NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-6163-12T2
DANNY CAICEDO, an infant by his Father and Natural Guardian APPROVED FOR PUBLICATION SEGUNDO CAICEDO, and SEGUNDO CAICEDO, individually, March 17, 2015
Plaintiffs-Respondents, APPELLATE DIVISION
v.
FABIAN CAICEDO, CITY OF NEWARK POLICE DEPARTMENT, and CITY OF NEWARK,
Defendants-Appellants. ___________________________________________
Argued February 25, 2015 – Decided March 17, 2015
Before Judges Alvarez, Maven, and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-319-11.
Avion M. Benjamin, Assistant Corporation Counsel, argued the cause for appellants (Anna P. Pereira, Corporation Counsel, attorney; Steven F. Olivo, Assistant Corporation Counsel, and Ms. Benjamin, on the briefs).
Casey J. Woodruff argued the cause for respondents (Bramnick, Rodriguez, Mitterhoff, Grabas & Woodruff, LLC, attorneys; Mr. Woodruff, on the brief).
The opinion of the court was delivered by
CARROLL, J.A.D. This appeal follows a jury verdict for damages sustained by
plaintiff Danny Caicedo.1 Plaintiff was severely injured when
the bicycle he was riding was struck by a police cruiser
operated by defendant Fabian Caicedo2 while on duty with
defendant City of Newark Police Department.
Officer Caicedo had arrested an individual for a disorderly
persons offense, and was transporting the prisoner to police
headquarters for processing when he struck plaintiff's bicycle.
At trial, the judge declined to instruct the jury that Officer
Caicedo was entitled to good-faith immunity under N.J.S.A. 59:3-
3, which provides that "[a] public employee is not liable if he
acts in good faith in the execution or enforcement of any law."
This appeal requires us to decide whether the statute exempts
defendants from liability where the police officer had effected
an arrest and was transporting the prisoner under non-emergent
circumstances. We decide that it does not. We also reject
defendants' arguments that the jury's verdict was against the
weight of the evidence, and that the trial court erred in
failing to order a new trial or a remittitur.
1 Suit was filed by Segundo Caicedo, individually and as guardian for his minor son, Danny Caicedo. For purposes of this opinion we refer to Danny Caicedo as plaintiff. 2 Plaintiff and defendant Fabian Caicedo share a common surname but are not related. For clarity we refer to defendant as Officer Caicedo.
2 A-6163-12T2 I.
The collision occurred on June 29, 2010, immediately
following plaintiff's eighth-grade graduation. Plaintiff,
accompanied by three friends, was heading north on Broadway, a
busy Newark street with two lanes of traffic in each direction
and a twenty-five mile-per-hour speed limit. Two of the boys
were walking, while plaintiff and a friend, M.G., rode their
bicycles along the shoulder of the roadway. Plaintiff testified
that he was riding his bike straight, not swerving. M.G. and
one of the walkers, B.P., both agreed. After a few seconds,
M.G. crossed the street to return home; a minute or two later,
plaintiff also decided to cross. Plaintiff described the events
as follows:
I was continuing to go straight, I was talking to them. And then after I said [bye], I looked over my shoulder [and] the light was still red. There [were] no cars in sight, so I decided to cross.
. . . .
. . . I turned, and all of a sudden, I just heard a loud screech[,] . . . and then I tried to turn back to the shoulder but it was too late, I got hit.
Plaintiff was then struck by Officer Caicedo's police vehicle
and lost consciousness.
Plaintiff admitted that he did not cross at an
intersection, and that he knew this was unsafe. Neither
3 A-6163-12T2 plaintiff, M.G., nor B.P. heard a horn or siren before the
collision. B.P., on hearing the brakes screech, turned in time
to observe the impact. He was ten feet from the collision, and
estimated that Officer Caicedo's vehicle was travelling at a
speed of forty to forty-five miles per hour. B.P. based his
estimate of the vehicle's speed on the screeching noise he
heard, which lasted "about ten seconds."
M.G. glimpsed Officer Caicedo's car as it neared plaintiff,
and also estimated that it was travelling at forty to forty-five
miles per hour. M.G. heard the car brake, but did not see the
impact. His speed estimate was based on his observation that
the vehicle was travelling faster than typical Broadway traffic.
Officer Caicedo, a Newark police detective, had just
arrested David Petracca, a suspected drug buyer, for wandering,
and was transporting him back to headquarters in an unmarked
police cruiser. Officer Caicedo and his partner, Detective
Misty Camacho, searched Petracca incident to arrest and
discovered no weapons. Petracca did not resist, struggle, or
refuse to cooperate either during the arrest or the ride to
police headquarters. Since the unmarked vehicle had no
partition, Camacho sat in the rear seat next to Petracca, whose
hands were cuffed behind him. The detectives were about one
block from the police station when the collision occurred.
4 A-6163-12T2 Officer Caicedo testified that he first observed plaintiff
some forty yards ahead. The officer estimated that he was
driving about thirty miles per hour. He saw plaintiff moving
back and forth in a "snake[-]like motion" over both northbound
lanes of the roadway. Contrary to the other witnesses'
testimony, Officer Caicedo stated that he sounded "one quick
burst" of his horn and siren when he was about thirty yards from
plaintiff. After sounding his horn, he saw plaintiff move "all
the way closer to the curb and [] start[] [to] rid[e] straight."
At twenty yards, he moved into the left northbound lane to avoid
plaintiff. According to Officer Caicedo, "[a]s that distance
closed, the cyclist suddenly just turned in, like ma[d]e a hard
[] left and turned in front of me. And that's when I swerved
into oncoming traffic." When he was ten feet away from
plaintiff, the officer was still travelling at thirty miles per
hour.3 Faced with oncoming traffic, Officer Caicedo swerved back
into the northbound lanes, where his front right fender struck
plaintiff's rear tire. When asked why he did not stop on seeing
plaintiff, Officer Caicedo responded: "I wanted to get back to
3 At trial, when questioned how fast he was traveling, Officer Caicedo responded: "I believe it was like [twenty] miles per hour." He was then confronted with his deposition testimony that he was traveling thirty miles per hour, and conceded he "was traveling the same speed at [forty] yards away as [he] was at [ten] feet away."
5 A-6163-12T2 [headquarters] due to the fact that we didn't have a cage in the
car, I wanted to get back safely and my observation was that I
could safely go around into the second right lane around the
cyclist."
The other two occupants of the police vehicle also
testified. Camacho recounted that "as I look[ed] up I [saw]
that my partner [was] going onto the other side, the opposite
side of traffic [into] oncoming traffic. And then to avoid
colliding with oncoming traffic he swerve[d] again towards the
right, and I remember that's where the impact occurred."
Petracca testified that before the collision he saw plaintiff
"just riding kind of in circles on his bicycle." Officer
Caicedo later "swerved to the left to try to avoid impact and
stepped on the brakes." Petracca further stated: "I don't
believe [Officer Caicedo] made it into the other lane of
traffic, but pretty substantially I would say he swerved to try
to avoid impact." Neither detective's report recorded that
Officer Caicedo sounded his horn before the collision.
Plaintiff suffered a comminuted fracture of his right
femoral shaft. He underwent two surgeries, physical therapy,
and treatment for neck and back pain. He suffers from a leg-
length discrepancy and walks with a permanent limp.
6 A-6163-12T2 Prior to trial, plaintiff made an in limine motion to bar
defendants from arguing the good-faith immunity defense. The
trial judge reserved decision on the motion until she heard the
police testimony. Ultimately, the judge declined to instruct
the jury on the defense, reasoning:
I have found cases that go both ways. Cases that would say that this was the continuation of an effectuation of an arrest. And cases that have said it's just merely transporting. Now I note for the record, I have no evidence or testimony . . . that this was any sort of . . . high crime. This was not some internationally wanted suspect who was in the back of the car. There's no evidence that he struggled. There was no evidence that he resisted. Indeed he's charged with wandering[,] a disorderly persons offense.
So even though I don't mean to diminish in any way, nor substitute my judgment for the police officer['s] sense of danger, I don't even have any testimony that [] anybody thought they were in much danger. . . . For those reasons I don't think the immunity [applies.]
The jury found in plaintiff's favor and apportioned
negligence at eighty percent to Officer Caicedo and twenty
percent to plaintiff. The trial court molded the $3,000,000
verdict accordingly, and judgment was entered in plaintiff's
favor for $2,400,000.
Defendants moved for a new trial or, in the alternative,
for a remittitur. They argued that the verdict was excessive
7 A-6163-12T2 and against the weight of the evidence. Defendants also
contended that the court erred in denying the jury instruction
as to their good-faith immunity defense. While the trial judge
characterized the verdict as "high," she found no basis to
disturb it. As to the immunity defense, the judge ruled:
[I]t's clear [that] the testimony of the officers if anything supported [] plaintiff's position that it was a mere transportation function that they were providing. There was no[t] one word of testimony about the neighborhood being something that they were concerned with lingering [in] with an arrestee who was a buyer []. There was nothing, nothing, absolutely nothing said by either officer that would indicate they had any sort of concerns of safety that were heightened by virtue of this being an arrest, versus any concerns they'd normally have if they were just [] transporting a prisoner. And so for those reasons the [c]ourt denied the immunity defense.
. . . I think[,] given the record in this case, given the absence of any testimony about any concerns that anybody had or heightened concerns that would take this from a mere transportation to the continuation of an arrest, that the [c]ourt's initial ruling was the correct and accurate one.
II.
On appeal, defendants renew the arguments they advanced in
their new trial motion. They contend that the trial court erred
in failing to instruct the jury on good-faith immunity, and that
the verdict was both against the weight of the evidence and
8 A-6163-12T2 excessive. Defendants further argue that the trial court erred
in denying their motion for a new trial or a remittitur. We
address these arguments in turn.
A.
We first consider whether defendants enjoyed immunity under
the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.
"The TCA provides general immunity for all governmental bodies
except in circumstances where the Legislature has specifically
provided for liability." Kain v. Gloucester City, 436 N.J.
Super. 466, 473 (App. Div.) (citing N.J.S.A. 59:1-2 and 2-1),
certif. denied, 220 N.J. 207 (2014). Thus, the TCA's dominant
theme is immunity, with liability as the exception. D.D. v.
Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 134 (2013);
Rochinsky v. Dep't of Transp., 110 N.J. 399, 408 (1988). "The
public entity bears the burden of proof for establishing
immunity. In determining if a public entity is immune, courts
first identify the culpable cause of the accident and . . . ask
if that identified cause or condition is one that the
Legislature intended to immunize." Kain, supra, 436 N.J. Super.
at 473 (citations and internal quotation marks omitted).
Where a public entity is immune from liability for injury,
so too is the public employee. N.J.S.A. 59:3-1(c). Pertinent
to this appeal, N.J.S.A. 59:3-3 specifically provides that "[a]
9 A-6163-12T2 public employee is not liable if he [or she] acts in good faith
in the execution or enforcement of any law." The TCA does not,
however, "exonerate a public employee for negligence arising out
of his [or her] acts or omissions in carrying out his [or her]
ministerial functions." N.J.S.A. 59:3-2.
Defendants argue that they are entitled to the good-faith
immunity bestowed by N.J.S.A. 59:3-3. They contend that Officer
Caicedo was enforcing the law when the collision occurred
because the police had not yet completed the suspect's arrest.
In support of this position they point to the Newark Police
Department's policy procedures for processing arrests, which
include transporting a prisoner to the precinct of arrest and
completing all required reports.
Plaintiff argues that N.J.S.A. 59:3-3 immunity is
inapplicable under the facts presented, and that courts have not
applied it to situations where police are involved in
ministerial acts, such as patrolling the streets or transporting
prisoners. Rather, plaintiff contends that this statutory
immunity attaches only where the police are acting under
heightened circumstances, including responding to a crime,
accident, or emergency in progress, or where they are called
upon to make split-second decisions.
10 A-6163-12T2 New Jersey caselaw appears to favor plaintiff's position.
See, e.g., Alston v. City of Camden, 168 N.J. 170, 187-88 (2001)
(applying the immunity to an officer pursuing a drug suspect on
foot, emphasizing the "split-second judgments" such
circumstances often require); Canico v. Hurtado, 144 N.J. 361,
365-66 (1996) (applying the immunity to an officer responding to
a bank alarm, noting that such responses "often require split-
second judgments"); Dunlea v. Twp. of Belleville, 349 N.J.
Super. 506, 509 (App. Div.) (applying the immunity to officers
responding to a burglary in progress), certif. denied, 174 N.J.
189 (2002). Thus, if the collision here occurred during an
emergency response, the result would be clear since good-faith
immunity no doubt "encompass[es] the operation of police
vehicles by police officers acting within the scope of their
duties and in response to an emergency." Canico, supra, 144
N.J. at 366-67.
As TCA immunity often arises in the context of police
pursuits, our courts have frequently applied N.J.S.A. 59:5-2(b)
and 5-2(c) (which, respectively, provide immunity from injuries
caused by escaping persons and by the pursuit of such persons),
obviating the need to consider N.J.S.A. 59:3-3 good-faith
immunity. See, e.g., Tice v. Cramer, 133 N.J. 347, 367 (1993)
(applying N.J.S.A. 59:5-2(b)(2) and (b)(3) and thus not reaching
11 A-6163-12T2 the question of good-faith immunity for officers pursuing a
vehicle that failed to heed their commands); Torres v. City of
Perth Amboy, 329 N.J. Super. 404, 408 (App. Div. 2000)
(declining to apply N.J.S.A. 59:5-2(b)(2) to an officer
"attempt[ing] to close the gap and stop" a speeding but non-
fleeing motorist).
Our research has not disclosed any cases in New Jersey
directly on point with the facts presented here. We do,
however, draw guidance from cases decided under Illinois tort
claims legislation similar to the TCA. Marley v. Palmyra, 193
N.J. Super. 271, 288 (Law Div. 1983). The analogous section of
the Illinois Local Governmental and Governmental Employees Tort
Immunity Act provides: "A public employee is not liable for his
act or omission in the execution or enforcement of any law
unless such act or omission constitutes willful and wanton
conduct." 745 Ill. Comp. Stat. 10/2-202 (2014).
The Illinois Supreme Court considered a substantially
similar version of this statute in Aikens v. Morris, 145 Ill. 2d
273, 583 N.E.2d 487 (1991). In Aikens, plaintiff sought to
recover damages sustained when her automobile was struck by an
Evanston police squad car. Id. at 275-76, 583 N.E.2d at 488-89.
At the time, the officer was transporting a prisoner from the
Village of Skokie lockup facility to the Evanston police
12 A-6163-12T2 department's lockup facility. Ibid. The prisoner had
previously been arrested, handcuffed, and placed in the back
seat of the police car. Ibid. According to the officer's
testimony, he was in "no hurry." Ibid.
Like the present case, defendants argued that the officer
was "executing" or "enforcing" a law, citing Illinois statutes
empowering public officials to move or transfer prisoners. Id.
at 277, 583 N.E.2d at 489. The court disagreed, reasoning that
the officer's "negligent conduct was not shaped or affected in
any manner by the nature of duties in either enforcing or
executing law." Id. at 286, 583 N.E.2d at 494. In declining to
apply the statutory immunity, the court cited with approval
Anderson v. Chicago, 29 Ill. App. 3d 971, 331 N.E.2d 243 (1975),
a case involving "quite similar" circumstances:
In Anderson, the appellate court viewed a record which showed that a police officer was transporting, at the time of the accident, two juveniles picked up from the scene of a disturbance, with another police vehicle following and escorting the complainant. The Anderson court determined that the evidence supported the trial court's findings that the officer was not enforcing or executing any laws, even though he was on duty and in the course of his employment. We are similarly compelled.
[Aikens, supra, 145 Ill. 2d at 286, 583 N.E.2d at 494.]
13 A-6163-12T2 Taken together, we regard these cases as persuasive authority
that Officer Caicedo was not acting in the "execution or
enforcement of any law" so as to afford him immunity under
N.J.S.A. 59:3-3 while transporting the prisoner to the police
precinct when the collision occurred.
Our "primary task" in interpreting statutory language is
"to effectuate the legislative intent in light of the language
used and the objects sought to be achieved." Bosland v. Warnock
Dodge, Inc., 197 N.J. 543, 554 (2009) (citation and internal
quotation marks omitted). Read literally, N.J.S.A. 59:3-3 could
be interpreted to immunize all police activities, since
"virtually every police function or duty is pursuant to some
legal authorization in the broadest sense." Aikens, supra, 145
Ill. 2d at 285, 583 N.E.2d at 493.
We do not believe our Legislature intended N.J.S.A. 59:3-3
to be construed so broadly. Rather, the determination of
whether a police officer is engaged "in the execution or
enforcement of any law" so as to entitle that officer to good-
faith immunity under the statute must be made on a case-by-case
basis. Were the circumstances such that Officer Caicedo was
responding, for example, to a crime scene, to an accident call
with unknown injuries, or to some other situation requiring his
immediate attention, we have little doubt that the result we
14 A-6163-12T2 reach would be different. Immunity would also likely attach
were Officer Caicedo transporting the prisoner for urgent
medical attention, or if the prisoner was unruly or otherwise
constituted a dangerous presence in the police vehicle, or if
the officer was in a dangerous area or needed to hasten his
departure from a hostile crowd. However, the record here is
completely devoid of any such emergent circumstances.
We concede that Officer Caicedo's transport of a suspected
drug buyer charged with wandering presents a close case. The
officer was certainly "carrying out" the law when he first
arrested the suspect. However, the policy concern underlying
good-faith immunity, that police will be "reluctant to enforce
the law vigorously for fear of liability" in its absence, is
simply less compelling during the ensuing transport function.
Tice, supra, 133 N.J. at 351. On this record, we see no reason
why Officer Caicedo, while transporting the prisoner, should not
be held to the same standard of care as an ordinary citizen
operating his or her own motor vehicle on the roadways of this
State. Accordingly, we discern no policy basis to cloak
defendants with immunity from liability for the injuries
sustained by plaintiff during Officer Caicedo's travel to police
headquarters.
15 A-6163-12T2 B.
We next turn to defendants' arguments regarding new trial
and remittitur. We begin by stating certain general principles
that guide our analysis. We will not reverse a trial court's
decision to deny a motion for a new trial "unless it clearly
appears that there was a miscarriage of justice under the law."
R. 2:10-1. That inquiry requires employing a standard of review
substantially similar to that used at the trial level, "except
that the appellate court must afford 'due deference' to the
trial court's '"feel of the case,"' with regard to the
assessment of intangibles, such as witness credibility."
Jastram v. Kruse, 197 N.J. 216, 230 (2008) (quoting Feldman v.
Lederle Labs., 97 N.J. 429, 463 (1984)). See also Carrino v.
Novotny, 78 N.J. 355, 360 (1979); Baxter v. Fairmont Food Co.,
74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8
(1969).
Because juries have broad latitude to determine damages,
"the standard for granting a new trial . . . is necessarily
high." Johnson v. Scaccetti, 192 N.J. 256, 281 (2007). "A
trial court should not order a new trial or remit a jury's
damages award unless it is so clearly disproportionate to the
injury and its sequela . . . that it may be said to shock the
judicial conscience." Ibid. A court "must be 'clearly and
16 A-6163-12T2 convincingly' persuaded that it would be manifestly unjust to
sustain the award." Ibid. (quoting R. 4:49-1(a)).
In determining whether the denial of remittitur or a new
trial was proper, this court is bound by the same standards as a
trial court. Jastram, supra, 197 N.J. at 228-231, 235; Baxter,
supra, 74 N.J. at 598; McRae v. St. Michael's Med. Ctr., 349
N.J. Super. 583, 597 (App. Div. 2002). Unless a jury's award of
damages is so disproportionate to the injury and resulting
disability, the trial judge should not disturb the award.
Jastram, supra, 197 N.J. at 230; Baxter, supra, 74 N.J. at 595.
Thus, to qualify for remittitur or a new trial, as we have
noted, "the jury's award must shock the judicial conscience."
McRae, supra, 349 N.J. Super. at 597 (citing Baxter, supra, 74
N.J. at 596); see Ming Yu He v. Miller, 207 N.J. 230, 252
(2011).
Here, the trial judge's ruling is clearly supported by the
record, and does not amount to an abuse of discretion. The jury
verdict in this case did not constitute a miscarriage of
justice, nor did the jury's award of damages "shock the judicial
conscience." McRae, supra, 349 N.J. Super. at 597. "[T]he
evidence in support of the jury verdict [was] not
insufficient[,]" and the trial judge's decision to deny the
motion for a new trial, or in the alternative, a remittitur,
17 A-6163-12T2 should not be disturbed. Crego v. Carp, 295 N.J. Super. 565,
572 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997); Amaru
v. Stratton, 209 N.J. Super. 1, 7 (App. Div. 1985).
We note that the accounts of the parties and their
respective witnesses as to how the accident occurred were
conflicting, and left the jury with the task of resolving their
credibility. In challenging the verdict as against the weight
of the evidence, defendants argue that the limited observations
testified to by plaintiff and his two teenage witnesses are
insufficient to establish defendants' liability. However,
Officer Caicedo testified that he was travelling above the speed
limit. Despite his claim that he observed plaintiff swerving
his bicycle back and forth over both northbound lanes, Officer
Caicedo conceded that he neither slowed nor stopped his police
vehicle. Thus, even if the jury disregarded the testimony of
plaintiff and his witnesses, it could have premised its verdict
of liability on Officer Caicedo's testimony alone.
With respect to the amount of the jury verdict, plaintiff
presented evidence that he was treated for his injuries by
Sanjeev Sabharwal, M.D., a pediatric orthopedic surgeon
specializing in leg-length discrepancy. Plaintiff was
hospitalized for four days, and remained on bed rest for five
months, during which he required assistance with all his bodily
18 A-6163-12T2 functions. He suffers from a 2.8-centimeter (1.1-inch) leg-
length discrepancy, resulting in a permanent limp. Dr.
Sabharwal considered procedures to address this discrepancy, but
concluded they were too risky. Plaintiff also has permanent
scars and persistent stiffness, and no longer engages in the
recreational activities he used to enjoy. In Dr. Sabharwal's
opinion, plaintiff is now "predisposed to some higher prevalence
of low back pain, and possibly some premature arthritis of the
lower extremities." At trial, defendants presented no expert
testimony contradicting Dr. Sabharwal's findings.
Defendants maintain, however, that the verdict is excessive
when compared with damage awards in certain other cases.
Defendants cite examples of lesser verdicts, ranging from
$90,000 to $1,200,000, based on similar injuries but "much
stronger proofs" on liability and future employability.
Plaintiff claims that the cases cited by defendants are
inapposite, and cites verdicts from other cases with injuries
similar to those sustained by plaintiff that range between
$1,700,000 and $11,202,000.
A trial court may consider comparable verdicts in
determining whether a jury's award is so "wide of the mark" as
to shock the judicial conscience. He, supra, 207 N.J. at 258.
We are unpersuaded that the verdicts cited by defendants are
19 A-6163-12T2 sufficient to override the trial court's considered judgment
that the award in this case was not "so wide of the mark" as to
call for judicial intervention. Ibid. The judge's
determination was based on the evidence presented at trial, the
judge's "feel of the case," and her judicial experience.
Affirmed.
20 A-6163-12T2