YANLEY SANDY VS. TOWNSHIP OF ORANGE (L-2274-17, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0034-19

YANLEY SANDY,

Plaintiff-Appellant,

v.

TOWNSHIP OF ORANGE,
L. WORTHEN-BARNES, and
IMBERT WALKER,

Defendants-Respondents.
__________________________

Submitted February 24, 2021 – Decided July 29, 2021

Before Judges Ostrer, Vernoia, and Enright.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-2274-17.

Eldridge Hawkins, attorney for appellant.

Michael A. Armstrong & Associates, LLC, attorneys
for respondent Township of Orange (Morrison Kent
Fairbairn, on the brief).

David C. Stanziale, attorney for respondent L.
Worthen-Barnes.
PER CURIAM

Plaintiff Yanley Sandy appeals from August 30, 2019 orders granting

summary judgment to defendant Township of Orange (the Township) and

Township police officer, defendant L. Worthen-Barnes, and denying plaintiff's

cross-motion for summary judgment. Based on our de novo review of the

summary judgment record, and after consideration of the arguments of counsel,

we affirm the court's order granting defendants summary judgment on all counts

of the complaint other than the eighth count, which alleges the Township and

Worthen-Barnes violated the New Jersey Law Against Discrimination (LAD),

N.J.S.A. 10:5-1 to -50, by unlawfully discriminating against plaintiff in a place

of public accommodation based on his national origin. We vacate the summary

judgment award on the eighth count and remand for further proceedings before

the trial court on that count. We affirm the court's denial of plaintiff's cross -

motion for summary judgment.

I.

To provide context for our discussion of the issues presented by plaintiff's

appeal from the orders granting defendants' summary judgment motions, we

generally describe the facts, supported by the parties' Rule 4:46-2 statements, in

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the light most favorable to plaintiff, the non-moving party.1 See Bauer v.

Nesbitt, 198 N.J. 601, 604 n.1 (2009) (explaining in the consideration of a

1
Many of the facts we include in the summary are set forth in the parties '
respective Rule 4:46-2 statements of material fact. We do not refer to purported
facts included in the statements that are not supported by citation to competent
evidence. See R. 4:46-2(a) to (b); see also Bhagat v. Bhagat, 217 N.J. 22, 38
(2014) (explaining that in reviewing a trial court's summary judgment order, we
"must review the competent evidential materials submitted by the parties to
identify whether there are genuine issues of material fact"); Leang v. Jersey City
Bd. of Educ., 399 N.J. Super. 329, 357 (App. Div. 2008) (requiring that in
determining whether to "accept as true . . . the allegations [contained in] a
party's statement [of material facts]," courts must "consider[] . . . 'the competent
evidential materials'" present in the record (quoting Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 540 (1995))), aff'd in part, rev'd in part on other
grounds, 198 N.J. 557 (2009); Lombardi v. Masso, 207 N.J. 517, 547 (2011)
(Rivera-Soto, J., dissenting) ("Facts tendered as material either in support or in
opposition to a motion for summary judgment motion must be anchored to a
proper basis."). For example, we do not include in our summary those purported
facts set forth in the Township's Rule 4:46-2 statement that are supported only
by a citation to a hearsay police report annexed to a certification of counsel and
which are otherwise untethered to an affidavit or certification supported by the
personal knowledge of any police officers. See R. 1:4-4; R. 1:6-6. We include
some facts plaintiff putatively denied because plaintiff's failure to support his
denials with citations to competent record evidence renders the asserted facts
admitted for purposes of our consideration of defendants' summary judgment
motions. See R. 4:46-2(a) to (b); see also Kamienski v. State, 451 N.J. Super.
499, 505 n.2 (App. Div. 2017) (providing that a party's assertions or denials "of
material fact[s]" must be "support[ed]" by "citation[s] to the portion of the
motion record" upon which the party relied in support of the assertions or denials
(quoting R. 4:46-2(a))); Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129,
134 (App. Div. 1999) ("[B]are conclusory assertions in an answering affidavit
are insufficient to defeat a meritorious application for summary judgment.").
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summary judgment motion "both trial and appellate courts must view the facts

in the light most favorable to the non-moving party").

Plaintiff is "Guyanese by national origin" and he became an American

citizen in 2006. In the early morning hours of April 12, 2015, plaintiff drove

his car on Scotland Road in the Township. Scotland Road is a two-lane street

leading to its intersection with Central Avenue, and, at the intersection, the street

has a third lane, which is for vehicles making a left turn onto Central Avenue.

Plaintiff intended to make a right turn onto Central Avenue but as he approached

the intersection of Scotland Road and Central Avenue, he saw a police car

stopped in the right lane of Scotland Road and another vehicle stopped in the

center lane. Worthen-Barnes, who was on duty as a Township police officer,

stood outside the police car.

Plaintiff stopped his vehicle about two car lengths behind the police car.

At that time, plaintiff activated his vehicle's right turn signals. Plaintiff's vehicle

remained stopped behind the police car for two to three cycles of the traffic

signal light changing at the intersection. Worthen-Barnes looked in plaintiff's

direction at one point but did not say anything to him.

Plaintiff then activated his car's left turn signals and drove to his left

around the stopped police car and the other vehicle and up to the intersection in

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the left-turn lane. When the traffic light at the intersection turned green, plaintiff

activated the car's right turn signals and made a right turn onto Central Avenue

from the left-turn lane on Scotland Road.

After plaintiff made the turn onto Central Avenue, and as he passed the

vehicle and police car still stopped to his right on Scotland Road, he heard

Worthen-Barnes yelling at him as she approached the rear of his car. Plaintiff

stopped his car and leaned over to lower the rear passenger-side window to hear

what Worthen-Barnes was saying to him, but he did not lower the music playing

on his radio. After he lowered the window, he heard Worthen-Barnes say "back-

up, back-up." Plaintiff did not back up his vehicle. He did not move or say

anything to Worthen-Barnes as she stood toward the rear of his car holding what

he believed was a radio in one hand and a gun in the other. Worthen-Barnes

pointed a gun at plaintiff as he sat in his car, but she did not give him any

commands.

Two male officers then opened the driver's-side door of plaintiff's car and

pulled him from the vehicle while cursing at him. Worthen-Barnes then opened

the front passenger-side door of the car and took the keys from the ignition.

As the male officers pulled plaintiff from his car, "they slammed him

against his vehicle and put handcuffs on him while cursing at him." They also

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searched his pockets, causing his pants to fall "halfway 'down to the back of

[his] butt[ocks]' as a result."

The officers placed plaintiff in a police vehicle with Worthen-Barnes, who

drove plaintiff to the police station. According to plaintiff, while driving to the

station, Worthen-Barnes "glanced back at [p]laintiff" and said, "[W]e do this to

you because you're a [expletive] foreigner." Plaintiff asked Worthen-Barnes

why she made the statement, and she responded, "[S]hut the [expletive] up you

[expletive] foreigner."

When plaintiff arrived at the station, Worthen-Barnes and another officer

placed him in what plaintiff described as a "mesh cage." He remained in police

custody for two to three hours. Worthen-Barnes charged plaintiff with

disorderly conduct in violation of N.J.S.A. 2C:33-2(a)(1), and three motor

vehicle offenses. 2 The municipal court later dismissed the charges for lack of

prosecution.

2
Plaintiff was issued motor vehicle summonses for disregarding an officer's
signal by police whistle, N.J.S.A. 39:4-122; careless driving, N.J.S.A. 39:4-97;
and improper passing, N.J.S.A. 39:4-83.
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 Plaintiff subsequently filed a complaint against the Township, Worthen -

Barnes, and Township Police Sergeant Imbert Walker.3 The complaint asserted

the following ten causes of action: negligent training and supervision of

Worthen-Barnes and Walker (first count); reckless and intentional infliction of

emotional distress (second count); violation of plaintiff's constitutional and civil

rights and violation of N.J.S.A. 10:6-2 (third count); unlawful stop, search, and

arrest in violation of Article I, Paragraphs 1, 5, and 7 of the New Jersey

Constitution (fourth count); false arrest and false imprisonment (fifth count);

violation of the New Jersey Constitution (sixth count); infliction of emotional

distress (seventh count); violation of N.J.S.A. 10:5-4 and -12(f) by denying

plaintiff equal treatment in a place of public accommodation (eighth count);

malicious prosecution (ninth count); and violation of the New Jersey Civil

Rights Act, N.J.S.A. 10:6-2 (tenth count).

3
Plaintiff filed a complaint and, later, an amended complaint. We describe the
causes of action asserted in the amended complaint because it was the operative
complaint when the Township and Worthen-Barnes filed their summary
judgment motions. We do not address the claims against defendant Imbert
Walker, who has not participated in the appeal, because plaintiff does not argue
the court erred by granting summary judgment to Walker. See Sklodowsky v.
Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("[I]ssue[s] not briefed on
appeal [are] deemed waived."); Jefferson Loan Co. v. Session, 397 N.J. Super.
520, 525 n.4 (App. Div. 2008) (same).
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 In a September 15, 2017 order, the court granted in part defendants'

motion for partial dismissal of the complaint. 4 The order dismissed: all claims

against Walker without prejudice; the second, fifth, seventh, and ninth counts

against the Township with prejudice, and the eighth count without prejudice;

and the first count against Worthen-Barnes with prejudice, and the eighth count

against her without prejudice. In a December 15, 2017 order, the court granted

in part plaintiff's motion for reconsideration and reinstated the eighth count

against the Township and Worthen-Barnes.

Following entry of the court's September 15 and December 15, 2017

orders, the causes of action remaining against the Township included: negligent

4
The court's September 15, 2017 order is not a paradigm of clarity. In part, it
consists of a grid with each of the counts in the complaint listed by number and
a handwritten, abbreviated description of the asserted cause of action, and boxes
that are checked off to indicate which counts are dismissed as to each defendant
and whether the counts are dismissed with or without prejudice. We interpret
the handwritten notations to also indicate that the court merged the fourth and
tenth counts with the third count, and the seventh count with the second count.
We also interpret the lack of a check in the box next to a defendant's name as
indicating the court denied the defendant's motion to dismiss the corresponding
count against the designated defendant. There is nothing in the briefs of the
parties on appeal suggesting a different interpretation of the order. Because "it
is well-settled that appeals are taken from orders and judgments and not from
opinions, oral decisions, informal written decisions, or reasons given for [trial
courts'] ultimate conclusion[s]," Hayes v. Delamotte, 231 N.J. 373, 387 (2018)
(quoting Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001)), orders
clearly and precisely setting forth a trial court's actions and directives are
essential to proper appellate review.
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training and supervision (first count); violations of plaintiff's rights under the

New Jersey Constitution and violation of N.J.S.A. 10:6-2 (third, fourth, sixth,

and tenth counts); false arrest and false imprisonment (fifth count); and violation

of the LAD by failing to provide or furnish a reasonable accommodation,

N.J.S.A. 10:5-4 and -12(f) (eighth count).

Following entry of the orders, the following causes of action remained

against Worthen-Barnes: reckless or intentional infliction of emotional distress

(second count); violations of plaintiff's rights under the New Jersey Constitution

and violation of N.J.S.A. 10:6-2 (third, fourth, sixth, and tenth counts); false

arrest and false imprisonment (fifth count); infliction of emotional distress

(seventh count); violation of the LAD by failing to provide or furnish a

reasonable accommodation, N.J.S.A. 10:5-4 and -12(f) (eighth count); and

malicious prosecution (ninth count).

Defendants later filed separate motions for summary judgment, and

plaintiff cross-moved for summary judgment. Following oral argument on the

motions, the court rendered a decision from the bench granting defendants'

motions and denying plaintiff's cross motion. In its decision, the court

summarized the parties' arguments, detailed certain legal principles related to

some of the causes of action, and generally described the summary judgment

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standard and the defense of qualified immunity. The court noted plaintiff's

decision not to depose any witnesses during discovery and his failure to produce

evidence or supply expert testimony establishing defendants' liability on

plaintiff's causes of action.

The court found the Township is entitled to judgment as a matter of law

on plaintiff's negligent supervision claim because

[p]laintiff has not established that the . . . Township's
[p]olice [d]epartment had reason to know
of . . . Worthen[-]Barnes'[s] alleged dangerous
propensity[,] if one exists[,] towards wrongful arrests
or the violation of civil rights against foreigners[,] or
could reasonably have foreseen that those
characteristics could cause a risk of harm to motorists
like plaintiff.

The court also found plaintiff did not present evidence establishing a negligent

training claim, finding "[p]laintiff has not identified a deficiency in [the

Township's police department's] training policy, deposed anyone to obtain

information on how officers were trained, or proffered any expert testimony on

this issue."

The court further determined plaintiff failed to present evidence

establishing his causes of action for violations of his constitutional rights. The

court explained:

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 [P]laintiff has claimed several times throughout the
amended complaint that it is custom for [the
Township's p]olice [d]epartment to provide untrue
statements to support unlawful arrests and to cover up
unlawful activity, but has provided no factual evidence
supporting these claims or regarding any specific
municipal policy or custom . . . to . . . link [the
Township] to any constitutional violations on the part
of any officers.

The court also found defendants are entitled to summary judgment on

plaintiff's asserted tort claims because it is undisputed plaintiff did not incur

medical treatment expenses sufficient to satisfy the pain and suffering damage

threshold for a tort claim against a public entity and employee under the New

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

plaintiff failed to present any evidence he incurred the $3,600 in medical

treatment expenses required to satisfy the TCA threshold for a pain and suffering

award. N.J.S.A. 59:9-2(d).

The court also determined plaintiff did not present evidence establishing

he was denied a public accommodation based on his nationality in violation of

the LAD, N.J.S.A. 10:5-4 and -12(f). In its opinion from the bench, the court

found plaintiff failed to present evidence he "was treated differently than a non-

Guyanese American that was being jailed by the" Township's police department,

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and plaintiff's "mere allegation that an officer told him . . . he was being

mistreated because he was a foreigner does not establish discrimination."

In its order granting defendants summary judgment on plaintiff's denial of

public accommodations claim, the court explained that

[p]laintiff has not shown that he actually sought or was
denied accommodations on account of his national
origin[;] there is no evidence, deposition testimony, or
expert opinion that shows . . . [p]laintiff was treated
differently by [the Township's p]olice [d]epartment
or . . . Worthen[-]Barnes[;] and mere allegations do not
establish discrimination.

Based on those findings, the court entered an order granting defendants'

summary judgment motions and denying plaintiff's cross-motion. This appeal

followed.

On appeal, plaintiff presents the following arguments for our

consideration:

Point I

DEFENDANTS' OWN RECORDS SHOW THEIR
NON-ENTITLEMENT FOR SUMMARY
JUDGMENT RELIEF.

Point II

A REASONABLE JURY WOULD FIND [THE
TOWNSHIP'S] SUBMISSIONS AND LACK OF
SAME WOULD SHOW PLAINTIFF HAS MET HIS

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BURDEN TO PROVE HIS CLAIMS OF NEGLIGENT
SUPERVISION AND NEGLIGENT TRAINING.

Point III

PLAINTIFF'S CLAIMS FOR NEGLIGENT
SUPERVISION/NEGLIGENT HIRING ARE VALID.

Point IV

PLAINTIFF IS ENTITLED TO SUMMARY
JUDGMENT ON THE ISSUE OF VIOLATION OF
THE PLACE OF PUBLIC [ACCOMMODATION]
DISCRIMINATION PREDICATED UPON[:]

A. WORTHEN-BARNES['S] STATEMENT TO
PLAINTIFF THAT THIS IS HAPPENING TO YOU
BECAUSE YOU ARE A FOREIGNER;

B. THE REASONING IN [THE] UPCHURCH v. CITY
OF ORANGE DECISION THAT DEFENDANTS
HAD NOT PRODUCED ANY POLICY ON
DIFFERENTIAL TREATMENT AND NO TRAINING
ON THE SUBJECT MATTER; AND

C. THE HOLMES DECISION CITED BY [THE
MOTION COURT].

Point V

NEGLIGENT SUPERVISION AND TRAINING
CLAIMS ARE ENTITLED TO SUMMARY
JUDGMENT IN FAVOR OF PLAINTIFF AS SAID
CLAIM IS PROVEN BY [THE TOWNSHIP'S] OWN
RECORDS.

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 II.

The point headings in plaintiff's brief on appeal reflect the assertion of

arguments directed to two parts of the court's order. First, the headings for

Points I, II, III, and V pertain solely to the summary judgment award on the first

count, which alleges the Township negligently supervised and trained Worthen-

Barnes.5 Second, the Point IV heading asserts only that the court erred by

granting summary judgment to the Township and Worthen-Barnes on the eighth

count, which alleges a violation of the LAD by denying plaintiff equal treatment

in a place of public accommodation because of his national origin.

In his brief on appeal, plaintiff variously, and oftentimes vaguely,

intersperses suggestions of other arguments challenging the summary judgment

order, but defendants and this court have "a right to know precisely what legal

5
The headings for Point II and III are expressly limited to plaintiff's chall enge
to the court's summary judgment award to the Township on the first count, and
the Point V heading claims the court erred by denying plaintiff's motion for
summary judgment on the first count. The Point I heading more generically
asserts the Township's "own records" demonstrate it is not entitled to summary
judgment, but the records to which the heading makes reference are reports
showing Worthen-Barnes's police department internal affairs history, and
plaintiff relies on those records for the singular purpose of challenging the
court's summary judgment award on the first count. Thus, the seemingly broad
argument asserted in the Point I heading is limited to plaintiff's contention,
which is more directly asserted in the Point II, III, and V headings, that the
Township is not entitled to summary judgment on the first count and plaintiff is
entitled to summary judgment on that count.
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arguments are being made and . . . need not respond to oblique hints and

assertions" that are made in a cursory manner and are untethered to the point

headings required by Rule 2:6-2(a)(6) properly identifying the arguments relied

on to support the appeal. Almog v. Israel Travel Advisory Serv., Inc., 298 N.J.

Super. 145, 155 (App. Div. 1997); see also Mid-Atl. Solar Energy Indus. Ass'n

v. Christie, 418 N.J. Super. 499, 508 (App. Div. 2011) (refusing to address an

issue raised in a two-sentence paragraph in a brief "without a separate point

heading, in violation of Rule 2:6-2(a)[(6)]"). It is not the role of this court to

weave together the fabric of an argument on a party's behalf based on threads

vaguely scattered amongst the issues that are properly identified in accordance

with Rule 2:6-2(a)(6). We limit our consideration "of the issues to those

arguments properly made under appropriate point headings," Almog, 298 N.J.

Super. at 155, and therefore only address plaintiff's arguments that the court

erred by: granting the Township summary judgment on the negligent training

and supervision cause of action; denying his cross-motion for summary

judgment on the negligent training and supervision claim; and granting the

Township and Worthen-Barnes summary judgment on the claim they violated

the LAD by discriminating against him based on his national origin in a place

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of public accommodation,6 see R. 2:6-2(a)(6); see also Mid-Atl. Solar Energy

Indus., 418 N.J. Super. at 508; Almog, 298 N.J. Super. at 155-56.

We review an order granting summary judgment applying the same

standard as the trial court. State v. Perini Corp., 221 N.J. 412, 425 (2015) (first

citing Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013); and then citing Liberty

Surplus Ins. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). In

considering a motion for summary judgment, "both trial and appellate courts

must view the facts in the light most favorable to the non-moving party, which

in this case is plaintiff." Bauer, 198 N.J. at 604 n.1 (first citing R. 4:46-2(c);

and then citing Brill, 142 N.J. at 540). Summary judgment is proper if the record

demonstrates "no genuine issue as to any material fact challenged and that the

moving party is entitled to a judgment . . . as a matter of law." Burnett v.

Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App.

Div. 2009) (quoting R. 4:46-2(c)). Issues of law are subject to the de novo

6
Because plaintiff does not present any arguments in any of the point headings
concerning the grant of summary judgment to defendants on the second, third,
fourth, fifth, sixth, seventh, ninth, and tenth counts, we do not address those
claims on appeal, and we affirm the court's summary judgment order as to those
claims. See Sklodowsky, 417 N.J. Super. at 657; Jefferson Loan Co., 397 N.J.
Super. at 525 n.4.
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standard of review, and the trial court's determination of such issues is accorded

no deference. Kaye v. Rosefielde, 223 N.J. 218, 229 (2015).

The first count of the complaint avers that the alleged wrongful stop,

arrest, detention, and prosecution of plaintiff were the result of the Township's

negligent training and supervision of Worthen-Barnes. Negligent training and

supervision claims "are not forms of vicarious liability," but rather "are based

on the direct fault of an employer." G.A.-H. v. K.G.G., 238 N.J. 401, 415

(2019). To establish a party acted negligently, a plaintiff must present evidence

establishing "a duty of care owed by the defendant to the plaintiff, a breach of

that duty by the defendant, injury to the plaintiff proximately cause d by the

breach, and damages." Robinson v. Vivirito, 217 N.J. 199, 208 (2014). Where,

as here, a plaintiff claims an employer breached a duty "relate[d] to the risk of

harm created by [an employee], the plaintiff must prove that the [employer]

knew or had reason to know of the risk of harm in question." G.A.-H., 238 N.J.

at 415.

To establish a negligent training or supervision claim, a plaintiff must

present evidence demonstrating:

(1) that the employer "knew or had reason to know of
the particular unfitness, incompetence[,] or dangerous
attributes of the employee and could reasonably have
foreseen that such qualities created a risk of harm to

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 other persons" and (2) "that, through the negligence of
the employer in [training or supervising] the employee,
the latter's incompetence, unfitness[,] or dangerous
characteristics proximately caused the injury."

[Id. at 416 (quoting Di Cosala v. Kay, 91 N.J. 159, 173
(1982)).]

Stated differently, a "plaintiff must prove that (1) an employer knew or had

reason to know that the failure to supervise or train an employee in a certain way

would create a risk of harm and (2) that risk of harm materializes and causes the

plaintiff's damages." Ibid.

Plaintiff argues the Township knew or had reason to know that the

purported failure of the Township to properly train or supervise Worthen-Barnes

created a risk that she would wrongfully stop, arrest, detain, and prosecute him.

Plaintiff also contends the Township's failure to properly train or supervise

Worthen-Barnes resulted in the harm he allegedly suffered as a result of

Worthen-Barnes's wrongful actions.

In support of his contention, plaintiff relies exclusively on the records

summarizing Worthen-Barnes's internal affairs history with the Township's

police department. Plaintiff argues the records establish the Township knew or

should have known Worthen-Barnes posed a risk to take the purported wrongful

actions of stopping, arresting, detaining, and charging him on April 12, 2015,

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without any lawful basis and because of his national origin. We are not

persuaded.

The records upon which plaintiff relies provide scant information. In

cursory form, the records provide dates and general descriptions of the subjects

of police department internal affairs issues involving Worthen-Barnes, such as

"differential treatment," "motor vehicle accident," "abuse of sick time," and

"insubordination." Some of the entries include what appear to be the resolutions

or dispositions of the internal affairs issues, including "sustained," "unfounded,"

"withdrawn," and "exonerated," and, in some instances, what appears to be

discipline imposed, such as "written reprimand," or "suspension."

The internal affairs records upon which plaintiff solely relies are bereft of

any competent evidence establishing the facts and circumstances giving rise to

the issues presented to internal affairs, the nature and extent of any

investigations, and the circumstances surrounding the disposition of the issues

presented. Plaintiff did not depose any witnesses with knowledge of the records

or the facts underlying the cursory synopses of Worthen-Barnes's internal affairs

history. Plaintiff also did not depose anyone with knowledge concerning the

preparation of the records or the meaning of the entries in them. Most

importantly, the records do not include any competent evidence demonstrating

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that Worthen-Barnes presented a risk of stopping, arresting, detaining, or

charging individuals without a proper basis or based on their national origin, nor

does the information support a reasonable inference Worthen-Barnes presented

such a risk.7

In opposition to the Township's summary judgment motion, plaintiff could

not properly rely on speculation as to what the records demonstrated concerning

the alleged risk of harm presented by Worthen-Barnes. See Hoffman v.

Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009) (explaining

"[c]ompetent opposition" to a summary judgment motion "requires 'competent

evidential material' beyond mere 'speculation' and 'fanciful arguments'" (quoting

Merchs. Express Money Ord. Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563

7
Plaintiff incorrectly relies on Worthen-Barnes's internal affairs history
following the April 12, 2015 incident involving plaintiff. Events occurring after
the incident involving plaintiff could not properly be considered in determining
whether the Township knew or should have known on April 12, 2015 that
Worthen-Barnes posed a risk of harm to stop, arrest, detain, and charge an
individual without a proper basis or based on the individual's national origin.
See Wilson ex rel. Manzano v. City of Jersey City, 415 N.J. Super. 138, 167
(App. Div. 2010) (finding evidence of disciplinary actions against a police
officer for incidents occurring subsequent to the events giving rise to a cause of
action for negligent retention of the officer were not relevant to the negligent
retention claim), rev'd on other grounds, 209 N.J. 558 (2012). Thus, Worthen-
Barnes's post-April 12, 2015 internal affairs history is not relevant to a
determination of the Township's summary judgment motion on count one, or
plaintiff's cross-motion for summary judgment on that count.
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(App. Div. 2005))). Plaintiff was obligated to present competent evidence

establishing, or supporting reasonable inferences establishing, his cause of

action for negligent training and supervision. See ibid.

Lacking such evidence, plaintiff failed to demonstrate an essential

element of his negligent training and supervision claim—that the Township

knew or had reason to know, or could have reasonably foreseen, that Worthen -

Barnes posed a risk of engaging in the wrongful conduct plaintiff alleges in the

complaint. See G.A.-H., 238 N.J. at 416; cf. Denis v. City of Newark, 307 N.J.

Super. 304, 313-14 (App. Div. 1998) (finding the plaintiff established a

negligent retention cause of action in part because the police officer who

allegedly assaulted the plaintiff had been "disciplined for assaultive behavior on

defenseless citizens" on two occasions prior). For that reason alone, we affirm

the summary judgment award to the Township on the first count and the court's

denial of plaintiff's cross-motion for summary judgment on that count.

Plaintiff's negligent training and supervision claims also fail because he

did not present any evidence concerning the Township's training and supervision

of Worthen-Barnes. Plaintiff did not depose anyone concerning the Township's

training and supervision of Worthen-Barnes, and plaintiff apparently did not

otherwise obtain any competent evidence during discovery establishing the

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manner in which the Township trained or supervised her. Plaintiff also failed to

present any evidence as to the manner in which the training and supervision of

Worthen-Barnes was deficient, or how she should have been trained or

supervised differently. See, e.g., Wilson ex rel. Manzano, 415 N.J. Super. at

167 (noting the plaintiff offered evidence supporting a negligent training and

supervision claim by showing the defendant employer deviated from the internal

procedures for training and supervising certain employees, the defendant "did

not properly disseminate" a manual defining the employees' job duties, and the

defendant failed to "ensure . . . the employees retained their [m]anuals").

Simple logic compels the conclusion that plaintiff could not, and did not,

demonstrate the Township negligently trained or supervised Worthen-Barnes

where he failed to present any evidence establishing the manner in which the

Township trained or supervised her, or failed to do so, or otherwise

demonstrating the Township's training or supervision was negligent.

Plaintiff's arguments are based on conclusory assertions Worthen-Barnes

should have been trained better, and he asserts the Township's records do not

"indicate any 'anger management' that was required" for Worthen-Barnes; that

there was "no training in any document submitted by [the Township] to show

sensitivity training . . . [or] equal public accommodations training"; and that

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"[t]here is . . . no indication in any of defendant's submissions to demonstrate

training in writing, the versions, offenses which were charged against

[p]laintiff." Plaintiff, however, does not cite to any competent evidence

demonstrating the Township knew or had reason to know "anger management,"

"sensitivity training," or "equal public accommodations training" were

necessary to address some risk that Worthen-Barnes would engage in the alleged

unlawful acts described in the complaint; that such training was necessary; or

how the absence of the training proximately caused plaintiff's purported

damages. G.A.-H., 238 N.J. at 416. The mere fact that alleged internal affairs

complaints were lodged against Worthen-Barnes, without more, does not create

a genuine issue of material fact as to whether she posed a risk of engaging in the

alleged unlawful stop, arrest, detention, and charging of plaintiff averred in the

first count of the complaint.

We have held that expert testimony is required to explain police

procedures because "most citizens . . . have no personal knowledge of how the

police should ordinarily . . . conduct themselves." McKinney v. E. Orange Mun.

Corp., 284 N.J. Super. 639, 654 (App. Div. 1995). We have also explained that

expert testimony is required to address issues related to a police department's

alleged negligent failure to follow its procedures for training and supervising its

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employees because the issues "posed by [those] circumstances [are] well outside

the awareness of a person of average intelligence and ordinary experience."

Wilson ex rel. Manzano, 415 N.J. Super. at 167. In Wilson ex rel. Manzano, we

affirmed a trial court's determination that "the mere actions of the employees

themselves without expert testimony to establish the standard of care [was]

insufficient to substantiate [the] plaintiff's claim that [the police department] fell

below the standard of care in training . . . [or] supervising . . . the individual

defendants." Id. at 166.

Although expert testimony may not be required in every case where a

plaintiff is allegedly injured by a police officer and later asserts a negligent

training or supervision claim against the officer's employer, plaintiff's negligent

training and supervision claim, as articulated in his brief on appeal, clearly

requires competent expert testimony explaining the applicable standards for

police training and supervision, whether the Township deviated from those

standards, and whether the deviation proximately caused plaintiff's alleged

injuries. See id. at 166-67. Plaintiff offered none.

In sum, we are convinced the motion court correctly determined plaintiff

failed to present competent evidence supporting his negligent training and

supervision claim against the Township. Plaintiff bore the burden of presenting

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evidence demonstrating the Township knew or had reason to know Worthen-

Barnes posed a risk of stopping, arresting, detaining, and charging him without

any legal basis or because of his national origin, see G.A.-H., 238 N.J. at 416,

but he failed to sustain that burden. We therefore affirm the court's order

granting the Township summary judgment on the first count, and, for the same

reasons, we affirm the court's denial of plaintiff's cross-motion for summary

judgment on that count.

Although unnecessary to our affirmance of the court's order granting the

Township summary judgment on the first count and denying plaintiff's cross-

motion for summary judgment on that count, we also affirm the order because

plaintiff failed to present evidence satisfying the statutory threshold for an award

of pain and suffering damages under the TCA.

Under the TCA, a plaintiff cannot collect damages against a public entity

for pain and suffering unless he or she meets the "verbal threshold" established

by the statute. Toto v. Ensuar, 196 N.J. 134, 144 (2008); see also Brooks v.

Odom, 150 N.J. 395, 402 (1997) (finding that, in accordance with the TCA, "a

claimant should not be reimbursed for non-objective types of damages, such as

pain and suffering, except in aggravated circumstances" (citation omitted)).

N.J.S.A. 59:9-2(d) states:

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 No damages shall be awarded against a public entity or
public employee for pain and suffering resulting from
any injury; provided, however, that this limitation on
the recovery of damages for pain and suffering shall not
apply in cases of permanent loss of a bodily function,
permanent disfigurement[,] or dismemberment where
the medical treatment expenses are in excess of
$3,600.00. For purposes of this section medical
treatment expenses are defined as the reasonable value
of services rendered for necessary surgical, medical[,]
and dental treatment of the claimant for such injury,
sickness[,] or disease, including prosthetic devices and
ambulance, hospital[,] or professional nursing service.

Our Supreme Court "established 'a two-pronged test that a plaintiff must

satisfy in order to collect pain and suffering damages under N.J.S.A. 59:9-

2[(d)].'" Toto, 196 N.J. at 145 (quoting Knowles v. Mantua Twp. Soccer Ass'n,

176 N.J. 324, 329 (2003)). "To satisfy the test and vault the threshold, '[a]

plaintiff must show,'" in addition to the required $3,600 in treatment expenses,

"(1) an objective permanent injury, and (2) a permanent loss of a bodily function

that is substantial." Ibid. (alteration in original) (quoting Knowles, 176 N.J. at

329).

We need not address whether plaintiff presented sufficient competent

evidence establishing he suffered a substantial permanent loss of a bodily

function, in the form of his claimed post-traumatic stress disorder, as a result of

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26
the April 12, 2015 incident. 8 That is because plaintiff's negligent training and

supervision claim fails because he did not present any evidence demonstrating

he incurred medical treatment expenses related to the injuries he allegedly

suffered as a result of the April 12, 2015 incident. That failure alone required

the award of summary judgment to the Township on the negligence claim

asserted in the first count. N.J.S.A. 59:9-2(d); see also Reale v. Twp. of Wayne,

132 N.J. Super. 100, 116 (Law Div. 1975) (finding that without "competent

evidence of [past or] anticipated future medical expenses," a plaintiff cannot

satisfy the medical treatment expense threshold of the TCA).

III.

Plaintiff also contends the court erred by granting the Township's and

Worthen-Barnes's respective motions for summary judgment on the eighth

count, which alleged they violated the LAD by discriminating against him based

8
In support of his claimed injury, plaintiff relied on reports from psychologist
Dr. Daniel Williams. Because it unnecessary to our determination that plaintiff's
negligence claim against the Township is barred under N.J.S.A. 59:9-2(d), we
do not decide if Dr. Williams's report includes an inadmissible net opinion
concerning the nature and extent of plaintiff's alleged injury, see, e.g.,
Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)
(explaining "an expert's bare opinion that has no support in factual evidence or
similar data is a mere net opinion which is not admissible and may not be
considered"), and, if not, whether the opinion is otherwise sufficient to satisfy
the injury threshold under the statute, see N.J.S.A. 59:9-2(d).
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27
on his national origin in the furnishing of a place of public accommodation. The

motion court granted summary judgment on the claim based on its findings

plaintiff failed to demonstrate he sought or was denied a public accommodation

and that plaintiff did not present evidence that he "was treated differently than

a non-Guyanese American that was being jailed by the" Township's police

department. The court further found plaintiff's "mere allegation" that Worthen-

Barnes told him "he was being mistreated because he was a foreigner does not

establish discrimination."

The LAD provides, in part, that "[a]ll persons shall have the

opportunity . . . to obtain all the accommodations, advantages, facilities, and

privileges of any place of public accommodation . . . without discrimination

because of . . . national origin." N.J.S.A. 10:5-4. More particularly, N.J.S.A.

10:5-12(f)(1) provides that:

[i]t shall be . . . unlawful discrimination . . . [f]or any
owner, lessee, proprietor, manager, superintendent,
agent, or employee of any place of public
accommodation directly or indirectly to refuse,
withhold from[,] or deny to any person any of the
accommodations, advantages, facilities[,] or privileges
thereof, or to discriminate against any person in the
furnishing thereof, . . . on account of . . . national
origin . . . .

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 "The LAD should be construed liberally," and "[i]ts purpose is 'nothing

less than the eradication of the cancer of discrimination.'" Ptaszynski v.

Uwaneme, 371 N.J. Super. 333, 345 (App. Div. 2004) (quoting Dale v. Boy

Scouts of Am., 160 N.J. 562, 584 (1999), rev'd & remanded on other grounds,

530 U.S. 640 (2000)). N.J.S.A. 10:5-5(l) broadly defines "[a] place of public

accommodation," but "[t]he listed places of public accommodation are merely

illustrative of the accommodations the Legislature intended to be within the

scope of the statute," Ptaszynski, 371 N.J. Super. at 345 (quoting Fraser v. Robin

Dee Day Camp, 44 N.J. 480, 486 (1965)), and "application of the LAD is not

limited only to 'places' of public accommodation," ibid. (quoting Dale, 160 N.J.

at 588).

In Ptaszynski, we held that a municipal police department and the

department's individual officers qualify as "a place of public accommodation"

under the LAD, and that discrimination in the furnishing of those public

accommodations violates the LAD. Id. at 347. We explained that "[a] municipal

police force is nothing more than 'an executive and enforcement function of

municipal government,'" ibid. (quoting N.J.S.A. 40A:14-118), and that, "[a]s a

public entity, by its very nature a police force is a place of public

accommodation," ibid. We further noted that "[i]f a police force is not subject

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29
to the LAD, subject to certain constitutional limitations, the officers may be free

to discriminate." Ibid.

More recently in Holmes v. Jersey City Police Department, we reversed

an order granting summary judgment dismissing a transgender plaintiff's claim

of public accommodation discrimination in violation of the LAD based on

allegations that, following the plaintiff's arrest, police subjected the plaintiff to

a hostile environment because plaintiff was transgender. 449 N.J. Super. 600,

601, 606 (App. Div. 2017). In granting summary judgment, the trial court

analyzed the claim under the standard applicable to the assessment of a hostile

environment religious discrimination claim in the employment context. Id. at

603. We determined the trial court erred by relying on the standard because it

had been rejected by the Court in Cutler v. Dorn, 196 N.J. 419, 440 (2008). Ibid.

We also explained "[t]he prohibition of discrimination in relation to public

accommodation is functionally distinct from the ban on employment

discrimination." Id. at 603-04 (alteration in original) (quoting Thomas v. Cnty.

of Camden, 386 N.J. Super. 582, 590 (App. Div. 2006)). "[I]n the context of

public accommodation discrimination, hostile comments that might not suffice

to create a hostile environment in a work context may nonetheless violate the

LAD." Id. at 604. For example, we noted that in Franek v. Tomahawk Lake

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30
Resort, 333 N.J. Super. 206, 211 (App. Div. 2000), we found that "proof of one

discriminatory comment by the owner of a recreation facility, that he did not

want 'those [disabled] people' to use the premises, was sufficient to allow the

plaintiff to survive a summary judgment motion." Holmes, 449 N.J. Super. at

604 (alteration in original). In Holmes, we also concluded that because the

police officers who made the derogatory comments concerning the plaintiff's

transgender status were "in a position of authority over [the] plaintiff, who was

their prisoner," "the impact of threatening and harassing conduct may be

magnified, even if it only occurs on one day." Id. at 605. We found the

plaintiff's evidence of such conduct created a genuine issue of material fact as

to whether the police department violated the LAD by discriminating against the

plaintiff in a place of public accommodation. Id. at 605-06.

Measured against these principles, and giving plaintiff the benefit of all

reasonable inferences based on the evidence presented, we are convinced the

court erred by granting the Township and Worthen-Barnes summary judgment

on plaintiff's denial of public accommodations claim. The Township and

Worthen-Barnes contend, and the motion court found, plaintiff's claim failed as

a matter of law because he did not seek a public accommodation and was not

denied a public accommodation. The argument and the court's finding ignore

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31
that the LAD "not only prohibits the owner or operator of a public

accommodation from denying the use of a facility on forbidden grounds, but it

also renders unlawful any acts 'discriminat[ing] against any person in the

furnishing'" of a public accommodation. Franek, 333 N.J. Super. at 217-18

(alteration in original) (quoting N.J.S.A. 10:5-12(f)(1)).

Because the Township's police department, Worthen-Barnes, and the

other officers are places of public accommodation under the LAD, Ptaszynski,

371 N.J. Super. at 347, Worthen-Barnes's and the other officers' interactions

with plaintiff on April 12, 2015 constituted the furnishing of public

accommodations. Plaintiff claims those interactions, which include the motor

vehicle stop, his arrest and detention, and his prosecution on charges that were

later dismissed due to lack of prosecution, were unlawfully based on his national

origin. Plaintiff's contention is supported by competent record evidence: he

testified Worthen-Barnes stated to him, "We do this to you because you're

a . . . foreigner." For purposes of defendants' summary judgment motions, we

accept plaintiff's testimony as true and find it provides direct evidence Worthen-

Barnes acted on April 12, 2015 in the furnishing of public accommodations —

the performance of her services as a police officer—in a discriminatory manner

based on plaintiff's national origin. Worthen-Barnes said that was the case. Her

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32
statement further provides circumstantial evidence the other officers acted in a

discriminatory manner as well.

In Holmes, we noted "threatening and harassing conduct" made by police

officers based on an individual's gender identity or expression may alone create

a hostile environment constituting unlawful discrimination in a place of public

accommodation in violation of the LAD. 449 N.J. Super. at 605-06. Here,

plaintiff's claim is not founded on words alone, and we do not interpret his claim

as limited to hostile environment discrimination. He does not only contend

defendants created a hostile environment based on his national origin ; he

contends Worthen-Barnes actually exercised her authority as a police officer to

stop, arrest, detain, and charge him with offenses (all of which were later

dismissed due to lack of prosecution) because of his national origin. According

to plaintiff, that is precisely what Worthen-Barnes told him. Worthen-Barnes's

statement creates a genuine issue of material fact as to whether the actions of

the officers constituted unlawful discrimination in a place of public

accommodation in violation of the LAD. We therefore vacate the court's

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33
summary judgment award on the eighth count, and remand to the trial court for

further proceedings on that count of the complaint. 9

Any arguments made on plaintiff's behalf that we have not expressly

addressed are without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E).

Affirmed in part, vacated in part, and remanded for further proceedings in

accordance with this opinion. We do not retain jurisdiction.

9
We decide only that the court erred by granting defendants summary judgment
on the eighth count. We do not offer any opinion on the merits of plaintiff's
claim or on any defenses that may be available to the claim. On remand, the
court shall permit such additional discovery, motion practice, and other
proceedings as it deems appropriate in the normal course.
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34