Hart v. City of Jersey City

• Citation: 308 N.J.Super. 487,706 A.2d 256
• Parties: Henry M. HART, Plaintiff-Appellant, v. CITY OF JERSEY CITY, Jersey City Police Department, Robert J. Sabo, Arthur Pease, Thomas Leigh, Robert Taino, John Keene and A. Daunarummo, Defendants-Respondents.
• Decision Date: 25 February 1998
• Court: New Jersey Superior Court – Appellate Division

Page 487

308 N.J.Super. 487

706 A.2d 256

Henry M. HART, Plaintiff-Appellant, v. CITY OF JERSEY CITY, Jersey City Police Department, Robert

J. Sabo, Arthur Pease, Thomas Leigh, Robert Taino,

John Keene and A. Daunarummo,

Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued Dec. 10, 1997.

Decided Feb. 25, 1998.

Susan B. Fellman, for plaintiff-appellant (Breuninger & Fellman, attorneys; Laura M. Le Winn, Princeton, on the brief).

Daniel W. Sexton, Assistant Corporation Counsel, for defendant-respondent (Sean M. Connelly, Jersey City Corporation Counsel, attorney; Mr. Sexton, on the brief).

Before Judges MUIR, Jr., KESTIN and STEINBERG.

The opinion of the court was delivered by

KESTIN, J.A.D.

Plaintiff's complaint alleged various causes of action in tort (the State law claims) and a cause of action under 42 U.S.C. § 1983 (the § 1983 claim), all arising from certain actions of his superior officers in the Jersey City Police Department. The motion judge dismissed the State law claims on defendants' motion for summary judgment, ruling

I don't see any State claims in this case. There's no malice. There's no intentional infliction. There's no outrageous conduct. The statement made in the in-house publication is a privileged statement and it's also true and I say that he is a public official. So all of those claims are out. There's no claim under the Tort Claims Act that has been stated here.

He declined, however, to dismiss the § 1983 claim on the basis that it was "too fact-sensitive to be dismissed."

The matter was then assigned for trial. After an "in limine " hearing pursuant to N.J.R.E. 104(a) on the question of qualified immunity, the trial judge dismissed the § 1983 claim.

Plaintiff appeals from both orders of dismissal. We affirm.

Plaintiff was a police officer of long standing in the Jersey City Police Department, a sergeant assigned to the Emergency Services Bureau. In 1992, apparently connected with the deterioration of his marriage, plaintiff began exhibiting allegedly bizarre behavior, which came to the attention of his superiors in February of that year when his wife filed a domestic violence complaint against him. On August 13, 1992, a warrant was issued for plaintiff's arrest for violating a restraining order. He had slashed the four tires of a car parked in the driveway of the family home, and attempted to cut the telephone and cable TV wires. Plaintiff was on vacation at the time.

On August 26, after he returned to work, plaintiff was ordered by his superiors to engage in treatment with a psychologist, or face suspension. Plaintiff refused. He was suspended and required to turn in his shield, uniform and gun. The following day, the suspension was changed to administrative leave, and plaintiff was ordered to undergo a fitness-for-duty examination. Because of the threat of further suspension if he did not comply, plaintiff submitted, under protest, to the examination, which included drug testing and a psychological evaluation. Based on the results of this testing, plaintiff was subsequently returned to duty without restrictions, with a recommendation that he undergo outpatient alcohol counseling. Plaintiff's suit was predicated on claims of injury from the allegedly unlawful order of August 26 that he undergo treatment, and from the publication of facts bearing upon his one-day suspension.

The State law claims involved counts alleging intentional infliction of emotional distress; defamation; and two privacy torts, intrusion upon plaintiff's seclusion and placing him in a false light. Our review of the record in the light of the written and oral arguments of the parties discloses that the motion judge was correct to dismiss the State law claims on summary judgment.

No prima facie showing was made that defendants intended to cause plaintiff distress or that they deliberately disregarded the risk that severe emotional distress would occur; nor was there any conduct rising to the level of outrageousness on defendants' part. Thus, plaintiff failed to establish the existence of two essential elements of the tort of intentional infliction of emotional distress. See Buckley v. Trenton Saving Fund Society, 111 N.J. 355, 366, 544 A.2d 857 (1988); Restatement (Second) of Torts, § 46 comment d, at 72-73 (1977).

The defamation and invasion of privacy claims were based upon publication of the fact of plaintiff's one-day suspension in an in-house police department bulletin, and other allegations of related facts. The bulletin item, seen by plaintiff's fellow officers, and their awareness of some of the background facts, allegedly made plaintiff an object of ridicule and caused him humiliation. However, if a statement is true, it is not actionable as defamation. Kotlikoff v. The Community News, 89 N.J. 62, 69 n. 2, 444 A.2d 1086 (1982); Restatement (Second) of Torts § 558 at 155, § 581A, comment c, at 236 (1977). Moreover, as a police officer, plaintiff is a public official. Costello v. Ocean County Observer, 136 N.J. 594, 613, 643 A.2d 1012 (1994). Thus to survive summary judgment, he must prove actual malice: that the statement objected to was published with knowledge of its falsity, or with reckless disregard as to whether it was false or not. Id. at 614, 643 A.2d 1012 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 706 (1964), and its progeny). Plaintiff made no prima facie showing to satisfy that standard, either.

Similarly, the tort of false light requires that the contested publicity be untrue. Restatement (Second) of Torts, § 652E, comment a, at 394-95 (1977). See also Cibenko v. Worth Publishers, Inc., 510 F.Supp. 761, 766 (D.N.J.1981). The notice of plaintiff's suspension, which was limited to the bare fact of its occurrence and the date, was certainly true.

In order for plaintiff to have had a viable cause of action for intrusion upon his seclusion by reason of publication of the notice of suspension and the privacy-invasive treatment ordered, the acts complained of needed to be established as unreasonably and offensively intrusive to the average person, Lingar v. Live-In Companions, Inc., 300 N.J.Super. 22, 35, 692 A.2d 61 (App.Div.1997), with due consideration for the principle that police officers, because they occupy positions of public trust and exercise special powers, have a diminished expectation of privacy. Rawlings v. Police Dep't of Jersey City, 133 N.J. 182, 189, 627 A.2d 602 (1993). Plaintiff's showings in this regard were inadequate also.

Finally in respect of the State law claims, the municipality's primary liability under the Tort Claims Act for the acts of the individual defendants was required to be on a respondeat superior theory. N.J.S.A. 59:2-2; Tice v. Cramer, 133 N.J. 347, 355, 627 A.2d 1090 (1993). Consequently, since the individual named officers were not liable, neither was the City of Jersey City or its police department. Ibid.

As to the § 1983 claim, we agree with plaintiff that the issue of qualified immunity was not a fit subject for a ruling pursuant to N.J.R.E. 104(a). That rule of evidence addresses issues of testimonial privilege only, Biunno, New Jersey Rules of Evidence, R. 104, comment 3, at 126-28 (1997); see also, e.g., In re Environmental Ins. Actions, 259 N.J.Super. 308, 319-20, 612 A.2d 1338 (App.Div.1992) (attorney-client privilege); State v. Postorino 253 N.J.Super. 98, 108-09, 601 A.2d 223 (App.Div.1991) (informant); State v. Phillips, 213 N.J.Super. 534, 543, 517 A.2d 1204 (App.Div.1986) (physician-patient), and not questions of substantive immunity. See Biunno, supra, comment 2, at 126 ("Rule 104 hearings should be distinguished from the host of other hearings held before trial or otherwise outside of the presence of a jury. These would include all hearings necessary to determine matters of law within the exclusive province of the court."). Nevertheless, on any one or more of several bases, we affirm the trial judge's dismissal of the § 1983 claim.

We begin with our substantial agreement with the substantive analysis in the trial judge's comprehensive bench opinion. It correctly articulates the law governing the question of qualified immunity in a § 1983 action, and embodies a valid application of those legal principles to the facts at hand.

The modern qualified immunity standard, introduced by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), and adopted by the New Jersey Supreme Court in Kirk v. City of Newark, 109 N.J. 173, 536 A.2d 229 (1988), applies to government officials whose "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, supra, 457 U.S. at 818, 102 S.Ct. at 2738, 73 L.Ed.2d at 410. Where transgression of a constitutional right is alleged, a determination of whether the right is clearly established ought not to involve broad, abstract reasoning, but, rather, should be based upon "particularized" considerations: "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates the right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523, 531 (1987).

The trial judge was correct to conclude that plaintiff had made no prima facie showing that a clearly established right was impinged. In the context of plaintiff's claim of injury from the allegedly unlawful order of August 26, 1992 that he undergo treatment, we are mindful of the general Fourteenth Amendment liberty interest in medical self-determination, including the right to refuse unwanted medical care. Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 277, 278, 110 S.Ct. 2841, 2851, 111 L.Ed.2d 224, 241 (1990); In re Quinlan, 70 N.J. 10, 40, 355 A.2d 647 (1976), cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976) (the...