On August 4, 2008, the New Jersey Supreme Court ruled that a
Plaintiff need not satisfy the verbal threshold under the Tort Claims Act where a public employee’s actions constitute willful misconduct. Toto v. Ensuar
, 196 N.J. 134 (2008).
In Toto v. Ensuar, the Plaintiff brought a personal injury action against two sheriff’s officers in connection with an incident which occurred at a courthouse when Plaintiff
appeared to give expert testimony. Plaintiff alleged willful misconduct by Defendants, Officer Michael Schulze and Officer Rolando Ensuar. Specifically, Plaintiff claimed that Defendants made a false arrest/false imprisonment of the Plaintiff after discovering a pocket knife in his briefcase as he passed through security. According to Plaintiff, Defendants intentionally slammed him into a concrete wall, causing him pain in his upper back and neck. Plaintiff ultimately sought treatment which included chiropractic care and eventual surgery.
The question which made its way to the NJ Supreme Court was
whether the Plaintiff was required to satisfy the verbal threshold of the Tort Claims Act once it was determined that the Defendants’ actions constituted willful misconduct. Further, the Court considered whether the good faith defense was
available to Defendants.
At trial, the jury found that Defendant Ensuar’s, but not
Schulze’s, actions constituted willful misconduct. Upon applying the verbal threshold two-pronged test, the jury
ultimately determined that Defendant Ensuar’s conduct did not proximately cause (1) an objective permanent injury or (2) a permanent loss of a bodily function that is substantial. Accordingly, Plaintiff was not entitled to any compensation and judgment was entered in favor of Defendants.
Plaintiff appealed arguing that the verbal threshold should
not apply where the Defendant’s actions are deemed to be willful misconduct and asserting that the jury should have never been instructed to consider the Tort Claims Act good faith defense for the false arrest/false imprisonment claim. The
Appellate Division affirmed the trial court’s decision relying on DelaCruz v. Borough of Hillsdale, 183 N.J. 149 (2005) and Velez v. City of Jersey City, 180 N.J. 284 (2004).
The Plaintiff then applied to the NJ Supreme Court, which
granted certification. The Supreme Court recognized that the Appellate Division’s decision was constrained by DelaCruz, the seminal case that previously addressed the applicability of the verbal threshold to claims of false
imprisonment and false arrest, and Velez v. City of Jersey City, 180 N.J. 284 (2004), a case in which the court held
that the notice provisions of the Act applied to intentional conduct of public employees.
Notably, however, the Supreme Court was able to distinguish
the present facts from both the DelaCruz
and Velez contexts. Specifically, the court opined that DelaCruz did not specifically address a claim of “willful misconduct” as alleged in this case. Toto v. Ensuar, 196 N.J. at 147.
“To be sure, we did not intent to imply [in DelaCruz] that the verbal threshold must be satisfied for a false arrest/false imprisonment claim when the jury finds that the public employee committed willful misconduct or any of
the other exceptions under N.J.S.A. 59:3-14.” Id.
Similarly, the Court distinguished Toto from Velez, 180 N.J. 284 (2004). While Velez applied the notice provisions of the Act to intentional conduct of public employees, the Tort Claims Act good faith defense was not
available to a Defendant if he committed a crime, actual fraud, actual malice or willful misconduct. Velez, 180 N.J. at 294. Expanding this holding, the Supreme Court in Toto reasoned that once the jury decided that Defendant Ensuar’s
false arrest/imprisonment constituted willful misconduct, the verbal threshold no longer applied in any respect. Toto at 148. The Court reasoned that in order to obtain good faith immunity the Defendant must prove he acted with objective reasonableness or with subjective good faith. In contrast, willful misconduct requires a finding that Defendant knowingly and intentionally acted with reckless indifference to the probable injurious consequences. Accordingly, once a Plaintiff has proven a Defendant’s willful misconduct, he can no longer assert that he acted reasonably or with good faith, and the Plaintiff is entitled to recover damages without regard to the limitations of the verbal threshold. Toto at 148-149.