an opinion

on the proper care of intoxicated arrestees. The court

concluded his opinion was a net opinion.

Plaintiff appeals from the two orders. Having reviewed

plaintiff's arguments in light of the record and the applicable

principles of law, we reverse in part and affirm in part.

I.

We view the facts in the light most favorable to plaintiff

as the non-moving party. See Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 540 (1995). Plaintiff was highly intoxicated

1

Plaintiff also mistakenly named the borough's police department

as a separate defendant, as well as various fictitiously-named

defendants. We shall refer to the borough and the two officers

as defendants.

A-4935-13T3 3

on the morning of April 22, 2010. She testified she had four

double vodka and orange juice drinks at a nearby tavern between

7:00 a.m. and 7:50 a.m. She then got into her car. Police soon

responded to a caller's report that plaintiff was driving very

erratically.

By the time Patrolman Allen appeared on the scene,

plaintiff's vehicle was already stopped on the side of the road.

The engine was off but the transmission was still in drive.

Allen detected the strong odor of alcoholic beverages. He

characterized plaintiff's speech as "substantially slurred,"

"incoherent," and "slobbering." She appeared to have difficulty

comprehending Allen's requests, and was slow to respond. Allen

had to ask plaintiff several times for her license. She was

unable to step out of the vehicle on her own, despite multiple

attempts. Allen and a fellow officer had to help her exit.

Plaintiff had to use her car for balance when she walked. She

swayed when she stood, despite placing her feet wide apart for

balance. She was unable to perform field sobriety tests.

Allen arrested her and transported her to the station. She

sobbed on the way. Upon arrival she was unable to exit the

patrolcar on her own, and had to be helped. Plaintiff was

brought to the booking room. Her handcuffs were removed. She

was placed in a metal folding chair. Allen began filling out

A-4935-13T3 4

the arrest report. Pringle, the Alcotest officer, was also

nearby.

Plaintiff fell off the chair while Allen's back was turned.

He and Pringle helped her back into the chair. However, she

soon fell again. According to Allen's report, plaintiff fell

off the chair several times. Pringle stated she fell twice.

Pringle alleged he asked her if she was "ok" and she said she

was. Ultimately, the officers placed plaintiff on the floor,

where she fell asleep, and had to be awakened for administration

of the Alcotest. After she repeatedly sucked on the mouthpiece,

instead of blowing into it, she was charged with refusal.

Plaintiff had no memory of her arrest, or her fall. She

was released from the station around noon or 1:00 p.m. Allen

testified she left under her own steam. Two days later,

plaintiff sought medical treatment at Monmouth Medical Center.

She had multiple fractures of her hip, and required surgery.

Plaintiff filed a notice of tort claim in July 2010. In

her three-count complaint, filed in April 2012, she alleged that

Allen and Pringle failed to exercise reasonable care of her

while she was in custody; the borough and the police department

negligently hired and trained the officers and failed to provide

proper equipment to assure the safety of a highly intoxicated

arrestee; and the absence of such equipment created a dangerous

A-4935-13T3 5

condition of property. She later served the report of Frederick

J. Rast, III, a former police officer, investigator, and

director of public safety, who currently worked in private

security and investigations. Rast opined that defendants failed

to adequately protect plaintiff against injury while in their

custody and control.

As noted, the trial court dismissed the complaint on the

grounds that defendants were immune pursuant to N.J.S.A. 59:3-3

immunity for execution or enforcement of the laws and

N.J.S.A. 59:4-2 imposing liability for dangerous conditions of

public property, unless the public entity took protective

measures that were not "palpably unreasonable." With respect to

N.J.S.A. 59:4-2, the court questioned whether the booking room

and plaintiff's chair constituted a "dangerous condition," and

concluded in any event that defendants' actions were not

palpably unreasonable. The court separately barred Rast's

testimony, but did not base summary judgment on the absence of

an admissible expert opinion.

II.

Our review of a trial court's grant of summary judgment

based on TCA immunity is de novo, applying the same standard as

the trial court. Coyne v. N.J. Dep't of Transp., 182 N.J. 481,

491 (2005). We owe no deference to the trial court's

A-4935-13T3 6

interpretation of the Act. See Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The court erred in concluding that defendants were immune

from suit under N.J.S.A. 59:3-3. The provision states: "A

public employee is not liable if he acts in good faith in the

execution or enforcement of any law. Nothing in this section

exonerates a public employee from liability for false arrest or

false imprisonment." In concluding that defendants were

enforcing the law when plaintiff fell from the chair, the court

read the law too broadly.

We recently discussed the scope of N.J.S.A. 59:3-3 in

Caicedo v. Caicedo, 439 N.J. Super. 615 (App. Div. 2015).2

"Read

literally, N.J.S.A. 59:3-3 could be interpreted to immunize all

police activities, since virtually every police function or duty

is pursuant to some legal authorization in the broadest sense."

Id. at 626 (internal quotation marks and citation omitted). We

rejected such a broad reading. Instead, we adopted the view

that the "immunity attaches only where the police are acting

under heightened circumstances, including responding to a crime,

accident, or emergency in progress, or where they are called

upon to make split-second decisions." Id. at 624.

2

We recognize that the trial court did not have the benefit of

Caicedo, supra, when it decided defendants' motion.

A-4935-13T3 7

In Caicedo, a police vehicle struck a teenager on a bicycle

while the driver was transporting an arrestee charged with a

minor drug-related offense. We affirmed the trial court's

rejection of N.J.S.A. 59:3-3 immunity:

Were the circumstances such that Officer

Caicedo was responding, for example, to a

crime scene, to an accident call with

unknown injuries, or to some other situation

requiring his immediate attention, we have

little doubt that the result we reach would

be different. Immunity would also likely

attach were Officer Caicedo transporting the

prisoner for urgent medical attention, or if

the prisoner was unruly or otherwise

constituted a dangerous presence in the

police vehicle, or if the officer was in a

dangerous area or needed to hasten his

departure from a hostile crowd. However,

the record here is completely devoid of any

such emergent circumstances.

[Id. at 627.]

Immunity under N.J.S.A. 59:3-3 was also inapplicable in a

case involving the police's alleged failure to provide medical

treatment to an arrestee, Donald Kiken, who collapsed in custody

and subsequently died. Del Tufo, Executor of the Estate of

Kiken v. Twp. of Old Bridge, 278 N.J. Super. 312, 315-16 (App.

Div. 1995), aff'd, 147 N.J. 90 (1996). Kiken was arrested after

assaulting an officer with an automobile. Id. at 316-17. The

officer was investigating an automobile accident involving

Kiken. Id. at 316. Although he had a small cut, Kiken declined

medical attention. Id. at 317. He was arrested, handcuffed and

A-4935-13T3 8

placed in the back of a police vehicle for transport. Ibid.

Kiken was seen kicking the back window of the vehicle, and

turning his body. Ibid. Once at police headquarters, he was

helped out of the vehicle. Ibid. He was initially unsteady,

and began to walk, and then collapsed. Ibid. He died shortly

thereafter. Id. at 318. The immediate cause of death was

cardiac arrest caused by ingesting cocaine. Ibid. However,

Kiken's estate alleged that his death was caused by the failure

to summon emergency medical assistance promptly after his

arrest. Ibid. The trial court declined to charge comparative

fault by Kiken, and a jury awarded Kiken's estate $300,000. Id.

at 315.

We reversed the judgment, finding the trial court erred in

refusing to charge comparative fault. Id. at 321-23. However,

we rejected the defendants' argument that they were shielded

from liability by various provisions of the TCA. Id. at 323-26.

In particular, we held that N.J.S.A. 59:3-3 provided no

immunity, notwithstanding that the officers were engaged in

Kiken's arrest and transport when they allegedly failed to

provide reasonable care:

The plaintiff in the present case is not

complaining that the defendants should not

have executed or enforced the law. Their

duty to execute or enforce the law did not

preclude them from providing emergency

medical assistance to their arrestee. The

A-4935-13T3 9

immunity for enforcing and executing the law

does not protect defendants.

[Id. at 326.]

The Supreme Court affirmed our determination that a comparative

fault charge was required. Del Tufo, supra, 147 N.J. at 95. In

so doing, the Court nonetheless reaffirmed that "[t]he police's

duty of care to an arrestee requires the exercise of reasonable

care to preserve the life, health, and safety of the person in

custody." Id. at 101.

Applying the principles in Caicedo and Del Tufo, we

conclude defendants were not immune under N.J.S.A. 59:3-3 from

plaintiff's claim that they failed to exercise reasonable care

to assure she did not injure herself while in custody. Although

plaintiff was already under arrest when she was taken into

custody at the scene of the traffic stop, the officers were

undeniably executing the law governing the processing of DUI

suspects, in particular the command that officers observe

suspects for twenty minutes prior to administration of the

Alcotest. See State v. Chun, 194 N.J. 54, 79 (2008) ("[T]he

operator must observe the test subject for the required twenty-

minute period . . . to ensure that no alcohol has entered the

person's mouth while . . . awaiting the start of the testing

sequence."), cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L.

Ed. 2d 41 (2008).

A-4935-13T3 10

However, as in Del Tufo, plaintiff's injuries did not arise

directly from the decision to arrest or enforce the law. And,

nothing precluded defendants from providing plaintiff with a

seat in which she was safely secured; or if no such seat were

available, from providing her a soft mat on the floor, to guard

against the risk of injury by falling. As in Caicedo, there

were no emergent circumstances that prevented defendants from

taking preventative measures.

We briefly address the court's application of N.J.S.A.

59:4-2. Defendants sought dismissal under that section

apparently in response to the third count of plaintiff's

complaint, which alleged that the room in which plaintiff was

seated constituted a dangerous condition of public property.

N.J.S.A. 59:4-2 generally imposes liability for injuries

caused by dangerous conditions of public property:

A public entity is liable for injury caused

by a condition of its property if the

plaintiff establishes that the property was

in dangerous condition at the time of the

injury, that the injury was proximately

caused by the dangerous condition, that the

dangerous condition created a reasonably

foreseeable risk of the kind of injury which

was incurred, and that either:

a. a negligent or wrongful act or

omission of an employee of the public entity

within the scope of his employment created

the dangerous condition; or

A-4935-13T3 11

b. a public entity had actual or

constructive notice of the dangerous

condition under section 59:4-3 a sufficient

time prior to the injury to have taken

measures to protect against the dangerous

condition.

[N.J.S.A. 59:4-2.]

However, a public entity is not liable if it took measures that

were not "palpably unreasonable." The section concludes:

"Nothing in this section shall be construed to impose liability

upon a public entity for a dangerous condition of its public

property if the action the entity took to protect against the

condition or the failure to take such action was not palpably

unreasonable." Ibid.

Simply put, plaintiff's injuries did not arise from the

condition of the property itself. In other words, there was

nothing defective about the folding chair from which plaintiff

fell. See N.J.S.A. 59:4-1 (defining a "dangerous condition" as

a "condition of property that creates a substantial risk of

injury when such property is used with due care in a manner in

which it is reasonably foreseeable that it will be used"); see

also Levin v. Cnty. of Salem, 133 N.J. 35, 44 (1993) (stating

that "dangerous condition" refers "to the physical condition of

the property itself and not to activities on the property")

(internal quotation marks and citation omitted). Consequently,

N.J.S.A. 59:4-2 "is not implicated because the injuries do not

A-4935-13T3 12

arise from a condition of the property itself." Harry A.

Margolis & Robert Novack, Claims Against Public Entities

59:4-1 at 118 (2015). However, plaintiff's claim does not

depend on the limited waiver of immunity in N.J.S.A. 59:4-2. "A

plaintiff may still proceed on theories of ordinary negligence

. . . ." Ibid. Therefore, plaintiff may proceed with her

negligence claim notwithstanding that she does not assert a

claim under N.J.S.A. 59:4-2.

III.

We next consider the court's order striking plaintiff's

expert. Rast was president of a private detective agency since

1977, and supervisor of a security guard and investigative

agency since 2006. His last position in public policing was

between 1990 and 1992, when he served as director of public

safety in Old Bridge Township. In the 1970s, he worked as a

supervisor of investigations in the Attorney General's office,

Division of Criminal Justice, and was an investigator in the

Camden County Prosecutor's Office. He was also a narcotics

squad officer for the Monmouth County Prosecutor's Office from

the late 1960s to early 1970s. He was a uniformed police

officer in Atlantic Highlands for two-and-a-half years in the

1960s. He completed various civilian police education courses,

continuing into the 1990s, qualifying as an instructor for the

A-4935-13T3 13

Virginia Department of Criminal Justice. He also had

significant military experience, including in the military

police.

In his written report, Rast reviewed at length the facts of

the case, as he understood them. He concluded that defendants

failed to take reasonable care of plaintiff. He also asserted

that Allen and Pringle were not adequately trained. He

contended they could have availed themselves of techniques to

restrain patients, such as using wristlets or sheet or cloth

materials to keep a patient from falling out of a bed or a

chair.3

He also asserted that the officers should have examined

plaintiff to ascertain whether she suffered any injury after her

falls from the chair.

Rast did not cite any outside authorities or guidelines in

support of his opinion that defendants should have applied

wristlets, or used sheets, to restrain plaintiff in the chair.

He cited the Belmar Police Department's own directives that

detainees "who are under the influence of alcohol or drugs are

considered health risks." However, nothing in the directive

3

Rast also rendered opinions on defendants' failure to preserve

evidence, including videotapes of plaintiff during the traffic

stop, and at headquarters, and their failure to create and

preserve documentation. We do not view those opinions as

relevant to the issue whether defendants violated a reasonable

standard of care.

A-4935-13T3 14

addressed the subject of how to seat, or prevent injury of

arrestees awaiting interrogation or administration of Alcotest

results.

Rast referred as well to the directive's command that

regular checks should be made of intoxicated detainees, which

may provide indirect support for his opinion that the officers

should have examined plaintiff after her falls. However, as

noted above, Pringle asserted he asked plaintiff if she was "ok"

and she responded affirmatively.

We exercise limited review of the court's decision to

exclude expert testimony. See Townsend v. Pierre, 221 N.J. 36,

52-53 (2015) ("The admission or exclusion of expert testimony is

committed to the sound discretion of the trial court."); Hisenaj

v. Kuehner, 194 N.J. 6, 12 (2008) (stating that trial court's

evidentiary decision to admit expert testimony is reviewed for

an abuse of discretion).

The Court in Townsend reviewed the law on net opinions.

Expert opinions must be grounded in "facts or data derived from

(1) the expert's personal observations, or (2) evidence admitted

at the trial, or (3) data relied upon by the expert which is not

necessarily admissible in evidence but which is the type of data

normally relied upon by experts." Townsend, supra, 221 N.J. at

53 (internal quotation marks and citation omitted). The net

A-4935-13T3 15

opinion rule is a "corollary of [N.J.R.E. 703] . . . which

forbids the admission into evidence of an expert's conclusions

that are not supported by factual evidence or other data." Id.

at 53-54 (internal quotation marks and citation omitted).

Therefore, an expert is required to "give the why and wherefore

that supports the opinion, rather than a mere conclusion." Id.

at 54 (internal quotation marks and citation omitted). The net

opinion rule directs that experts "be able to identify the

factual bases for their conclusions, explain their methodology,

and demonstrate that both the factual bases and the methodology

are reliable." Id. at 55 (internal quotation marks and citation

omitted).

On the other hand, "[t]he net opinion rule is not a

standard of perfection." Id. at 54. The failure to rely on

sources the opponent deems important, or to organize one's

opinion in a way the adversary considers appropriate, does not

warrant exclusion as a net opinion. Ibid. These matters are

left for cross-examination.

Applying these principles, we discern no abuse of

discretion by the trial court. We have reviewed the expert's

report with care, yet find no factual basis to support the view

that the reasonable standard of care required the officers' use

of wristlets or sheets to restrain plaintiff. Rast cites no

A-4935-13T3 16

standard, guideline, or protocol of any police agency (or even

an emergency medical agency) to support his specific

conclusions. Nor does he cite any treatise or educational

resources in policing.

An expert may ground an opinion in his personal experience

and training. See State v. Townsend, 186 N.J. 473, 495 (2006);

Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002)

("Evidential support for an expert opinion is not limited to

treatises or any type of documentary support, but may include

what the witness has learned from personal experience.").

However, despite his extensive experience in policing, Rast does

not base his opinion in the practices of other police agencies

that he has observed. He refers to the Belmar police

department's own directives, but they fall short of compelling

the preventative measures Rast claimed were consistent with a

reasonable standard of care.

Although we affirm the trial court's exclusion of

plaintiff's expert, we decline to reach the issue whether

expert testimony is essential to establish that defendants

failed to exercise reasonable care while plaintiff was awaiting

administration of the Alcotest. An expert is not required when

jurors' common knowledge "is sufficient to enable them, using

ordinary understanding and experience, to determine a

A-4935-13T3 17

defendant's negligence without the benefit of the specialized

knowledge of experts." Hubbard ex rel. Hubbard v. Reed, 168

N.J. 387, 394 (2001) (internal quotation marks and citation

omitted); see also Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961)

(stating that in "the usual negligence case" an expert is not

necessary to prove the standard of conduct that the defendant

violated; "[t]he applicable standard of conduct is . . .

supplied by the jury which is competent to determine what

precautions a reasonably prudent man in the position of the

defendant would have taken."). On the other hand, the necessity

of expert testimony is vested in the trial court's discretion.

State v. Zola, 112 N.J. 384, 414 (1988), cert. denied, 489 U.S.

1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989). Therefore, the

question whether expert testimony is necessary should be

addressed in the first instance by the trial court.

Reversed as to the grant of summary judgment; affirmed as

to the exclusion of plaintiff's expert. We do not retain

jurisdiction.