                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0591-16T3

LUIS RODRIGUEZ,

        Plaintiff-Appellant,

v.

CHARLES J. ZEIGLER, JUANITA
ZEIGLER, COUNTY OF CAMDEN,
CITY OF CAMDEN POLICE
DEPARTMENT, COUNTY OF CAMDEN
POLICE DEPARTMENT, CAMDEN
COUNTY PROSECUTOR'S OFFICE and
STATE OF NEW JERSEY,

        Defendants,

and

CITY OF CAMDEN,

     Defendant-Respondent.
_____________________________

              Submitted June 4, 2018 – Decided June 27, 2018

              Before Judges Whipple and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Docket No.
              L-0631-15.

              Gregory C. Dibsie, attorney for appellant.

              Marc A. Riondino, City Attorney, attorney for
              respondent   City  of   Camden  (Timothy   J.
           Galanaugh, Assistant City Attorney, of counsel
           and on the brief).

PER CURIAM

     Plaintiff Luis Rodriguez appeals from an August 26, 2016

summary   judgment   dismissal   of       his   personal   injury   complaint

against defendant City of Camden seeking damages arising out of a

shooting at a Camden police officer's residence.1            We affirm.

     We discern the pertinent facts from the summary judgment

record, extending to plaintiff all favorable inferences.                Davis

v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014); Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).               At the

time of the shooting, plaintiff was a home health aide for L.D.M,2

an autistic young adult, who lived directly across the street from

Camden Police Officer Charles J. Zeigler.

     Around 3:00 p.m. on February 22, 2013, plaintiff met L.D.M.

at the school bus stop near his home.            L.D.M. exited the bus and

ran toward Zeigler's residence, with plaintiff in pursuit. Zeigler

was home, cleaning the second-floor bathroom, when he heard kicking


1
  Plaintiff's complaint also included as defendants: the officer
and his wife, the County of Camden, the City of Camden Police
Department, the County of Camden Police Department, the Camden
County Prosecutor's Office, and the State of New Jersey. Plaintiff
settled his claims with the officer and his wife; the governmental
entities were either dismissed via motion or stipulation.
2
 Although L.D.M.'s age is unclear from the record, we use initials
to protect his confidentiality.

                                      2                               A-0591-16T3
and banging at his front door.       Fearing a home invasion, Zeigler

retrieved his police service weapon and approached the front door.

Zeigler claims he "heard two popping sounds which [he] believed

to be gunshots."       When the banging ceased, Zeigler attempted to

open the door slowly, but it was pushed toward him, causing his

weapon to discharge two bullets.           One bullet struck plaintiff's

chest; the other hit L.D.M.'s bicep.

     Following the shooting, Zeigler called 9-1-1, stating ". . .

this is Officer Zeigler, I need a police officer and an ambulance

[at his address]."       When asked whether he was working, Zeigler

responded "No.    I'm off duty."    Zeigler then called the Fraternal

Order of Police ("FOP") president, advising him of the shooting.

     Plaintiff's complaint included respondeat superior claims

against   the   City   for   negligent     supervision   of   Zeigler,   who

plaintiff claims was acting within the scope of his employment as

a police officer.        Plaintiff also alleged the City failed to

properly train Zeigler in handling his service weapon.           After the

discovery   period     closed,   without    any   discovery   having     been

conducted, the City filed its motion for summary judgment.

     In a succinct oral decision, followed by an order entered on

August 26, 2016, the Law Division judge determined plaintiff failed

to demonstrate Zeigler was on duty at the time of the shooting.

In particular, the judge found "He [i]s at his private home.               He

                                    3                               A-0591-16T3
is not in uniform. . . . Clearly his actions are something of a

personal nature."   The judge also found plaintiff did not produce

in discovery an expert report supporting his theory that Ziegler

mishandled his service weapon, and that this error should be

imputed to the City.   Based on these findings, the judge entered

summary judgment in favor of the City.   This appeal followed.

     In considering plaintiff's appeal from the grant of summary

judgment, we employ the same standard as the motion judge pursuant

to Rule 4:46-2(c) (stating summary judgment should be granted only

if the record demonstrates there is "no genuine issue as to any

material fact challenged and that the moving party is entitled to

a judgment or order as a matter of law").   See also Henry v. N.J.

Dep't of Human Servs., 204 N.J. 320, 330 (2010).        We owe no

deference to the motion judge's conclusions on issues of law.

Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995).

     Initially, we consider plaintiff's argument that Zeigler was

on duty at the time of the shooting because he was investigating

what he perceived to be a home invasion.        "Under respondeat

superior, an employer can be found liable for the negligence of

an employee causing injuries to third parties, if, at the time of

the occurrence, the employee was acting within the scope of his

or her employment."    Carter v. Reynolds, 175 N.J. 402, 408-09

                                 4                         A-0591-16T3
(2003) (citation omitted).         The Tort Claims Act "incorporat[es]

the   doctrine   of   respondeat    superior"     in   N.J.S.A.    59:2-2(a).

Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 409 (1988);

N.J.S.A.   59:2-2(a)    ("A   public     entity   is   liable     for    injury

proximately caused by an act or omission of a public employee

within the scope of his employment in the same manner and to the

same extent as a private individual under like circumstances").

      In determining whether a public employee is acting within the

scope of employment, our courts apply common law principles of

vicarious liability.     See Rogers v. Jordan, 339 N.J. Super. 581,

586 (App. Div. 2001).     In particular, the Court has followed the

Restatement (Second) of Agency, observing "an employee's conduct

falls within the scope of employment if:

           (a) it is of the kind he is employed to
           perform;

           (b) it occurs substantially within                the
           authorized time and space limits; [and]

           (c) it is actuated, at least in part, by a
           purpose to serve the master[. . . .]

           [Carter, 175 N.J. at 411 (quoting Restatement
           (Second) of Agency § 228 (Am. Law Inst.
           (1958)).]

      Here, although Zeigler approached the door armed with his

service weapon, he was off-duty, not in uniform, and in his

residence at the time of the shooting.            Indeed, he was cleaning


                                     5                                  A-0591-16T3
his   home   when   the   incident    occurred.     His   actions   were   not

"actuated . . . by a purpose to serve [the City]."              Rather, his

actions were self-serving, i.e., to protect his home.               Although

Zeigler fired his department-issued service weapon, identified

himself as an officer when he called dispatch, and notified his

FOP president following the shooting, these actions do not create

respondeat superior liability for the City.

      Moreover, plaintiff's reliance on our decision in Rogers v.

Jordan, 339 N.J. Super. 581 (App. Div. 2001), is misplaced.                  In

Rogers we reversed a trial court's determination that an officer

was acting in the scope of his employment when his vehicle struck

and injured a pedestrian while he was driving home during a lunch

break,   because    he    was   on   "authorized   leave."    Id.   at     587.

Plaintiff relies on our observation that "if while traveling home

[the officer] witnessed the occurrence of a crime, causing him to

pursue a perpetrator and resulting in an accident with a third

person, he would be considered subject to duty and within the

scope of his employment."        Ibid.      We further found, however,

             The fact that an officer is subject to a duty
             if a crime is witnessed does not mean that he
             or she is on duty while performing an act of
             a purely personal nature. The resolution of
             the issue turns upon what the employee was
             doing at the time the injury-producing
             accident occurred.
             [Id. at 588 (citation omitted)]


                                        6                            A-0591-16T3
     Simply    put,   Zeigler   was   not    serving    the   City   when    he

discharged his weapon, injuring plaintiff.             As we have observed,

he was off-duty, cleaning his home immediately prior to the

incident, and protecting himself and his home during the shooting.

We, therefore, agree with the trial judge that Zeigler's actions

were "of a purely personal nature."         See e.g., State v. Hupka, 203

N.J. 222, 239 (2010) (recognizing that a sexual assault offense

committed by an officer "in a private home involving someone

defendant knew, as opposed to a member of the public, . . . held

no nexus to his position in law enforcement" (citation omitted)).

     Because we find Zeigler was not on duty when the shooting

occurred,     we need not address his argument that the trial judge

erred in ruling expert opinion was necessary to establish the

City's liability in failing to properly train Zeigler in the

operation of his service weapon.          We do so, briefly, for the sake

of completeness.

     The elements of a negligence cause of action are well-settled.

"To sustain a cause of action for negligence, a plaintiff must

establish four elements: '(1) a duty of care, (2) a breach of that

duty, (3) proximate cause, and (4) actual damages.'"            Townsend v.

Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cty of Essex, 196

N.J. 569, 584 (2008)). Where, however, a jury lacks the competence

to supply the applicable standard of care, the plaintiff must

                                      7                               A-0591-16T3
"establish the requisite standard" and the defendant's deviation

from it by "present[ing] reliable expert testimony on the subject."

Davis, 219 N.J. at 407 (alteration in original) (quoting Giantonnio

v.   Taccard,   291   N.J.   Super.    31,   42   (App.   Div.   1999)).        In

determining     whether   expert      testimony   is   required,    "a     court

properly considers 'whether the matter to be dealt with is so

esoteric that jurors of common judgment and experience cannot form

a valid judgment as to whether the conduct of the [defendant] was

reasonable.'"     Ibid. (alteration in original) (quoting Butler v.

Acme Mkts., Inc., 89 N.J. 270, 283 (1982)).

      Here, plaintiff contends Zeigler's service weapon could not

have discharged accidentally twice, but if it did, the discharge

was a result of Zeigler's improper training by the City.                      The

motion judge dismissed plaintiff's argument for lack of support

with expert opinion.      We agree that police training is not within

the ken of the average juror.           See N.J.R.E. 701; see also State

v. McLean, 205 N.J. 438, 459 (2011) (citing Brindley v. Firemen's

Ins. Co., 35 N.J. Super. 1, 8 (App. Div. 1955)).            Plaintiff failed

to name an expert witness to demonstrate a nexus between the weapon

discharging twice and the City's alleged improper training of

Zeigler.

      We likewise reject plaintiff's improper reliance on a "Smith

& Wesson Safety & Instruction Manual" to support his theory that

                                        8                                A-0591-16T3
Zeigler's weapon could not discharge accidentally more than once.

The manual was not produced in discovery, and the function and use

of a firearm is beyond the ken of the average juror.                See Davis

219 N.J. at 407.          Even affording plaintiff, as we must, all

reasonable   inferences     from     the   factual   record,   there     is    an

insufficient evidential basis here to conclude that the City acted

unreasonably, without the aid of expert testimony, to establish

that an accepted standard of care was violated.

     In sum, we find no genuine issue as to any material fact.                 We

conclude, as did the motion judge, that the City is entitled to

judgment as a matter of law.         Plaintiff's remaining arguments, to

the extent we have not specifically addressed them, are without

sufficient   merit   to    warrant    further   discussion     in   a   written

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

     Affirmed.




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