DANTE METTA v. MIDDLETOWN TOWNSHIP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DANTE METTA,

Plaintiff-Appellant,

v.

MIDDLETOWN TOWNSHIP, MIDDLETOWN

TOWNSHIP POLICE DEPARTMENT,

P.O. PATRICIA COLANGELO, P.O.

BRIAN DILWORTH AND P.O. NEAL

HANSEN,

Defendants-Respondents.

________________________________

MARK HARRY ANDREWS,

Third-Party Plaintiff,

v.

FRANCESCA JULIAN,

Third-Party Defendant.

________________________________

Argued May 15, 2013 Decided

 

Before Judges Axelrad and Haas.

 

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9430-09.

 

Ronald M. Gutwirth argued the cause for appellant.

 

Christine G. Hanlon argued the cause for respondents (Archer & Greiner, P.C., attorneys; Ms. Hanlon, on the brief).

PER CURIAM

In this personal injury case, plaintiff Dante Metta appeals the December 2, 2011 order of the Law Division granting the municipal defendants' motion for summary judgment. He also appeals the court's March 30, 2012 order denying his motion for reconsideration and his motion for leave to amend his complaint and for an extension of the discovery period. After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

We recite the record in the light most favorable to plaintiff, the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff's girlfriend, Francesca Julian, was formerly married to Mark Andrews. Pursuant to a December 21, 2005 consent order entered in their divorce proceeding, Julian and Andrews agreed to exchange their daughter for parenting time at the Middletown Police Department. There is no competent evidence in the record to indicate the police department was ever made aware of the order.

On September 5, 2008, Andrews went to the police station with a friend, Angelo Aceta, to pick up his then five-year-old daughter from Julian. At approximately 8:15 p.m., Andrews went into the station and asked the officer at the desk, Corporal

Patricia Colangelo, to come outside to observe the exchange. She had never met Andrews before that evening.

Corporal Colangelo had previously sustained a shoulder injury and, therefore, she had been assigned to "modified duty, desk duty. So, we don't have any contact with any prisoners we are processing." She testified at the municipal hearing that an officer assigned to desk duty is responsible for "handling all walk in's." The officer explained that, in the case of a custody exchange, "[u]sually [the parents] come to the window and it is, can you go out in the parking lot to watch the exchange." There is no evidence in the record that the Middletown Township Police Department has any standard operating procedures (SOPs), rules, regulations, or guidelines for how officers are to handle custody exchanges or which officers may do so.

In response to his request, Corporal Colangelo accompanied Andrews outside. She brought a cell phone with her. She did not bring a radio, a weapon, or handcuffs.

Corporal Colangelo and Andrews left the building and crossed through a small parking area reserved for police cars. They then approached some steps that led up to another parking level, where visitors could park. At that point, Andrews told the officer he could see Julian sitting in her car at the other side of the lot taking pictures of them. At first, Corporal

Colangelo could not see Julian, but she could see "flashes from the camera." The officer had never met either Julian or plaintiff before. Julian had brought plaintiff with her to the parenting time exchange. When she saw Andrews, Julian began videotaping him from her car.1

Plaintiff got out of the car with Julian's daughter. They were about thirty feet away from the steps where Corporal Colangelo and Andrews were waiting.2 The DVD begins with plaintiff walking toward Andrews and Corporal Colangelo with the child. He held the child's hand as she walked on plaintiff's right side.

As plaintiff drew nearer to the top of the steps, the child began holding onto his leg and stepping behind him. Plaintiff and the child stopped near the top of the steps and Andrews and the officer remained at the bottom. A female passerby walked in from the right and began to approach the stairs to go down to the police station. As she did so, Andrews walked up the steps toward his daughter. At that point, the DVD shows plaintiff raising his arm and it appears he is attempting to stop Andrews

from taking his child. It is not clear from the DVD whether plaintiff made contact with Andrews.

The tape shows that Andrews then slapped at plaintiff and the two men begin to grab at each other. At that point, there is a break in the DVD we were provided. The trial court described what occurred during that break as follows:

Next thing you know, Mr. Andrews strikes Mr. Metta and it looks like they fall to the ground, but as I said, for 20 seconds, that video is all messed up, because the - - the young girl's mother, [who is] videotaping this and not taking part in having the transfer of the girl, is now screaming and running out of her car and, consequently, the video's all over the lot.3

 

Corporal Colangelo testified at the municipal hearing that she was primarily concerned for the child's safety. Julian was concentrating on filming the incident and she was not attending to the child, who is no longer seen in the DVD. However, the child's screams can be heard on the DVD. Julian did yell to the child to go back to the car as she continued to walk away from the car toward the top of the steps so she could continue to tape the incident. When Julian got to within approximately ten to fifteen feet of the top of the steps, where the men were now laying on the ground clutching each other, she yelled, "I got

the whole thing on camera, I'm making a movie, man." The child is unattended somewhere in the parking lot behind her.

Corporal Colangelo called for backup on her cell phone. She also asked the woman who was passing by to go into the station to get help and the DVD shows the woman entering the station to seek assistance.

Corporal Colangelo repeatedly ordered plaintiff and Andrews to stop fighting, but they refused to comply. Neither man was throwing any punches. They were lying almost side-by-side, clutching each other on the ground, with plaintiff slightly on top. It is not clear how or where plaintiff is clutching Andrews. The two men are immobile. Corporal Colangelo stood over them, placed her hand on plaintiff's back, and implored the men to stop. She told them "this is ridiculous" and "it doesn't have to be like this."

Julian continued to yell things while she taped the incident. She continued to state she had "the whole thing on tape" and she also taunts Andrews by saying, "you threw the first punch, Mark. I got it right on tape, honey." Corporal Colangelo repeatedly ordered Julian to stop taping the incident and to go back to her car and attend to her daughter, but Julian refused to do so.

 

Less than a minute later, Lieutenant Neal Hansen, who was also working on desk duty that evening, came out of the station. Plaintiff and Andrews were still on the ground clutching each other. Plaintiff was on top of Andrews, but Andrews still had plaintiff in a headlock. Lieutenant Hansen put "a compliance hold" on plaintiff's right arm to separate him from Andrews and he ordered Andrews to move away and sit down on the grass. Andrews immediately did so. By this time, Officer Brian Dilworth had pulled up in a police car to assist. Other officers had also arrived.

Julian continued to shout that she had Andrews "on tape, throwing the first punch." However, Corporal Colangelo told Lieutenant Hansen that Andrews "went to go get his daughter and this guy started to push back." Lieutenant Hansen and Corporal Colangelo again told Julian to go back to her car. At one point, she yells out "where are you?" and her daughter is heard replying from somewhere in the parking lot, "right here."

The officers took plaintiff and Andrews into custody. The DVD concludes with Lieutenant Hansen again asking Julian to calm down and return to her car.

Plaintiff and Andrews were issued summonses for disorderly conduct, N.J.S.A. 2C:33-2. Following a municipal court trial, both men were found guilty of this charge. Plaintiff appealed

his conviction to the Law Division and the conviction was affirmed.4

Plaintiff alleged he sustained a complete rupture and tear of the ulnar collateral ligament of his right thumb. According to his doctor's report, the injury was "causally related to the assault which occurred on September 5, 2008." There is nothing in the doctor's report to indicate that any of the officers were responsible for causing plaintiff's injury.

On November 16, 2009, plaintiff filed a complaint against Middletown Township, the Middletown Township Police Department, Corporal Colangelo, Lieutenant Hansen, and Officer Dilworth (collectively, the municipal defendants), and Andrews. Plaintiff asserted the three officers "negligently, carelessly and recklessly executed their ministerial duties as police officers" and, as a result, he had "sustained severe and permanent injuries[.]" Plaintiff alleged that Middletown Township and its Police Department were "vicariously liable" for the negligence of the three officers. Finally, plaintiff claimed that Andrews "unintentionally inflicted personal injuries upon [him], in the course of intentionally attempting to reach" his daughter.

The municipal defendants filed an answer and argued that plaintiff's claims were barred by the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to -12.3 (the Act). Andrews filed an answer, together with a counterclaim and third-party complaint against plaintiff and Julian.

After the completion of the discovery period, the municipal defendants filed a motion for summary judgment, asserting they were immune from suit under the Act. On December 2, 2011, Judge Richard S. Rebeck granted the motion in a thorough and thoughtful oral opinion. The judge found that the decision to assign Corporal Colangelo to the desk that evening and the actions of the officers were all "discretionary activities" for which the municipal defendants enjoyed immunity from suit. As an additional reason for dismissing the suit against the municipal defendants, the judge found plaintiff had failed to produce an expert who could testify that the municipal defendants had breached any duty of care to plaintiff.

Over three months later, plaintiff filed a motion for reconsideration, together with a motion to extend the discovery period and for leave to file an amended complaint. In the amended complaint, plaintiff sought to raise a civil rights claim under 42 U.S.C. 1983, asserting false arrest, false imprisonment, and that the police officers used "excessive force" in breaking up the fight between him and Andrews. Judge

Rebeck denied plaintiff's motions in an oral opinion and order issued on March 30, 2012.

On June 25, 2012, plaintiff and Andrews filed a stipulation of dismissal with prejudice of their respective civil claims against each other. This appeal followed.

II.

On appeal, plaintiff argues the judge erred in concluding the municipal defendants were immune from liability under the Act. He asserts Corporal Colangelo should not have been assigned to monitor the custody exchange because she was on desk duty that evening. He argues "the assignment of a temporarily disabled officer to active police duty constitutes ministerial negligence" and, if a different officer had been assigned to desk duty that evening, he would not have been injured. Therefore, plaintiff claims the municipal defendants are liable for the injury he received in his altercation with Andrews. We disagree with plaintiff's contentions and, accordingly, affirm the grant of summary judgment to the municipal defendants and the denial of plaintiff's subsequent motions.

We review summary judgment de novo and apply the same standard as the trial court under Rule 4:46-2. Liberty Surplus Ins. Corp. v. Nowell Amoroso P.A., 189 N.J. 436, 445-46 (2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we

determine whether the moving party has demonstrated there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In doing so, we view the evidence in the light most favorable to the non-moving party, Brill, supra, 142 N.J. at 540, and review the legal conclusions of the trial court de novo, without any special deference, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The Act specifies that, "[e]xcept as otherwise provided[,] . . . a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee . . . ." N.J.S.A. 59:2-1(a). Thus, the Act's dominant theme is immunity, with liability as the exception. Rochinsky v. Dep't of Transp., 110 N.J. 399, 408 (1988). A public entity is entitled to immunity unless there is a specific provision in the Act imposing liability. Malloy v. State, 76 N.J. 515, 518-19 (1978). Therefore, even if a provision of the Act establishes liability, a corresponding provision of the Act may provide the public entity with immunity. Id. at 521.

N.J.S.A. 59:5-4 provides that "[n]either a public entity nor a public employee is liable for failure to provide police protection service or, if police protection service is provided,

for failure to provide sufficient police protection service." The purpose of this statute is to recognize the "judicially accepted principle that the allocation of equipment and personnel by public entities' involves the type of governmental policy determination which must remain free from the threat of tort liability." Suarez v. Dosky, 171 N.J. Super. 1, 8-9 (App. Div. 1979) (quotation omitted), certif. denied, 82 N.J. 300 (1980).

Thus, decisions concerning "[h]ow many officers a town should employ, how each should be equipped and whether a town should have any police at all are political decisions which should not be made the subject of any tort duty." Id. at 9. We have held that this section applies to the acts of "rank and file employees." Sczyrek v. County of Essex, 324 N.J. Super. 235, 242-43 (App. Div. 1999), certif. denied, 163 N.J. 75 (2000).

However, this section does not provide immunity from liability for negligence in the performance of "ministerial police duties" once the police have decided to protect. Suarez, supra, 171 N.J. Super. at 7-10. "An act is 'ministerial' if it is 'one which a person performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority, without regard to the exercise of his [or her] own judgment upon the propriety of the act being done.'" Henebema

v. South Jersey Transp. Auth., ___ N.J. Super. ___, ___ (App. Div. 2013) (slip op. at 20) (alteration in original) (citing Morey v. Palmer, 232 N.J. Super. 144, 151 (App. Div. 1989)).

On the other hand, a public entity's or employee's "discretionary" actions remain immune. A "discretionary act . . . calls for the exercise of personal deliberations and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. Kolitch v. Lindedahl, 100 N.J. 485, 495 (1985) (quotation omitted).

Applying these principles to the undisputed facts of this case, it is clear that the municipal defendants are immune from suit. The decision to assign Corporal Colangelo to "modified duty, desk duty" was the type of discretionary staffing decision police departments routinely make. Contrary to plaintiff's contention, there is no competent evidence in the record to indicate the officer was "disabled," temporary or otherwise. She had sustained a shoulder injury, but was deemed capable by her superiors to perform the duties of a desk officer. There is no competent evidence in the record to suggest that a police officer who has been assigned to modified duty is not fully capable of handling the monitoring of a custody exchange.

As a desk officer, Corporal Colangelo was responsible for handling "walk ins." As she explained, when Andrews came to the

counter and asked that she accompany him to the parking lot to monitor the custody exchange, she did so as part of her duties. There were no SOPs, rules, regulations, or guidelines mandating that she perform this function in a particular manner or that she bring any specific piece of equipment with her. It was completely in her discretion.

Once plaintiff began scuffling with Andrews and the men fell to the ground, Corporal Colangelo determined, in her discretion, to first direct her attention toward the five-year-old child, who was suddenly left unattended in a parking lot near a highway as Julian steadfastly kept to her videotaping. The officer then radioed for back-up, directed a passing citizen to enter the station to seek assistance, continued to order plaintiff and Andrews to stop holding each other, and repeatedly told Julian to stop taping and take her child back to her car. The officer stayed with the men, who were not throwing punches, but were embracing on the ground, until Lieutenant Hansen and Officer Dilworth responded about a minute after Corporal Colangelo called for backup.

All of Corporal Colangelo's actions, of which plaintiff complains, were plainly discretionary, rather than ministerial. As already noted, there were no SOPS mandating that she perform these duties in a specific manner. Instead, she had to react to the situation as it unfolded, making decisions moment-by-moment,

and doing so in an admirable fashion. Therefore, the municipal defendants are immune from plaintiff's claim that the officer's assignment that day, and how she performed her assigned duties in her discretion, made them all liable for the injury plaintiff alleged he sustained in his scuffle with Andrews.

Plaintiff argues the police department should have known that there was going to be "trouble" during the custody exchange on September 5, 2008 because of the consent order that had been filed nearly three years earlier requiring the exchange to be conducted at the station. However, nothing in the record suggests that any officer was aware of the order and neither plaintiff nor Julian testified they provided the order to Colangelo on September 5. Moreover, the order was entered by the consent of the parties. The Family Part judge made no finding that the arrangement was required because of a threat of violence by either of the parents.

Plaintiff also argues that Julian's attorney sent a letter to the police department advising that a custody exchange would occur on September 5 and asking to "have an officer present as there is an existing domestic violence order in place." The letter is dated September 5, the same day as the incident. There is nothing in the record, by way of certification or testimony, to indicate the letter was ever sent by the attorney or that it was ever received by the police department. The

letter was not produced in discovery. Colangelo testified at the municipal hearing she never received or reviewed the letter. Therefore, plaintiff's argument that the letter placed a duty on the officers to protect plaintiff in any way different from what occurred lacks merit.

We also reject plaintiff's argument that this case is controlled by our recent decision in Henebema, supra. In that case, we held that the question of whether 9-1-1 operators had acted in a ministerial or discretionary manner was a fact question that had to be submitted to a jury. (Slip op. at 24). However, in Henebema, the manner in which the operators were required to respond to calls was covered by written SOPs and protocols. Expert testimony was also provided on the issue of whether the operators had complied with the SOPS. Id. at 23.

In this case, however, there were no SOPs, policies, or guidelines for responding to walk-in requests for custody exchange monitoring. As Judge Rebeck found, plaintiff failed to offer any expert report or testimony indicating that anything the municipal defendants did was improper, unauthorized, or negligent. Under those circumstances, this matter was clearly ripe for summary judgment.

In sum, the actions of the municipal defendants were purely discretionary, rather than ministerial. Thus, we discern no basis to disturb the judge's determination to grant summary

judgment to defendants because they were immune from liability under the Act.

III.

Plaintiff's remaining arguments also lack merit. He argues the judge erred in denying his motion for reconsideration. We disagree. A motion for reconsideration is addressed to the "'sound discretion of the court to be exercised in the interests of justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Reconsideration is reserved for "cases that fall into that narrow corridor" where the prior decision was "based upon a palpably incorrect or irrational basis," or failed to consider or appreciate "probative, competent evidence," or where a "litigant wishes to bring new or additional information to the [c]ourt's attention which it could not have provided on the first application." D'Atria, supra, 242 N.J. Super. at 401.

Here, the judge did not fail to consider or appreciate any of plaintiff's arguments. Nor did plaintiff present anything new on his motion for reconsideration. We therefore conclude that the judge's denial of the motion was an appropriate exercise of his discretion.

Finally, the judge did not abuse his discretion in denying plaintiff's belated motion to reopen discovery and for leave to file an amended complaint. The discovery period had long since

closed when the motion was made and the municipal defendants had already been dismissed from the case. Plaintiff never identified any specific or necessary information that would be produced during discovery. In re Ocean County Comm'r of Registration, 379 N.J. Super. 461, 478 (App. Div. 2005). He also failed to adequately explain why he waited two years before seeking to amend the complaint. Under these circumstances, we perceive no basis to disturb Judge Rebeck's decision to deny plaintiff's motion.

Affirmed.

1 The DVD produced by Julian was introduced in evidence on defendant's motion for summary judgment and described by the trial judge on the record. At oral argument, the parties provided us with a copy of the DVD and we have carefully reviewed it.

2 Aceta was sitting on the left side of the steps as plaintiff and the child approached.

3 Thus, it appears that the portion of the DVD we were provided simply excluded this twenty-second portion where the video was "messed up."

4 Plaintiff has appealed his conviction to this court under Docket No. A-3568-10. That appeal remains pending.

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