Danny Caicedo v. Fabian Caicedo

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6163-12T2

DANNY CAICEDO, an infant by
his Father and Natural Guardian
APPROVED FOR PUBLICATION
SEGUNDO CAICEDO, and
SEGUNDO CAICEDO, individually, March 17, 2015

Plaintiffs-Respondents, APPELLATE DIVISION

v.

FABIAN CAICEDO, CITY OF NEWARK
POLICE DEPARTMENT, and CITY OF NEWARK,

Defendants-Appellants.
___________________________________________

Argued February 25, 2015 – Decided March 17, 2015

Before Judges Alvarez, Maven, and Carroll.

On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket
No. L-319-11.

Avion M. Benjamin, Assistant Corporation
Counsel, argued the cause for appellants
(Anna P. Pereira, Corporation Counsel,
attorney; Steven F. Olivo, Assistant
Corporation Counsel, and Ms. Benjamin, on
the briefs).

Casey J. Woodruff argued the cause for
respondents (Bramnick, Rodriguez, Mitterhoff,
Grabas & Woodruff, LLC, attorneys; Mr.
Woodruff, on the brief).

The opinion of the court was delivered by

CARROLL, J.A.D.
 This appeal follows a jury verdict for damages sustained by

plaintiff Danny Caicedo.1 Plaintiff was severely injured when

the bicycle he was riding was struck by a police cruiser

operated by defendant Fabian Caicedo2 while on duty with

defendant City of Newark Police Department.

Officer Caicedo had arrested an individual for a disorderly

persons offense, and was transporting the prisoner to police

headquarters for processing when he struck plaintiff's bicycle.

At trial, the judge declined to instruct the jury that Officer

Caicedo was entitled to good-faith immunity under N.J.S.A. 59:3-

3, which provides that "[a] public employee is not liable if he

acts in good faith in the execution or enforcement of any law."

This appeal requires us to decide whether the statute exempts

defendants from liability where the police officer had effected

an arrest and was transporting the prisoner under non-emergent

circumstances. We decide that it does not. We also reject

defendants' arguments that the jury's verdict was against the

weight of the evidence, and that the trial court erred in

failing to order a new trial or a remittitur.

1
Suit was filed by Segundo Caicedo, individually and as guardian
for his minor son, Danny Caicedo. For purposes of this opinion
we refer to Danny Caicedo as plaintiff.
2
Plaintiff and defendant Fabian Caicedo share a common surname
but are not related. For clarity we refer to defendant as
Officer Caicedo.

2 A-6163-12T2
 I.

The collision occurred on June 29, 2010, immediately

following plaintiff's eighth-grade graduation. Plaintiff,

accompanied by three friends, was heading north on Broadway, a

busy Newark street with two lanes of traffic in each direction

and a twenty-five mile-per-hour speed limit. Two of the boys

were walking, while plaintiff and a friend, M.G., rode their

bicycles along the shoulder of the roadway. Plaintiff testified

that he was riding his bike straight, not swerving. M.G. and

one of the walkers, B.P., both agreed. After a few seconds,

M.G. crossed the street to return home; a minute or two later,

plaintiff also decided to cross. Plaintiff described the events

as follows:

I was continuing to go straight, I was
talking to them. And then after I said
[bye], I looked over my shoulder [and] the
light was still red. There [were] no cars
in sight, so I decided to cross.

. . . .

. . . I turned, and all of a sudden, I just
heard a loud screech[,] . . . and then I
tried to turn back to the shoulder but it
was too late, I got hit.

Plaintiff was then struck by Officer Caicedo's police vehicle

and lost consciousness.

Plaintiff admitted that he did not cross at an

intersection, and that he knew this was unsafe. Neither

3 A-6163-12T2
plaintiff, M.G., nor B.P. heard a horn or siren before the

collision. B.P., on hearing the brakes screech, turned in time

to observe the impact. He was ten feet from the collision, and

estimated that Officer Caicedo's vehicle was travelling at a

speed of forty to forty-five miles per hour. B.P. based his

estimate of the vehicle's speed on the screeching noise he

heard, which lasted "about ten seconds."

M.G. glimpsed Officer Caicedo's car as it neared plaintiff,

and also estimated that it was travelling at forty to forty-five

miles per hour. M.G. heard the car brake, but did not see the

impact. His speed estimate was based on his observation that

the vehicle was travelling faster than typical Broadway traffic.

Officer Caicedo, a Newark police detective, had just

arrested David Petracca, a suspected drug buyer, for wandering,

and was transporting him back to headquarters in an unmarked

police cruiser. Officer Caicedo and his partner, Detective

Misty Camacho, searched Petracca incident to arrest and

discovered no weapons. Petracca did not resist, struggle, or

refuse to cooperate either during the arrest or the ride to

police headquarters. Since the unmarked vehicle had no

partition, Camacho sat in the rear seat next to Petracca, whose

hands were cuffed behind him. The detectives were about one

block from the police station when the collision occurred.

4 A-6163-12T2
 Officer Caicedo testified that he first observed plaintiff

some forty yards ahead. The officer estimated that he was

driving about thirty miles per hour. He saw plaintiff moving

back and forth in a "snake[-]like motion" over both northbound

lanes of the roadway. Contrary to the other witnesses'

testimony, Officer Caicedo stated that he sounded "one quick

burst" of his horn and siren when he was about thirty yards from

plaintiff. After sounding his horn, he saw plaintiff move "all

the way closer to the curb and [] start[] [to] rid[e] straight."

At twenty yards, he moved into the left northbound lane to avoid

plaintiff. According to Officer Caicedo, "[a]s that distance

closed, the cyclist suddenly just turned in, like ma[d]e a hard

[] left and turned in front of me. And that's when I swerved

into oncoming traffic." When he was ten feet away from

plaintiff, the officer was still travelling at thirty miles per

hour.3 Faced with oncoming traffic, Officer Caicedo swerved back

into the northbound lanes, where his front right fender struck

plaintiff's rear tire. When asked why he did not stop on seeing

plaintiff, Officer Caicedo responded: "I wanted to get back to

3
At trial, when questioned how fast he was traveling, Officer
Caicedo responded: "I believe it was like [twenty] miles per
hour." He was then confronted with his deposition testimony
that he was traveling thirty miles per hour, and conceded he
"was traveling the same speed at [forty] yards away as [he] was
at [ten] feet away."

5 A-6163-12T2
[headquarters] due to the fact that we didn't have a cage in the

car, I wanted to get back safely and my observation was that I

could safely go around into the second right lane around the

cyclist."

The other two occupants of the police vehicle also

testified. Camacho recounted that "as I look[ed] up I [saw]

that my partner [was] going onto the other side, the opposite

side of traffic [into] oncoming traffic. And then to avoid

colliding with oncoming traffic he swerve[d] again towards the

right, and I remember that's where the impact occurred."

Petracca testified that before the collision he saw plaintiff

"just riding kind of in circles on his bicycle." Officer

Caicedo later "swerved to the left to try to avoid impact and

stepped on the brakes." Petracca further stated: "I don't

believe [Officer Caicedo] made it into the other lane of

traffic, but pretty substantially I would say he swerved to try

to avoid impact." Neither detective's report recorded that

Officer Caicedo sounded his horn before the collision.

Plaintiff suffered a comminuted fracture of his right

femoral shaft. He underwent two surgeries, physical therapy,

and treatment for neck and back pain. He suffers from a leg-

length discrepancy and walks with a permanent limp.

6 A-6163-12T2
 Prior to trial, plaintiff made an in limine motion to bar

defendants from arguing the good-faith immunity defense. The

trial judge reserved decision on the motion until she heard the

police testimony. Ultimately, the judge declined to instruct

the jury on the defense, reasoning:

I have found cases that go both ways. Cases
that would say that this was the
continuation of an effectuation of an
arrest. And cases that have said it's just
merely transporting. Now I note for the
record, I have no evidence or testimony
. . . that this was any sort of . . . high
crime. This was not some internationally
wanted suspect who was in the back of the
car. There's no evidence that he struggled.
There was no evidence that he resisted.
Indeed he's charged with wandering[,] a
disorderly persons offense.

So even though I don't mean to diminish in
any way, nor substitute my judgment for the
police officer['s] sense of danger, I don't
even have any testimony that [] anybody
thought they were in much danger. . . . For
those reasons I don't think the immunity
[applies.]

The jury found in plaintiff's favor and apportioned

negligence at eighty percent to Officer Caicedo and twenty

percent to plaintiff. The trial court molded the $3,000,000

verdict accordingly, and judgment was entered in plaintiff's

favor for $2,400,000.

Defendants moved for a new trial or, in the alternative,

for a remittitur. They argued that the verdict was excessive

7 A-6163-12T2
and against the weight of the evidence. Defendants also

contended that the court erred in denying the jury instruction

as to their good-faith immunity defense. While the trial judge

characterized the verdict as "high," she found no basis to

disturb it. As to the immunity defense, the judge ruled:

[I]t's clear [that] the testimony of the
officers if anything supported []
plaintiff's position that it was a mere
transportation function that they were
providing. There was no[t] one word of
testimony about the neighborhood being
something that they were concerned with
lingering [in] with an arrestee who was a
buyer []. There was nothing, nothing,
absolutely nothing said by either officer
that would indicate they had any sort of
concerns of safety that were heightened by
virtue of this being an arrest, versus any
concerns they'd normally have if they were
just [] transporting a prisoner. And so for
those reasons the [c]ourt denied the
immunity defense.

. . . I think[,] given the record in this
case, given the absence of any testimony
about any concerns that anybody had or
heightened concerns that would take this
from a mere transportation to the
continuation of an arrest, that the
[c]ourt's initial ruling was the correct and
accurate one.

II.

On appeal, defendants renew the arguments they advanced in

their new trial motion. They contend that the trial court erred

in failing to instruct the jury on good-faith immunity, and that

the verdict was both against the weight of the evidence and

8 A-6163-12T2
excessive. Defendants further argue that the trial court erred

in denying their motion for a new trial or a remittitur. We

address these arguments in turn.

A.

We first consider whether defendants enjoyed immunity under

the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.

"The TCA provides general immunity for all governmental bodies

except in circumstances where the Legislature has specifically

provided for liability." Kain v. Gloucester City, 436 N.J.

Super. 466, 473 (App. Div.) (citing N.J.S.A. 59:1-2 and 2-1),

certif. denied, 220 N.J. 207 (2014). Thus, the TCA's dominant

theme is immunity, with liability as the exception. D.D. v.

Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 134 (2013);

Rochinsky v. Dep't of Transp., 110 N.J. 399, 408 (1988). "The

public entity bears the burden of proof for establishing

immunity. In determining if a public entity is immune, courts

first identify the culpable cause of the accident and . . . ask

if that identified cause or condition is one that the

Legislature intended to immunize." Kain, supra, 436 N.J. Super.

at 473 (citations and internal quotation marks omitted).

Where a public entity is immune from liability for injury,

so too is the public employee. N.J.S.A. 59:3-1(c). Pertinent

to this appeal, N.J.S.A. 59:3-3 specifically provides that "[a]

9 A-6163-12T2
public employee is not liable if he [or she] acts in good faith

in the execution or enforcement of any law." The TCA does not,

however, "exonerate a public employee for negligence arising out

of his [or her] acts or omissions in carrying out his [or her]

ministerial functions." N.J.S.A. 59:3-2.

Defendants argue that they are entitled to the good-faith

immunity bestowed by N.J.S.A. 59:3-3. They contend that Officer

Caicedo was enforcing the law when the collision occurred

because the police had not yet completed the suspect's arrest.

In support of this position they point to the Newark Police

Department's policy procedures for processing arrests, which

include transporting a prisoner to the precinct of arrest and

completing all required reports.

Plaintiff argues that N.J.S.A. 59:3-3 immunity is

inapplicable under the facts presented, and that courts have not

applied it to situations where police are involved in

ministerial acts, such as patrolling the streets or transporting

prisoners. Rather, plaintiff contends that this statutory

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.

10 A-6163-12T2
 New Jersey caselaw appears to favor plaintiff's position.

See, e.g., Alston v. City of Camden, 168 N.J. 170, 187-88 (2001)

(applying the immunity to an officer pursuing a drug suspect on

foot, emphasizing the "split-second judgments" such

circumstances often require); Canico v. Hurtado, 144 N.J. 361,

365-66 (1996) (applying the immunity to an officer responding to

a bank alarm, noting that such responses "often require split-

second judgments"); Dunlea v. Twp. of Belleville, 349 N.J.

Super. 506, 509 (App. Div.) (applying the immunity to officers

responding to a burglary in progress), certif. denied, 174 N.J.

189 (2002). Thus, if the collision here occurred during an

emergency response, the result would be clear since good-faith

immunity no doubt "encompass[es] the operation of police

vehicles by police officers acting within the scope of their

duties and in response to an emergency." Canico, supra, 144

N.J. at 366-67.

As TCA immunity often arises in the context of police

pursuits, our courts have frequently applied N.J.S.A. 59:5-2(b)

and 5-2(c) (which, respectively, provide immunity from injuries

caused by escaping persons and by the pursuit of such persons),

obviating the need to consider N.J.S.A. 59:3-3 good-faith

immunity. See, e.g., Tice v. Cramer, 133 N.J. 347, 367 (1993)

(applying N.J.S.A. 59:5-2(b)(2) and (b)(3) and thus not reaching

11 A-6163-12T2
the question of good-faith immunity for officers pursuing a

vehicle that failed to heed their commands); Torres v. City of

Perth Amboy, 329 N.J. Super. 404, 408 (App. Div. 2000)

(declining to apply N.J.S.A. 59:5-2(b)(2) to an officer

"attempt[ing] to close the gap and stop" a speeding but non-

fleeing motorist).

Our research has not disclosed any cases in New Jersey

directly on point with the facts presented here. We do,

however, draw guidance from cases decided under Illinois tort

claims legislation similar to the TCA. Marley v. Palmyra, 193

N.J. Super. 271, 288 (Law Div. 1983). The analogous section of

the Illinois Local Governmental and Governmental Employees Tort

Immunity Act provides: "A public employee is not liable for his

act or omission in the execution or enforcement of any law

unless such act or omission constitutes willful and wanton

conduct." 745 Ill. Comp. Stat. 10/2-202 (2014).

The Illinois Supreme Court considered a substantially

similar version of this statute in Aikens v. Morris, 145 Ill. 2d

273, 583 N.E.2d 487 (1991). In Aikens, plaintiff sought to

recover damages sustained when her automobile was struck by an

Evanston police squad car. Id. at 275-76, 583 N.E.2d at 488-89.

At the time, the officer was transporting a prisoner from the

Village of Skokie lockup facility to the Evanston police

12 A-6163-12T2
department's lockup facility. Ibid. The prisoner had

previously been arrested, handcuffed, and placed in the back

seat of the police car. Ibid. According to the officer's

testimony, he was in "no hurry." Ibid.

Like the present case, defendants argued that the officer

was "executing" or "enforcing" a law, citing Illinois statutes

empowering public officials to move or transfer prisoners. Id.

at 277, 583 N.E.2d at 489. The court disagreed, reasoning that

the officer's "negligent conduct was not shaped or affected in

any manner by the nature of duties in either enforcing or

executing law." Id. at 286, 583 N.E.2d at 494. In declining to

apply the statutory immunity, the court cited with approval

Anderson v. Chicago, 29 Ill. App. 3d 971, 331 N.E.2d 243 (1975),

a case involving "quite similar" circumstances:

In Anderson, the appellate court viewed a
record which showed that a police officer
was transporting, at the time of the
accident, two juveniles picked up from the
scene of a disturbance, with another police
vehicle following and escorting the
complainant. The Anderson court determined
that the evidence supported the trial
court's findings that the officer was not
enforcing or executing any laws, even though
he was on duty and in the course of his
employment. We are similarly compelled.

[Aikens, supra, 145 Ill. 2d at 286, 583
N.E.2d at 494.]

13 A-6163-12T2
Taken together, we regard these cases as persuasive authority

that Officer Caicedo was not acting in the "execution or

enforcement of any law" so as to afford him immunity under

N.J.S.A. 59:3-3 while transporting the prisoner to the police

precinct when the collision occurred.

Our "primary task" in interpreting statutory language is

"to effectuate the legislative intent in light of the language

used and the objects sought to be achieved." Bosland v. Warnock

Dodge, Inc., 197 N.J. 543, 554 (2009) (citation and internal

quotation marks omitted). 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." Aikens, supra, 145

Ill. 2d at 285, 583 N.E.2d at 493.

We do not believe our Legislature intended N.J.S.A. 59:3-3

to be construed so broadly. Rather, the determination of

whether a police officer is engaged "in the execution or

enforcement of any law" so as to entitle that officer to good-

faith immunity under the statute must be made on a case-by-case

basis. 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

14 A-6163-12T2
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.

We concede that Officer Caicedo's transport of a suspected

drug buyer charged with wandering presents a close case. The

officer was certainly "carrying out" the law when he first

arrested the suspect. However, the policy concern underlying

good-faith immunity, that police will be "reluctant to enforce

the law vigorously for fear of liability" in its absence, is

simply less compelling during the ensuing transport function.

Tice, supra, 133 N.J. at 351. On this record, we see no reason

why Officer Caicedo, while transporting the prisoner, should not

be held to the same standard of care as an ordinary citizen

operating his or her own motor vehicle on the roadways of this

State. Accordingly, we discern no policy basis to cloak

defendants with immunity from liability for the injuries

sustained by plaintiff during Officer Caicedo's travel to police

headquarters.

15 A-6163-12T2
 B.

We next turn to defendants' arguments regarding new trial

and remittitur. We begin by stating certain general principles

that guide our analysis. We will not reverse a trial court's

decision to deny a motion for a new trial "unless it clearly

appears that there was a miscarriage of justice under the law."

R. 2:10-1. That inquiry requires employing a standard of review

substantially similar to that used at the trial level, "except

that the appellate court must afford 'due deference' to the

trial court's '"feel of the case,"' with regard to the

assessment of intangibles, such as witness credibility."

Jastram v. Kruse, 197 N.J. 216, 230 (2008) (quoting Feldman v.

Lederle Labs., 97 N.J. 429, 463 (1984)). See also Carrino v.

Novotny, 78 N.J. 355, 360 (1979); Baxter v. Fairmont Food Co.,

74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8

(1969).

Because juries have broad latitude to determine damages,

"the standard for granting a new trial . . . is necessarily

high." Johnson v. Scaccetti, 192 N.J. 256, 281 (2007). "A

trial court should not order a new trial or remit a jury's

damages award unless it is so clearly disproportionate to the

injury and its sequela . . . that it may be said to shock the

judicial conscience." Ibid. A court "must be 'clearly and

16 A-6163-12T2
convincingly' persuaded that it would be manifestly unjust to

sustain the award." Ibid. (quoting R. 4:49-1(a)).

In determining whether the denial of remittitur or a new

trial was proper, this court is bound by the same standards as a

trial court. Jastram, supra, 197 N.J. at 228-231, 235; Baxter,

supra, 74 N.J. at 598; McRae v. St. Michael's Med. Ctr., 349

N.J. Super. 583, 597 (App. Div. 2002). Unless a jury's award of

damages is so disproportionate to the injury and resulting

disability, the trial judge should not disturb the award.

Jastram, supra, 197 N.J. at 230; Baxter, supra, 74 N.J. at 595.

Thus, to qualify for remittitur or a new trial, as we have

noted, "the jury's award must shock the judicial conscience."

McRae, supra, 349 N.J. Super. at 597 (citing Baxter, supra, 74

N.J. at 596); see Ming Yu He v. Miller, 207 N.J. 230, 252

(2011).

Here, the trial judge's ruling is clearly supported by the

record, and does not amount to an abuse of discretion. The jury

verdict in this case did not constitute a miscarriage of

justice, nor did the jury's award of damages "shock the judicial

conscience." McRae, supra, 349 N.J. Super. at 597. "[T]he

evidence in support of the jury verdict [was] not

insufficient[,]" and the trial judge's decision to deny the

motion for a new trial, or in the alternative, a remittitur,

17 A-6163-12T2
should not be disturbed. Crego v. Carp, 295 N.J. Super. 565,

572 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997); Amaru

v. Stratton, 209 N.J. Super. 1, 7 (App. Div. 1985).

We note that the accounts of the parties and their

respective witnesses as to how the accident occurred were

conflicting, and left the jury with the task of resolving their

credibility. In challenging the verdict as against the weight

of the evidence, defendants argue that the limited observations

testified to by plaintiff and his two teenage witnesses are

insufficient to establish defendants' liability. However,

Officer Caicedo testified that he was travelling above the speed

limit. Despite his claim that he observed plaintiff swerving

his bicycle back and forth over both northbound lanes, Officer

Caicedo conceded that he neither slowed nor stopped his police

vehicle. Thus, even if the jury disregarded the testimony of

plaintiff and his witnesses, it could have premised its verdict

of liability on Officer Caicedo's testimony alone.

With respect to the amount of the jury verdict, plaintiff

presented evidence that he was treated for his injuries by

Sanjeev Sabharwal, M.D., a pediatric orthopedic surgeon

specializing in leg-length discrepancy. Plaintiff was

hospitalized for four days, and remained on bed rest for five

months, during which he required assistance with all his bodily

18 A-6163-12T2
functions. He suffers from a 2.8-centimeter (1.1-inch) leg-

length discrepancy, resulting in a permanent limp. Dr.

Sabharwal considered procedures to address this discrepancy, but

concluded they were too risky. Plaintiff also has permanent

scars and persistent stiffness, and no longer engages in the

recreational activities he used to enjoy. In Dr. Sabharwal's

opinion, plaintiff is now "predisposed to some higher prevalence

of low back pain, and possibly some premature arthritis of the

lower extremities." At trial, defendants presented no expert

testimony contradicting Dr. Sabharwal's findings.

Defendants maintain, however, that the verdict is excessive

when compared with damage awards in certain other cases.

Defendants cite examples of lesser verdicts, ranging from

$90,000 to $1,200,000, based on similar injuries but "much

stronger proofs" on liability and future employability.

Plaintiff claims that the cases cited by defendants are

inapposite, and cites verdicts from other cases with injuries

similar to those sustained by plaintiff that range between

$1,700,000 and $11,202,000.

A trial court may consider comparable verdicts in

determining whether a jury's award is so "wide of the mark" as

to shock the judicial conscience. He, supra, 207 N.J. at 258.

We are unpersuaded that the verdicts cited by defendants are

19 A-6163-12T2
sufficient to override the trial court's considered judgment

that the award in this case was not "so wide of the mark" as to

call for judicial intervention. Ibid. The judge's

determination was based on the evidence presented at trial, the

judge's "feel of the case," and her judicial experience.

Affirmed.

20 A-6163-12T2