NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-3232-23
MARIELLE KUCZINSKI, Plaintiff-Appellant,
v.
STATE OF NEW JERSEY and NEW JERSEY STATE POLICE,
Defendants-Respondents,
and
MARQUICE D. PRATHER, individually, and in his official capacity,
Defendant.
__________________________
Argued February 3, 2026 – Decided September 4, 2026 Before Judges Gooden Brown and Rose.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0225-18.
Fredrick L. Rubenstein argued the cause for appellant (Shah & Rubenstein, LLC, attorneys; Fredrick L.
Rubenstein, on the briefs).
Dorothy M. Rodriguez argued the cause for respondent (Jennifer Davenport, Acting Attorney General, attorney; Sookie Bae-Park, Assistant Attorney General, of counsel; Azeem M. Chaudry and Andrew D.
Spevack, Deputy Attorneys General, on the brief).
PER CURIAM Plaintiff Marielle Kuczinski appeals from the summary judgment dismissal of her complaint against defendants the State of New Jersey and the New Jersey State Police (collectively, State defendants). Defendant Marquice D. Prather, a former State Trooper who was terminated for his reprehensible conduct during motor vehicle stops, defaulted and is not a party to this appeal.
Plaintiff filed suit after learning Prather had been investigated for allegedly seizing women's cell phones during traffic stops, searching the phones for explicit photos and then disseminating some of the photos. Plaintiff had been stopped by Prather and her cell phone seized under similar circumstances as confirmed victims. In a May 9, 2024 order, the motion judge granted summary judgment to the State defendants, dismissing plaintiff's complaint as to all counts with prejudice. We affirm substantially for the reasons outlined in the judge's comprehensive and thorough written opinion.
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I.
We summarize the pertinent facts and events from the motion record in a light most favorable to plaintiff as the non-moving party. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
At approximately 10:10 p.m. on January 13, 2016, Prather pulled over plaintiff on Interstate 95 in Hamilton Township. On a "Digital-In-Vehicle Recording" (DIVR) documenting the stop, Prather could be heard telling plaintiff he pulled her over because she went over the line on Interstate 95 and had a hard time maintaining her lane.
Plaintiff had an expired insurance card when she was stopped. Although there are gaps in the DIVR, plaintiff asked if she could contact someone in her family to send her a picture of the updated insurance, and Prather agreed. When plaintiff received the photo, she handed her cell phone with the texted picture to Prather, who took it to his vehicle. Prather had plaintiff's cell phone for approximately ten to twelve minutes, at which point he returned to plaintiff's car, returned the cell phone, and issued her a written warning. Plaintiff stated at her deposition "the vehicle stop itself did not raise any red flags that anything wrong had occurred" and Prather said nothing inappropriate or provocative.
The State Police Office of Professional Standards (OPS) commenced an
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internal investigation into Prather after three complaints were made against him by female motorists. Two motorists alleged he took their cell phones during traffic stops and the third motorist alleged he requested sexual favors from her in exchange for leniency during the stop. The investigation involved "installing surveillance equipment in Prather's vehicle, interviewing Prather, extracting information from the complainants' cell[ ]phones, extracting information and text messages from Prather's cell[ ]phone, obtaining records from Prather's cell[ ]phone provider, interviewing complainants, and examining . . . DIVR footage."
As recounted by the judge, an Affidavit of Probable Cause signed by OPS Lieutenant Joseph Tietjen on December 9, 2016, detailed the investigation's results:
Prather would take custody of women motorists'
cell[ ]phones for a period of time during the stops and reviewed them in his car. During his employment as a State Trooper, Prather would use his position to request women's cell[ ]phone numbers and/or provide his number to them during motor vehicle stops and would subsequently contact them or ask them to contact him.
The State [d]efendants contend that there is no evidence to suggest that Prather engaged in this behavior toward [plaintiff].
The Affidavit of Probable Cause further stated that inquiries of vehicles that were registered to females between the ages of [twenty to thirty-five] were often followed up with driver's license number inquiries that would provide [Motor Vehicle Commission]
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photographs of those women to Prather. . . .[1] Prather had also falsely reported drivers' genders as male to disguise the fact that he stopped a high number of females. . . . [T]here were . . . two occasions where it was revealed that Prather intentionally deactivated his wireless microphone, during the period from November 25-27, 2016.
Prather was arrested on December 9, 2016. Approximately one month later, in January 2017, Tietjen and another unidentified officer came to plaintiff's residence to inform her that Prather was being investigated. At her deposition, plaintiff testified the officers told her she was "definitely a victim of a crime." Plaintiff had "sexually explicit photos on her cell[ ]phone at the time of her motor vehicle stop" and was told Prather "had her cell[ ]phone photos." Plaintiff consented to an analysis of her cell phone to determine whether "any of those photos had been disseminated."
According to plaintiff, the officers told her that her "stop time" was "way over the normal limit," and that she fit the "mold" of women Prather had victimized. They also asked her if Prather had been inappropriate, had asked for her phone number, or had "stalked" her, none of which had occurred. In his deposition, Tietjen agreed Prather's actions constituted an unlawful seizure.
1 The State denies such actions occurred involving plaintiff.
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However, Tietjen asserted his practice was to inform potential victims "there was the suspicion that [Prather] may have accessed something on their [cell] phones," rather than to tell them they were "a victim of a crime."
Plaintiff's brother, who was present when Tietjen visited plaintiff, testified in his deposition that one of the troopers told plaintiff she may have been the victim of a crime. However, plaintiff's father, who was also present, testified in his deposition that one of the troopers told plaintiff she was a victim of a crime.
After the visit to plaintiff's residence, plaintiff was interviewed by OPS on January 17, 2017. During the interview, plaintiff stated she had been driving home from a friend's house when she was pulled over by Prather. She had noticed the police car following her "for some time." After she was pulled over and while she was waiting for her parents to send over a picture of her insurance, the two made "small talk" but plaintiff did not recall Prather discussing her "unsafe lane change."
According to plaintiff, Prather stated he needed to "flash [the picture of the insurance card] to a camera" in his car. Upon receiving the picture, plaintiff gave Prather her cell phone and he went back to his car. Plaintiff noted "[h]e was in the car for what seemed like a little bit longer than usual," but she thought it may have been "protocol." She recalled seeing a "shadow of a light going
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. . . like, [her cell] phone blinking on and off." When Prather returned, he gave her a warning. She did not recall what state her cell phone was in when he returned it to her. Plaintiff described Prather's demeanor as "a little bit flirty" but she "thought it was just friendly." Besides the fact that he took her cell phone, nothing else "[stood] out as being out of the ordinary."
Plaintiff dropped off her cell phone for examination at the State Police Barracks on February 8, 2017. In her deposition, plaintiff stated when she picked up her cell phone later the same day, she "spoke with one of the State Police personnel about what Prather . . . may have done" and was told "the data for [her] iPhone was incompatible [with] their system, meaning . . . it was inconclusive . . . [and t]here was no way to trace . . . [or] determine whether or not [her] pictures were found elsewhere."
Lieutenant Joseph Sembler was the OPS case technician who assisted with the examination of cell phones and other mobile devices. Sembler used a tool called Cellebrite to extract "text messages, videos, and any other information" from the cell phones of Prather and his potential victims and then provided the information to the investigators so they could conduct an analysis. Cellebrite would prepare a "report" that was like a "cover page . . . [indicating] who conducted the acquisition of the data and what type of acquisition it was ."
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Sembler did not prepare any other reports.
Based on its investigation, OPS determined "there was evidence to suggest that Prather had transferred or viewed information on cell phones of four women, and that he had accessed five total [sexually explicit] images from those four women's cell phones." However, according to OPS, "none of those photos belonged to [plaintiff] and she was not one of the four women OPS identified as Prather's victims." OPS asserted "all interviewed drivers understood that if the State Police did not contact them[,] there was no evidence to suggest that their phones had [been] accessed." Plaintiff had no further communication with OPS after dropping off her cell phone.
On September 11, 2017, Prather pled guilty to third-degree invasion of privacy, N.J.S.A. 2C:14-9(b)(1); fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1); and fourth-degree falsifying or tampering with records, N.J.S.A. 2C:21-4(a). He was sentenced to probation subject to several conditions. Prather also forfeited his employment with the State Police and was forever disqualified from holding any office or position of honor, trust, or profit with the State of New Jersey.
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Plaintiff filed a nine-count2 complaint in the Law Division on January 11, 2018.3 The complaint asserted: (1) deprivations of constitutional rights pursuant to 42 U.S.C. § 1983 (count one); (2) deprivations of constitutional rights pursuant to 42 U.S.C. § 1983 (municipal liability) (count two); (3) tortious negligent hiring, training, and supervision (count three); (4) violations of the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, as to the State defendants (count four); (5) individual liability as to defendant Prather pursuant to the CRA (count five); (6) violations of the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -50 (public accommodation) (count six); (7) tortious intrusion upon seclusion (count seven); (8) intentional infliction of emotional distress (IIED) (count eight); and (9) negligent infliction of emotional distress (NIED) (count nine). In the complaint, plaintiff alleged she suffered severe economic, emotional, and physical damages.
During discovery, plaintiff provided an expert report authored by Nancy Gallina, a licensed psychologist (Gallina Report), opining that plaintiff's mental
2 A tenth count sought relief against fictitious defendants.
3 Prior to filing her complaint, plaintiff moved to file a late notice of claim pursuant to the Tort Claims Act, N.J.S.A. 59:8-9. During argument, plaintiff explained she had not sought an attorney sooner as she was managing multiple health conditions. The motion was granted.
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health diagnoses had a causal relationship to the January 13, 2016 incident. In the report, Gallina recounted plaintiff's depiction of the stop, which was consistent with her prior statement, and described plaintiff's mental health and medical history. According to the report, plaintiff repeatedly referred to some of her emotional issues stemming from "State Trooper Paffs [sic]" "violat[ing] [her] when he stole [her] pictures and degraded [her] by sending them to others." She expressed worries that others had seen her nude pictures.
Gallina concluded that plaintiff's "level[s] of anxiety and depression"
were "exacerbated" by the traffic stop incident, and plaintiff's issues with self- esteem "may [have been] a function of her current circumstances, that is, her continuous struggle to accept State Trooper Paffs [sic] illegally gained access to information on her cell phone, stalked her, rerecorded nude pictures of her, and sent the pictures to others." Gallina stated plaintiff's "social life and social attitudes have changed since federal agents informed her State Trooper Paffs [sic] illegally gained access to information on her cell phone, stalking and copying and disseminating nude pictures of her." Gallina concluded that "there is a direct causal connection between [plaintiff's diagnosed] adjustment disorder with mixed anxiety and depressed mood" and the traffic stop incident.
Following discovery, the State defendants moved for summary judgment.
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After hearing argument, the judge entered an order on May 9, 2024, granting the motion as to all counts.4 In an accompanying forty-nine-page written opinion, the judge recounted the facts and recited the governing law. The judge determined plaintiff presented insufficient evidence that "create[d] a genuine issue of material fact that Prather viewed, downloaded, disseminated, took videos of, or otherwise inappropriately accessed [plaintiff's] private photographs." Stated differently, the judge concluded it was undisputed that plaintiff was not "a victim of Prather's misconduct" to allow submission of any part of the case to a jury and no "evidence that could support a finding of liability against the State [d]efendants as to any claim asserted against them." The judge also rejected plaintiff's expert report as a net opinion. This appeal followed.
On appeal, plaintiff argues the judge erroneously granted summary judgment under her failure to adequately hire, train, and supervise theories; on her NJLAD claim; under her invasion of privacy theory; and under her NIED theory. She also argues the judge incorrectly barred the Gallina Report as net opinion.
4 Plaintiff consented to the dismissal of counts one, two, and eight. Plaintiff also consented to the dismissal of certain elements in counts three and four. Counts five and ten were not directed at the State defendants and were therefore not at issue in the motion.
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II.
"Appellate review of the trial court's decisions proceed[] . . . with the evidentiary issue resolved first, followed by the summary judgment determination of the trial court." Townsend v. Pierre, 221 N.J. 36, 53 (2015). Thus, we first address Point V, in which plaintiff argues the judge erred in concluding Gallina's report was a net opinion.
A trial court's decision to exclude expert testimony in a civil case is entitled to deference and is reviewed under "a pure abuse of discretion standard." In re Accutane Litig., 234 N.J. 340, 391-92 (2018) (citing Townsend, 221 N.J. at 52-53). Thus, the decision to exclude the proposed expert report as net opinion should not be disturbed unless it was "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002).
N.J.R.E. 702 and 703 together govern the admissibility of expert testimony. Townsend, 221 N.J. at 53. While N.J.R.E. 702 addresses the scope, N.J.R.E. 703 addresses the foundation of the expert testimony, providing that
[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the proceeding. If of a type reasonably relied upon by
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experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
"The net opinion rule, a corollary of N.J.R.E. 703, 'forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data.'" State v. Burney, 255 N.J. 1, 23 (2023) (quoting Townsend, 221 N.J. at 53-54). "The rule requires that an expert 'give the why and wherefore that supports the opinion, rather than a mere conclusion.'" Townsend, 221 N.J. at 54 (quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)) (internal quotation marks omitted). As such, "[a] court must ensure that the proffered expert does not offer a mere net opinion." Burney, 255 N.J. at 23 (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)). An expert's opinion that fails to address facts in the record that directly contradict the expert's conclusions should be barred as a net opinion. Smith v. Est. of Kelly, 343 N.J. Super 480, 497 (App. Div. 2001).
Here, the judge determined the Gallina Report was an inadmissible net opinion because it was unreliable. The judge explained:
Gallina's report relies on a number of facts which are not found anywhere in the record or else are plainly false. . . . Gallina's report states, among other things, that:
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• Two federal agents came to [plaintiff's] home to tell her she was a victim of a crime;
• The officer who allegedly violated [plaintiff's] privacy was a Trooper Paffs;
• The [S]tate trooper who violated her was allowed to resign;
• The offending [S]tate trooper stole [plaintiff's] naked photographs from her cell[ ]phone;
• The offending [S]tate trooper disseminated [plaintiff's]
nude photographs to others;
• The offending [S]tate trooper rerecorded nude photographs of her;
• State [T]rooper Paffs stalked [plaintiff].
These statements are either not supported by the facts in the record or were beliefs of [plaintiff] which, while perhaps reasonable at the time, have since been disproven without any updates being made to the Gallina Report. It is incumbent upon a party to amend their expert reports so that their conclusions are based on the most accurate records as possible. That was not done in this case.
The portions of the Gallina Report which are based on supported facts are so intertwined with those portions which are based on statements without evidentiary support that I reject the report as a net opinion and will disregard it. The repealed references to unsupported statements such as those listed above render . . . Gallina's report completely unreliable.
We discern no basis to disturb the judge's ruling. Gallina's expert report was properly excluded as a net opinion. An expert's opinion must be supported by the facts of the case. See Vuocolo v. Diamond Shamrock Chems. Co., 240
N.J. Super. 289, 299-300 (1990). As noted by the judge, Gallina's opinions are A-3232-23
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based on facts not found in the record. An expert's opinion premised upon facts that do not exist in the record is an inadmissible net opinion. State v. Odom, 116 N.J. 65, 82 (1989) ("[O]pinion cannot be based on facts that are not in evidence.").
Based on our decision, we see no reason to disturb the judge's ruling on count nine, plaintiff's NIED claim. To establish a NIED claim, a plaintiff must prove: "(1) defendant owed a duty to plaintiff; (2) defendant breached that duty; (3) plaintiff suffered severe emotional distress; and (4) defendant's breach proximately caused plaintiff's emotional distress." Johnson v. City of Hoboken, 476 N.J. Super. 361, 375-76 (App. Div. 2023). "Whether the defendant has a duty of care to the plaintiff depends on whether it was foreseeable that the plaintiff would be seriously, mentally distressed." Dello Russo v. Nagel, 358 N.J. Super. 254, 269-70 (App. Div. 2003). Because plaintiff's expert report is insufficient to serve as evidence of emotional distress to support plaintiff's NIED claim, summary judgment as to count nine was appropriate.
III.
We now address the remaining summary judgment rulings. "[W]e review the trial court's grant of summary judgment de novo under the same standard as
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the trial court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). That standard is well-settled.
[I]f the evidence of record—the pleadings, depositions, answers to interrogatories, and affidavits—"together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact," then the trial court must deny the motion. R. 4:46-2(c); see Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 540 (1995). On the other hand, when no genuine issue of material fact is at issue and the moving party is entitled to a judgment as a matter of law, summary judgment must be granted. R.
4:46-2(c); see Brill, 142 N.J. at 540.
[Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366 (2016) (citations reformatted).]
"An issue of material 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.'" Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). Where there is no material fact in dispute, "we must then 'decide whether the trial court correctly interpreted the law.'" DepoLink Ct. Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). "We review issues of law de novo and accord no deference to the trial A-3232-23
17
judge's [legal] conclusions . . . ." MTK Food Servs., Inc. v. Sirius Am. Ins. Co., 455 N.J. Super. 307, 312 (App. Div. 2018).
We first consider plaintiff's assertion that the judge erred in dismissing her failure to adequately hire, train, and supervise claim (count three). She argues "all th[e] information regarding . . . Prather's misconduct was reported and in the control of the New Jersey State Police prior to the subject stop ." Plaintiff also points to the State defendants' failure to provide a letter to plaintiff after the investigation was concluded in compliance with Attorney General (AG) guidelines as evidence of negligence.
"Unlike respondeat superior, negligent hiring, supervision, and training are not forms of vicarious liability and are based on the direct fault of an employer." G.A.-H. v. K.G.G., 238 N.J. 401, 415 (2019). The tort of negligent hiring has two fundamental requirements. Id. at 416. The plaintiff first must show, irrespective of whether the employee was acting within the scope of his or her employment:
(1) that the employer "knew or had reason to know of the particular unfitness, incompetence or dangerous attributes of the employee and could reasonably have foreseen that such qualities created a risk of harm to other persons" and (2) "that, through the negligence of the employer in hiring the employee, the latter's incompetence, unfitness or dangerous characteristics proximately caused the injury."
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[Ibid. (quoting Di Cosala v. Kay, 91 N.J. 159, 173 (1982)).]
The tort of negligent supervision or training similarly requires that the employer "knew or had reason to know that the failure to supervise or train an employee in a certain way would create a risk of harm" and that the "risk of harm materialize[d] and cause[d] the plaintiff's damages." Ibid.
Applying these principles, we agree count three was properly dismissed.
The judge found "no evidence demonstrating that the State [d]efendants were aware of Prather's behaviors" nor an explanation of "what additional training should have been in place to prevent Prather from acting in the manner that he did" to support a claim of tortious failure to adequately hire, train, and supervise. There was no evidence the State defendants were or should have been aware of Prather's propensity to cause harm prior to hiring or "knew or had reason to know" that any particular training could avoid harm.
Plaintiff's reliance on the AG guidelines to resurrect count three is similarly unavailing. Plaintiff cites Section 6.3.18 of the AG's "Internal Affairs Policy & Procedures" manual, which provides as follows:
In all cases, a letter shall be sent to the complainant explaining the outcome of the investigation. If the allegation was unfounded or the officer was exonerated, this conclusion shall be stated and defined for the civilian complainant. If the allegation was not
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sustained, the letter shall provide the complainant with a brief explanation why the complaint was not sustained (e.g., insufficient proof, lack of witnesses, etc.). If the allegation was sustained and discipline was imposed, the letter shall state that the allegation was sustained and that the officer has been disciplined according to agency procedures.
[Off. of the Att'y Gen., Internal Affairs Policy & Procedures § 6.3.18 (rev. 2022).]
However, as the judge pointed out, "[plaintiff] was not a complainant who reported Prather." Instead, "three other complainants came forward with accusations against Prather." Therefore, failure to inform plaintiff about the outcome of the case was not a violation of the AG policy.
Turning to plaintiff's CRA claim (count four),
the Civil Rights Act does not on its face apply to the State.
That is perhaps not surprising in a statute modeled on § 1983, which the United States Supreme Court long ago determined did not apply to the states. Will v. Mich.
Dep't of State Police, 491 U.S. 58, 67, 71 (1989)
(holding that "in enacting § 1983, Congress did not intend to override well-established immunities or defenses under the common law," and, accordingly, "neither a State nor its officials acting in their official capacities are 'persons' under § 1983"). Given that the Legislature did not choose to include an express waiver of sovereign immunity in the Civil Rights Act and that the State enjoys immunity under the analogous § 1983, we conclude that the State is immune from a suit for damages under the Civil Rights Act.
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[Brown v. State, 442 N.J. Super. 406, 425-26 (2015), rev'd on other grounds, 230 N.J. 84 (2017).]
Because the State is immune from suit under the CRA, we conclude plaintiff's CRA claim against the State defendants was properly dismissed.5 We next consider plaintiff's NJLAD claim (count six). Plaintiff contends Prather discriminated against her by targeting her based on her gender, improperly pulling her over, and improperly searching her cell phone. According to plaintiff, the State defendants were vicariously liable for Prather's actions because they "allowed . . . Prather's infractions to continue for over three years without ever even attempting to uncover what was happening." In support, plaintiff asserts "previous complaints by women were buried and not investigated for over two . . . years."6
5 Because plaintiff made no argument opposing the dismissal of count four, we may affirm the dismissal on that basis alone. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived."). 6 Three complaints were listed in the internal investigation report as possible misconduct by Prather: a complaint received October 6, 2015 or 2016, alleging Prather took the complainant's cell phone to his vehicle; a complaint received March 22, 2016, alleging Prather told the complainant "he would only issue her a summons, and not impound her vehicle, if she were to, in effect, 'open Google on her iPhone and hand him the phone as proof that she will renew her registration'"; and a complaint received November 16, 2016, alleging Prather offered to exchange sexual favors for leniency. The investigation began November 17, 2016.
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The NJLAD provides, in relevant part, "All persons shall have the opportunity to obtain employment and to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation . . . without discrimination because of . . . sex." N.J.S.A. 10:5-4. The NJLAD makes it unlawful:
[f]or any owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodation, directly or indirectly, to refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities, or privileges thereof, or to discriminate against any person in the furnishing thereof . . . on account of the . . . sex . . . [or]
gender identity . . . of such person.
[N.J.S.A. 10:5-12(f)(1).]
The State is a person subject to the Act. N.J.S.A. 10:5-5(e). A police department, "both the building and the individual officers—is a place of public accommodation." Ptaszynski v. Uwaneme, 371 N.J. Super. 333, 347 (App. Div. 2004).
Under the NJLAD, "there is no single prima facie case that applies to all discrimination claims. Instead, the prima facie elements of a claim vary depending upon the particular . . . discrimination claim being made." Victor v. State, 203 N.J. 383, 409-10 (2010). To establish a prima facie public accommodation NJLAD claim, a plaintiff must allege: (1) defendant operates a A-3232-23
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place of public accommodation, (2) the plaintiff is a member of a protected class, and (3) he or she was denied equal treatment on the basis of his or her membership in a protected class. N.J.S.A. 10:5-12(f); see L.W. ex rel. L.G. v. Toms River Reg'l Schs. Bd. of Educ., 189 N.J. 381, 401-02 (2007).
"[T]he focal issue [in a public accommodation discrimination case] is whether defendant acted with an actual or apparent design to discourage present or future use of the public accommodation by plaintiff on account of her protected status." Turner v. Wong, 363 N.J. Super. 186, 213 (App. Div. 2003). Moreover, the "LAD is not limited to outright denial of access or service. . . . [I]t also renders unlawful any acts discriminating against any person in the furnishing of the public accommodation." Id. at 212.
A "'plaintiff need not prove that [the protected characteristic] was the sole or exclusive consideration' . . . ; rather, he [or she] need only show 'by a preponderance of the evidence that it made a difference' in that decision." C.V. by and through C.V. v. Waterford Twp. Bd. of Educ., 255 N.J. 289, 317 (2023) (quoting Bergen Com. Bank v. Sisler, 157 N.J. 188, 211 (1999) (internal quotation marks and citation omitted)). Such evidence may be shown through either direct or circumstantial evidence. Smith v. Millville Rescue Squad, 225 N.J. 373, 394 (2016) (citing Sisler, 157 N.J. at 208).
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We agree with the judge that plaintiff failed to present a prima facie case of gender discrimination to survive summary judgment. As the judge pointed out, the record does not show Prather committed a discriminatory act against plaintiff "by improperly viewing, downloading, disseminating, or accessing her private photographs" or "demonstrate[] the existence of a genuine issue of material fact." Moreover, plaintiff does not dispute Prather "initially pulled her over for a legitimate purpose."7 Thus, we find no fault with the judge's analysis or ruling.
Finally, we consider plaintiff's invasion of privacy claim (count seven).
Plaintiff argues she provided sufficient evidence to create a dispute of material fact as to whether "Prather had held on to [p]laintiff's cell phone for a lengthy period of time," to infer Prather was improperly accessing her cell phone.
7 Equally unavailing is the contention that circumstantial evidence showing Prather may have improperly searched plaintiff's cell phone would constitute an actionable discriminatory act. Such action by Prather would be outside the scope of his employment and plaintiff presents no evidence suggesting it would be foreseeable to the State defendants. See Restatement (Second) of Agency § 219 (A.L.I 1958); Di Cosala v. Kay, 91 N.J. 159, 169 (1982) (quoting W. Prosser, Law of Torts 460-61 (4th ed. 1971)) (defining scope of employment); Mason v. Sportsman's Pub, 305 N.J. Super. 482, 499 (App. Div. 1997) (explaining whether the act of the employee was foreseeable is crucial in the scope of employment analysis); Davis v. Devereux Foundation, 209 N.J. 269, 303-04 (2012) (indicating crimes are typically not within the scope of employment).
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There are four types of invasion of privacy: (1) intrusion on a plaintiff's "physical solitude or seclusion," (2) "public disclosure of private facts," (3) "placing plaintiff in a false light in the public eye," and (4) appropriation of a plaintiff's name or likeness for the defendant's benefit. Rumbauskas v. Cantor, 138 N.J. 173, 180 (1994). Intrusion upon seclusion is defined as "an intentional intrusion, 'physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns' that 'would be highly offensive to a reasonable person.'" G.D. v. Kenny, 205 N.J. 275, 309 (2011).
Actions constituting tortious intrusion upon seclusion can include "'intruding into [a] home,' 'an illegal search,' 'eavesdropping . . . by means of wire tapping and microphones,' 'peering into the windows of a home,' and 'unauthorized prying into' private effects or information." Friedman v. Martinez, 242 N.J. 449, 466 (2020) (quoting William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 389-90 (1960)). "To establish that an intrusion occurred, a victim may rely on circumstantial evidence, and courts can draw reasonable inferences from the proofs presented." Id. at 471.
Under the New Jersey Tort Claims Act, N.J.S.A. 59:2-2, public entities may be vicariously liable for certain actions of their employees. However, they are not liable where the employee's acts or omissions constitute "a crime, actual
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fraud, actual malice, or willful misconduct." N.J.S.A. 59:2-10. Willful misconduct under the Tort Claims Act is "the commission of a forbidden act with actual (not imputed) knowledge that the act is forbidden." Marley v. Palmyra, 193 N.J. Super. 271, 294-95 (1983).
Addressing count seven, the judge explained:
[Plaintiff] must, in accordance with G.D.[,] provide evidence that Prather intentionally intruded, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns that would be highly offensive to a reasonable person. Additionally, the State defendants must not otherwise be immune from liability. [Plaintiff] fails to meet this burden in two regards. The actions alleged against Prather would certainly constitute an intentional intrusion upon [plaintiff's] solitude which, in accessing her private, explicit photographs, would be highly offensive to a reasonable person. However, . . . there is no evidence which demonstrates that Prather actually intruded upon [plaintiff's] privacy since there is no evidence that he ever viewed, downloaded, distributed, or otherwise accessed her private photographs.
Of course, as discussed in Friedman, 242 N.J. at 469, [plaintiff] may rely on circumstantial evidence to defeat a motion for summary judgment. However, this too is lacking in the record. By [plaintiff's] own account, Prather did not make any inappropriate comments or requests to her when they spoke during the motor vehicle stop. . . . The State Police Investigation Report, which [plaintiff] does not challenge, provides that [plaintiff] was not counted among the victims of Prather. [Plaintiff] only provided vague suspicions without support to the record that,
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during the approximately ten minutes in which Prather had her cellphone in his trooper car, Prather viewed her private photographs. [Plaintiff] has not provided any evidence by way of expert testimony or any other evidence to suggest that this is an inordinate amount of time for Prather to have held onto her phone, or else that there were any changes to her phone which indicates that someone may have accessed her private photographs.
We agree with the judge's ruling and reasoning. Accordingly, the judge properly granted summary judgment, dismissing count seven.
Affirmed.
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