Conforti v. County of Ocean, A-0817-18

• Decision Date: 02 August 2021
• Docket Number: A-0817-18
• Parties: CAROL ANN CONFORTI, individually and as administratrix ad prosequendum of the estate of KENNETH CONFORTI and as parent natural guardian and guardian ad litem of A.C., a minor, Plaintiff-Respondent/ Cross-Appellant, v. COUNTY OF OCEAN, OCEAN COUNTY BOARD OF CHOSEN FREEHOLDERS, in their individual and official capacities, OCEAN COUNTY DEPARTMENT OF CORRECTIONS, WARDEN THEODORE J. HUTLER, in his individual and official capacity, and CORPORAL PETRIZZO, Defendants-Appellants/ Cross-Respondents, and CORRECTIONAL HEALTH SERVICES, LLC, PRISON HEALTH SERVICES, INC., and KELLY CLOUGH, Defendants.
• Court: New Jersey Superior Court — Appellate Division

CAROL ANN CONFORTI, individually and as administratrix ad prosequendum of the estate of KENNETH CONFORTI and as parent natural guardian and guardian ad litem of A.C., a minor, Plaintiff-Respondent/ Cross-Appellant, v. COUNTY OF OCEAN, OCEAN COUNTY BOARD OF CHOSEN FREEHOLDERS, in their individual and official capacities, OCEAN COUNTY DEPARTMENT OF CORRECTIONS, WARDEN THEODORE J. HUTLER, in his individual and official capacity, and CORPORAL PETRIZZO, Defendants-Appellants/ Cross-Respondents, and CORRECTIONAL HEALTH SERVICES, LLC, PRISON HEALTH SERVICES, INC., and KELLY CLOUGH, Defendants.

No. A-0817-18

Superior Court of New Jersey, Appellate Division

August 2, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 24, 2021

On appeal from the Superior Court of New Jersey, Law Division Ocean County, DocketNo. L-2340-15.

Eliyahu S. Scheiman argued the cause for appellants/cross-respondents(Porzio, Bromberg & Newman PC, and Berry, Sahradnik, Kotzas & Benson, attorneys Eliyahu S. Scheiman, Thomas J. Reilly, Mary Jane Lidaka, and Christopher A. Khatami, on the briefs).

Donald F. Burke argued for respondent/cross-appellant(Law Office of Donald F. Burke, attorneys; Donald F. Burke and Donald F. Burke, Jr., on the briefs).

Before Judges Sumners, Geiger, and Mitterhoff.

PER CURIAM

Following a jury trial arising from Kenneth Conforti's suicide while he was confined in the Ocean County Jail(OCJ or jail)defendantsCounty of Ocean, Ocean County Board of Chosen Freeholders, Ocean County Department of Corrections(DOC), Warden Theodore J. Hutler, and Corporal Peter Petrizzo(collectively "the County defendants") appeal from a final judgment awarding plaintiffCarol Ann Conforti $1, 550, 000.^[1]Plaintiff cross-appeals arguing that the trial judge James Den Uyl erred in his pre-trial summary judgment dismissal of her claims under the New Jersey Civil Rights Act (NJCRA),N.J.S.A. 10:6-1 to -2, seeking both compensatory damages and punitive damages.Having considered the record, the parties' arguments, and the applicable law, we reject the appeal and cross-appeal and affirm all aspects of the final judgment.

I

On September 8, 2010, Kenneth, ^[2] while estranged from his wife, plaintiffCarol Ann, Administratrix ad Prosequendum of the Estate of Kenneth Conforti and Parent Natural Guardian and Guardian ad Litem of A.C., a minor, was arrested and jailed for violating a restraining order by breaking into the former marital home to see his nine-year-old son A.C., who is deaf and afflicted with Down's Syndrome.At his OCJ intake, the forty-five-year-old Kenneth advised a CHS staff member that he was experiencing feelings of hopelessness and helplessness because of: (1) the deterioration of his marriage; (2) his inability to control his alcoholism and daily consumption of a half-gallon of vodka; and (3) unsuccessful back surgery leaving him in pain and with rods and screws in his back.He denied having any thoughts of suicide or that he had ever been diagnosed with depression.Kenneth was consequently kept in the OCJ's medical housing unit under critical observation because of alcohol withdrawal and was prescribed medication for five days to mitigate his withdrawal symptoms.He was also scheduled for a psychiatric evaluation.

On September 10, Kenneth was cleared for housing in the jail's general population and was provided a doctor's order giving him an extra mattress and pain medication and directing that he was not to work or be assigned to a top bunk.Kenneth was released from OCJ on October 4.

Over a week later, on October 13, Kenneth was arrested again and returned to OCJ because he went back to the marital home.Clough, a CHS nurse, conducted Kenneth's intake but did not review his September intake paperwork and took him at his word that he had never been previously jailed.He denied any medical or mental health issues or any feelings of hopelessness or helplessness and claimed that he only drank socially.Yet, because Kenneth was given the same inmate number he had during his recent jailing, his records from that confinement were readily available to Clough to contradict his representations.Kenneth was not referred by medical staff as a suicide risk.

CHS progress notes dated October 14 revealed

[Kenneth] was last seen [September 10] for same offense.[He] has no psych[iatric][history].He has a [history] of binge drinking but denies recent use.[He] denies any current sui[cidal] harm.He is alert w[ith] relevant thought process.No current mental health issues/concerns.[He is] psych[ologically] clear for general population.

On October 16, Kenneth filled out a medical/dental request form requesting "medical" attention for "back pain."Two days later, Clough wrote on the bottom of the form "you can order [M]otrin or Tylenol from commissary."

On October 20, Corporal Petrizzo, filling in as a floor officer in Kenneth's housing unit, was required to walk the 130-inmate units once every hour and perform health and welfare checks to ensure that the inmates were safe and abiding by OCJ policies.This included making sure nothing was obscuring cell door windows.Records showed that the officer made his checks at 8:03 a.m., 9:02 a.m., 9:56 a.m., 11:02 a.m., and 12:03 p.m.

At 9:32 a.m., Kenneth wrote a suicide note to his parents.At some point thereafter, he shut the door to his cell, causing the door to lock automatically, and placed a sheet over the cell door window.He then tied bedsheets together and hung himself from a ceiling light fixture over the toilet.

Just before 1:00 p.m., inmate Edward Soto spotted Kenneth hanging in his cell.Soto thought Kenneth was alive because his eyes were open.After the cell was unlocked, Kenneth's body was taken down and CPR was performed, but he could not be revived.At 1:24 p.m., emergency medical personnel arrived and within minutes took Kenneth to the hospital.At 1:47 p.m., doctors declared Kenneth dead.An autopsy confirmed that he died of asphyxiation by hanging.

Exactly when DOC staff first responded to the suicide was unclear because the relevant timed entry in the health and welfare log was overwritten.The log was maintained by an officer in the West Tower control room tower, and any change was supposed to be initialed and reported to a supervisor.Although the log reflected that Petrizzo began his check at 12:03 p.m., the entry that followed was obliterated and overwritten with an entry that noted a 12:55 p.m. "possible suicide."The DOC admitted that someone tampered with the log.Surveillance cameras in the housing unit were not positioned to look inside cells.Nonetheless, the recordings could have revealed the activities of jail staff and decedent prior to the suicide.However, although the DOC produced copies of the recordings in 2016, they could not be viewed because they were incompatible with the new technology at the jail.The DOC insisted that there was no intentional tampering with the recordings.Notably though, the 2010 surveillance system was put in by vendor Black Creek, and, as of the date of trial, they remained the contractor.

Plaintiff filed suit seeking compensatory and punitive damages, including punitive damages against the County defendants alleging Kenneth's suicide was the result of their negligence, and violations of the NJCRA, the Wrongful Death Act (WDA), N.J.S.A. 2A:31-1 to -6, and the New Jersey Survival Act (SA), N.J.S.A. 2A:15-1 to -6.The County defendants denied plaintiff's claims and asserted immunity under the New Jersey Tort Claims Act(TCA), N.J.S.A. 59:11 to -13-10.

Prior to trial, the County defendants moved for summary judgment dismissal of the lawsuit.Judge Den Uyl granted partial summary judgment to the County defendants, dismissing plaintiff's NJCRA and punitive damages claims.

Trial occurred over several days in June 2018.At the conclusion of plaintiff's case, the County defendants unsuccessfully moved for a directed verdict.The jury later returned a verdict in favor of plaintiff, awarding her $150, 000 in WDA damages and $1, 400, 000 for pain and suffering under the SA, finding the County defendants sixty percent liable and the CHS defendants forty percent liable.The County defendants unsuccessfully moved for judgment notwithstanding the verdict (JNOV), or, alternatively, a new trial or remittitur.

II

We first address the County defendants' contention that Judge Den Uyl erred in denying their pre-trial, trial, and post-trial motions to dismiss plaintiff's negligence claims.The judge denied summary judgment, ruling that plaintiff had presented sufficient evidence to raise an issue of material fact as to whether special circumstances were present, decedent's suicide was foreseeable, and the County defendants were negligent.In denying the County defendants' motion for JNOV, the judge rejected their argument that they were entitled to TCA immunity, determining the OCJ was not a "medical facility" given immunity for certain actions under N.J.S.A. 59:6-4, -5, and -6.Medical facilities were limited to "a hospital infirmary, clinic, dispensary, mental institution or similar facility,"N.J.S.A. 59:6-1, and do not include a jail's medical intake process and services.By contrast any protections for "Corrections and Police Activities" were specifically addressed in N.J.S.A 59:5-1 to -6 (Da21).As for the TCA's general immunity provisions, N.J.S.A. 59:2-1, and -2(b), N.J.S.A. 59:-3-2(a) and -3-5, and N.J.S.A. 59:5-1, the judge determined that the County defendants could not overcome the clear ruling "in Hake [v. Manchester Twp., 98 N.J. 302, 318(1985)], wherein [our]Supreme Court approved the trial court's charge that 'expressly permitted the jury to find liability if the suicide was...