KELLY WOOD v. COUNTY OF CAMDEN, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0132-05T20132-05T2

KELLY WOOD,

Petitioner-Appellant,

v.

COUNTY OF CAMDEN, DAVID S. OWENS,

WARDEN OF THE CAMDEN COUNTY DEPARTMENT

OF CORRECTIONS, FORMER SERGEANT GEORGE

L. DOBLEMAN, OFFICER DERR and OFFICER FOSTER,

Defendants-Respondents.

_________________________________________________________

 

Submitted April 25, 2006 - Decided July 28, 2006

Before Judges Kestin and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-3554-03.

Chance & McCann, attorneys for appellant Kelly Wood (Kevin P. McCann, on the brief).

Helmer, Stowell, Gelfand & Paul, attorneys for respondent Sergeant George L. Dobleman (Barbara M. Paul, on the brief).

Deborah Silverman Katz, Camden County Counsel, attorneys for respondent County of Camden (Donna M. Whiteside, Assistant County Counsel, joins in the brief of respondent Sergeant George L. Dobleman).

PER CURIAM

Plaintiff, Kelly Wood, who alleges she was sexually assaulted while she was incarcerated in the Camden County Jail, appeals from an order dated August 5, 2005, that denied her motion for reconsideration of prior rulings and orders of the trial court. In those prior rulings, the court (1) granted defendants' motions for summary judgment, with the exception that the County's motion was granted in part and denied in part; (2) denied plaintiff's cross-motion to extend the period for discovery; and (3) denied plaintiff's request for an adjournment of the trial.

Regarding the County's motion for summary judgment, the court denied the aspect that sought the dismissal of plaintiff's civil rights claims. As to that aspect, the court reasoned that factual issues existed concerning the County's alleged failure to supervise and its alleged failure to promulgate rules and regulations that would have prevented the assault from occurring. However, on May 16, 2005, the scheduled trial date, when the court refused plaintiff's application to extend the period of discovery or to adjourn the trial date, plaintiff took a voluntary dismissal with prejudice as to the claims against the County that had been reserved for trial.

On appeal, plaintiff contends the court should have granted her motion for reconsideration. As to the claims against defendant, George Dobleman, we agree and reverse the grant of summary judgment. As to all other defendants and all other claims, we affirm the orders from which plaintiff appeals.

Plaintiff's complaint alleged that Sergeant George Dobleman sexually assaulted her by forcing her to perform oral sex upon him by threat of harm. She alleged that Officers Derr and Foster facilitated the assault when they disregarded the prison's rules by allowing her to walk unescorted to the law library to meet Dobleman. Plaintiff alleged the County of Camden failed to establish measures and procedures to ensure that sexual assaults would not occur. Plaintiff alleged both tort claims and civil rights violations against all defendants.

According to plaintiff, on June 16, 2001, at approximately 2:45 p.m., Officer Foster informed her that Sergeant Dobleman wanted to see her. Foster escorted plaintiff to the main gate and told her to continue ahead on her own to the law library. While walking unescorted, plaintiff encountered another corrections officer who she believes was Officer Derr. Derr asked plaintiff where she was going and plaintiff replied that she was on her way to meet Dobleman in the library. Derr allowed plaintiff to proceed unescorted.

The details of what occurred when she entered the library are in dispute. Plaintiff alleges Dobleman threatened that if she did not perform oral sex on him, he would file a disciplinary complaint against plaintiff and her cellmate. Plaintiff claims she submitted, after which Dobleman warned her not to tell anyone. Dobleman contends that plaintiff was the aggressor and that she approached him about performing oral sex on him.

On appeal, plaintiff asserts that: (1) the permanent injury and monetary thresholds contained within N.J.S.A. 59:9-2(d) do not apply to her alleged tort claims and civil rights claims; (2) the court erred by failing to consider the untimely expert report plaintiff submitted in opposition to the motions for summary judgment; (3) the monetary threshold contained within N.J.S.A. 59:9-2(d) is unconstitutional; and (4) plaintiff's motion for reconsideration was timely filed.

At the outset, we note our agreement that the motion for reconsideration was timely. Rule 4:49-2 provides that "a motion for . . . reconsideration seeking to alter or amend a judgment or order shall be served not later than twenty days after service of the judgment or order upon all parties by the party obtaining it." Therefore, the twenty-day period begins upon service of the signed order.

Here, the signed order dismissing plaintiff's claims was sent to plaintiff's counsel on June 7, 2005 and received on June 9, 2005. Plaintiff filed and served her motion for reconsideration on June 29, 2005. Thus, plaintiff was in compliance with the plain language of the court rule since she served her motion on all parties within twenty days after receiving the court's signed order. This acknowledgement does not, however, compel a reversal of the order from which plaintiff appeals because the court did not rely on the perceived procedural irregularity to deny relief on the motion for reconsideration.

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2006). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). A trial court will grant summary judgment to the moving party "if 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 moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

The court's written opinion on plaintiff's motion for reconsideration relied, in part, on "plaintiff's failure to establish proximate causation as to any injuries or to establish injuries [and] failure to meet the requirements of the Tort Claims Act, N.J.S.A. 59:9-2(d) . . . ."

We disagree with the motion judge's determination that either of those stated failures furnished a basis for granting the defendants' motion for summary judgment. More particularly, as to plaintiff's failure to provide timely medical records, we observe that in Collins v. Union County Jail, 150 N.J. 407, 420 (1997), the Supreme Court held that a jail inmate's "claim of alleged permanent psychological harm in the form of post-traumatic stress disorder resulting from the rape by the corrections officer, constitutes a 'permanent loss of bodily function' within the meaning of N.J.S.A. 59:9-2(d)." The Court further noted that "the Legislature could not have intended that the verbal threshold provisions of the Act [Tort Claims Act] would bar all psychological claims caused by a rape simply because there was no residual physical injury." Id. at 422. See also Willis v. Ashby, 353 N.J. Super. 104, 112 (App. Div.), certif. denied, 174 N.J. 547 (2000) (declining to read Collins as limiting recovery under N.J.S.A. 59:9-2(d) for psychological injuries due to 'direct, violent and invasive physical assault,' such as criminal sodomy or rape").

The New Jersey Tort Claims Act, N.J.S.A. 59:9-2(d), provides that:

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. For purposes of this section medical treatment expenses are defined as the reasonable value of services rendered for necessary surgical, medical and dental treatment of the claimant for such injury, sickness or disease, including prosthetic devices and ambulance, hospital or professional nursing service.

Plaintiff contends, correctly we conclude, that the requirements of N.J.S.A. 59:9-2(d) do not apply to acts undertaken by a public employee that are not within the scope of employment or that constitute a crime, actual fraud or willful misconduct. See, e.g., Jobes v. Evangelista, 369 N.J. Super. 384, 400 (App. Div.) certif. denied, 180 N.J. 457 (2004) (holding that the "actual malice" proviso of N.J.S.A. 59:3-14b relieves a plaintiff of the burden to meet the threshold for non-economic damages established by N.J.S.A. 59:9-2d). See also Taglieri v. Moss, 367 N.J. Super. 184, 195-97 (App. Div. 2004) (rejecting the contention that the threshold established by the Tort Claims Act serves to bar recovery against a public employee even if his conduct was outside the scope of his employment).

N.J.S.A. 58:3-14 provides for an expressed exception to the immunity otherwise accorded to public employees, by stating:

a. Nothing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct.

 
b. Nothing in this act shall exonerate a public employee from the full measure of recovery applicable to a person in the private sector if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct.

Therefore, we are satisfied the court erred by granting summary judgment "due to plaintiff's failure to provide timely medical experts to establish proximate causation as to any injuries or to establish injuries, failure to meet the requirements of the Tort Claims Act, N.J.S.A. 59:9-2(d) . . . ." But we draw a dramatic distinction between the alleged conduct of Dobleman and the alleged conduct of the other defendants.

Plaintiff's complaint alleged that Dobleman sexually assaulted plaintiff while she was incarcerated at Camden County Correctional Facility. This conduct, if true, would have clearly been for defendant's own personal gratification and must be seen as outside the scope of his employment. See Doe v. United States, 769 F.2d 174, 175 (4th Cir. 1985); Doe v. Swift, 570 So. 2d 1209, 1212, (Ala. 1990). Since the acts alleged against Dobleman are outside the scope of his employment as a corrections officer, the Tort Claims Act's permanent injury and monetary threshold requirements are inapplicable.

By contrast, the complaint merely alleged that Foster and Derr allowed plaintiff to proceed unescorted toward the law library. Plaintiff merely speculates as to the roles played by Foster and Derr. See R. 4:46-5a. The alleged conduct may constitute negligence or a breach of duty, but it does not constitute a crime, actual fraud, actual malice or willful misconduct. Brill v. Guardian Life Ins. Co. of Am., supra, 142 N.J. at 540 (directing that "when the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court should not hesitate to grant summary judgment").

Plaintiff is entitled to prove whether Dobleman forced her to perform sexual acts by threatening her and the credibility the jury derives from it. Her allegations and Dobleman's denials raise a genuine issue of material fact as to whether she engaged in consensual conduct, as alleged by Dobleman, or she submitted to force, as she alleged.

The court properly granted summary judgment as to defendants Foster and Derr since no evidence was set forth that they knew a sexual assault was about to occur or were involved in it in any way. The officers did not act outside the scope of their employment merely because they failed to follow the prison's rules, which forbid an inmate from traveling unescorted. See Farmers Ins. Group v. County of Santa Clara, 906 P.2d 440, 451 (Cal. 1995) (observing that "the scope of employment may include tortious conduct that disregards the employer's express orders").

Likewise, plaintiff failed to demonstrate any facts that would support a claim that the County of Camden acted willfully or with actual malice. The court did conclude that the facts were sufficiently unclear as to warrant a trial on the civil rights allegations of plaintiff's complaint, but plaintiff then voluntarily dismissed those claims.

The trial court properly concluded that plaintiff had failed to raise any genuine issue of fact as to Derr and Foster for the civil rights allegations. On the other hand, the civil rights claims against Dobleman, were improperly dismissed by the court. That relief was granted because the complaint was not attached as a part of plaintiff's opposing papers. Plaintiff's request to provide the complaint during the hearing was denied.

"In order to prove a claim under 42 U.S.C.A. 1983, a plaintiff must show a violation of a right secured by the Constitution or laws of the United States committed by a person acting under color of state law." Kollar v. Lozier, 286 N.J. Super. 462, 473 (App. Div. 1996). The conduct must shock the conscience of the court. Ibid. We agree with plaintiff that her allegations of Dobleman's conduct, if true, would violate 42 U.S.C.A. 1983 since Dobleman would have acted under color of state law and such conduct would have violated the Due Process Clause of the Fourteenth Amendment since we would observe it as shocking this court's conscience. See Kollar v. Lozier, supra, 286 N.J. Super. at 472.

The trial judge acted within his discretion to deny any further requests by plaintiff to extend discovery. Pursuant to R. 4:24-1(c), "[a]bsent exceptional circumstances, no extension of the discovery period may be permitted after . . . [a] trial date is fixed." Plaintiff did not assert any exceptional circumstances on May 16, 2005, in asking the court to allow further discovery. As a result of the court's denial, plaintiff voluntarily dismissed the claim against the County with prejudice because plaintiff could not meet the burden. Therefore, plaintiff cannot reinstate that claim, since a consent order is not appealable. Winberry v. Salisbury, 5 N.J. 240, 255, certif. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 2d 638 (1950).

Although, an expert's report was not required to be submitted to withstand the motion for summary judgment, we cannot and do not conclude that the court abused its discretion by refusing to allow an expert's report that was served on defendants less than twenty days prior to the end of discovery as required by R. 4:17-7. Accord, Jobes v. Evangelista, supra, 369 N.J. Super. at 399. That discretionary determination is authorized under Best Practices.

We observe, however, that the expert was named as a potential witness in plaintiff's interrogatories dated December 31, 2004. Thus, the expert may be eligible to testify at trial. Even if he does not testify, we note that expert testimony is not required to fulfill plaintiff's burden. See Rendine v. Pantzer, 141 N.J. 292, 312 (1995) (holding that "expert testimony or independent corroboration [is not] a prerequisite" to demonstrate pain and suffering or emotional distress).

In summary, we affirm the summary judgment granted in favor of Officers Derr, Foster and the County of Camden. We reverse the grant of summary judgment in favor of Officer Dobleman and as to him remand the matter for trial.

 

Defendants' motion and plaintiff's cross-motion were decided on May 13, 2005, but the order memorializing those rulings was not entered and filed until June 3, 2005.

On or about October 1, 2002, defendant Dobleman pled guilty to official misconduct in the Camden County Superior Court. The sexual assault charge was dismissed by the Camden County Prosecutor's Office. As a result of this guilty plea, defendant Dobleman was terminated from his position of corrections officer with the Camden County Department of Corrections.

(continued)

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A-0132-05T2

July 28, 2006