NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4935-13T3
LINDA LEONE,
Plaintiff-Appellant,
v.
BOROUGH OF BELMAR, BOROUGH
OF BELMAR POLICE DEPARTMENT,
PATROLMAN M. ALLEN, BADGE #150
and SERGEANT SEAN R. PRINGLE,
BADGE #135,
Defendants-Respondents.
__________________________________
Argued September 16, 2015 Decided October 1, 2015
Before Judges Ostrer and Haas.
On appeal from the Superior Court of New
Jersey,
Law
Division,
Monmouth
County,
Docket No. L-1729-12.
Robert A. Conforti argued the cause for
appellant (Mr. Conforti and Jeff Thakker,
attorneys; Mr. Conforti and Mr. Thakker, on
the briefs).
Jennifer A.
respondents
Doukas,
Killmurray,
brief).

Passannante argued the cause for

(Hoagland, Longo, Moran, Dunst &
attorneys;
Christopher
J.
of counsel; Reid H. Eder, on the

PER CURIAM
This appeal involves a tort claim against the Borough of
Belmar and two borough police officers, Patrolman Michael R.

Allen

and

Sergeant

Sean

R.

Pringle.1

Plaintiff

Linda

Leone

alleges that defendants failed to exercise reasonable care of

her while she was in custody after an arrest for driving under
the influence (DUI).

Leone alleges she was highly intoxicated

and repeatedly fell off a chair in the Alcotest room.

As a

result, she suffered a broken hip.

After a period of discovery, the court granted defendants'
motion for summary judgment.
immune

under

two

provisions

N.J.S.A. 59:3-3, and 59:4-2.

The court found defendants were

of

the

proper

care

of

Tort

Claims

Act

(TCA),

The court also granted defendants'

motion to bar plaintiff's expert.

on

the

The expert offered an opinion

intoxicated

arrestees.

The

court

concluded his opinion was a net opinion.

Plaintiff appeals from the two orders.

Having reviewed

plaintiff's arguments in light of the record and the applicable

principles of law, we reverse in part and affirm in part.
I.
We view the facts in the light most favorable to plaintiff
as the non-moving party.

See Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 540 (1995).

Plaintiff was highly intoxicated

Plaintiff also mistakenly named the borough's police department

as a separate defendant, as well as various fictitiously-named
defendants. We shall refer to the borough and the two officers
as defendants.

A-4935-13T3

on the morning of April 22, 2010.

She testified she had four

double vodka and orange juice drinks at a nearby tavern between

7:00 a.m. and 7:50 a.m.

She then got into her car.

Police soon

responded to a caller's report that plaintiff was driving very

erratically.
By

the

time

Patrolman

Allen

appeared

on

the

scene,

plaintiff's vehicle was already stopped on the side of the road.

The engine was off but the transmission was still in drive.
Allen

detected

characterized

the

strong

plaintiff's

odor

of

speech

"incoherent," and "slobbering."

as

alcoholic

beverages.

"substantially

He

slurred,"

She appeared to have difficulty

comprehending Allen's requests, and was slow to respond.

had to ask plaintiff several times for her license.

Allen

She was

unable to step out of the vehicle on her own, despite multiple

attempts.

Allen and a fellow officer had to help her exit.

Plaintiff had to use her car for balance when she walked.

She

swayed when she stood, despite placing her feet wide apart for
balance.

She was unable to perform field sobriety tests.

Allen arrested her and transported her to the station.

sobbed on the way.

She

Upon arrival she was unable to exit the

patrolcar on her own, and had to be helped.

brought to the booking room.

Plaintiff was

Her handcuffs were removed.

was placed in a metal folding chair.

She

Allen began filling out

A-4935-13T3

the arrest report.

Pringle, the Alcotest officer, was also

nearby.
Plaintiff fell off the chair while Allen's back was turned.
He and Pringle helped her back into the chair.
soon fell again.

However, she

According to Allen's report, plaintiff fell

off the chair several times.

Pringle stated she fell twice.

Pringle alleged he asked her if she was "ok" and she said she
was.

Ultimately, the officers placed plaintiff on the floor,

where she fell asleep, and had to be awakened for administration

of the Alcotest.

After she repeatedly sucked on the mouthpiece,

instead of blowing into it, she was charged with refusal.

Plaintiff had no memory of her arrest, or her fall.
was released from the station around noon or 1:00 p.m.
testified

she

left

under

her

own

steam.

Two

days

She
Allen

later,

plaintiff sought medical treatment at Monmouth Medical Center.

She had multiple fractures of her hip, and required surgery.
Plaintiff filed a notice of tort claim in July 2010.

In

her three-count complaint, filed in April 2012, she alleged that

Allen and Pringle failed to exercise reasonable care of

her

while she was in custody; the borough and the police department
negligently hired and trained the officers and failed to provide
proper equipment to assure the safety of a highly intoxicated
arrestee; and the absence of such equipment created a dangerous

A-4935-13T3

condition of property.
J.

Rast,

director

III,
of

She later served the report of Frederick

former

public

police

safety,

who

security and investigations.

officer,
currently

investigator,
worked

in

and

private

Rast opined that defendants failed

to adequately protect plaintiff against injury while in their

custody and control.
As noted, the trial court dismissed the complaint on the
grounds that defendants were immune pursuant to N.J.S.A. 59:3-3

immunity

for

execution

or

enforcement

of

the

laws

and

N.J.S.A. 59:4-2 imposing liability for dangerous conditions of

public

property,

unless

the

public

entity

took

measures that were not "palpably unreasonable."

protective

With respect to

N.J.S.A. 59:4-2, the court questioned whether the booking room

and plaintiff's chair constituted a "dangerous condition," and
concluded
palpably

in

any

event

unreasonable.

that
The

defendants'
court

actions

separately

were

barred

not

Rast's

testimony, but did not base summary judgment on the absence of

an admissible expert opinion.
II.
Our review of a trial court's grant of summary judgment
based on TCA immunity is de novo, applying the same standard as
the trial court.
491

(2005).

Coyne v. N.J. Dep't of Transp., 182 N.J. 481,

We

owe

no

deference

to

the

trial

court's

A-4935-13T3

interpretation of the Act.

See Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The court erred in concluding that defendants were immune
from

suit

under

N.J.S.A.

59:3-3.

The

provision

states:

"A

public employee is not liable if he acts in good faith in the

execution or enforcement of any law.

Nothing in this section

exonerates a public employee from liability for false arrest or

false

imprisonment."

In

concluding

that

defendants

were

enforcing the law when plaintiff fell from the chair, the court
read the law too broadly.
We

recently

discussed

the

scope

of

N.J.S.A.

59:3-3

Caicedo v. Caicedo, 439 N.J. Super. 615 (App. Div. 2015).2

in

"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."
Id. at 626 (internal quotation marks and citation omitted).
rejected such a broad reading.

We

Instead, we adopted the view

that the "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."

Id. at 624.

We recognize that the trial court did not have the benefit of
Caicedo, supra, when it decided defendants' motion.

A-4935-13T3

In Caicedo, a police vehicle struck a teenager on a bicycle

while the driver was transporting an arrestee charged with a
minor

drug-related

offense.

We

affirmed

the

trial

court's

rejection of N.J.S.A. 59:3-3 immunity:

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 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.
[Id. at 627.]
Immunity under N.J.S.A. 59:3-3 was also inapplicable in a
case involving the police's alleged failure to provide medical
treatment to an arrestee, Donald Kiken, who collapsed in custody
and subsequently died.

Del Tufo, Executor of the Estate of

Kiken v. Twp. of Old Bridge, 278 N.J. Super. 312, 315-16 (App.
Div. 1995), aff'd, 147 N.J. 90 (1996).

Kiken was arrested after

assaulting an officer with an automobile.

officer
Kiken.

was

investigating

Id. at 316.

medical attention.

an

automobile

Id. at 316-17.
accident

The

involving

Although he had a small cut, Kiken declined

Id. at 317.

He was arrested, handcuffed and

A-4935-13T3

placed in the back of a police vehicle for transport.

Kiken

was

seen

kicking

turning his body.

the

Ibid.

helped out of the vehicle.

back

window

Id. at 318.

the

vehicle,

and

Once at police headquarters, he was

Ibid.

He was initially unsteady,

and began to walk, and then collapsed.

thereafter.

of

Ibid.

Ibid.

He died shortly

The immediate cause of death was

cardiac arrest caused by ingesting cocaine.

Ibid.

However,

Kiken's estate alleged that his death was caused by the failure
to

summon

arrest.

emergency

Ibid.

medical

assistance

promptly

after

his

The trial court declined to charge comparative

fault by Kiken, and a jury awarded Kiken's estate $300,000.

Id.

at 315.
We reversed the judgment, finding the trial court erred in
refusing to charge comparative fault.

Id. at 321-23.

However,

we rejected the defendants' argument that they were shielded

from liability by various provisions of the TCA.
In

particular,

immunity,
Kiken's

held

that

notwithstanding

that

arrest

we

and

transport

N.J.S.A.
the
when

59:3-3

officers
they

Id. at 323-26.
provided

no

engaged

in

failed

to

were

allegedly

provide reasonable care:

The plaintiff in the present case is not
complaining that the defendants should not
have executed or enforced the law.
Their
duty to execute or enforce the law did not
preclude
them
from
providing
emergency
medical assistance to their arrestee.
The

A-4935-13T3

immunity for enforcing and executing the law

does not protect defendants.
[Id. at 326.]
The Supreme Court affirmed our determination that a comparative
fault charge was required.

Del Tufo, supra, 147 N.J. at 95.

In

so doing, the Court nonetheless reaffirmed that "[t]he police's

duty of care to an arrestee requires the exercise of reasonable
care to preserve the life, health, and safety of the person in
custody."

Id. at 101.

Applying

the

principles

in

Caicedo

and

Del

Tufo,

we

conclude defendants were not immune under N.J.S.A. 59:3-3 from

plaintiff's claim that they failed to exercise reasonable care
to assure she did not injure herself while in custody.
plaintiff

was

already

under

arrest

when

she

was

Although

taken

into

custody at the scene of the traffic stop, the officers were

undeniably executing the law governing the processing of DUI
suspects,
suspects
Alcotest.

in
for

particular
twenty

the

minutes

command
prior

to

that

officers

administration

observe
of

the

See State v. Chun, 194 N.J. 54, 79 (2008) ("[T]he

operator must observe the test subject for the required twentyminute period . . . to ensure that no alcohol has entered the
person's mouth while . . . awaiting the start of the testing
sequence."), cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L.
Ed. 2d 41 (2008).

A-4935-13T3

However, as in Del Tufo, plaintiff's injuries did not arise

directly from the decision to arrest or enforce the law.
nothing

precluded

defendants

from

providing

plaintiff

And,

with

seat in which she was safely secured; or if no such seat were

available, from providing her a soft mat on the floor, to guard
against the risk of injury by falling.

As in Caicedo, there

were no emergent circumstances that prevented defendants from

taking preventative measures.
We

briefly

address

59:4-2.

Defendants

apparently

in

response

the

sought
to

court's

application

dismissal
the

third

under
count

of

N.J.S.A.

that

section

of

plaintiff's

complaint, which alleged that the room in which plaintiff was

seated constituted a dangerous condition of public property.
N.J.S.A. 59:4-2 generally imposes liability for injuries
caused by dangerous conditions of public property:
A public entity is liable for injury caused
by a condition of its property if the
plaintiff establishes that the property was
in dangerous condition at the time of the
injury, that the injury was proximately
caused by the dangerous condition, that the
dangerous condition created a reasonably
foreseeable risk of the kind of injury which
was incurred, and that either:
a. a negligent or wrongful act or
omission of an employee of the public entity
within the scope of his employment created
the dangerous condition; or

10

A-4935-13T3

b. a public entity had actual or

constructive
notice
of
the
dangerous
condition under section 59:4-3 a sufficient
time prior to the injury to have taken
measures to protect against the dangerous
condition.
[N.J.S.A. 59:4-2.]
However, a public entity is not liable if it took measures that
were

not

"palpably

unreasonable."

The

section

concludes:

"Nothing in this section shall be construed to impose liability

upon a public entity for a dangerous condition of its public
property if the action the entity took to protect against the
condition or the failure to take such action was not palpably
unreasonable."

Ibid.

Simply put, plaintiff's injuries did not arise from the

condition of the property itself.

In other words, there was

nothing defective about the folding chair from which plaintiff

fell.

See N.J.S.A. 59:4-1 (defining a "dangerous condition" as

a "condition of property that

creates a substantial risk of

injury when such property is used with due care in a manner in

which it is reasonably foreseeable that it will be used"); see
also Levin v. Cnty. of Salem, 133 N.J. 35, 44 (1993) (stating
that "dangerous condition" refers "to the physical condition of
the property itself and not to activities on the property")
(internal quotation marks and citation omitted).

Consequently,

N.J.S.A. 59:4-2 "is not implicated because the injuries do not

11

A-4935-13T3

arise

from

Margolis
59:4-1

&

at

condition

Robert
118

of

Novack,

(2015).

the

property

Claims

However,

itself."

Against

Public

plaintiff's

Harry

A.

Entities

claim

does

not

depend on the limited waiver of immunity in N.J.S.A. 59:4-2.

"A

plaintiff may still proceed on theories of ordinary negligence

. . . ."

Ibid.

negligence

claim

Therefore,

plaintiff

notwithstanding

that

may
she

proceed
does

not

with

her

assert

claim under N.J.S.A. 59:4-2.

III.
We

next

expert.
1977,

consider

the

court's

order

striking

plaintiff's

Rast was president of a private detective agency since

and

supervisor

agency since 2006.

of

security

guard

and

investigative

His last position in public policing was

between 1990 and 1992, when he served as director of public

safety in Old Bridge Township.

In the 1970s, he worked as a

supervisor of investigations in the Attorney General's office,

Division of Criminal Justice, and was an investigator in the
Camden County Prosecutor's Office.

He was also a narcotics

squad officer for the Monmouth County Prosecutor's Office from

the

late

1960s

to

early

1970s.

He

was

uniformed

police

officer in Atlantic Highlands for two-and-a-half years in the

1960s.

He completed various civilian police education courses,

continuing into the 1990s, qualifying as an instructor for the

12

A-4935-13T3

Virginia

Department

significant

military

of

Criminal

experience,

Justice.
including

He
in

also

the

had

military

police.
In his written report, Rast reviewed at length the facts of
the case, as he understood them.

He concluded that defendants

failed to take reasonable care of plaintiff.

that

Allen

and

Pringle

were

not

He also asserted

adequately

trained.

He

contended they could have availed themselves of techniques to

restrain patients, such as using wristlets or sheet or cloth
materials to keep a patient from falling out of a bed or a
chair.3

He also asserted that the officers should have examined

plaintiff to ascertain whether she suffered any injury after her

falls from the chair.
Rast did not cite any outside authorities or guidelines in
support

of

his

opinion

that

defendants

should

have

applied

wristlets, or used sheets, to restrain plaintiff in the chair.

He

cited

the

Belmar

Police

Department's

own

directives

that

detainees "who are under the influence of alcohol or drugs are

considered health risks."

However, nothing in the directive

Rast also rendered opinions on defendants' failure to preserve

evidence, including videotapes of plaintiff during the traffic
stop, and at headquarters, and their failure to create and
preserve documentation.
We do not view those opinions as
relevant to the issue whether defendants violated a reasonable
standard of care.

13

A-4935-13T3

addressed

the

subject

of

how

to

seat,

or

prevent

injury

of

arrestees awaiting interrogation or administration of Alcotest

results.
Rast

referred

as

well

to

the

directive's

command

that

regular checks should be made of intoxicated detainees, which

may provide indirect support for his opinion that the officers
should have examined plaintiff after her falls.

However, as

noted above, Pringle asserted he asked plaintiff if she was "ok"

and she responded affirmatively.
We

exercise

limited

exclude expert testimony.

review

of

the

court's

decision

to

See Townsend v. Pierre, 221 N.J. 36,

52-53 (2015) ("The admission or exclusion of expert testimony is

committed to the sound discretion of the trial court."); Hisenaj
v. Kuehner, 194 N.J. 6, 12 (2008) (stating that trial court's
evidentiary decision to admit expert testimony is reviewed for
an abuse of discretion).
The Court in Townsend reviewed the law on net opinions.
Expert opinions must be grounded in "facts or data derived from
(1) the expert's personal observations, or (2) evidence admitted
at the trial, or (3) data relied upon by the expert which is not
necessarily admissible in evidence but which is the type of data
normally relied upon by experts."

Townsend, supra, 221 N.J. at

53 (internal quotation marks and citation omitted).

14

The net

A-4935-13T3

opinion rule is a "corollary of [N.J.R.E. 703] . . . which

forbids the admission into evidence of an expert's conclusions
that are not supported by factual evidence or other data."
at

53-54

(internal

quotation

marks

and

citation

Id.

omitted).

Therefore, an expert is required to "give the why and wherefore

that supports the opinion, rather than a mere conclusion."
at 54 (internal quotation marks and citation omitted).
opinion

rule

directs

that

experts

"be

able

to

Id.

The net

identify

the

factual bases for their conclusions, explain their methodology,

and demonstrate that both the factual bases and the methodology
are reliable."

Id. at 55 (internal quotation marks and citation

omitted).
On

the

other

hand,

standard of perfection."
sources

the

opponent

"[t]he

net

opinion

Id. at 54.

deems

rule

is

not

The failure to rely on

important,

or

to

organize

one's

opinion in a way the adversary considers appropriate, does not

warrant exclusion as a net opinion.

Ibid.

These matters are

left for cross-examination.

Applying

these

principles,

discretion by the trial court.

we

discern

no

abuse

of

We have reviewed the expert's

report with care, yet find no factual basis to support the view
that the reasonable standard of care required the officers' use
of wristlets or sheets to restrain plaintiff.

15

Rast cites no

A-4935-13T3

standard, guideline, or protocol of any police agency (or even

an

emergency

conclusions.

medical
Nor

does

agency)
he

cite

to

support

any

treatise

his
or

specific

educational

resources in policing.
An expert may ground an opinion in his personal experience
and training.

See State v. Townsend, 186 N.J. 473, 495 (2006);

Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002)
("Evidential support for an expert opinion is not limited to
treatises or any type of documentary support, but may include
what

the

witness

has

learned

from

personal

experience.").

However, despite his extensive experience in policing, Rast does

not base his opinion in the practices of other police agencies
that

he

has

observed.

He

refers

to

the

Belmar

police

department's own directives, but they fall short of compelling

the preventative measures Rast claimed were consistent with a
reasonable standard of care.
Although
plaintiff's
expert

we

affirm

expert,

we

testimony

is

the

trial

decline

essential

to
to

court's

reach

exclusion

the

establish

issue

that

of

whether

defendants

failed to exercise reasonable care while plaintiff was awaiting

administration of the Alcotest.

An expert is not required when

jurors' common knowledge "is sufficient to enable them, using

ordinary

understanding

and

experience,

16

to

determine

A-4935-13T3

defendant's negligence without the benefit of the specialized

knowledge of experts."
N.J.

387,

394

(2001)

Hubbard ex rel. Hubbard v. Reed, 168

(internal

quotation

marks

and

citation

omitted); see also Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961)

(stating that in "the usual negligence case" an expert is not
necessary to prove the standard of conduct that the defendant
violated;
supplied

"[t]he
by

the

applicable
jury

which

standard
is

of

competent

conduct
to

is

. . .

determine

what

precautions a reasonably prudent man in the position of the

defendant would have taken.").

On the other hand, the necessity

of expert testimony is vested in the trial court's discretion.

State v. Zola, 112 N.J. 384, 414 (1988), cert. denied, 489 U.S.
1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989).
question

whether

expert

testimony

is

Therefore, the

necessary

should

be

addressed in the first instance by the trial court.

Reversed as to the grant of summary judgment; affirmed as
to

the

exclusion

of

plaintiff's

expert.

We

do

not

retain

jurisdiction.

17

A-4935-13T3