NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0034-19
YANLEY SANDY,
Plaintiff-Appellant,
v.
TOWNSHIP OF ORANGE, L. WORTHEN-BARNES, and IMBERT WALKER,
Defendants-Respondents. __________________________
Submitted February 24, 2021 – Decided July 29, 2021
Before Judges Ostrer, Vernoia, and Enright.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2274-17.
Eldridge Hawkins, attorney for appellant.
Michael A. Armstrong & Associates, LLC, attorneys for respondent Township of Orange (Morrison Kent Fairbairn, on the brief).
David C. Stanziale, attorney for respondent L. Worthen-Barnes. PER CURIAM
Plaintiff Yanley Sandy appeals from August 30, 2019 orders granting
summary judgment to defendant Township of Orange (the Township) and
Township police officer, defendant L. Worthen-Barnes, and denying plaintiff's
cross-motion for summary judgment. Based on our de novo review of the
summary judgment record, and after consideration of the arguments of counsel,
we affirm the court's order granting defendants summary judgment on all counts
of the complaint other than the eighth count, which alleges the Township and
Worthen-Barnes violated the New Jersey Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -50, by unlawfully discriminating against plaintiff in a place
of public accommodation based on his national origin. We vacate the summary
judgment award on the eighth count and remand for further proceedings before
the trial court on that count. We affirm the court's denial of plaintiff's cross -
motion for summary judgment.
I.
To provide context for our discussion of the issues presented by plaintiff's
appeal from the orders granting defendants' summary judgment motions, we
generally describe the facts, supported by the parties' Rule 4:46-2 statements, in
A-0034-19 2 the light most favorable to plaintiff, the non-moving party.1 See Bauer v.
Nesbitt, 198 N.J. 601, 604 n.1 (2009) (explaining in the consideration of a
1 Many of the facts we include in the summary are set forth in the parties ' respective Rule 4:46-2 statements of material fact. We do not refer to purported facts included in the statements that are not supported by citation to competent evidence. See R. 4:46-2(a) to (b); see also Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (explaining that in reviewing a trial court's summary judgment order, we "must review the competent evidential materials submitted by the parties to identify whether there are genuine issues of material fact"); Leang v. Jersey City Bd. of Educ., 399 N.J. Super. 329, 357 (App. Div. 2008) (requiring that in determining whether to "accept as true . . . the allegations [contained in] a party's statement [of material facts]," courts must "consider[] . . . 'the competent evidential materials'" present in the record (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995))), aff'd in part, rev'd in part on other grounds, 198 N.J. 557 (2009); Lombardi v. Masso, 207 N.J. 517, 547 (2011) (Rivera-Soto, J., dissenting) ("Facts tendered as material either in support or in opposition to a motion for summary judgment motion must be anchored to a proper basis."). For example, we do not include in our summary those purported facts set forth in the Township's Rule 4:46-2 statement that are supported only by a citation to a hearsay police report annexed to a certification of counsel and which are otherwise untethered to an affidavit or certification supported by the personal knowledge of any police officers. See R. 1:4-4; R. 1:6-6. We include some facts plaintiff putatively denied because plaintiff's failure to support his denials with citations to competent record evidence renders the asserted facts admitted for purposes of our consideration of defendants' summary judgment motions. See R. 4:46-2(a) to (b); see also Kamienski v. State, 451 N.J. Super. 499, 505 n.2 (App. Div. 2017) (providing that a party's assertions or denials "of material fact[s]" must be "support[ed]" by "citation[s] to the portion of the motion record" upon which the party relied in support of the assertions or denials (quoting R. 4:46-2(a))); Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999) ("[B]are conclusory assertions in an answering affidavit are insufficient to defeat a meritorious application for summary judgment."). A-0034-19 3 summary judgment motion "both trial and appellate courts must view the facts
in the light most favorable to the non-moving party").
Plaintiff is "Guyanese by national origin" and he became an American
citizen in 2006. In the early morning hours of April 12, 2015, plaintiff drove
his car on Scotland Road in the Township. Scotland Road is a two-lane street
leading to its intersection with Central Avenue, and, at the intersection, the street
has a third lane, which is for vehicles making a left turn onto Central Avenue.
Plaintiff intended to make a right turn onto Central Avenue but as he approached
the intersection of Scotland Road and Central Avenue, he saw a police car
stopped in the right lane of Scotland Road and another vehicle stopped in the
center lane. Worthen-Barnes, who was on duty as a Township police officer,
stood outside the police car.
Plaintiff stopped his vehicle about two car lengths behind the police car.
At that time, plaintiff activated his vehicle's right turn signals. Plaintiff's vehicle
remained stopped behind the police car for two to three cycles of the traffic
signal light changing at the intersection. Worthen-Barnes looked in plaintiff's
direction at one point but did not say anything to him.
Plaintiff then activated his car's left turn signals and drove to his left
around the stopped police car and the other vehicle and up to the intersection in
A-0034-19 4 the left-turn lane. When the traffic light at the intersection turned green, plaintiff
activated the car's right turn signals and made a right turn onto Central Avenue
from the left-turn lane on Scotland Road.
After plaintiff made the turn onto Central Avenue, and as he passed the
vehicle and police car still stopped to his right on Scotland Road, he heard
Worthen-Barnes yelling at him as she approached the rear of his car. Plaintiff
stopped his car and leaned over to lower the rear passenger-side window to hear
what Worthen-Barnes was saying to him, but he did not lower the music playing
on his radio. After he lowered the window, he heard Worthen-Barnes say "back-
up, back-up." Plaintiff did not back up his vehicle. He did not move or say
anything to Worthen-Barnes as she stood toward the rear of his car holding what
he believed was a radio in one hand and a gun in the other. Worthen-Barnes
pointed a gun at plaintiff as he sat in his car, but she did not give him any
commands.
Two male officers then opened the driver's-side door of plaintiff's car and
pulled him from the vehicle while cursing at him. Worthen-Barnes then opened
the front passenger-side door of the car and took the keys from the ignition.
As the male officers pulled plaintiff from his car, "they slammed him
against his vehicle and put handcuffs on him while cursing at him." They also
A-0034-19 5 searched his pockets, causing his pants to fall "halfway 'down to the back of
[his] butt[ocks]' as a result."
The officers placed plaintiff in a police vehicle with Worthen-Barnes, who
drove plaintiff to the police station. According to plaintiff, while driving to the
station, Worthen-Barnes "glanced back at [p]laintiff" and said, "[W]e do this to
you because you're a [expletive] foreigner." Plaintiff asked Worthen-Barnes
why she made the statement, and she responded, "[S]hut the [expletive] up you
[expletive] foreigner."
When plaintiff arrived at the station, Worthen-Barnes and another officer
placed him in what plaintiff described as a "mesh cage." He remained in police
custody for two to three hours. Worthen-Barnes charged plaintiff with
disorderly conduct in violation of N.J.S.A. 2C:33-2(a)(1), and three motor
vehicle offenses. 2 The municipal court later dismissed the charges for lack of
prosecution.
2 Plaintiff was issued motor vehicle summonses for disregarding an officer's signal by police whistle, N.J.S.A. 39:4-122; careless driving, N.J.S.A. 39:4-97; and improper passing, N.J.S.A. 39:4-83. A-0034-19 6 Plaintiff subsequently filed a complaint against the Township, Worthen -
Barnes, and Township Police Sergeant Imbert Walker.3 The complaint asserted
the following ten causes of action: negligent training and supervision of
Worthen-Barnes and Walker (first count); reckless and intentional infliction of
emotional distress (second count); violation of plaintiff's constitutional and civil
rights and violation of N.J.S.A. 10:6-2 (third count); unlawful stop, search, and
arrest in violation of Article I, Paragraphs 1, 5, and 7 of the New Jersey
Constitution (fourth count); false arrest and false imprisonment (fifth count);
violation of the New Jersey Constitution (sixth count); infliction of emotional
distress (seventh count); violation of N.J.S.A. 10:5-4 and -12(f) by denying
plaintiff equal treatment in a place of public accommodation (eighth count);
malicious prosecution (ninth count); and violation of the New Jersey Civil
Rights Act, N.J.S.A. 10:6-2 (tenth count).
3 Plaintiff filed a complaint and, later, an amended complaint. We describe the causes of action asserted in the amended complaint because it was the operative complaint when the Township and Worthen-Barnes filed their summary judgment motions. We do not address the claims against defendant Imbert Walker, who has not participated in the appeal, because plaintiff does not argue the court erred by granting summary judgment to Walker. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("[I]ssue[s] not briefed on appeal [are] deemed waived."); Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008) (same). A-0034-19 7 In a September 15, 2017 order, the court granted in part defendants'
motion for partial dismissal of the complaint. 4 The order dismissed: all claims
against Walker without prejudice; the second, fifth, seventh, and ninth counts
against the Township with prejudice, and the eighth count without prejudice;
and the first count against Worthen-Barnes with prejudice, and the eighth count
against her without prejudice. In a December 15, 2017 order, the court granted
in part plaintiff's motion for reconsideration and reinstated the eighth count
against the Township and Worthen-Barnes.
Following entry of the court's September 15 and December 15, 2017
orders, the causes of action remaining against the Township included: negligent
4 The court's September 15, 2017 order is not a paradigm of clarity. In part, it consists of a grid with each of the counts in the complaint listed by number and a handwritten, abbreviated description of the asserted cause of action, and boxes that are checked off to indicate which counts are dismissed as to each defendant and whether the counts are dismissed with or without prejudice. We interpret the handwritten notations to also indicate that the court merged the fourth and tenth counts with the third count, and the seventh count with the second count. We also interpret the lack of a check in the box next to a defendant's name as indicating the court denied the defendant's motion to dismiss the corresponding count against the designated defendant. There is nothing in the briefs of the parties on appeal suggesting a different interpretation of the order. Because "it is well-settled that appeals are taken from orders and judgments and not from opinions, oral decisions, informal written decisions, or reasons given for [trial courts'] ultimate conclusion[s]," Hayes v. Delamotte, 231 N.J. 373, 387 (2018) (quoting Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001)), orders clearly and precisely setting forth a trial court's actions and directives are essential to proper appellate review. A-0034-19 8 training and supervision (first count); violations of plaintiff's rights under the
New Jersey Constitution and violation of N.J.S.A. 10:6-2 (third, fourth, sixth,
and tenth counts); false arrest and false imprisonment (fifth count); and violation
of the LAD by failing to provide or furnish a reasonable accommodation,
N.J.S.A. 10:5-4 and -12(f) (eighth count).
Following entry of the orders, the following causes of action remained
against Worthen-Barnes: reckless or intentional infliction of emotional distress
(second count); violations of plaintiff's rights under the New Jersey Constitution
and violation of N.J.S.A. 10:6-2 (third, fourth, sixth, and tenth counts); false
arrest and false imprisonment (fifth count); infliction of emotional distress
(seventh count); violation of the LAD by failing to provide or furnish a
reasonable accommodation, N.J.S.A. 10:5-4 and -12(f) (eighth count); and
malicious prosecution (ninth count).
Defendants later filed separate motions for summary judgment, and
plaintiff cross-moved for summary judgment. Following oral argument on the
motions, the court rendered a decision from the bench granting defendants'
motions and denying plaintiff's cross motion. In its decision, the court
summarized the parties' arguments, detailed certain legal principles related to
some of the causes of action, and generally described the summary judgment
A-0034-19 9 standard and the defense of qualified immunity. The court noted plaintiff's
decision not to depose any witnesses during discovery and his failure to produce
evidence or supply expert testimony establishing defendants' liability on
plaintiff's causes of action.
The court found the Township is entitled to judgment as a matter of law
on plaintiff's negligent supervision claim because
[p]laintiff has not established that the . . . Township's [p]olice [d]epartment had reason to know of . . . Worthen[-]Barnes'[s] alleged dangerous propensity[,] if one exists[,] towards wrongful arrests or the violation of civil rights against foreigners[,] or could reasonably have foreseen that those characteristics could cause a risk of harm to motorists like plaintiff.
The court also found plaintiff did not present evidence establishing a negligent
training claim, finding "[p]laintiff has not identified a deficiency in [the
Township's police department's] training policy, deposed anyone to obtain
information on how officers were trained, or proffered any expert testimony on
this issue."
The court further determined plaintiff failed to present evidence
establishing his causes of action for violations of his constitutional rights. The
court explained:
A-0034-19 10 [P]laintiff has claimed several times throughout the amended complaint that it is custom for [the Township's p]olice [d]epartment to provide untrue statements to support unlawful arrests and to cover up unlawful activity, but has provided no factual evidence supporting these claims or regarding any specific municipal policy or custom . . . to . . . link [the Township] to any constitutional violations on the part of any officers.
The court also found defendants are entitled to summary judgment on
plaintiff's asserted tort claims because it is undisputed plaintiff did not incur
medical treatment expenses sufficient to satisfy the pain and suffering damage
threshold for a tort claim against a public entity and employee under the New
Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. The court concluded
plaintiff failed to present any evidence he incurred the $3,600 in medical
treatment expenses required to satisfy the TCA threshold for a pain and suffering
award. N.J.S.A. 59:9-2(d).
The court also determined plaintiff did not present evidence establishing
he was denied a public accommodation based on his nationality in violation of
the LAD, N.J.S.A. 10:5-4 and -12(f). In its opinion from the bench, the court
found plaintiff failed to present evidence he "was treated differently than a non-
Guyanese American that was being jailed by the" Township's police department,
A-0034-19 11 and plaintiff's "mere allegation that an officer told him . . . he was being
mistreated because he was a foreigner does not establish discrimination."
In its order granting defendants summary judgment on plaintiff's denial of
public accommodations claim, the court explained that
[p]laintiff has not shown that he actually sought or was denied accommodations on account of his national origin[;] there is no evidence, deposition testimony, or expert opinion that shows . . . [p]laintiff was treated differently by [the Township's p]olice [d]epartment or . . . Worthen[-]Barnes[;] and mere allegations do not establish discrimination.
Based on those findings, the court entered an order granting defendants'
summary judgment motions and denying plaintiff's cross-motion. This appeal
followed.
On appeal, plaintiff presents the following arguments for our
consideration:
Point I
DEFENDANTS' OWN RECORDS SHOW THEIR NON-ENTITLEMENT FOR SUMMARY JUDGMENT RELIEF.
Point II
A REASONABLE JURY WOULD FIND [THE TOWNSHIP'S] SUBMISSIONS AND LACK OF SAME WOULD SHOW PLAINTIFF HAS MET HIS
A-0034-19 12 BURDEN TO PROVE HIS CLAIMS OF NEGLIGENT SUPERVISION AND NEGLIGENT TRAINING.
Point III
PLAINTIFF'S CLAIMS FOR NEGLIGENT SUPERVISION/NEGLIGENT HIRING ARE VALID.
Point IV
PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON THE ISSUE OF VIOLATION OF THE PLACE OF PUBLIC [ACCOMMODATION] DISCRIMINATION PREDICATED UPON[:]
A. WORTHEN-BARNES['S] STATEMENT TO PLAINTIFF THAT THIS IS HAPPENING TO YOU BECAUSE YOU ARE A FOREIGNER;
B. THE REASONING IN [THE] UPCHURCH v. CITY OF ORANGE DECISION THAT DEFENDANTS HAD NOT PRODUCED ANY POLICY ON DIFFERENTIAL TREATMENT AND NO TRAINING ON THE SUBJECT MATTER; AND
C. THE HOLMES DECISION CITED BY [THE MOTION COURT].
Point V
NEGLIGENT SUPERVISION AND TRAINING CLAIMS ARE ENTITLED TO SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF AS SAID CLAIM IS PROVEN BY [THE TOWNSHIP'S] OWN RECORDS.
A-0034-19 13 II.
The point headings in plaintiff's brief on appeal reflect the assertion of
arguments directed to two parts of the court's order. First, the headings for
Points I, II, III, and V pertain solely to the summary judgment award on the first
count, which alleges the Township negligently supervised and trained Worthen-
Barnes.5 Second, the Point IV heading asserts only that the court erred by
granting summary judgment to the Township and Worthen-Barnes on the eighth
count, which alleges a violation of the LAD by denying plaintiff equal treatment
in a place of public accommodation because of his national origin.
In his brief on appeal, plaintiff variously, and oftentimes vaguely,
intersperses suggestions of other arguments challenging the summary judgment
order, but defendants and this court have "a right to know precisely what legal
5 The headings for Point II and III are expressly limited to plaintiff's chall enge to the court's summary judgment award to the Township on the first count, and the Point V heading claims the court erred by denying plaintiff's motion for summary judgment on the first count. The Point I heading more generically asserts the Township's "own records" demonstrate it is not entitled to summary judgment, but the records to which the heading makes reference are reports showing Worthen-Barnes's police department internal affairs history, and plaintiff relies on those records for the singular purpose of challenging the court's summary judgment award on the first count. Thus, the seemingly broad argument asserted in the Point I heading is limited to plaintiff's contention, which is more directly asserted in the Point II, III, and V headings, that the Township is not entitled to summary judgment on the first count and plaintiff is entitled to summary judgment on that count. A-0034-19 14 arguments are being made and . . . need not respond to oblique hints and
assertions" that are made in a cursory manner and are untethered to the point
headings required by Rule 2:6-2(a)(6) properly identifying the arguments relied
on to support the appeal. Almog v. Israel Travel Advisory Serv., Inc., 298 N.J.
Super. 145, 155 (App. Div. 1997); see also Mid-Atl. Solar Energy Indus. Ass'n
v. Christie, 418 N.J. Super. 499, 508 (App. Div. 2011) (refusing to address an
issue raised in a two-sentence paragraph in a brief "without a separate point
heading, in violation of Rule 2:6-2(a)[(6)]"). It is not the role of this court to
weave together the fabric of an argument on a party's behalf based on threads
vaguely scattered amongst the issues that are properly identified in accordance
with Rule 2:6-2(a)(6). We limit our consideration "of the issues to those
arguments properly made under appropriate point headings," Almog, 298 N.J.
Super. at 155, and therefore only address plaintiff's arguments that the court
erred by: granting the Township summary judgment on the negligent training
and supervision cause of action; denying his cross-motion for summary
judgment on the negligent training and supervision claim; and granting the
Township and Worthen-Barnes summary judgment on the claim they violated
the LAD by discriminating against him based on his national origin in a place
A-0034-19 15 of public accommodation,6 see R. 2:6-2(a)(6); see also Mid-Atl. Solar Energy
Indus., 418 N.J. Super. at 508; Almog, 298 N.J. Super. at 155-56.
We review an order granting summary judgment applying the same
standard as the trial court. State v. Perini Corp., 221 N.J. 412, 425 (2015) (first
citing Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013); and then citing Liberty
Surplus Ins. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). In
considering a motion for summary judgment, "both trial and appellate courts
must view the facts in the light most favorable to the non-moving party, which
in this case is plaintiff." Bauer, 198 N.J. at 604 n.1 (first citing R. 4:46-2(c);
and then citing Brill, 142 N.J. at 540). Summary judgment is proper if the record
demonstrates "no genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment . . . as a matter of law." Burnett v.
Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App.
Div. 2009) (quoting R. 4:46-2(c)). Issues of law are subject to the de novo
6 Because plaintiff does not present any arguments in any of the point headings concerning the grant of summary judgment to defendants on the second, third, fourth, fifth, sixth, seventh, ninth, and tenth counts, we do not address those claims on appeal, and we affirm the court's summary judgment order as to those claims. See Sklodowsky, 417 N.J. Super. at 657; Jefferson Loan Co., 397 N.J. Super. at 525 n.4. A-0034-19 16 standard of review, and the trial court's determination of such issues is accorded
no deference. Kaye v. Rosefielde, 223 N.J. 218, 229 (2015).
The first count of the complaint avers that the alleged wrongful stop,
arrest, detention, and prosecution of plaintiff were the result of the Township's
negligent training and supervision of Worthen-Barnes. Negligent training and
supervision claims "are not forms of vicarious liability," but rather "are based
on the direct fault of an employer." G.A.-H. v. K.G.G., 238 N.J. 401, 415
(2019). To establish a party acted negligently, a plaintiff must present evidence
establishing "a duty of care owed by the defendant to the plaintiff, a breach of
that duty by the defendant, injury to the plaintiff proximately cause d by the
breach, and damages." Robinson v. Vivirito, 217 N.J. 199, 208 (2014). Where,
as here, a plaintiff claims an employer breached a duty "relate[d] to the risk of
harm created by [an employee], the plaintiff must prove that the [employer]
knew or had reason to know of the risk of harm in question." G.A.-H., 238 N.J.
at 415.
To establish a negligent training or supervision claim, a plaintiff must
present evidence demonstrating:
(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
A-0034-19 17 other persons" and (2) "that, through the negligence of the employer in [training or supervising] the employee, the latter's incompetence, unfitness[,] or dangerous characteristics proximately caused the injury."
[Id. at 416 (quoting Di Cosala v. Kay, 91 N.J. 159, 173 (1982)).]
Stated differently, a "plaintiff must prove that (1) an 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 (2) that risk of harm materializes and causes the
plaintiff's damages." Ibid.
Plaintiff argues the Township knew or had reason to know that the
purported failure of the Township to properly train or supervise Worthen-Barnes
created a risk that she would wrongfully stop, arrest, detain, and prosecute him.
Plaintiff also contends the Township's failure to properly train or supervise
Worthen-Barnes resulted in the harm he allegedly suffered as a result of
Worthen-Barnes's wrongful actions.
In support of his contention, plaintiff relies exclusively on the records
summarizing Worthen-Barnes's internal affairs history with the Township's
police department. Plaintiff argues the records establish the Township knew or
should have known Worthen-Barnes posed a risk to take the purported wrongful
actions of stopping, arresting, detaining, and charging him on April 12, 2015,
A-0034-19 18 without any lawful basis and because of his national origin. We are not
persuaded.
The records upon which plaintiff relies provide scant information. In
cursory form, the records provide dates and general descriptions of the subjects
of police department internal affairs issues involving Worthen-Barnes, such as
"differential treatment," "motor vehicle accident," "abuse of sick time," and
"insubordination." Some of the entries include what appear to be the resolutions
or dispositions of the internal affairs issues, including "sustained," "unfounded,"
"withdrawn," and "exonerated," and, in some instances, what appears to be
discipline imposed, such as "written reprimand," or "suspension."
The internal affairs records upon which plaintiff solely relies are bereft of
any competent evidence establishing the facts and circumstances giving rise to
the issues presented to internal affairs, the nature and extent of any
investigations, and the circumstances surrounding the disposition of the issues
presented. Plaintiff did not depose any witnesses with knowledge of the records
or the facts underlying the cursory synopses of Worthen-Barnes's internal affairs
history. Plaintiff also did not depose anyone with knowledge concerning the
preparation of the records or the meaning of the entries in them. Most
importantly, the records do not include any competent evidence demonstrating
A-0034-19 19 that Worthen-Barnes presented a risk of stopping, arresting, detaining, or
charging individuals without a proper basis or based on their national origin, nor
does the information support a reasonable inference Worthen-Barnes presented
such a risk.7
In opposition to the Township's summary judgment motion, plaintiff could
not properly rely on speculation as to what the records demonstrated concerning
the alleged risk of harm presented by Worthen-Barnes. See Hoffman v.
Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009) (explaining
"[c]ompetent opposition" to a summary judgment motion "requires 'competent
evidential material' beyond mere 'speculation' and 'fanciful arguments'" (quoting
Merchs. Express Money Ord. Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563
7 Plaintiff incorrectly relies on Worthen-Barnes's internal affairs history following the April 12, 2015 incident involving plaintiff. Events occurring after the incident involving plaintiff could not properly be considered in determining whether the Township knew or should have known on April 12, 2015 that Worthen-Barnes posed a risk of harm to stop, arrest, detain, and charge an individual without a proper basis or based on the individual's national origin. See Wilson ex rel. Manzano v. City of Jersey City, 415 N.J. Super. 138, 167 (App. Div. 2010) (finding evidence of disciplinary actions against a police officer for incidents occurring subsequent to the events giving rise to a cause of action for negligent retention of the officer were not relevant to the negligent retention claim), rev'd on other grounds, 209 N.J. 558 (2012). Thus, Worthen- Barnes's post-April 12, 2015 internal affairs history is not relevant to a determination of the Township's summary judgment motion on count one, or plaintiff's cross-motion for summary judgment on that count. A-0034-19 20 (App. Div. 2005))). Plaintiff was obligated to present competent evidence
establishing, or supporting reasonable inferences establishing, his cause of
action for negligent training and supervision. See ibid.
Lacking such evidence, plaintiff failed to demonstrate an essential
element of his negligent training and supervision claim—that the Township
knew or had reason to know, or could have reasonably foreseen, that Worthen -
Barnes posed a risk of engaging in the wrongful conduct plaintiff alleges in the
complaint. See G.A.-H., 238 N.J. at 416; cf. Denis v. City of Newark, 307 N.J.
Super. 304, 313-14 (App. Div. 1998) (finding the plaintiff established a
negligent retention cause of action in part because the police officer who
allegedly assaulted the plaintiff had been "disciplined for assaultive behavior on
defenseless citizens" on two occasions prior). For that reason alone, we affirm
the summary judgment award to the Township on the first count and the court's
denial of plaintiff's cross-motion for summary judgment on that count.
Plaintiff's negligent training and supervision claims also fail because he
did not present any evidence concerning the Township's training and supervision
of Worthen-Barnes. Plaintiff did not depose anyone concerning the Township's
training and supervision of Worthen-Barnes, and plaintiff apparently did not
otherwise obtain any competent evidence during discovery establishing the
A-0034-19 21 manner in which the Township trained or supervised her. Plaintiff also failed to
present any evidence as to the manner in which the training and supervision of
Worthen-Barnes was deficient, or how she should have been trained or
supervised differently. See, e.g., Wilson ex rel. Manzano, 415 N.J. Super. at
167 (noting the plaintiff offered evidence supporting a negligent training and
supervision claim by showing the defendant employer deviated from the internal
procedures for training and supervising certain employees, the defendant "did
not properly disseminate" a manual defining the employees' job duties, and the
defendant failed to "ensure . . . the employees retained their [m]anuals").
Simple logic compels the conclusion that plaintiff could not, and did not,
demonstrate the Township negligently trained or supervised Worthen-Barnes
where he failed to present any evidence establishing the manner in which the
Township trained or supervised her, or failed to do so, or otherwise
demonstrating the Township's training or supervision was negligent.
Plaintiff's arguments are based on conclusory assertions Worthen-Barnes
should have been trained better, and he asserts the Township's records do not
"indicate any 'anger management' that was required" for Worthen-Barnes; that
there was "no training in any document submitted by [the Township] to show
sensitivity training . . . [or] equal public accommodations training"; and that
A-0034-19 22 "[t]here is . . . no indication in any of defendant's submissions to demonstrate
training in writing, the versions, offenses which were charged against
[p]laintiff." Plaintiff, however, does not cite to any competent evidence
demonstrating the Township knew or had reason to know "anger management,"
"sensitivity training," or "equal public accommodations training" were
necessary to address some risk that Worthen-Barnes would engage in the alleged
unlawful acts described in the complaint; that such training was necessary; or
how the absence of the training proximately caused plaintiff's purported
damages. G.A.-H., 238 N.J. at 416. The mere fact that alleged internal affairs
complaints were lodged against Worthen-Barnes, without more, does not create
a genuine issue of material fact as to whether she posed a risk of engaging in the
alleged unlawful stop, arrest, detention, and charging of plaintiff averred in the
first count of the complaint.
We have held that expert testimony is required to explain police
procedures because "most citizens . . . have no personal knowledge of how the
police should ordinarily . . . conduct themselves." McKinney v. E. Orange Mun.
Corp., 284 N.J. Super. 639, 654 (App. Div. 1995). We have also explained that
expert testimony is required to address issues related to a police department's
alleged negligent failure to follow its procedures for training and supervising its
A-0034-19 23 employees because the issues "posed by [those] circumstances [are] well outside
the awareness of a person of average intelligence and ordinary experience."
Wilson ex rel. Manzano, 415 N.J. Super. at 167. In Wilson ex rel. Manzano, we
affirmed a trial court's determination that "the mere actions of the employees
themselves without expert testimony to establish the standard of care [was]
insufficient to substantiate [the] plaintiff's claim that [the police department] fell
below the standard of care in training . . . [or] supervising . . . the individual
defendants." Id. at 166.
Although expert testimony may not be required in every case where a
plaintiff is allegedly injured by a police officer and later asserts a negligent
training or supervision claim against the officer's employer, plaintiff's negligent
training and supervision claim, as articulated in his brief on appeal, clearly
requires competent expert testimony explaining the applicable standards for
police training and supervision, whether the Township deviated from those
standards, and whether the deviation proximately caused plaintiff's alleged
injuries. See id. at 166-67. Plaintiff offered none.
In sum, we are convinced the motion court correctly determined plaintiff
failed to present competent evidence supporting his negligent training and
supervision claim against the Township. Plaintiff bore the burden of presenting
A-0034-19 24 evidence demonstrating the Township knew or had reason to know Worthen-
Barnes posed a risk of stopping, arresting, detaining, and charging him without
any legal basis or because of his national origin, see G.A.-H., 238 N.J. at 416,
but he failed to sustain that burden. We therefore affirm the court's order
granting the Township summary judgment on the first count, and, for the same
reasons, we affirm the court's denial of plaintiff's cross-motion for summary
judgment on that count.
Although unnecessary to our affirmance of the court's order granting the
Township summary judgment on the first count and denying plaintiff's cross-
motion for summary judgment on that count, we also affirm the order because
plaintiff failed to present evidence satisfying the statutory threshold for an award
of pain and suffering damages under the TCA.
Under the TCA, a plaintiff cannot collect damages against a public entity
for pain and suffering unless he or she meets the "verbal threshold" established
by the statute. Toto v. Ensuar, 196 N.J. 134, 144 (2008); see also Brooks v.
Odom, 150 N.J. 395, 402 (1997) (finding that, in accordance with the TCA, "a
claimant should not be reimbursed for non-objective types of damages, such as
pain and suffering, except in aggravated circumstances" (citation omitted)).
N.J.S.A. 59:9-2(d) states:
A-0034-19 25 No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement[,] or dismemberment where the medical treatment expenses are in excess of $3,600.00. For purposes of this section medical treatment expenses are defined as the reasonable value of services rendered for necessary surgical, medical[,] and dental treatment of the claimant for such injury, sickness[,] or disease, including prosthetic devices and ambulance, hospital[,] or professional nursing service.
Our Supreme Court "established 'a two-pronged test that a plaintiff must
satisfy in order to collect pain and suffering damages under N.J.S.A. 59:9-
2[(d)].'" Toto, 196 N.J. at 145 (quoting Knowles v. Mantua Twp. Soccer Ass'n,
176 N.J. 324, 329 (2003)). "To satisfy the test and vault the threshold, '[a]
plaintiff must show,'" in addition to the required $3,600 in treatment expenses,
"(1) an objective permanent injury, and (2) a permanent loss of a bodily function
that is substantial." Ibid. (alteration in original) (quoting Knowles, 176 N.J. at
329).
We need not address whether plaintiff presented sufficient competent
evidence establishing he suffered a substantial permanent loss of a bodily
function, in the form of his claimed post-traumatic stress disorder, as a result of
A-0034-19 26 the April 12, 2015 incident. 8 That is because plaintiff's negligent training and
supervision claim fails because he did not present any evidence demonstrating
he incurred medical treatment expenses related to the injuries he allegedly
suffered as a result of the April 12, 2015 incident. That failure alone required
the award of summary judgment to the Township on the negligence claim
asserted in the first count. N.J.S.A. 59:9-2(d); see also Reale v. Twp. of Wayne,
132 N.J. Super. 100, 116 (Law Div. 1975) (finding that without "competent
evidence of [past or] anticipated future medical expenses," a plaintiff cannot
satisfy the medical treatment expense threshold of the TCA).
III.
Plaintiff also contends the court erred by granting the Township's and
Worthen-Barnes's respective motions for summary judgment on the eighth
count, which alleged they violated the LAD by discriminating against him based
8 In support of his claimed injury, plaintiff relied on reports from psychologist Dr. Daniel Williams. Because it unnecessary to our determination that plaintiff's negligence claim against the Township is barred under N.J.S.A. 59:9-2(d), we do not decide if Dr. Williams's report includes an inadmissible net opinion concerning the nature and extent of plaintiff's alleged injury, see, e.g., Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011) (explaining "an expert's bare opinion that has no support in factual evidence or similar data is a mere net opinion which is not admissible and may not be considered"), and, if not, whether the opinion is otherwise sufficient to satisfy the injury threshold under the statute, see N.J.S.A. 59:9-2(d). A-0034-19 27 on his national origin in the furnishing of a place of public accommodation. The
motion court granted summary judgment on the claim based on its findings
plaintiff failed to demonstrate he sought or was denied a public accommodation
and that plaintiff did not present evidence that he "was treated differently than
a non-Guyanese American that was being jailed by the" Township's police
department. The court further found plaintiff's "mere allegation" that Worthen-
Barnes told him "he was being mistreated because he was a foreigner does not
establish discrimination."
The LAD provides, in part, that "[a]ll persons shall have the
opportunity . . . to obtain all the accommodations, advantages, facilities, and
privileges of any place of public accommodation . . . without discrimination
because of . . . national origin." N.J.S.A. 10:5-4. More particularly, N.J.S.A.
10:5-12(f)(1) provides that:
[i]t shall be . . . unlawful discrimination . . . [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 . . . national origin . . . .
A-0034-19 28 "The LAD should be construed liberally," and "[i]ts purpose is 'nothing
less than the eradication of the cancer of discrimination.'" Ptaszynski v.
Uwaneme, 371 N.J. Super. 333, 345 (App. Div. 2004) (quoting Dale v. Boy
Scouts of Am., 160 N.J. 562, 584 (1999), rev'd & remanded on other grounds,
530 U.S. 640 (2000)). N.J.S.A. 10:5-5(l) broadly defines "[a] place of public
accommodation," but "[t]he listed places of public accommodation are merely
illustrative of the accommodations the Legislature intended to be within the
scope of the statute," Ptaszynski, 371 N.J. Super. at 345 (quoting Fraser v. Robin
Dee Day Camp, 44 N.J. 480, 486 (1965)), and "application of the LAD is not
limited only to 'places' of public accommodation," ibid. (quoting Dale, 160 N.J.
at 588).
In Ptaszynski, we held that a municipal police department and the
department's individual officers qualify as "a place of public accommodation"
under the LAD, and that discrimination in the furnishing of those public
accommodations violates the LAD. Id. at 347. We explained that "[a] municipal
police force is nothing more than 'an executive and enforcement function of
municipal government,'" ibid. (quoting N.J.S.A. 40A:14-118), and that, "[a]s a
public entity, by its very nature a police force is a place of public
accommodation," ibid. We further noted that "[i]f a police force is not subject
A-0034-19 29 to the LAD, subject to certain constitutional limitations, the officers may be free
to discriminate." Ibid.
More recently in Holmes v. Jersey City Police Department, we reversed
an order granting summary judgment dismissing a transgender plaintiff's claim
of public accommodation discrimination in violation of the LAD based on
allegations that, following the plaintiff's arrest, police subjected the plaintiff to
a hostile environment because plaintiff was transgender. 449 N.J. Super. 600,
601, 606 (App. Div. 2017). In granting summary judgment, the trial court
analyzed the claim under the standard applicable to the assessment of a hostile
environment religious discrimination claim in the employment context. Id. at
603. We determined the trial court erred by relying on the standard because it
had been rejected by the Court in Cutler v. Dorn, 196 N.J. 419, 440 (2008). Ibid.
We also explained "[t]he prohibition of discrimination in relation to public
accommodation is functionally distinct from the ban on employment
discrimination." Id. at 603-04 (alteration in original) (quoting Thomas v. Cnty.
of Camden, 386 N.J. Super. 582, 590 (App. Div. 2006)). "[I]n the context of
public accommodation discrimination, hostile comments that might not suffice
to create a hostile environment in a work context may nonetheless violate the
LAD." Id. at 604. For example, we noted that in Franek v. Tomahawk Lake
A-0034-19 30 Resort, 333 N.J. Super. 206, 211 (App. Div. 2000), we found that "proof of one
discriminatory comment by the owner of a recreation facility, that he did not
want 'those [disabled] people' to use the premises, was sufficient to allow the
plaintiff to survive a summary judgment motion." Holmes, 449 N.J. Super. at
604 (alteration in original). In Holmes, we also concluded that because the
police officers who made the derogatory comments concerning the plaintiff's
transgender status were "in a position of authority over [the] plaintiff, who was
their prisoner," "the impact of threatening and harassing conduct may be
magnified, even if it only occurs on one day." Id. at 605. We found the
plaintiff's evidence of such conduct created a genuine issue of material fact as
to whether the police department violated the LAD by discriminating against the
plaintiff in a place of public accommodation. Id. at 605-06.
Measured against these principles, and giving plaintiff the benefit of all
reasonable inferences based on the evidence presented, we are convinced the
court erred by granting the Township and Worthen-Barnes summary judgment
on plaintiff's denial of public accommodations claim. The Township and
Worthen-Barnes contend, and the motion court found, plaintiff's claim failed as
a matter of law because he did not seek a public accommodation and was not
denied a public accommodation. The argument and the court's finding ignore
A-0034-19 31 that the LAD "not only prohibits the owner or operator of a public
accommodation from denying the use of a facility on forbidden grounds, but it
also renders unlawful any acts 'discriminat[ing] against any person in the
furnishing'" of a public accommodation. Franek, 333 N.J. Super. at 217-18
(alteration in original) (quoting N.J.S.A. 10:5-12(f)(1)).
Because the Township's police department, Worthen-Barnes, and the
other officers are places of public accommodation under the LAD, Ptaszynski,
371 N.J. Super. at 347, Worthen-Barnes's and the other officers' interactions
with plaintiff on April 12, 2015 constituted the furnishing of public
accommodations. Plaintiff claims those interactions, which include the motor
vehicle stop, his arrest and detention, and his prosecution on charges that were
later dismissed due to lack of prosecution, were unlawfully based on his national
origin. Plaintiff's contention is supported by competent record evidence: he
testified Worthen-Barnes stated to him, "We do this to you because you're
a . . . foreigner." For purposes of defendants' summary judgment motions, we
accept plaintiff's testimony as true and find it provides direct evidence Worthen-
Barnes acted on April 12, 2015 in the furnishing of public accommodations —
the performance of her services as a police officer—in a discriminatory manner
based on plaintiff's national origin. Worthen-Barnes said that was the case. Her
A-0034-19 32 statement further provides circumstantial evidence the other officers acted in a
discriminatory manner as well.
In Holmes, we noted "threatening and harassing conduct" made by police
officers based on an individual's gender identity or expression may alone create
a hostile environment constituting unlawful discrimination in a place of public
accommodation in violation of the LAD. 449 N.J. Super. at 605-06. Here,
plaintiff's claim is not founded on words alone, and we do not interpret his claim
as limited to hostile environment discrimination. He does not only contend
defendants created a hostile environment based on his national origin ; he
contends Worthen-Barnes actually exercised her authority as a police officer to
stop, arrest, detain, and charge him with offenses (all of which were later
dismissed due to lack of prosecution) because of his national origin. According
to plaintiff, that is precisely what Worthen-Barnes told him. Worthen-Barnes's
statement creates a genuine issue of material fact as to whether the actions of
the officers constituted unlawful discrimination in a place of public
accommodation in violation of the LAD. We therefore vacate the court's
A-0034-19 33 summary judgment award on the eighth count, and remand to the trial court for
further proceedings on that count of the complaint. 9
Any arguments made on plaintiff's behalf that we have not expressly
addressed are without sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed in part, vacated in part, and remanded for further proceedings in
accordance with this opinion. We do not retain jurisdiction.
9 We decide only that the court erred by granting defendants summary judgment on the eighth count. We do not offer any opinion on the merits of plaintiff's claim or on any defenses that may be available to the claim. On remand, the court shall permit such additional discovery, motion practice, and other proceedings as it deems appropriate in the normal course. A-0034-19 34