CAROLINE AVAGNANO-PIROZZI v. BOROUGH OF PARAMUS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3511-08T13511-08T1

CAROLINE AVAGNANO-PIROZZI,

n/k/a CAROLINE GUARINO,

Plaintiff-Appellant,

v.

BOROUGH OF PARAMUS POLICE OFFICER

CHERYL CHINCHAR, a/k/a CHERYL ANN

AVAGNANO, and BOROUGH OF PARAMUS CHIEF

OF POLICE FREDERICK J. CORRUBIA,

Defendants-Respondents,

and

BOROUGH OF PARAMUS POLICE DEPARTMENT

and BOROUGH OF PARAMUS,

Defendants.

_______________________________________

Argued January 20, 2010 - Decided August 12, 2010

Before Judges Fuentes, Gilroy and Simonelli.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Docket No.

L-8649-06.

Andrew Samson argued the cause for appellant

(Baron Samson, attorneys; Mr. Samson, of counsel

and on the brief).

Donald A. Caminiti argued the cause for

respondent Cheryl Chinchar (Breslin and Breslin,

attorneys; Mr. Caminiti, on the brief).

Robert J. Hitscherich argued the cause for

respondent Frederick J. Corrubia (Zisa &

Hitscherich, attorneys; Mr. Hitscherich, on

the brief).

PER CURIAM

Plaintiff Caroline Avagnano-Pirozzi, now known as Caroline Guarino, appeals from the order of the Law Division dismissing her cause of action against defendants Paramus Police Officer Cheryl Chinchar, also known as Cheryl Avagnano, and Paramus Chief of Police Frederick Corrubia. Plaintiff's complaint against these defendants alleged violations of her constitutional rights, intentional infliction of emotional distress, and fraudulent concealment. We affirm the court's decision dismissing plaintiff's claims against Corrubia. We reverse, however, the decision dismissing the claims against Chinchar that are connected with the propriety of the stop of plaintiff's car.

I

We make the following comments as a means of providing context to the facts we are about to recite. The record suggests that Chinchar and plaintiff were romantically involved with the same man, Paramus Police Officer Dean Avagnano. Plaintiff was married to Avagnano; Chinchar was also employed as a police officer with the Paramus Police Department and therefore had regular contact with Avagnano.

The incident that gave rise to this lawsuit occurred on October 15, 2002. On that day, Chinchar, while on a break from her police duty, stopped at her residence on Falmouth Avenue in Paramus to check on her son. While at home, Chinchar claims that she observed plaintiff drive down Falmouth Avenue, make an illegal u-turn, and speed away. Plaintiff contends that she was traveling on Falmouth Avenue because she was taking a shortcut to Bergen Community College, where she attended nursing school. She made the u-turn as a means of getting back on the right road after taking an incorrect turn.

Chinchar pulled over plaintiff's vehicle for suspected speeding and stalking. What transpired after this fateful decision can best be characterized as an emotionally charged encounter between these two women. Chinchar accused plaintiff of stalking her and her son. Chinchar also told plaintiff that she had "no business" being in the area where Chinchar resided. Chinchar questioned plaintiff about her activities and asked to see her driver's license and vehicle registration.

The conversation quickly moved away from plaintiff's ostensible traffic violation and turned to personal matters between the two women and Avagnano, plaintiff's then-estranged husband. It appears that plaintiff suspected that Chinchar was having an affair with Avagnano; Chinchar, in turn, believed that plaintiff was harassing her because of the alleged affair.

As both the DVD and transcript show, Chinchar's demeanor quickly deteriorated. She launched into an emotional tirade, during which she accused plaintiff of calling her cell phone for the purpose of harassing her. Chinchar screamed these accusations at plaintiff, using profanity to accentuate her position. Plaintiff reported the incident to the Paramus Police Department later that evening. On October 25, 2002, the Paramus Police Department formally charged Chinchar with "Conduct Unbecoming An Officer"; she pled guilty and received a ninety-day suspension.

Plaintiff claimed that the incident left her emotionally and psychologically battered. She received psychological treatment from November 18, 2002, until June 25, 2005. On January 31, 2007, plaintiff's psychological expert provided a report in which he opined that she suffered from a moderate to severe case of post-traumatic stress disorder that he attributed to plaintiff's encounter with Chinchar.

II

We first address the trial court's decision to dismiss plaintiff's claims against Chinchar. Plaintiff filed a 42 U.S.C.A. 1983 suit against Chinchar, asserting that Chinchar violated her Fourth Amendment right to be free from unlawful seizures when she stopped plaintiff's vehicle without justification. As a threshold issue, Chinchar concedes that she was acting under the color of state law when she stopped plaintiff's car, thus satisfying the state action requirement contained in 42 U.S.C.A. 1983. The question in contention is the propriety of the stop.

The trial court gave the following explanation for dismissing plaintiff's 1983 claim against Chinchar:

The stop of plaintiff's vehicle was videotaped. Although the actual motor vehicle offense is not observed, we first see Officer Chinchar by the plaintiff's motor vehicle. The defendant spoke in an unprofessional manner for which she received a 60 [duty]-day suspension without pay. The conversation of over 13 minutes centered on the alleged relationships of the plaintiff and the defendant and [involved] hostile allegations peppered with expletives not related to the motor vehicle offense. At no time did the defendant officer draw her weapon, touch the plaintiff, harass the plaintiff or ask the plaintiff to exit the vehicle. The plaintiff after this confrontation was free to drive off and was not followed by the officer from the scene.

. . . .

The plaintiff did not receive a traffic citation for the alleged offense.

While the defendant officer was walking away she did say ["]you're dead["] . . . The utterance was akin to contretemps and not a terroristic threat as evidence by the context of the entire DVD viewed by the Court. In short there was no immediacy that the threat would actually be carried out or that it was even a threat of violence, only that the actions of the plaintiff were ended.

. . . .

With regard to the civil rights claim against Officer Chinchar that also is dismissed as mere verbal vituperative utterances with expletives is not actionable under [42 U.S.C.A. 1983, 1985, 1986] as there was no physical touching or assault in this case. It was an argument over stalking and harass[ing] conduct resulting over an argument by these two women who apparently shared the same lover who was a police officer. That does not create a constitutional violation. The stop was precipitated by an alleged motor vehicle offense. While no charges were brought by the officer, the plaintiff was never asked to even get out of the vehicle and was not even given a traffic citation. The entire argument appears to have lasted less than 15 minutes.

We use the same standard as the trial court when reviewing a grant of summary judgment. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment should be granted when all the submitted evidence shows "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).

When determining if genuine issues of fact are in dispute, the court must decide "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." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). However, "[i]f there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact[.]" Ibid. "Bare conclusions in the pleadings, without factual support" will not defeat a motion for summary judgment. U.S. Pipe & Foundry Co. v. Am. Arbitration Ass'n, 67 N.J. Super. 384, 399 (App. Div. 1961).

42 U.S.C.A. 1983 grants a civil cause of action to compensate individuals for violations of their constitutional rights. It provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

[42 U.S.C.A. 1983.]

In order to maintain a cause of action under 1983, a plaintiff must make two showings: 1) that a person deprived the plaintiff of a federally protected right; and 2) that person acted under the color of state law at the time of the deprivation. Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1923, 64 L. Ed. 2d 572, 577 (1980) (relying on Monroe v. Pape, 365 U.S. 167, 171, 81 S. Ct. 473, 476, 5 L. Ed. 2d 492, 496 (1961)).

As noted earlier, Chinchar concedes that she was acting under the color of state law when she stopped plaintiff's vehicle. She further claims that her decision to stop the vehicle was prompted by her observation that plaintiff was speeding. Plaintiff denies this claim. In the absence of uncontroverted evidence to support Chinchar's statement that she acted as any other officer would have acted under similar circumstances, we are left with a materially contested issue.

We evaluate the propriety of Chinchar's conduct under an objective standard. Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89, 95 (1996). We must ask "whether the officer['s] actions are 'objectively reasonable' in light of the facts and circumstances confronting [the officer], without regard to [his or her] underlying intent or motivation." Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443, 456 (1989) (relying on Scott v. United States, 436 U.S. 128, 137-39, 98 S. Ct. 1717, 1723-24, 56 L. Ed. 2d 168, 177-79 (1978)). An officer's subjective evil intent will not create a Fourth Amendment violation where the officer's actions are objectively reasonable. Graham v. Connor, supra, 490 U.S. at 397, 109 S. Ct. at 1872, 104 L. Ed. 2d at 456.

Because the reasons for Chinchar's decision to stop plaintiff's car are disputed, the trial court erred in finding, as a matter of law, that plaintiff did not establish a prima facie claim actionable under 1983. The question concerning the propriety of the stop must be decided by a jury.

We next address the court's decision to dismiss plaintiff's cause of action based on the tort of intentional infliction of emotional distress. The motion judge gave the following reasons for granting summary judgment in Chinchar's favor:

With regard to intentional infliction of emotional [distress] damages it is likewise dismissed as barred by the Torts Claims Act. The conduct here was not so outrageous in character and so extreme [as] to go beyond the bounds of decency . . . . The stop was not intended to intentionally cause emotional injury. Intentional infliction of emotional distress cannot be found based on rude and vituperrious behavior. While Officer Chinchar's conduct was certainly inappropriate, it certainly was not unendurable where plaintiff herself engaged interactively in the discourse that ensued.

In order to prevail on an intentional infliction of emotional distress claim, plaintiff "must establish intentional and outrageous conduct by the defendant, proximate cause, and distress that is severe." Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988). In order to demonstrate intent, plaintiff must show that Chinchar intended "both to do the act and to produce emotional distress" or that she acted "recklessly in deliberate disregard of a high degree of probability that emotional distress will follow." Ibid.

Second, plaintiff must also prove that the conduct was "extreme and outrageous," meaning that the conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Ibid. (quoting Restatement (Second) of Torts 46 comment d (1965)). Third, plaintiff must show that Chinchar's actions were the proximate cause of her emotional distress. Buckley, supra, 111 N.J. at 366. Finally, plaintiff must demonstrate that the emotional distress she suffered was "so severe that no reasonable man could be expected to endure it." Ibid. (quoting Restatement, supra, 46 comment j).

Evaluating a claim of emotional distress is both a factual and legal determination. Buckley, supra, 111 N.J. at 367. We must determine "whether as a matter of law such emotional distress can be found" and then the jury decides if that emotional distress has been proven. Ibid. There is no requirement that a plaintiff suffer physical injury. Ibid.

Here, plaintiff failed to demonstrate an intentional infliction of emotional distress claim because she has not alleged conduct that is so extreme and outrageous that it is intolerable. Our Supreme Court has recognized that liability does not extend under this tort "to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Taylor v. Metzger, 152 N.J. 490, 509 (1998) (internal citation omitted).

On the other hand, certain utterances, such as racial slurs, have been held to be extreme and outrageous. See id. at 510 (finding that a superior's use of a racial slur towards a subordinate is not a mere insult). We have no doubt that Chinchar's actions as a police officer were highly unprofessional and utterly unbecoming of a law enforcement official. Chinchar was also disrespectful to plaintiff as a human being. We are satisfied that any reasonable person in plaintiff's position would have felt embarrassed and possibly even humiliated by this experience. That being said, Chinchar's language and conduct do not rise to the level of extreme and outrageous conduct necessary to support a cause of action for intentional infliction of emotional distress. We thus affirm the motion judge's grant of summary judgment for this claim.

We next consider the trial court's decision to dismiss plaintiff's claims under the verbal threshold provisions of the Tort Claims Act (TCA), N.J.S.A. 59:9-2d, which bars claims

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.

This requires plaintiff to demonstrate "an objective permanent injury" and "a permanent loss of a bodily function that is substantial" to recover damages for pain and suffering. Toto v. Ensuar, 196 N.J. 134, 145 (2008) (internal citation omitted).

We agree with the trial court's determination that plaintiff's alleged psychological injuries do not satisfy this statutory standard. Although the motion judge did not consider plaintiff's psychological injuries under the "aggravating circumstances" exception to the permanent loss of a bodily function requirement, Collins v. Union County Jail, 150 N.J. 407, 413, 420-21 (1997), there is nothing in this record that would support a finding that plaintiff's injuries satisfy this standard. We thus affirm the trial court's ruling in this respect.

III

Finally, we affirm the dismissal of plaintiff's claims against Corrubia, substantially for the reasons expressed by the trial court. We add only the following brief comments concerning the claim for fraudulent concealment that was based on Corrubia's alleged tampering with the videotaped evidence of the traffic stop in question.

The tort of fraudulent concealment has a two-year statute of limitations. N.J.S.A. 2A:14-2. Plaintiff originally filed her complaint on October 15, 2004. In order to avoid default, Chinchar's counsel agreed to waive any statute of limitations defense and allowed plaintiff to refile her complaint. The record does not contain a similar agreement between plaintiff and Corrubia.

Plaintiff claims that she did not learn of Corrubia's involvement in the alleged videotape tampering until April 2004. Her second complaint was not filed until November 20, 2006. Under this sequence of events, the statute of limitations against Corrubia expired, at the latest, in April 2006, two years after plaintiff's discovery of Corrubia's alleged tampering with the videotape. Plaintiff filed the complaint in November 2006, well beyond the expiration of the statute of limitations. There is also no evidence in the record demonstrating that Corrubia agreed to waive this defense.

IV

 
In summary, we reverse the trial court's decision dismissing plaintiff's 1983 cause of action against Chinchar based on an unconstitutional motor vehicle stop and subsequent seizure of her person and remand this matter for trial. We affirm, however, the court's ruling dismissing plaintiff's remaining claims against Chinchar. We also affirm the court's dismissal of plaintiff's claims against Corrubia.

The appellate record includes a DVD recording of the incident filmed from Chinchar's police vehicle and a transcription of the encounter.

The question of damages is contested. In a report dated November 10, 2007, a psychiatrist retained by defendants refutes plaintiff's expert's opinion and diagnosis.

(continued)

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A-3511-08T1