Opinion
Criminal No. 02-2953 (JBS).
February 15, 2005
Michael Berger, Esq., Tommie Ann Gibney, Esq., ANDRES BERGER, P.C., Haddonfield, New Jersey, Attorneys for Plaintiffs.
Thomas Anapol, Esq., ANAPOL, SCHWARTZ, WEISS, COHAN, FELDMAN SMALLEY, P.C., Cherry Hill, New Jersey, Attorney for Consol Plaintiff.
Edward J. Tucker, Esq., TUCKER MUNYON, Marlton, New Jersey, Attorney for Defendant Klein.
A. Michael Barker, Esq., Jodi L. Cohen, Esq., BARKER, DOUGLASS SCOTT, P.C., Linwood, New Jersey, Attorneys for Defendants Egg Harbor City, The Egg Harbor City Police Department, James E. McGreary.
Stephanie Smith, Esq., James R. Birchmeier, Esq., POWELL, BIRCHMEIER POWELL, Tuckahoe, New Jersey, Attorneys for Defendant Richard Jankowski.
Steven Drake, Esq., John Bannan, Esq., REYNOLDS, DRAKE, WRIGHT MacZYK, P.C., Absecon, New Jersey, Attorneys for Defendant Keron Kevin Derod Craig.
OPINION
This matter arises from a fatal automobile collision between Plaintiffs and an off-duty police officer who, at the time of the accident, was intoxicated. Defendants City of Egg Harbor City, the Egg Harbor City Police Department, and Mayor James E. McGreary (collectively "Municipal Defendants"), Defendant Richard Jankowski, Director of Public Safety for Egg Harbor City from 1996 to 2001, and Defendant Patrolman Keron Kevin Derod Craig have now moved for partial summary judgment against Plaintiffs Freddi Bilbili and Pjerim Gjecaj seeking dismissal of all state law claims.
I. BACKGROUND
A. Traffic Stop
On the night of May 21, 2000, Defendant Patrolman Keron Kevin Derod Craig, a part-time/full-time officer with the Egg Harbor City Police Department, was "out on patrol" alone. (Craig Dep. Tr. at 38, 41.) At approximately 1 a.m., Craig made a routine traffic stop of a car operated and owned by Defendant Charles E. Klein, III, an off-duty police officer with the Egg Harbor City Police Department. (Id. at 46:1-4.) Klein was operating the vehicle while intoxicated. Craig pulled Klein over after visually observing his car to be speeding roughly 20 miles per hour over the posted speed limit. Craig did not observe Klein's car to be swerving, and did not believe at the time that Klein was intoxicated. (Id. at 47:19-21.)
As Patrolman Craig pulled over Klein's car, Klein held his police badge out of the window for Craig to see. (Id. at 48:21-49:4) Craig then exited his car and approached Klein's, at which point Klein stuck his head out of the window and said "what's up." (Id. at 49:1-4.) Craig, recognizing the driver to be Klein, issued a verbal warning to slow down and then returned to his patrol car. (Id. at 49:5-8.) During this brief encounter, Craig never got closer than 30 feet to Klein. (Id. at 52:4-5.) Craig testified that he at no point believed that Klein was intoxicated. (Id. at 41:9-12.)
Craig testified at his deposition that it would have been "a problem" for him within the department if he had issued a ticket to a superior police officer, such as Klein. (Id. at 54:16-20.) According to Patrolman Craig, there was an unwritten understanding in the Egg Harbor City Police Department that professional courtesy would be extended to other officers who were pulled over for minor vehicle violations. (Id. 39:14-40:2.)
B. Fatal Collision
Later that same evening, Plaintiffs Freddi Bilbili and Pjerim Gjecaj were passengers in an automobile operated by Gazmend Cena. Freddi Bilbili's brother, Ervin Bilbili, was seated in the passenger seat. (F. Bilbili Dep. Tr. at 23; 2-4.) Freddi Bilbili was seated in the rear seat along with Mr. Gjecaj. (Id. at 23; 2-4.) Mr. Bilbili was seated directly behind Mr. Cena and Mr. Gjecaj was seated behind the passenger seat. (Id. at 17; 14-15.) At approximately 2:12 a.m., the automobile operated by Mr. Cena was struck from behind by Klein's car. Mr. Cena died following the crash.
All references to "Mr. Bilbili" or "Bilbili" herein are to Freddi Bilbili.
1. Injuries Suffered By Freddi Bilbili
As a result of the accident, Freddi Bilbili's left foot was lacerated, requiring three sutures. (F. Bilbili Dep. Tr. at 32; 8-23.) In addition to this injury, Mr. Bilbili experienced lower back pain at the scene of the accident. (Id. at 33; 22-24.) Mr. Bilbili was taken directly to the Atlantic City Medical Center's emergency room for treatment. He was treated and discharged that same day. (Id. at 34-35.)
The day following the accident, Freddi Bilbili continued to experience pain in his back and began feeling pain in his left leg. (Id. at 35; 9-19.) The pain in Mr. Bilbili's left foot and leg ceased upon removal of the sutures on May 30, 2000, roughly nine days following the accident. (Id. at 38; 6-12.) Freddi Bilbili received treatment for his back injury which was helpful but did not eliminate the pain. (Id. at 38-39.) He still experiences lower back pain on certain occasions. (Id. at 38-41.) Despite these injuries, according to Mr. Bilbili there is no physical act that he was able to do prior to the accident that he is unable to perform now. (Id. at 42; 1-5.) Mr. Bilbili never experienced back pain or other back problems prior to the accident. (Id. at 34; 3-5.)
Following the accident, Freddi Bilbili sought work, but was not able to secure a job for roughly eight or nine months. (Id. at 14-17.) In or about March 2001, Mr. Bilbili obtained employment as a truck driver and delivery person for USA Food Service. (Id.; 7-11, 18-20.) Mr. Bilbili was employed by USA Food Service in this capacity for two years before he was laid-off. (F. Bilbili Dep. Tr. at 14; 21-23.) According to Mr. Bilbili, he suffered back pain while performing his assigned tasks as a delivery person and driver. (Id. at 40; 12-15.) At the time of the October 1, 2003 deposition, Mr. Bilbili was a student at "DPT" studying to become a computer technician. (Id. at 15; 3-4.) While a student, Mr. Bilbili did not look for employment. (Id.)
As of September 5, 2002, Mr, Bilbili reported suffering from ongoing lower back pain and problems with lifting. (Reevaluation Note re: Freddi Bilbili by Richard Harlan Kaplan M.D. of 9/5/2002 ("F. Bilbili Medical Evaluation") Bilbili Ex. C. at 2.) At that time, he was able to sit, stand and walk without obvious physical limitations. (Id.) He had full mobility in his cervical spine and full range of motions in his shoulders, elbows, wrists and fingers. (Id.) In his lower extremities, "his deep tendon reflexes were absent, bilaterally and symmetrically. There [was] tenderness in the mid-line at the lumbosacral junction with a trigger point in this region to the left of the mid-line." (Id.) Based on the September 5 evaluation, Dr. Richard H. Kaplan was able to conclude
[w]ithin a reasonable degree of medical certainty [that] Mr. Freddi Bilbili remains symptomatic as a result of injuries sustained May 21, 2000. My diagnosis remains chronic lumbosacral radiculopathy. This diagnosis was caused by the motor vehicle accident of May 21, 2000.
(Id.)
"Lumbosacral" is defined as "pertaining to the loins and sacrum," the triangular bone just below the lumbar vertebrae. The Sloane-Dorland Annotated Medical-Legal Dictionary (1987), at 421, 624. "Radiculopathy" is defined as "disease of the nerve roots."Id., at 601.
Additionally, although Freddi Bilbili, at the time of his deposition on October 1, 2003, had not visited with nor been treated by any psychologist or psychiatrist, he claims to have had psychological problems in his day-to-day life that he associates with the May 21, 2000 accident. (F. Bilbili Dep Tr. at 43-44.)
2. Injuries Suffered By Pjerim Gjecaj
At the accident scene, Mr. Gjecaj suffered from pain in his back, neck and left thumb and hand. (Gjecaj Dep. Tr. at 22; 6-24.) Like Mr. Bilbili, Mr. Gjecaj was taken directly to the Atlantic City Medical Center's emergency room for treatment. (Id. at 23; 1-2.) He too was treated and discharged that same day. (Id. at 24; 4-6). As of the date of his deposition in this matter, Mr. Gjecaj's back continued to hurt. (Id. at 9-11.) Any neck pain that Mr. Gjecaj suffered started to disappear within roughly one week of the accident. (Id. at 25; 2-8.) According to Mr. Gjecaj, there is no physical act that he was able to do prior to the accident that he is unable to perform now. (Id. at 32-33).
Prior to the accident, Mr. Gjecaj had not worked in this country. (Id. at 13; 4-6.) Following the accident, Mr. Gjecaj obtained employment at a factory as an inspector of goods. (Id. at 29; 6-8.) He was employed there for between roughly one and two months before he quit "because I couldn't do it." (Id. at 29; 6-8.) In addition, subsequent to the accident Mr. Gjecaj worked as a pizza deliveryman. (Id. at 12; 15.) He was employed at that position for roughly one year and six months. (Id. at 12; 15.) Mr. Gjecaj later worked at another pizzeria for roughly two to three months. (Id. at 29; 14-15.) Mr. Gjecaj left that job in order to enroll in school to learn English.
As of September 3, 2002, Mr. Gjecaj was diagnosed as having a "bulging lumbar disc, L5-S1 and chronic lumbar strain and sprain" and was suffering from "chronic" back pain. (Permanency Evaluation of Pjerim Gjecaj by Barry S. Gleimer, D.O., F.A.O.A.S.M. of 9/3/2002 ("Gjecaj Medical Evaluation"), Gjecaj Ex. D., at 3.) (Id.) That condition is not treatable unless "the back pain should worsen." (Id.) Moreover, certain "regions of his injury other than his low back . . . will be present, to some degree on a permanent basis and [will] caus[e] functional limitations." (Id. at 3.) However, according to that same report, "[t]he lumbar spine reveals spasm but no acute tenderness at this time. Motion is 90% of normal. Straight leg raising is negative for back or sciatic pain. Deep tendon reflexes are intact." (Id. at 2.)
Doctor of Osteopathy.
Family Association of Osteopathic and Sports Medicine.
Moreover, Mr. Gjecac does "not suffer from significant spasm or tenderness of the cervical spine; his cervical motion is full; his upper extremities reveal deep tendon reflexes, strength and sensation to be intact; Tinel's sign is negative." (Gjecaj Medical Evaluation, at 2.)
"Tinel's sign" is defined as "distally radiating pain or paresthesia caused by tapping over the site of a superficial nerve, indicating inflammation or irritation of the nerve." Stedman's Concise Medical Dictionary for the Health Profession (4th ed. 2001).
Despite the above, Mr. Gjecaj claims that his back hurts when he attempts to lift heavy weights and when he sits on the couch. (Gjecaj Dep. Tr. at 33; 11-15.) He also maintains that he "really wanted to go into the Marine Corp., but I don't know if I can do that no more, because my back hurts a lot if I do exercising or run." (Id. 32; 3-6.)
C. Procedural History
Plaintiffs filed their complaint in Superior Court, Atlantic County, on May 20, 2002, alleging federal § 1983 causes of action and supplemental state law claims. Notice of removal pursuant to 28 U.S.C. § 1446 was filed by Defendant Egg Harbor City on or about June 21, 2002. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.
Before the Court are motions for partial summary judgment by the Municipal Defendants, Defendant Jankowski and Patrolman Craig as to Counts 27, 28, 30, 31, 40 and 42. Counts 27 and 30 are negligence claims by Freddi Bilbili against the Municipal Defendants and Defendants Jankowski and Craig for damages. (Compl. at 58, 65.) Count 27 alleges that Patrolman Craig was negligent in permitting Klein, who was intoxicated, to drive off after Craig had made a routine traffic stop of Klein's car prior to the accident. (Id. at 58.) Count 30 alleges that Defendants McGreary and Jankowski were negligent for failing to implement and enforce appropriate policies and procedures as to the hiring, training and supervision of Egg Harbor City police officers. (Id. at 65.)
By letter dated August 26, 2004, Defendant Jankowski joined in Municipal Defendants' partial summary judgment motions.
Counts 28 and 31 are brought by Pjerim Gjecaj and mirror those in Counts 27 and 30. (Id. at 60, 67.)
Count 40 is a claim by Bilbili and Gjecaj against Municipal Defendants and Defendants Jankowski and Craig for punitive damages stemming from their "wanton and willful disregard" of Plaintiffs' safety. (Id. at 82.) In Count 42 Plaintiffs Bilbili and Gjecaj seek joint and several liability among these Defendants. (Id. at 84.)
By Order dated October 5, 2004, the Court granted the motion for summary judgment by Defendants only as to that portion of Count 40 seeking punitive damages against Defendants Egg Harbor City and the Egg Harbor City Police Department. [Docket Item 71]. The punitive damages claims of Bilbili and Gjecaj against Defendants McGreary, Jankowski and Craig contained in Count 40 remain in issue in the present motions for partial summary judgment.
II. SUMMARY JUDGMENT STANDARD OF REVIEW
Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "the nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quotingLiberty Lobby, 477 U.S. at 255). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted).
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Country Floors v. Partnership of Gepner and Ford, 930 F.2d 1056, 1061-63 (3d Cir. 1991) (reviewing district court's grant of summary judgment in a trademark action); Lucent Info. Manage. v. Lucent Tech., 986 F. Supp. 253, 257 (D.N.J. 1997) (granting summary judgment in favor of telecommunications provider in trademark action), aff'd, 186 F.3d 311 (3d Cir. 1999); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989),cert. denied, 493 U.S. 1023 (1990). However, where the nonmoving party bears the burden of persuasion at trial, as Plaintiffs do in the present case, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.
III. DISCUSSION
A. New Jersey Tort Claims Act
The issue presented by the instant motions is whether Plaintiffs Bilbili and Gjecaj can maintain their state law claims for damages against the Municipal Defendants and Defendants Jankowski and Craig under the New Jersey Tort Claims Act ("Act" or "Tort Claims Act"), N.J.S.A. 59:1-1 to 59:12-3. The purpose of the Act's limitations upon recovery for pain and suffering was explained by the New Jersey Supreme Court:
In 1972, in response to the judicial abrogation of sovereign immunity in Wills v. Department of Cons. Econ. Dev., the [New Jersey State] Legislature adopted the Tort Claims Act. The overall purpose of the Act was to reestablish the immunity of public entities while coherently ameliorating the harsh results of the doctrine. The theme of the Act is immunity for public entities with liability as the exception. Even where liability is present, the Act sets forth limitations on recovery. One is the limitation on the recovery of pain and suffering damages.Gilhooley v. County of Union, 753 A.2d 1137, 1149 (N.J. 2000) (internal citations omitted).
1. Permanent Loss of a Bodily Function
At the time the instant action was filed, the Tort Claims Act provided:
No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.
N.J.S.A. 59:9-2(d). "[I]n order to vault the pain and suffering threshold under the Tort Claims Act, a plaintiff must satisfy a two-pronged standard by proving (1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial." Gilhooley, 753 A.2d at 1142; see Brooks v. Odom, 696 A.2d 619 (N.J. 1997). The loss of a bodily function need not be total in order for a plaintiff to recover under the Act. Rather, a plaintiff only must prove that she suffered a "substantial permanent loss" of a bodily function. See Brooks, 696 A.2d at 624 ("We doubt . . . that the Legislature intended that a claimant could recover only for losses that were total. . . . We conclude that under [the] Act plaintiffs may recover if they sustain a loss that is substantial." (emphasis added)).
Effective September 21, 2000, the threshold under the Act was increased from $1,000.00. Municipal Defendants incorrectly cite the Act in their supporting papers as of the date of the accident, May 21, 2000. Nonetheless, as the amount of medical treatment is not contested, this error is of no import.
"The determination of whether a plaintiff's injury satisfies the `permanent loss of a bodily function that is substantial' threshold under the [Tort Claims Act] depends on a fact-sensitive analysis." Knowles v. Mantua Township Soccer Association, 823 A.2d 26, 30 (N.J. 2003). However, there are certain situations that do fit neatly within the Act's framework.
First, . . . "injuries causing blindness, disabling tremors, paralysis and loss of taste and smell" satisfy the threshold because they are inherently "objectively permanent and implicate the substantial loss of a bodily function (e.g., sight, smell, taste, and muscle control)." Second, . . . when a plaintiff suffers an injury that permanently would render a bodily organ or limb substantially useless but for the ability of "modern medicine [to] supply replacement parts to mimic the natural function," that injury meets the threshold. Third, . . . there must be a "physical manifestation of [a] claim that [an] injury . . . is permanent and substantial." An injury causing lingering pain, resulting in a lessened ability to perform certain tasks because of the pain, will not suffice because "[a] plaintiff may not recover under the Tort Claims Act for mere `subjective feelings of discomfort.'" Finally, . . . neither an absence of pain nor a plaintiff's ability to resume some of his or her normal activities is dispositive of whether he or she is entitled to pain and suffering damages under the [Act].Knowles, 823 A.2d at 30 (internal citations omitted).
The New Jersey Supreme Court has undertaken the requisite fact-sensitive analysis on several recent occasions. See Brooks, 686 A.2d 619; Ponte v. Overeem, 791 A.2d 1002 (N.J. 2002); Knowles, 823 A.2d 26; Kahar v. Borough of Wallington; 791 A.2d 197 (N.J. 2002). In Brooks v. Odom, the court found that although the plaintiff experienced pain and the limitation of motion in her neck and back was permanent, "because she can function both in her employment and as a homemaker," she did not satisfy the "high threshold" of the Tort Claims Act. Brooks, 696 A.2d at 624; see Knowles, 823 A.2d at 29, 31. Similarly, in Ponte v. Overeem, although one of the plaintiff's doctors found that the plaintiff suffered from permanent derangement of the knee, in denying recovery for pain and suffering under the Act the court focused on the fact that he was able to return to his former athletic activities and yardwork. 791 A.2d at 1004.
To be sure, the New Jersey Supreme Court has "declined to adopt the ability to work as a litmus test for recovery of pain and suffering under the [Act]." Knowles, 823 A.2d at 31. Instead, "the appropriate focus is on the degree of injury and impairment." Id. Thus, in Knowles, even though the plaintiff was able to continue working as a teacher following his injury, the court nonetheless found that he satisfied his high burden under the Act by presenting medical evidence that he lost feeling in his left leg and was unable "to stand, sit, or walk comfortably for a substantial amount of time, engage in athletics, and complete household chores." Id.
Finally, in Kahar v. Borough of Wallington, 791 A.2d 197, where plaintiff suffered a "massive tear of her rotator cuff," that the resulting surgery left her with a forty-percent decreased range of motion in her arm was sufficient to satisfy the threshold requirement. The court relied on the fact that she "presented objective medical evidence linking an injured body part to [her] inability, without extensive medical intervention, to perform certain bodily functions." Knowles, 823 A.2d at 333;see Kahar, 791 A.2d 197.
As to Mr. Bilbili, whether the instant case is factually more akin to Brooks and Ponte than to Knowles and Kahar is a question of fact more properly left to the jury than determined by this Court on motion for summary judgment. Specifically, the evidence in the record suggests that Mr. Bilbili has, indeed, suffered a total loss of a sensory function. The nature and extent of Mr. Gjecaj's injuries, on the other hand, is far more limited. Thus, viewing the evidence most favorably to Plaintiffs Bilbili and Gjecaj, the Court will deny the instant partial summary judgment motion as to Counts 27 and 30, but grant it as to Counts 28 and 31, as now explained.
(a) Plaintiff Freddi Bilbili
Mr. Bilbili has raised material issues of fact on both prongs of the two-part test under the Act. First, as a result of the May 21, 2000 accident, a jury could find he has suffered a permanent injury. Specifically, Mr. Bilbili has reported suffering from ongoing low back pain and was diagnosed with chronic lumbosacral radiculopathy. (F. Bilbili Medical Evaluation at 2.)
Second, Mr. Bilbili likely satisfies the second prong of the test under the Act in that he has suffered a substantial loss of a bodily function. Specifically, in his lower extremities, "his deep tendon reflexes were absent, bilaterally and symmetrically." (Id. at 1 (emphasis added).) This indicates thetotal loss of a sensory function. And, "a total permanent loss of use would qualify" under the Act. Brooks, 686 A.2d at 624. Indeed, the loss suffered need only be "substantial," and not necessarily "total." Brooks, 696 A.2d at 624.
To be sure, the value of Mr. Bilbili's personal injury claim may be insubstantial. There is no physical act that Mr. Bilbili was able to do prior to the accident that he is unable to perform now. (F. Bilbili Dep. Tr. at 42; 1-5.) Moreover, he has full mobility in the cervical spine and full range in the shoulders, elbows, wrists and fingers. (F. Bilbili Medical Evaluation at 1.) And, as of his September 5, 2002 visit with Dr. Kaplan, Mr. Bilbili was able to sit, stand and walk without obvious physical limitations. (Id.) However, "neither an absence of pain nor a plaintiff's ability to resume some of his or her normal activities is dispositive of whether he or she is entitled to pain and suffering damages under the [Act]." Knowles, 823 A.2d at 30.
"Where plaintiff's medical proofs support a claim of permanent injury that is based on objective evidence and not merely on subjective complaints, such evidence raises an issue for the jury, and removes the case from the realm of summary judgment."Knowles, 823 A.2d at 32. Here, Plaintiff Bilbili has submitted sufficient evidence from which a jury could reasonably conclude that he has completely lost his deep tendon reflexes. Accordingly, for purposes of the Act, a reasonable jury could conclude that he has suffered a permanent loss of a sensory function that is substantial. If sight, smell and taste are sensory functions, the permanent and substantial loss of which satisfies the threshold under the Act, Brooks, 696 A.2d at 623, other sensory functions should be treated similarly.
Plaintiff Bilbili also alleges that he has suffered psychologically as a result of the injuries sustained from the accident. According to Mr. Bilbili, "[w]hen I used to work for USA Food Service, actually basically at nighttime, I used to drive at nighttime, and always sometimes it comes in my mind, the accident, the impact and everything. It just comes to my mind and I'm really scared." (F. Bilbili Dep. Tr. at 44; 8-13.) Other than this statement, though, there is no evidence in the record before the Court substantiating Plaintiff's claim. Indeed, Mr. Bilbili has not seen or been treated by any psychologist or psychiatrist since the accident. (F. Bilbili Dep. Tr. at 43-44.)
(b) Plaintiff Pjerim Gjecaj
Like Mr. Bilbili, Mr. Gjecaj may also be able to satisfy the first prong of the test. As of September 3, 2002, Mr, Gjecaj was allegedly suffering from "chronic" back pain. (Gjecaj Medical Evaluation at 3.) That condition in its current state is allegedly not treatable. (Id.) In addition, he claims that his back hurts when he attempts to lift heavy weights and when he sits on the couch. (Gjecaj Dep. Tr. at 33; 11-15.) Thus, there is evidence to support a finding by the jury that Mr. Gjecaj's injury is permanent.
However, Mr. Gjecaj is not able to overcome the second prong of the test. To be sure, he claims that he "really wanted to go into the Marine Corp[s], but I don't know if I can do that no more, because my back hurts a lot if I do exercising or run." (Gjecaj Dep. Tr. at 32; 3-6.) Moreover, his injury will continue to result in "functional limitations." (Gjecaj Medical Evaluation at 3.)
Nonetheless, Mr. Gjecaj does not suffer from significant spasm or tenderness of the cervical spine; his cervical motion is full; his upper extremities reveal deep tendon reflexes, strength and sensation to be intact; Tinel's sign is negative. (Id. at 2.) "The lumbar spine reveals spasm but no acute tenderness at this time. Motion is 90% of normal. Straight leg raising is negative for back or sciatic pain. Deep tendon reflexes are intact." (Id.) If a plaintiff can not recover despite suffering from
recurring discomfort in [her] neck, upper, mid and lower back, as well as occasional headaches . . ., straightening of the cervical curve; diffuse tenderness in the posterior cervical area evidenced by muscle spasms; spasm of the posterior and lateral cervical musculature; and a decreased range of motion on flexion and rotation . . ., paravertebral spasms with tenderness in the trapezoid muscles, and a decreased range of motion of flexion . . ., palpable muscle spasm [in lower lumbar area] and a decreased range of motion . . ., [and] significant and permanent loss of function with chronic pain . . . exacerbated by the usual activities of daily living[,]
then surely Plaintiff here is not entitled to recovery.Brooks, 696 A.2d at 621. Indeed, standing alone, "[a]n injury causing lingering pain, resulting in a lessened ability to perform certain tasks because of the pain, will not suffice" under the Act. Knowles, 823 A.2d at 30.
Plaintiff Gjecaj, like Freddi Bilbili, alleges that he exhibits psychological problems related to the accident. This claim is without support in the record. Indeed, Mr. Gjecaj offers nothing more than his isolated statement that "when I think about what happened, I just — I remember, I fell [sic] bad, but I can just — I'm trying to think about something better. I don't want to think no more what happened." (Gjecaj Dep. Tr. at 28; 13-17.) And, like Mr. Bilbili, as of the date of the deposition in this matter, Mr. Gjecaj had not sought psychological treatment for his alleged condition. (Id. at 28; 4-17.)
In short, even viewed in the light most favorable to him, Mr. Gjecaj did not suffer an injury amounting to "a permanent loss of a bodily function that is substantial." Gilhooley, 753 A.2d at 1142. Depending on the discussion, below, however, this conclusion may not be fatal to Mr. Gjecaj's state law claims under the Act.
2. Willful Misconduct
Plaintiffs Bilbili and Gjecaj allege in Count 40 that Municipal Defendants "acted in a manner of wanton and willful disregard" for the Plaintiffs' safety. (Compl. at 83.) Under the Tort Claims Act, a public employee is not immune from "liability" or "the full measure of recovery applicable to a person in the private sector" if "it is established that his conduct . . . constituted . . . willful misconduct." N.J.S.A. 59:3-14(a) and (b). "Willful misconduct is `the commission of a forbidden act with actual (not imputed) knowledge that the act is forbidden. . . .' It requires much more than an absence of good faith and `much more' than negligence." Mantz v. Chain, 239 F. Supp. 2d 486, 508 (D.N.J. 2002) (quoting PBA Local No. 38 v. Woodbridge Police Dep't, 832 F. Supp. 808, 830 (D.N.J. 1993) (quotations omitted)).
To establish a willful or wanton injury it is necessary to show that one with knowledge of existing conditions, and conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result.
Egan v. Erie Railroad Co., 148 A.2d 830, 836 (N.J. 1959) (quoting Staub v. Public Service Railway Co., 117 A. 48, 49-50 (N.J. 1922)).
Here, according to their Brief, "Plaintiffs do not argue that anyone in the Egg Harbor City Police Department could have kept Charles Klein from drinking and driving on the night of the fatal accident. However, it is the [P]laintiffs' position that there was an arguable culture of permissiveness which allowed Charles Klein to repeatedly violate department policy and state laws without repercussions from his employer, the Egg Harbor City Police Department." (Pls. Suppl. Br. at ¶ 48.) "Whether or not there was a culture of permissiveness created by willful misconduct by members of the Egg Harbor City Police Department, the Public Safety Director of the Egg Harbor City Police Department and/or the Mayor of Egg Harbor City is a question of fact which must be reserved for the jury in this matter." (Id.)
Defendant Klein has a long history of poor driving. (Pls. Ex. A.) Among other things, Defendant Klein has been involved, as the driver, in at least five accidents, has committed several moving violations, and has had his driving and registration privileges suspended on at least one occasion. (Id.) Moreover, he was previously found, after a hearing at which he was represented by counsel, to be guilty of "misconduct," "driving while driving privileges suspended" and "allowing his vehicle to be operated on the public highways while his registration privileges were suspended." (Pls. Ex. B.) For that conduct, Defendant Jankowski, Director of Public Safety for Egg Harbor City, ordered Defendant Klein suspended from service as a police officer for a 30 day period beginning on February 1, 1996. A three-page decision accompanying the suspension order was issued by Defendant Jankowski. (Id.)
On August 6, 1997, Defendant Jankowski again suspended Klein, this time for 45 days, after having found him, following a hearing, to be guilty of conduct unbecoming an officer, and to have violated certain state regulations regarding the handling and discharge of firearms. See N.J.S.A. 54:7, 3:9.1 and 3:9.14. Specifically, on July 13, 1997, between the hours of 3:00 a.m. and 5:00 a.m., Defendant Klein "carelessly and recklessly discharged a firearm causing alarm and commotion to residents in the area which resulted in Galloway Twsp. Police responding to [Klein's] home on two occasions." (Id.) A medical examination by an osteopathic physician conducted several days prior to the decision revealed that the event was "prompted by his having had a few drinks during leisure time." (Id.)
Klein was also charged with misconduct, but that charge was later dismissed. See N.J.S.A. 40:14.147.
The summary of the evaluation was addressed to Defendant Jankowski.
Defendant Klein's conduct has resulted in other official disciplinary actions as well, including: causing an automobile accident by driving while intoxicated; failure to prevent the escape of a prisoner in his custody while in transit to the Atlantic County Jail; mishandling of evidence; failure to conduct proper, thorough and complete police investigations; tardiness in reporting for duty; domestic disturbance; and possession at home of controlled dangerous substance paraphernalia. (Pls.' Exs. A, B, C.)
Defendant Jankowski believed Klein to be a "bad cop." (Pls. Ex. D. at 47: 12-22.) Mr. Jankowski even recommended to Mayor McGreary on at least one occasion that Klein be fired, though Defendant McGreary rejected that suggestion. (Id. at 47:1-4.) Indeed, Mr. Jankowski and the Mayor discussed Klein's criminal and disciplinary issues "half a dozen times." (Id. at 56:5-6.)
Plaintiffs Freddi Bilbili and Gjecaj argue that because Defendants McGreary, Jankowski and Craig knew of Klein's continued "misbehavior," they should have anticipated the dangerous circumstances which led to the fatal incident. In any event, according to Plaintiffs, the question of whether their failure to take appropriate disciplinary action constituted willful misconduct under N.J.S.A. 59:3-14 must be reserved for the trier of fact.
(a) Defendant Craig
There is no evidence before the Court substantiating Plaintiffs' claims that Patrolman Craig knew of Defendant Klein's history of misconduct, especially that involving alcohol. In any event, Defendant Craig was employed as a "part-time/full-time officer" working less than 20 hours per week. (Craig Dep. Tr. at 25:3-24.) In that capacity, he was not properly in a position to rectify any alleged "culture of permissiveness" that existed within the police department that may have permitted Defendant Klein the opportunity to violate the law on this particular occasion.
Moreover, although Klein was intoxicated on the night of the accident, no evidence suggests Patrolman Craig was aware of that fact. Not only did Craig not observe Klein swerving, but when he approached Klein's vehicle Craig did not observe anything that would have indicated Klein was not sober. For these reasons, Craig's failure to approach Klein's vehicle to assess whether Klein was, in fact, inebriated, was at most negligent.See Egan, 148 A.2d at 836; Mantz, 239 F. Supp. 2d at 508 (a showing of willful misconduct requires "`much more' than negligence"). To be sure, Craig testified that he never got closer than 30 feet to Klein. As a result, Craig was not able to, for example, detect the smell of alcohol on Klein's breath or look for open alcoholic beverages in the vehicle. However, his failure to do those things can, at best, be characterized as negligence as he had no knowledge of any fact indicating that Klein was drunk. Egan, 148 A.2d at 836 (requiring actual knowledge)
Though Craig never had "formal training" on how to deal with drunk driving incidents while employed by the Egg Harbor City Police Department, he had experienced situations involving drunk drivers on prior occasions and learned from observation and from the superior officers who were present with him. (Craig Dep. Tr. at 29-31.)
In reaching this conclusion, the Court is not required to, nor do any of the parties request the Court to, evaluate the unwritten policy in place at the time within the police department, whereby officers would extend professional courtesies to other off-duty officers whom they pulled over for minor vehicle violations. (Pl.'s Ex. I at 39:14-40:2.)
(b) Municipal Defendants and Defendant Jankowski
Plaintiffs assert that the Municipal Defendants and Defendant Jankowski were willfully indifferent to Klein's repeated misconduct while on the force, thereby permitting a "culture of permissiveness" within the police department allowing the fatal accident to take place. Plaintiffs offer no proof supporting this claim. Indeed, there is evidence to the contrary suggesting that Defendants here were aware of Klein's record of misconduct and that they took steps to rectify that problem. In any event, what steps these Defendants took to discipline Klein for his prior misconduct have no bearing on whether their failure to act constituted willful misconduct for present purposes.
Plaintiffs argue that if Defendants had properly disciplined Klein, he would have been removed from the force long before the accident took place. As noted above, though, Defendant Klein was off-duty on the night of the accident. Taking Plaintiffs' argument to it logical conclusion, then, Plaintiffs are asserting that if Defendants had acted properly, Klein would not have been an officer with the Egg Harbor Police Department on the night in question; Patrolman Craig would not have extended Klein any professional courtesy after pulling his vehicle over; Craig would have approached Klein's vehicle and, more likely than not, discovered evidence that Klein was inebriated; Craig would have taken some action to prevent Klein from further operating his vehicle that evening; and, finally, the fatal accident would have been prevented. That argument is attenuated at best.
First, Plaintiffs offer no proof demonstrating that Defendants here were aware that any unofficial policy existed whereby officers would extend professional courtesy to other officers in situations such as the routine traffic stop here. Indeed, as Defendant Craig testified at his deposition, the "policy" was unwritten. (Craig Dep. Tr. at 39-40.) In any event, however, as the discussion supra explains, if by extending that professional courtesy to Klein, Craig can not be said to have acted with willful misconduct for purposes of the Act, neither can the remaining Defendants.
"When in the light of common experience and judicial precedents the facts and circumstances alleged clearly do not constitute such conduct, the mere fact that plaintiffs characterize them as willful or wanton is not sufficient to create a triable issue."Egan v. Erie Railroad Co., 148 A.2d 830, 836 (N.J. 1959). Such is the case here. Thus, in the absence of willful or wanton conduct by these Defendants directed against him, Plaintiff Gjecaj's state law claims for personal injury must fail, because he cannot satisfy the Act's threshold in N.J.S.A. 59:9-2(d),supra. Additionally, the remaining portion of Count 40 seeking punitive damages by Plaintiffs Bilbili and Gjecaj against Defendants McGreary, Jankowski and Craig must also be dismissed. Specifically, Plaintiffs' failure to substantiate their claim of willful misconduct under the Act necessarily dooms their claim for punitive damages in Count 40 which is predicated on identical conduct.
IV. CONCLUSION
For the reasons explained in this Opinion, Plaintiff Freddi Bilbili's state law claims against Municipal Defendants, Defendant Jankowski and Patrolman Craig will survive the instant motion for partial summary judgment, except that Bilbili's claim for punitive damages in Count 40 will be dismissed as non-meritorious. Plaintiff Gjecaj's state law claims, however, will be dismissed as to these Defendants in their entirety.
ORDER
This matter is before the Court on the motions for partial summary judgment by Defendants City of Egg Harbor City, Egg Harbor City Police Department, and Mayor James E. McGreary (collectively "Municipal Defendants") against Plaintiffs Freddi Bilbili and Pjerim Gjecaj seeking to dismiss all state law claims [Docket Items 45, 46]; andDefendant Richard Jankowski having joined in said motions by letter brief filed with the Court on August 26, 2004 [Docket Item 47];
Defendant Keron Kevin Derod Craig having joined in said motions by brief filed with the Court on August 30, 2004 [Docket Item 48]; and
The Court having considered the written submissions; and having heard oral argument at hearings on October 5, 2004 and December 20, 2004; and
The Court having entered an Order on October 5, 2004 dismissing that portion of Count 40 of the Complaint that seeks punitive damages against Defendants Egg Harbor City and the Egg Harbor City Police Department [Docket Item 71]; and
For the reasons expressed in the Opinion of today's date;
IT IS THIS 15th day of February, 2005 hereby
ORDERED that the motion for partial summary by the Municipal Defendants and Defendants Jankowski and Craig as to all state law claims by Plaintiff Freddi Bilbili contained in Counts 27, 30 and 42 is DENIED ; and that the motion for partial summary judgment by Defendants McGreary, Jankowski and Craig as to the remaining portion of Count 40 seeking punitive damages under state law is GRANTED. IT IS FURTHER ORDERED that the motion for partial summary judgment by the Municipal Defendants and Defendants Jankowski and Craig as to all state law claims by Plaintiff Pjerim Gjecaj contained in Counts 28, 31 and 42 is GRANTED ; and that the motion for partial summary judgment by Defendants McGreary, Jankowski and Craig as to that portion of Count 40 seeking punitive damages under state law is GRANTED.