LUIS RODRIGUEZ VS. CHARLES J. ZEIGLER (L-0631-15, CAMDEN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-0591-16T3
LUIS RODRIGUEZ,
Plaintiff-Appellant,
v.
CHARLES J. ZEIGLER, JUANITA
ZEIGLER, COUNTY OF CAMDEN,
CITY OF CAMDEN POLICE
DEPARTMENT, COUNTY OF CAMDEN
POLICE DEPARTMENT, CAMDEN
COUNTY PROSECUTOR'S OFFICE and
STATE OF NEW JERSEY,
Defendants,
and
CITY OF CAMDEN,
Defendant-Respondent.
_____________________________
Submitted June 4, 2018 – Decided June 27, 2018
Before Judges Whipple and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No.
L-0631-15.
Gregory C. Dibsie, attorney for appellant.
Marc A. Riondino, City Attorney, attorney for
respondent City of Camden (Timothy J.
Galanaugh, Assistant City Attorney, of counsel
and on the brief).
PER CURIAM
Plaintiff Luis Rodriguez appeals from an August 26, 2016
summary judgment dismissal of his personal injury complaint
against defendant City of Camden seeking damages arising out of a
shooting at a Camden police officer's residence.1 We affirm.
We discern the pertinent facts from the summary judgment
record, extending to plaintiff all favorable inferences. Davis
v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014); Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). At the
time of the shooting, plaintiff was a home health aide for L.D.M,2
an autistic young adult, who lived directly across the street from
Camden Police Officer Charles J. Zeigler.
Around 3:00 p.m. on February 22, 2013, plaintiff met L.D.M.
at the school bus stop near his home. L.D.M. exited the bus and
ran toward Zeigler's residence, with plaintiff in pursuit. Zeigler
was home, cleaning the second-floor bathroom, when he heard kicking
1
Plaintiff's complaint also included as defendants: the officer
and his wife, the County of Camden, the City of Camden Police
Department, the County of Camden Police Department, the Camden
County Prosecutor's Office, and the State of New Jersey. Plaintiff
settled his claims with the officer and his wife; the governmental
entities were either dismissed via motion or stipulation.
2
Although L.D.M.'s age is unclear from the record, we use initials
to protect his confidentiality.
2 A-0591-16T3
and banging at his front door. Fearing a home invasion, Zeigler
retrieved his police service weapon and approached the front door.
Zeigler claims he "heard two popping sounds which [he] believed
to be gunshots." When the banging ceased, Zeigler attempted to
open the door slowly, but it was pushed toward him, causing his
weapon to discharge two bullets. One bullet struck plaintiff's
chest; the other hit L.D.M.'s bicep.
Following the shooting, Zeigler called 9-1-1, stating ". . .
this is Officer Zeigler, I need a police officer and an ambulance
[at his address]." When asked whether he was working, Zeigler
responded "No. I'm off duty." Zeigler then called the Fraternal
Order of Police ("FOP") president, advising him of the shooting.
Plaintiff's complaint included respondeat superior claims
against the City for negligent supervision of Zeigler, who
plaintiff claims was acting within the scope of his employment as
a police officer. Plaintiff also alleged the City failed to
properly train Zeigler in handling his service weapon. After the
discovery period closed, without any discovery having been
conducted, the City filed its motion for summary judgment.
In a succinct oral decision, followed by an order entered on
August 26, 2016, the Law Division judge determined plaintiff failed
to demonstrate Zeigler was on duty at the time of the shooting.
In particular, the judge found "He [i]s at his private home. He
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is not in uniform. . . . Clearly his actions are something of a
personal nature." The judge also found plaintiff did not produce
in discovery an expert report supporting his theory that Ziegler
mishandled his service weapon, and that this error should be
imputed to the City. Based on these findings, the judge entered
summary judgment in favor of the City. This appeal followed.
In considering plaintiff's appeal from the grant of summary
judgment, we employ the same standard as the motion judge pursuant
to Rule 4:46-2(c) (stating summary judgment should be granted only
if the record demonstrates there is "no genuine issue as to any
material fact challenged and that the moving party is entitled to
a judgment or order as a matter of law"). See also Henry v. N.J.
Dep't of Human Servs., 204 N.J. 320, 330 (2010). We owe no
deference to the motion judge's conclusions on issues of law.
Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995).
Initially, we consider plaintiff's argument that Zeigler was
on duty at the time of the shooting because he was investigating
what he perceived to be a home invasion. "Under respondeat
superior, an employer can be found liable for the negligence of
an employee causing injuries to third parties, if, at the time of
the occurrence, the employee was acting within the scope of his
or her employment." Carter v. Reynolds, 175 N.J. 402, 408-09
4 A-0591-16T3
(2003) (citation omitted). The Tort Claims Act "incorporat[es]
the doctrine of respondeat superior" in N.J.S.A. 59:2-2(a).
Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 409 (1988);
N.J.S.A. 59:2-2(a) ("A public entity is liable for injury
proximately caused by an act or omission of a public employee
within the scope of his employment in the same manner and to the
same extent as a private individual under like circumstances").
In determining whether a public employee is acting within the
scope of employment, our courts apply common law principles of
vicarious liability. See Rogers v. Jordan, 339 N.J. Super. 581,
586 (App. Div. 2001). In particular, the Court has followed the
Restatement (Second) of Agency, observing "an employee's conduct
falls within the scope of employment if:
(a) it is of the kind he is employed to
perform;
(b) it occurs substantially within the
authorized time and space limits; [and]
(c) it is actuated, at least in part, by a
purpose to serve the master[. . . .]
[Carter, 175 N.J. at 411 (quoting Restatement
(Second) of Agency § 228 (Am. Law Inst.
(1958)).]
Here, although Zeigler approached the door armed with his
service weapon, he was off-duty, not in uniform, and in his
residence at the time of the shooting. Indeed, he was cleaning
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his home when the incident occurred. His actions were not
"actuated . . . by a purpose to serve [the City]." Rather, his
actions were self-serving, i.e., to protect his home. Although
Zeigler fired his department-issued service weapon, identified
himself as an officer when he called dispatch, and notified his
FOP president following the shooting, these actions do not create
respondeat superior liability for the City.
Moreover, plaintiff's reliance on our decision in Rogers v.
Jordan, 339 N.J. Super. 581 (App. Div. 2001), is misplaced. In
Rogers we reversed a trial court's determination that an officer
was acting in the scope of his employment when his vehicle struck
and injured a pedestrian while he was driving home during a lunch
break, because he was on "authorized leave." Id. at 587.
Plaintiff relies on our observation that "if while traveling home
[the officer] witnessed the occurrence of a crime, causing him to
pursue a perpetrator and resulting in an accident with a third
person, he would be considered subject to duty and within the
scope of his employment." Ibid. We further found, however,
The fact that an officer is subject to a duty
if a crime is witnessed does not mean that he
or she is on duty while performing an act of
a purely personal nature. The resolution of
the issue turns upon what the employee was
doing at the time the injury-producing
accident occurred.
[Id. at 588 (citation omitted)]
6 A-0591-16T3
Simply put, Zeigler was not serving the City when he
discharged his weapon, injuring plaintiff. As we have observed,
he was off-duty, cleaning his home immediately prior to the
incident, and protecting himself and his home during the shooting.
We, therefore, agree with the trial judge that Zeigler's actions
were "of a purely personal nature." See e.g., State v. Hupka, 203
N.J. 222, 239 (2010) (recognizing that a sexual assault offense
committed by an officer "in a private home involving someone
defendant knew, as opposed to a member of the public, . . . held
no nexus to his position in law enforcement" (citation omitted)).
Because we find Zeigler was not on duty when the shooting
occurred, we need not address his argument that the trial judge
erred in ruling expert opinion was necessary to establish the
City's liability in failing to properly train Zeigler in the
operation of his service weapon. We do so, briefly, for the sake
of completeness.
The elements of a negligence cause of action are well-settled.
"To sustain a cause of action for negligence, a plaintiff must
establish four elements: '(1) a duty of care, (2) a breach of that
duty, (3) proximate cause, and (4) actual damages.'" Townsend v.
Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cty of Essex, 196
N.J. 569, 584 (2008)). Where, however, a jury lacks the competence
to supply the applicable standard of care, the plaintiff must
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"establish the requisite standard" and the defendant's deviation
from it by "present[ing] reliable expert testimony on the subject."
Davis, 219 N.J. at 407 (alteration in original) (quoting Giantonnio
v. Taccard, 291 N.J. Super. 31, 42 (App. Div. 1999)). In
determining whether expert testimony is required, "a court
properly considers 'whether the matter to be dealt with is so
esoteric that jurors of common judgment and experience cannot form
a valid judgment as to whether the conduct of the [defendant] was
reasonable.'" Ibid. (alteration in original) (quoting Butler v.
Acme Mkts., Inc., 89 N.J. 270, 283 (1982)).
Here, plaintiff contends Zeigler's service weapon could not
have discharged accidentally twice, but if it did, the discharge
was a result of Zeigler's improper training by the City. The
motion judge dismissed plaintiff's argument for lack of support
with expert opinion. We agree that police training is not within
the ken of the average juror. See N.J.R.E. 701; see also State
v. McLean, 205 N.J. 438, 459 (2011) (citing Brindley v. Firemen's
Ins. Co., 35 N.J. Super. 1, 8 (App. Div. 1955)). Plaintiff failed
to name an expert witness to demonstrate a nexus between the weapon
discharging twice and the City's alleged improper training of
Zeigler.
We likewise reject plaintiff's improper reliance on a "Smith
& Wesson Safety & Instruction Manual" to support his theory that
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Zeigler's weapon could not discharge accidentally more than once.
The manual was not produced in discovery, and the function and use
of a firearm is beyond the ken of the average juror. See Davis
219 N.J. at 407. Even affording plaintiff, as we must, all
reasonable inferences from the factual record, there is an
insufficient evidential basis here to conclude that the City acted
unreasonably, without the aid of expert testimony, to establish
that an accepted standard of care was violated.
In sum, we find no genuine issue as to any material fact. We
conclude, as did the motion judge, that the City is entitled to
judgment as a matter of law. Plaintiff's remaining arguments, to
the extent we have not specifically addressed them, are without
sufficient merit to warrant further discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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