NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

This appeal involves a tort claim against the Borough of Belmar and two borough police officers, Patrolman Michael R. Allen and Sergeant Sean R. Pringle.1 Plaintiff Linda Leone alleges that defendants failed to exercise reasonable care of her while she was in custody after an arrest for driving under the influence (DUI). Leone alleges she was highly intoxicated and repeatedly fell off a chair in the Alcotest room. As a result, she suffered a broken hip.

After a period of discovery, the court granted defendants' motion for summary judgment. The court found defendants were immune under two provisions of the Tort Claims Act (TCA), N.J.S.A. 59:3-3, and 59:4-2. The court also granted defendants' motion to bar plaintiff's expert. The expert offered an opinion on the proper care of intoxicated arrestees. The court concluded his opinion was a net opinion.

Plaintiff appeals from the two orders. Having reviewed plaintiff's arguments in light of the record and the applicable principles of law, we reverse in part and affirm in part.

I.

We view the facts in the light most favorable to plaintiff as the non-moving party. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff was highly intoxicated on the morning of April 22, 2010. She testified she had four double vodka and orange juice drinks at a nearby tavern between 7:00 a.m. and 7:50 a.m. She then got into her car. Police soon responded to a caller's report that plaintiff was driving very erratically.

By the time Patrolman Allen appeared on the scene, plaintiff's vehicle was already stopped on the side of the road. The engine was off but the transmission was still in drive. Allen detected the strong odor of alcoholic beverages. He characterized plaintiff's speech as "substantially slurred," "incoherent," and "slobbering." She appeared to have difficulty comprehending Allen's requests, and was slow to respond. Allen had to ask plaintiff several times for her license. She was unable to step out of the vehicle on her own, despite multiple attempts. Allen and a fellow officer had to help her exit. Plaintiff had to use her car for balance when she walked. She swayed when she stood, despite placing her feet wide apart for balance. She was unable to perform field sobriety tests.

Allen arrested her and transported her to the station. She sobbed on the way. Upon arrival she was unable to exit the patrolcar on her own, and had to be helped. Plaintiff was brought to the booking room. Her handcuffs were removed. She was placed in a metal folding chair. Allen began filling out the arrest report. Pringle, the Alcotest officer, was also nearby.

Plaintiff fell off the chair while Allen's back was turned. He and Pringle helped her back into the chair. However, she soon fell again. According to Allen's report, plaintiff fell off the chair several times. Pringle stated she fell twice. Pringle alleged he asked her if she was "ok" and she said she was. Ultimately, the officers placed plaintiff on the floor, where she fell asleep, and had to be awakened for administration of the Alcotest. After she repeatedly sucked on the mouthpiece, instead of blowing into it, she was charged with refusal.

Plaintiff had no memory of her arrest, or her fall. She was released from the station around noon or 1:00 p.m. Allen testified she left under her own steam. Two days later, plaintiff sought medical treatment at Monmouth Medical Center. She had multiple fractures of her hip, and required surgery.

Plaintiff filed a notice of tort claim in July 2010. In her three-count complaint, filed in April 2012, she alleged that Allen and Pringle failed to exercise reasonable care of her while she was in custody; the borough and the police department negligently hired and trained the officers and failed to provide proper equipment to assure the safety of a highly intoxicated arrestee; and the absence of such equipment created a dangerous condition of property. She later served the report of Frederick J. Rast, III, a former police officer, investigator, and director of public safety, who currently worked in private security and investigations. Rast opined that defendants failed to adequately protect plaintiff against injury while in their custody and control.

As noted, the trial court dismissed the complaint on the grounds that defendants were immune pursuant to N.J.S.A. 59:3-3 — immunity for execution or enforcement of the laws — and N.J.S.A. 59:4-2 — imposing liability for dangerous conditions of public property, unless the public entity took protective measures that were not "palpably unreasonable." With respect to N.J.S.A. 59:4-2, the court questioned whether the booking room and plaintiff's chair constituted a "dangerous condition," and concluded in any event that defendants' actions were not palpably unreasonable. The court separately barred Rast's testimony, but did not base summary judgment on the absence of an admissible expert opinion.

II.

Our review of a trial court's grant of summary judgment based on TCA immunity is de novo, applying the same standard as the trial court. Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005). We owe no deference to the trial court's interpretation of the Act. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The court erred in concluding that defendants were immune from suit under N.J.S.A. 59:3-3. The provision states: "A public employee is not liable if he acts in good faith in the execution or enforcement of any law. Nothing in this section exonerates a public employee from liability for false arrest or false imprisonment." In concluding that defendants were enforcing the law when plaintiff fell from the chair, the court read the law too broadly.

We recently discussed the scope of N.J.S.A. 59:3-3 in Caicedo v. Caicedo, 439 N.J.Super. 615 (App. Div. 2015).2 "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." Id. at 626 (internal quotation marks and citation omitted). We rejected such a broad reading. Instead, we adopted the view that the "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." Id. at 624.

In Caicedo, a police vehicle struck a teenager on a bicycle while the driver was transporting an arrestee charged with a minor drug-related offense. We affirmed the trial court's rejection of N.J.S.A. 59:3-3 immunity:

Immunity under N.J.S.A. 59:3-3 was also inapplicable in a case involving the police's alleged failure to provide medical treatment to an arrestee, Donald Kiken, who collapsed in custody and subsequently died. Del Tufo, Executor of the Estate of Kiken v. Twp. of Old Bridge, 278 N.J.Super. 312, 315-16 (App. Div. 1995), aff'd, 147 N.J. 90 (1996). Kiken was arrested after assaulting an officer with an automobile. Id. at 316-17. The officer was investigating an automobile accident involving Kiken. Id. at 316. Although he had a small cut, Kiken declined medical attention. Id. at 317. He was arrested, handcuffed and placed in the back of a police vehicle for transport. Ibid. Kiken was seen kicking the back window of the vehicle, and turning his body. Ibid. Once at police headquarters, he was helped out of the vehicle. Ibid. He was initially unsteady, and began to walk, and then collapsed. Ibid. He died shortly thereafter. Id. at 318. The immediate cause of death was cardiac arrest caused by ingesting cocaine. Ibid. However, Kiken's estate alleged that his death was caused by the failure to summon emergency medical assistance promptly after his arrest. Ibid. The trial court declined to charge comparative fault by Kiken, and a jury awarded Kiken's estate $300,000. Id. at 315.

We reversed the judgment, finding the trial court erred in refusing to charge comparative fault. Id. at 321-23. However, we rejected the defendants' argument that they were shielded from liability by various provisions of the TCA. Id. at 323-26. In particular, we held that N.J.S.A. 59:3-3 provided no immunity, notwithstanding that the officers were engaged in Kiken's arrest and transport when they allegedly failed to provide reasonable care:

The Supreme Court affirmed our determination that a comparative fault charge was required. Del Tufo, supra, 147 N.J. at 95. In so doing, the Court nonetheless reaffirmed that "[t]he police's duty of care to an arrestee requires the exercise of reasonable care to preserve the life, health, and safety of the person in custody." Id. at 101.

Applying the principles in Caicedo and Del Tufo, we conclude defendants were not immune under N.J.S.A. 59:3-3 from plaintiff's claim that they failed to exercise reasonable care to assure she did not injure herself while in custody. Although plaintiff was already under arrest when she was taken into custody at the scene of the traffic stop, the officers were undeniably executing the law governing the processing of DUI suspects, in particular the command that officers observe suspects for twenty minutes prior to administration of the Alcotest. See State v. Chun, 194 N.J. 54, 79 (2008) ("[T]he operator must observe the test subject for the required twenty-minute period . . . to ensure that no alcohol has entered the person's mouth while . . . awaiting the start of the testing sequence."), cert. denied, 555 U.S. 825, 129 S.Ct. 158, 172 L. Ed. 2d 41 (2008).

However, as in Del Tufo, plaintiff's injuries did not arise directly from the decision to arrest or enforce the law. And, nothing precluded defendants from providing plaintiff with a seat in which she was safely secured; or if no such seat were available, from providing her a soft mat on the floor, to guard against the risk of injury by falling. As in Caicedo, there were no emergent circumstances that prevented defendants from taking preventative measures.

We briefly address the court's application of N.J.S.A. 59:4-2. Defendants sought dismissal under that section apparently in response to the third count of plaintiff's complaint, which alleged that the room in which plaintiff was seated constituted a dangerous condition of public property.

N.J.S.A. 59:4-2 generally imposes liability for injuries caused by dangerous conditions of public property:

However, a public entity is not liable if it took measures that were not "palpably unreasonable." The section concludes: "Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable." Ibid.

Simply put, plaintiff's injuries did not arise from the condition of the property itself. In other words, there was nothing defective about the folding chair from which plaintiff fell. See N.J.S.A. 59:4-1 (defining a "dangerous condition" as a "condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used"); see also Levin v. Cnty. of Salem, 133 N.J. 35, 44 (1993) (stating that "dangerous condition" refers "to the physical condition of the property itself and not to activities on the property") (internal quotation marks and citation omitted). Consequently, N.J.S.A. 59:4-2 "is not implicated because the injuries do not arise from a condition of the property itself." Harry A. Margolis & Robert Novack, Claims Against Public Entities § 59:4-1 at 118 (2015). However, plaintiff's claim does not depend on the limited waiver of immunity in N.J.S.A. 59:4-2. "A plaintiff may still proceed on theories of ordinary negligence. . . ." Ibid. Therefore, plaintiff may proceed with her negligence claim notwithstanding that she does not assert a claim under N.J.S.A. 59:4-2.

III.

We next consider the court's order striking plaintiff's expert. Rast was president of a private detective agency since 1977, and supervisor of a security guard and investigative agency since 2006. His last position in public policing was between 1990 and 1992, when he served as director of public safety in Old Bridge Township. In the 1970s, he worked as a supervisor of investigations in the Attorney General's office, Division of Criminal Justice, and was an investigator in the Camden County Prosecutor's Office. He was also a narcotics squad officer for the Monmouth County Prosecutor's Office from the late 1960s to early 1970s. He was a uniformed police officer in Atlantic Highlands for two-and-a-half years in the 1960s. He completed various civilian police education courses, continuing into the 1990s, qualifying as an instructor for the Virginia Department of Criminal Justice. He also had significant military experience, including in the military police.

In his written report, Rast reviewed at length the facts of the case, as he understood them. He concluded that defendants failed to take reasonable care of plaintiff. He also asserted that Allen and Pringle were not adequately trained. He contended they could have availed themselves of techniques to restrain patients, such as using wristlets or sheet or cloth materials to keep a patient from falling out of a bed or a chair.3 He also asserted that the officers should have examined plaintiff to ascertain whether she suffered any injury after her falls from the chair.

Rast did not cite any outside authorities or guidelines in support of his opinion that defendants should have applied wristlets, or used sheets, to restrain plaintiff in the chair. He cited the Belmar Police Department's own directives that detainees "who are under the influence of alcohol or drugs are considered health risks." However, nothing in the directive addressed the subject of how to seat, or prevent injury of arrestees awaiting interrogation or administration of Alcotest results.

Rast referred as well to the directive's command that regular checks should be made of intoxicated detainees, which may provide indirect support for his opinion that the officers should have examined plaintiff after her falls. However, as noted above, Pringle asserted he asked plaintiff if she was "ok" and she responded affirmatively.

We exercise limited review of the court's decision to exclude expert testimony. See Townsend v. Pierre, 221 N.J. 36, 52-53 (2015) ("The admission or exclusion of expert testimony is committed to the sound discretion of the trial court."); Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (stating that trial court's evidentiary decision to admit expert testimony is reviewed for an abuse of discretion).

The Court in Townsend reviewed the law on net opinions. Expert opinions must be grounded in "facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts." Townsend, supra, 221 N.J. at 53 (internal quotation marks and citation omitted). The net opinion rule is a "corollary of [N.J.R.E. 703] . . . which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data." Id. at 53-54 (internal quotation marks and citation omitted). Therefore, an expert is required to "give the why and wherefore that supports the opinion, rather than a mere conclusion." Id. at 54 (internal quotation marks and citation omitted). The net opinion rule directs that experts "be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable." Id. at 55 (internal quotation marks and citation omitted).

On the other hand, "[t]he net opinion rule is not a standard of perfection." Id. at 54. The failure to rely on sources the opponent deems important, or to organize one's opinion in a way the adversary considers appropriate, does not warrant exclusion as a net opinion. Ibid. These matters are left for cross-examination.

Applying these principles, we discern no abuse of discretion by the trial court. We have reviewed the expert's report with care, yet find no factual basis to support the view that the reasonable standard of care required the officers' use of wristlets or sheets to restrain plaintiff. Rast cites no standard, guideline, or protocol of any police agency (or even an emergency medical agency) to support his specific conclusions. Nor does he cite any treatise or educational resources in policing.

An expert may ground an opinion in his personal experience and training. See State v. Townsend, 186 N.J. 473, 495 (2006); Rosenberg v. Tavorath, 352 N.J.Super. 385, 403 (App. Div. 2002) ("Evidential support for an expert opinion is not limited to treatises or any type of documentary support, but may include what the witness has learned from personal experience."). However, despite his extensive experience in policing, Rast does not base his opinion in the practices of other police agencies that he has observed. He refers to the Belmar police department's own directives, but they fall short of compelling the preventative measures Rast claimed were consistent with a reasonable standard of care.

Although we affirm the trial court's exclusion of plaintiff's expert, we decline to reach the issue whether expert testimony is essential to establish that defendants failed to exercise reasonable care while plaintiff was awaiting administration of the Alcotest. An expert is not required when jurors' common knowledge "is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of the specialized knowledge of experts." Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 394 (2001) (internal quotation marks and citation omitted); see also Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961) (stating that in "the usual negligence case" an expert is not necessary to prove the standard of conduct that the defendant violated; "[t]he applicable standard of conduct is . . . supplied by the jury which is competent to determine what precautions a reasonably prudent man in the position of the defendant would have taken."). On the other hand, the necessity of expert testimony is vested in the trial court's discretion. State v. Zola, 112 N.J. 384, 414 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L. Ed. 2d 205 (1989). Therefore, the question whether expert testimony is necessary should be addressed in the first instance by the trial court.

Reversed as to the grant of summary judgment; affirmed as to the exclusion of plaintiff's expert. We do not retain jurisdiction.