                                NOT FOR PUBLICATION WITHOUT THE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-0843-17T3

DAMIEN ROSE BRUNO, a minor
by SAYDEE LEE FIGUEROA, as
General Administratrix and
Administratrix Ad Prosequendum
of the Estate of Damien Rose Bruno,
Deceased, and SAYDEE LEE
FIGUEROA, Individually,

          Plaintiffs-Appellants/
          Cross-Respondents,

v.

JEFFERSON STREET ASSOCIATES,
LLC and/or WINMORE ASSN, GREG
CONN, T.R.C. MANAGEMENT and
FEDERICO BRUNO a/k/a FREDERICO
BRUNO a/k/a FREDRICOT BRUNO,
a/k/a FREDRICO BRUNO,

          Defendants,

and

JERSEY CITY POLICE DEPARTMENT,
JERSEY CITY POLICE CHIEF THOMAS
J. COMEY, and CITY OF JERSEY CITY,

          Defendants-Respondents/
     Cross-Appellants.
___________________________________

MADELYN CALDERON,

      Plaintiff-Appellant/
      Cross-Respondent,

v.

JEFFERSON STREET ASSOCIATES,
LLC and/or WINMORE ASSN, GREG
CONN, T.R.C. MANAGEMENT, and
FEDERICO BRUNO, a/k/a FREDERICO
BRUNO, a/k/a FREDRICOT BRUNO,
a/k/a FREDRICO BRUNO,

      Defendants,

and

JERSEY CITY POLICE DEPARTMENT,
JERSEY CITY POLICE CHIEF THOMAS
J. COMEY, and CITY OF JERSEY CITY,

     Defendants-Respondents/
     Cross-Appellants.
___________________________________

            Argued February 4, 2020 – Decided March 23, 2020

            Before Judges Yannotti, Hoffman and Currier.

            On appeal from the Superior Court of New Jersey, Law
            Division, Hudson County, Docket Nos. L-3060-14 and
            L-3061-14.



                                                                   A-0843-17T3
                                     2
            Evelyn Padin argued the cause for appellants/cross-
            respondents (Law Office of Evelyn Padin, attorneys;
            Eliot Skolnick, on the briefs).

            Stevie Darrel Chambers, Assistant Corporation
            Counsel, argued the cause for respondents/cross-
            appellants (Peter J. Baker, Corporation Counsel,
            attorneys; Stevie Darrel Chambers, on the briefs).

PER CURIAM

      On July 27, 2012, Frederico Bruno brutally attacked Saydee Lee Figueroa,

his former paramour and the mother of his child, Damien Rose Bruno, and

Madelyn Calderon. He slashed and beat the women and then pushed or threw

Figueroa and Damien out a third-floor window.         Figueroa and Calderon

sustained serious permanent injuries, and Damien, who was three months old at

the time, died several days later.

      Figueroa, on her own behalf and as administratrix of Damien's estate, and

Calderon filed complaints asserting claims against the Jersey City Police

Department (JCPD), then-Chief of the JCPD Thomas J. Comey, and the City of

Jersey City (City).1 The trial court granted defendants' pre-answer motion to


1
   Plaintiffs also asserted claims against Jefferson Street Associates, LLC,
Winmore Association, Greg Conn, T.R.C. Management (collectively, the
Jefferson Street defendants), the owners, operators, or managers of the
apartment building where the assaults took place, and Bruno. The claims against
the Jefferson Street defendants were later resolved and the court entered a


                                                                       A-0843-17T3
                                       3
dismiss the claims based on the failure to arrest Bruno and enforce a temporary

restraining order (TRO) Figueroa had obtained against Bruno. The court found

these claims were based on discretionary actions for which defendants are

immune from liability under the Tort Claims Act (TCA), N.J.S.A. 59:1-1

to 12-3.

      However, the court denied defendants' motion to dismiss the claims based

on defendants' failure to serve the TRO on Bruno, defendants' failure to

accurately answer Bruno's station-house inquiry as to whether he had any open

arrests warrants, and negligent hiring. The court found these claims were based

on actions that could be considered ministerial, for which defendants are not

immune from liability under the TCA.

      Defendants later filed a motion for summary judgment. The court granted

the motion as to the claim of negligent hiring but denied the motion as to the

claim based upon defendants' failure to serve the TRO on Bruno and their failure

to accurately respond to Bruno's station-house inquiry. The court found there

were genuine issues of material fact which precluded the grant of summary




default judgment against Bruno. Because this appeal only involves plaintiffs'
claims against the JCPD, Comey, and the City, we refer to these parties as
defendants.
                                                                        A-0843-17T3
                                       4
judgment on these claims. Defendants filed a motion for reconsideration, which

the court denied.

      Plaintiffs' remaining claims against defendants were tried before a jury.

After plaintiffs completed the presentation of their case, defendants moved to

dismiss the claims, pursuant to Rule 4:37-2(b). The trial judge granted the

motion and entered judgment for defendants. This appeal and defendants' cross-

appeal followed.

      On appeal, plaintiffs argue that the trial judge erred by: granting

defendants' motion to dismiss these claims at trial; excluding probative, material

evidence; barring them from calling certain witnesses at trial; and failing to

adhere to the prior rulings by the motion judges. They also argue that the court

erred by dismissing their failure-to-arrest claims.

      In their cross-appeal, defendants argue that the court erred by denying

their initial motion to dismiss the entire complaint pursuant to Rule 4:6-2(e). In

addition, they argue that the court erred by denying their motion for summary

judgment on plaintiffs' claims for failure to serve the TRO and accurately answer

Bruno's inquiry at the police station.

      For the reasons that follow, we conclude the court did not err by

dismissing plaintiffs' claims against defendants based on the failure to arrest


                                                                          A-0843-17T3
                                         5
Bruno, serve the TRO, and accurately respond to Bruno's station-house inquiry

regarding outstanding warrants, and reject plaintiffs' arguments regarding the

trial judge's evidentiary rulings. In view of our decision, the issues raised in the

cross-appeal are moot. Therefore, we affirm on the appeal and dismiss the cross-

appeal.

                                         I.

      We begin our review with a summary of the evidence presented at trial.

Figueroa and Bruno began dating when they were in high school. It appears that

over time, Bruno became physically and verbally abusive to Figueroa, and this

abuse worsened after she became pregnant. On October 10, 2011, while she was

pregnant, Figueroa obtained a TRO against Bruno and filed a criminal complaint

against him.

      However, on October 19, 2011, Figueroa agreed to dismiss the TRO. She

stated that she still loved Bruno and wanted to give him another chance, but she

later ended her relationship with him. Although his relationship with Figueroa

had ended, Bruno would visit the baby.

      In June 2012, Figueroa and Damien moved in with Calderon in Calderon's

one-bedroom, third-floor apartment in Jersey City. At that time, Figueroa was

nineteen years old, Calderon was twenty-one and Damien was two months old.


                                                                            A-0843-17T3
                                         6
Shortly after Figueroa moved in with Calderon, Bruno visited the apartment to

see Damien. A few weeks later, on July 20, 2012, while Figueroa and Calderon

were sleeping, Bruno broke into the apartment through the fire-escape window.

Bruno began to assault Figueroa and took her cell phone. Calderon woke up.

She said Figueroa looked scared and had marks on her face and neck. Calderon

confronted Bruno and told him to leave. After Bruno departed, Figueroa called

the police, using Calderon's phone.

      Officer Augustino Lopez and other officers of the JCPD responded to the

call. Officer Lopez was familiar with Bruno because he had previously arrested

and served him with the TRO issued in October 2011. The officers transported

Figueroa to the police station. Based upon Figueroa's visible injuries and her

statement identifying Bruno as the person who injured her and stole her phone,

warrants were issued for Bruno's arrest on charges of assault and theft.

      The police did not attempt to contact Bruno on Figueroa's cell phone.

Although Figueroa gave the officers Bruno's last-known Jersey City address, she

told them he was no longer living there. Figueroa provided the officers with

Bruno's phone number and a location where he spent time during the day. Lopez

testified that he had seen Bruno in a particular neighborhood in the City.




                                                                           A-0843-17T3
                                       7
      On July 22, 2012, Bruno spoke with Figueroa and asked her to drop the

charges against him. She refused and told him he had to stop mistreating her.

On July 24, 2012, Bruno returned to Calderon's apartment, accompanied by a

friend. He wanted to see Damien. Bruno was verbally abusive and threatened

Figueroa. She told him to leave. After Bruno left, Figueroa noticed her keys to

the apartment were missing. She called the police.

      When Officer Alberto Colon arrived at the apartment, Figueroa and

Calderon told him Bruno had stolen the keys. Figueroa and Calderon testified

that they also told Colon about what happened on July 20, 2012. The officer

testified, however, that he was unaware of the existing warrant for Bruno's arrest

and he did not run a search for any outstanding warrants.

      Colon did not issue a warrant for Bruno's arrest because of the low value

of the items he had allegedly stolen, but he told Figueroa she could file a

complaint in municipal court. Colon did not treat the matter as a domestic

violence incident because he thought of it as merely a theft. Later, Calderon

spoke with the wife of the building's superintendent about the missing keys;

however, the superintendent did not change the locks to the apartment.

      On July 25, 2012, Figueroa applied for a TRO against Bruno and the court

issued the TRO that day. Among other things, the TRO prohibited Bruno from:


                                                                          A-0843-17T3
                                        8
returning to Figueroa's residence, engaging in any future acts of domestic

violence, and having any contact with Damien. The order generally required

law enforcement to serve and enforce the order, protect Figueroa, and assist her

in retrieving the keys to the apartment.

      In addition, the order stated that Figueroa had been unable to provide the

court with Bruno's address. It stated that the court would not schedule a final

hearing in the matter until Figueroa provided Bruno's address and he was served

with the TRO.

      The following morning, July 26, 2012, Bruno entered the JCPD's Bergen

Avenue station. He remained there for approximately three minutes and forty-

nine seconds between 9:32 a.m. and 9:36 a.m. While at the station, Bruno spoke

with Officer Titus Johnson. Plaintiffs claimed Bruno asked Johnson if he had

any outstanding warrants, but there was no direct evidence as to what Bruno said

to Johnson.

      Johnson testified that Bruno's hair was sticking up. He stated that Bruno's

eyes were "kind of bulging," he had holes in his shirt, and he looked "kind of

ragged like he was sleeping out in the street or something . . . ." Johnson said it

appeared there was something wrong with Bruno. He thought Bruno might be

homeless, mentally ill, or under the influence of drugs. Johnson testified that


                                                                           A-0843-17T3
                                           9
he tried to assist Bruno. He asked him why he thought there might be a warrant

out for him, and he explained there are different types of warrants.

      According to Johnson, Bruno appeared confused and did not answer his

questions.   Johnson stated that he "didn't get a chance" to ask Bruno for

identifying information before Bruno left the building. He made no attempt to

stop Bruno from leaving the building because he "had no reason to detain him."

Johnson did not report his interaction with Bruno to a supervisor.

      On July 26, 2012, Figueroa, Calderon, and Damien spent the night at

Calderon's mother's home. The following morning, at about 7:00 a.m., they

returned to Calderon's apartment. They did not know that Bruno was hiding

inside the apartment. As Figueroa entered the bedroom, Bruno came out from

under the bed and attacked her with a meat cleaver. Figueroa grabbed Damien

and attempted to leave the apartment, but Bruno refused to allow her to leave.

He said he was going to kill her.

      Bruno ordered Calderon to go into the bathroom.           She complied but

opened the bathroom door a bit and observed Bruno attempting to force his way

into the bedroom. Figueroa testified that the last thing she recalled was Bruno

beating her in the bedroom, while she held Damien. Calderon recalled seeing

Bruno run out of the bedroom, saying "oh, shit, she is dead."


                                                                         A-0843-17T3
                                      10
      It appears that Bruno pushed or threw Figueroa and Damien out of the

third-floor bedroom window. The window's air conditioner was found on the

pavement below, along with Figueroa and Damien. Bruno resumed his attack

on Calderon, this time using a knife. She was able to escape and seek help from

a neighbor, who called the police. Neighbors observed Bruno beating Figueroa

with a chair, as she lay on the pavement outside the building.

      When the police arrived, Bruno was gone. Figueroa and Calderon had

suffered serious, permanent injuries. Several days later, Damien died as a result

of the injuries he sustained in the attack. Thereafter, the police arrested Bruno.

He was later charged and found guilty of, among other offenses, murder and two

counts of attempted murder.

      During the trial in this matter, plaintiffs presented testimony from Joseph

Blaettler, who was qualified as an expert in police procedure and domestic

violence.   Blaettler stated that generally after the court issues a domestic

violence restraining order, the court's personnel will enter the order into a

centralized computer database.      The order is immediately available to law

enforcement throughout the State.

      Blaettler also testified that the clerk of the county in which the order is

entered will fax a copy of the order to the police department in the municipality


                                                                          A-0843-17T3
                                       11
where the order is to be served. Blaettler stated that in his experience, after the

police department receives the order, it will assign an officer to serve it.

Thereafter, the police department will inform the court that the person has been

served or it was unable to effect service.

      Blaettler testified that in his opinion, defendants did not carry out what he

viewed as ministerial duties. He said defendants failed to "check to see if there

was a restraining order available," and did not serve or attempt to serve the TRO

on Bruno. He admitted, however, that he saw no evidence that the July 25, 2012

TRO had been entered into the central registry's database or that the TRO was

faxed to the JCPD before July 27, 2012.

      Blaettler opined that on July 26, 2012, Johnson was negligent in carrying

out his ministerial duties because he did not immediately ask Bruno for

identifying information, including his name and date of birth, when Bruno came

to the police station. He also opined that Johnson could have detained Bruno

for investigation on reasonable suspicion that he was under the influence of

narcotics.

      Blaettler testified that if Johnson had detained Bruno, he then could have

obtained Bruno's identifying information. He could then have determined if




                                                                           A-0843-17T3
                                       12
there were any outstanding warrants for Bruno's arrest, or restraining orders that

should be served.

                                       II.

      We first consider plaintiffs' contention that the trial judge erred by

dismissing their claims against defendants based on the failure to serve the TRO

and accurately answer Bruno's station-house inquiry regarding outstanding

warrants. Plaintiffs contend they presented sufficient evidence to allow the jury

to consider these claims.

      As noted previously, after plaintiffs had presented their case, defendants

sought involuntary dismissal of the claims pursuant to Rule 4:37-2(b). The rule

provides:

            After having completed the presentation of the
            evidence on all matters other than the matter of
            damages (if that is an issue), the plaintiff shall so
            announce to the court, and thereupon the defendant,
            without waiving the right to offer evidence in the event
            the motion is not granted, may move for a dismissal of
            the action or of any claim on the ground that upon the
            facts and upon the law the plaintiff has shown no right
            to relief. Whether the action is tried with or without a
            jury, such motion shall be denied if the evidence,
            together with the legitimate inferences therefrom, could
            sustain a judgment in plaintiff's favor.

            [Ibid.]



                                                                          A-0843-17T3
                                       13
      In considering a motion to dismiss under Rule 4:37-2(b), the trial court

must accept as true all evidence supporting the causes of action, including all

legitimate inferences that can be deduced therefrom. Smith v. Millville Rescue

Squad, 225 N.J. 373, 397 (2016). We apply the same standard when we review

the grant or denial of such a motion. Ibid.; ADS Assocs. Grp., Inc. v. Oritani

Sav. Bank, 219 N.J. 496, 510-11 (2014); Hitesman v. Bridgeway, Inc., 218 N.J.

8, 25-26 (2014).

      Here, the trial judge found that the cause of action for failure to serve the

TRO must be dismissed because plaintiffs did not present any evidence that the

restraining order was ever sent to or received by the JCPD. The judge further

found that the claim based on the failure to accurately answer Bruno's station-

house inquiry about open warrants must be dismissed because it amounted to a

claim that the officer erred by failing to detain Bruno and compel him to provide

identifying information. The judge found the claim was barred under N.J.S.A.

59:5-5, which provides public employees and entities with immunity from

liability for a failure to arrest.

      The TCA re-established sovereign immunity after common law immunity

had been abrogated by the Supreme Court in Willis v. Department of

Conservation & Economic Development, 55 N.J. 534, 536-41 (1970). See Velez


                                                                           A-0843-17T3
                                       14
v. City of Jersey City, 180 N.J. 284, 289 (2004); Alston v. City of Camden, 168

N.J. 170, 176, 181 (2001). The TCA is dispositive with respect to the nature,

extent, and scope of state and local tort liability for causes of action accruing on

and after its effective date. N.J.S.A. 59:1-2; Velez, 180 N.J. at 289-90.

      Public entity immunity is the general rule under the TCA and liability is

the exception. Lee v. Brown, 232 N.J. 114, 127 (2018); Alston, 168 N.J. at 176;

Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 495 (App. Div. 2007). The

TCA states:

              a. Except as otherwise provided by this act, a public
              entity is not liable for an injury, whether such injury
              arises out of an act or omission of the public entity or a
              public employee or any other person.

              b. Any liability of a public entity established by this
              act is subject to any immunity of the public entity and
              is subject to any defenses that would be available to the
              public entity if it were a private person.

              [N.J.S.A. 59:2-1.]

      Furthermore, N.J.S.A. 59:2-3(a) states that "a public entity is not liable

for an injury resulting from the exercise of judgment or discretion vested in the

entity[.]" N.J.S.A. 59:2-3(d) provides, however, that "[n]othing in this section

shall exonerate a public entity for negligence arising out of acts or omi ssions of

its employees in carrying out their ministerial functions."


                                                                            A-0843-17T3
                                         15
      A. Claim Based on Failure to Serve the TRO.

      As noted, plaintiffs argue that the judge erred by dismissing their claim

based on defendants' failure to serve the TRO upon Bruno. They assert this was

a ministerial duty because service of the order is required by N.J.S.A. 2C:25-

28(l), and the TRO entered in this case expressly required law enforcement to

serve the order upon Bruno.

       We need not determine whether service of a TRO issued pursuant to the

Prevention of Domestic Violence Act (PDVA) is a ministerial act for which

there is potential liability under the TCA because plaintiffs did not present

sufficient evidence to support this claim. As the trial judge noted, plaintiffs

presented no evidence from which the jury could find that the JCPD received a

copy of the July 25, 2012 TRO, or that court personnel had placed the TRO in

the central registry's database.

      Plaintiffs argue, however, that they did not have to prove that the TRO

actually was entered into the central registry's database or faxed to the JCPD

before July 27, 2012. In support of their argument, they rely upon N.J.S.A.

2C:25-28(l), which requires the court to forward a restraining order to the

appropriate law enforcement agency for service, and requires law enforcement

to serve the order on the defendant "immediately." Plaintiffs also rely upon


                                                                       A-0843-17T3
                                     16
N.J.S.A. 2C:25-34, which requires the Administrative Office of the Courts to

"establish and maintain a central registry of all persons who have had domestic

violence restraining orders entered against them . . . ."

      Based upon these statutory provisions, plaintiffs argue that a jury could

find that defendants had constructive knowledge of the TRO entered by the

court. We cannot agree. Here, the trial judge correctly found that defendants

cannot be found liable for failing to serve a TRO that they did not receive or

could not access on the central registry's database.

      Plaintiffs further argue that Blaettler's testimony provided a sufficient

basis for the jury to find that defendants had constructive knowledge of the TRO

entered on July 25, 2012. As stated previously, Blaettler testified that generally,

when the court enters a TRO, the court's personnel place the order in the central

registry's database, and the county clerk faxes the order to the police department

in the community where the order is to be served.

      Blaettler admitted, however, that he had no evidence that these actions

were taken regarding the TRO entered against Bruno on July 25, 2012.

Therefore, Blaettler's testimony did not provide a sufficient factual basis to find

that defendants had constructive knowledge of the July 25, 2012 TRO.




                                                                           A-0843-17T3
                                       17
      In support of their arguments on appeal, plaintiffs rely upon Campbell v.

Campbell, 294 N.J. Super. 18 (Law Div. 1996). In Campbell, the question

presented on a summary judgment motion was "whether police officers are

immune under the [TCA] for failure to make an arrest under a domestic violence

order." Id. at 20. The officers at issue had responded to a call relating to "an

unwanted guest" at the complainant's home, and discovered that the

complainant's estranged husband was the "unwanted guest." Id. at 20-21. The

officers instructed him to leave but made no arrest, id. at 21, and they denied

knowledge of any restraining order. Id. at 22.

      However, the complainant alleged she told the officers about the

restraining order. Id. at 21. Moreover, since there was "no dispute that the [local

police department] did receive a copy of the domestic violence order prior to the

incident," the Law Division found the officers' denials of knowledge were

"irrelevant." Id. at 22. The Law Division then considered whether any TCA

immunities applied to the officers' actions. Id. at 22-28.

      Plaintiffs' reliance upon Campbell is misplaced. The facts of this case are

different. Here, defendants denied receiving the July 25, 2012 TRO before the

July 27, 2012 attack, and plaintiffs presented no evidence to establish that

defendants received the TRO. Furthermore, plaintiffs presented no evidence


                                                                           A-0843-17T3
                                       18
from which the jury could find that court personnel placed the TRO in the central

registry database, or that the county clerk had faxed the order to the JCPD before

July 27, 2012.

      B. Claim Based on Failure to Answer Bruno's Station-House Inquiry.

      Plaintiffs allege defendants were negligent in failing to accurately answer

Bruno's station-house inquiry as to whether he had any outstanding warrants.

They claim this was a ministerial duty for which defendants are liable under the

TCA. They contend that the trial judge erred by dismissing this claim at trial.

      The trial judge found that this claim was essentially one based on

defendants' alleged negligent failure to arrest Bruno when he came to the police

station. The judge therefore found this claim was barred by N.J.S.A. 59:5-5,

which states that neither a public entity nor public employee may be liable for

an injury caused by "the failure to make an arrest . . . ."

      Plaintiffs argue that their claim is not based on a failure to arrest, but

rather upon the officer's negligent failure to respond accurately to Bruno's

inquiry as to whether he had any outstanding warrants.          They also claim

defendants should have detained Bruno for investigation. They contend the

immunity under N.J.S.A. 59:5-5 does not apply to investigative detentions.




                                                                          A-0843-17T3
                                        19
They further argue that investigative detentions are ministerial rather than

discretionary acts, for which there is no immunity under the TCA.

      We need not determine whether the TCA immunity under N.J.S.A. 59:5-

5 applies to a failure to detain a person for investigation. We are convinced that

an officer's decision as to whether to detain a person for investigative purposes

is a discretionary act for which the officer and a public entity are immune from

liability under N.J.S.A. 59:2-3(a) and N.J.S.A. 59:3-2(a).

      A ministerial act is an act which "public officers are required to perform

upon a given state of facts in a prescribed manner, in obedience to the mandate

of legal authority and without regard to their own judgment or opinion

concerning the propriety or impropriety of the act to be performed." Ritter v.

Castellini, 173 N.J. Super. 509, 513-14 (Law Div. 1980).            Detaining an

individual for investigation does not meet this definition of a ministerial act.

      In determining whether to detain an individual for investigation, a police

officer must have reasonable and particularized suspicion that the individual is

engaging in, or about to engage in, criminal activity. State v. Rosario, 229 N.J

263, 272 (2017). This requires the officer to carefully consider the relevant facts

and exercise judgment. Id. at 276-77. The officer's determination calls for the

exercise of discretion. It is not a ministerial act.


                                                                           A-0843-17T3
                                        20
      Here, Johnson testified that he did not believe he had any basis to detain

Bruno. He stated that while Bruno appeared ragged and agitated, it was not clear

to him what Bruno's problem was. The officer thought Bruno may have been

homeless, mentally ill, or under the influence of drugs.           Under these

circumstances, detaining Bruno for purposes of investigation required Johnson

to exercise discretion. Therefore, the TCA precludes the imposition of liability

upon defendants for their alleged failure to detain Bruno. N.J.S.A. 59:2-3(a);

N.J.S.A. 59:3-2(a).

      We also reject plaintiffs' contention that they presented sufficient

evidence to support their claim that Johnson was negligent in failing to obtain

Bruno's name and other identifying information when he came to the police

station.   Plaintiffs argue that Johnson had a ministerial duty to respond

accurately to Bruno's inquiry as to whether he had any outstanding warrants.

      As we have explained, Johnson testified that he attempted to assist Bruno

and tried to get information from him. He asked Bruno why he had been told he

had warrants, and if he had any "domestic violence issues." Johnson did not ask

Bruno for his date of birth but he did ask Bruno to provide "his information."

He told Bruno the information that he needed. The officer then went to get a




                                                                        A-0843-17T3
                                      21
piece of paper so that Bruno could write the information down for him, but

Bruno left the building.

       Thus, even if Johnson had a ministerial duty to ask Bruno to provide his

name and other identifying information, the evidence established that Johnson

attempted to obtain that information but was unable to do so because Bruno was

uncooperative and left the police station. Plaintiffs failed to present sufficient

evidence to support their claim.

      In arguing that the judge erred by dismissing this claim, plaintiffs rely

upon Wuethrich v. Delia, 155 N.J. Super. 324 (App. Div. 1978). In that opinion,

we stated that police officers "have a duty to investigate information from

citizens concerning unlawful or criminal activity . . . ." Id. at 326 (citing State

v. Royal, 115 N.J. Super. 439, (App. Div. 1971)). We also stated that the failure

of the police to make an arrest as a result of such an investigation "does not

subject the municipality to tort liability." Ibid. (citing N.J.S.A. 59:5-5).

      Plaintiffs' reliance on Wuethrich is misplaced.         Here, the evidence

established that Johnson endeavored to obtain identifying information from

Bruno so that he could respond to his inquiry, but he was unable to do so because

Bruno was not cooperative and left the police station. Thus, Johnson did not

breach any duty to investigate potential criminal activity. Moreover, t o the


                                                                               A-0843-17T3
                                        22
extent plaintiffs are claiming Johnson negligently failed to arrest Bruno, the

claim is barred by N.J.S.A. 59:5-5.

                                        III.

       Plaintiffs argue that the trial judge erred by failing to follow the law of

the case when he granted defendants' motion to dismiss their claims at trial.

Plaintiffs note that when defendants moved pursuant to Rule 4:6-2(e) to dismiss

the complaint for failure to state a claim upon which relief could be granted, the

motion judge ruled that they had alleged sufficient facts to support their claims

based on the failure to serve the TRO and answer Bruno's station-house inquiry.

      Plaintiffs also note that when defendants later sought summary judgment

on these claims, another judge found there were genuine issues of material fact

that had to be resolved by the trier-of-fact. Plaintiffs contend that the law of the

case doctrine required the trial judge to follow these earlier decisions when he

ruled on defendants' motion to dismiss at trial. We disagree.

      The law of the case doctrine discourages the re-litigation of issues that

have been previously decided during the course of a particular case. State v.

Brown, 236 N.J. 497, 522 (2019) (citing State v. Ruffin, 371 N.J. Super. 371,

390 (App. Div. 2004)). However, application of the doctrine, as applied to




                                                                            A-0843-17T3
                                        23
interlocutory orders or rulings, is discretionary and should be "applied flexibly

to serve the interests of justice." State v. Reldan, 100 N.J. 187, 205 (1985).

      The doctrine does not prevent the reversal of rulings when the rulings are

clearly erroneous, or when substantially different evidence is presented at trial.

Underwood v. Atl. City Racing Ass'n, 295 N.J. Super. 335, 340 (App. Div.

1996). Furthermore, the doctrine does not limit the inherent power of a trial

judge to modify an interlocutory order prior to entry of final judgment. Tully v.

Mirz, 457 N.J. Super. 114, 128-29 (App. Div. 2018).

      Therefore, in granting defendants' motion to dismiss under Rule 4:37-2(b),

the trial judge was not bound by the pre-trial rulings by other judges on

defendants' motions to dismiss and for summary judgment. Tully, 457 N.J.

Super. at 128-29; Akhtar v. JDN Props. at Florham Park, LLC, 439 N.J. Super.

391, 399-403 (App. Div. 2015). The judge reconsidered those rulings in light

of the evidence that plaintiffs presented at trial.

      As we have determined, the judge's decision to dismiss the claims was

supported by the record and legally correct. We therefore reject plaintiffs'

contention that the judge erred by failing to adhere to the earlier decisions by

the motion judges.




                                                                          A-0843-17T3
                                        24
                                         IV.

      Next, plaintiffs argue the trial judge erred by refusing to permit them to:

admit Bruno's out-of-court statements; introduce Calderon's recorded statement;

and present trial testimony from Bruno, Sergeant Raymond Mahan, Evette

Fresse, and Comey.

      It is well-established that "the admissibility of evidence at trial is left to

'the sound discretion of the trial court.'" State v. Green, 236 N.J. 71, 80-81

(2018) (quoting State v. Willis, 225 N.J. 85, 96 (2016)). Therefore, we review

the trial court's evidentiary rulings for abuse of discretion. Id. at 81 (citing State

v. Rose, 206 N.J. 141, 157 (2011)). We will not reverse unless the trial court's

ruling represents a "clear error of judgment." Ibid. (citing State v. Barden, 195

N.J. 375, 391 (2008)).

      A. Bruno's Out-of-Court Statements.

      Plaintiffs contend the trial judge should have allowed them to introduce:

(1) Bruno's videotaped, post-arrest statement to the police, (2) an internal affairs

report, containing Mahan's summary of his interview with Bruno, and (3)

Bruno's statement at his sentencing hearing. The trial judge correctly found

these statements were inadmissible hearsay because they were out-of-court




                                                                              A-0843-17T3
                                        25
statements that plaintiffs intended to introduce for their truth. See N.J.R.E.

801(c) and N.J.R.E. 802.

      Plaintiffs argue, however, that Bruno's out-of-court statements were

admissible under N.J.R.E. 803(b)(1) as statements by a party-opponent. The

rule permits admission of "[a] statement offered against a party which is the

party's own statement . . ." State v. Covell, 157 N.J. 554, 572 (1999) (citing

N.J.R.E. 803(b)(1)).

      Therefore, N.J.R.E. 803(b)(1) allows the admission of the statement

against Bruno, but not against any other party. One Step Up, Ltd. v. Sam

Logistic, Inc., 419 N.J. Super. 500, 507-08 (App. Div. 2011); Theobald v.

Dolcimascola, 299 N.J. Super. 299, 305-06 (App. Div. 1997). Thus, Bruno's

statements could not be admitted against defendants.

      Plaintiffs also contend Bruno's out-of-court statements were admissible

under N.J.R.E. 803(c)(25) as statements against his interest. "The statement-

against-interest exception is based on the theory that, by human nature,

individuals will neither assert, concede, nor admit to facts that would affect them

unfavorably."    State v. White, 158 N.J. 230, 238 (1999) (citing N.J.R.E.

803(c)(25)). Therefore, Rule 803(c)(25) does not permit the admission of self-




                                                                           A-0843-17T3
                                       26
serving, exculpatory statements. State v. Nevius, 426 N.J. Super. 379, 393-97

(App. Div. 2012).

      Bruno's out-of-court statements were clearly self-serving and exculpatory

and not admissible under N.J.R.E. 803(c)(25). He denied complicity in the July

27, 2012 attack, and he attempted to blame the victims for his horrific actions.

He also tried to implicate the JCPD by stating that he tried to turn himself in,

but no one at the JCPD would listen to him.

      We reject plaintiffs' contention that Bruno's statement that he turned

himself in to the police was an admission of wrongdoing. At the police station,

Bruno apparently asked Johnson if he had any outstanding warrants. He did not

admit he did anything wrong or illegal.

      Plaintiffs also contend Bruno's statements were admissible under N.J.R.E.

803(c)(2) as excited utterances. The exception applies to "[a] statement relating

to a startling event or condition made while the declarant was under the stress

of excitement caused by the event or condition and without opportunity to

deliberate or fabricate." Ibid. However, Bruno's out-of-court statements did not

meet the conditions for admission under the rule.

      Plaintiffs further argue that the statements attributed to Bruno in the

JCPD's internal affairs report are admissible under the business-records


                                                                         A-0843-17T3
                                      27
exception in N.J.R.E. 803(c)(6). "A police report may be admissible to prove

the fact that certain statements were made to an officer, but, absent another

hearsay exception, not the truth of those statements." Manata v. Pereira, 436

N.J. Super. 330, 345 (App. Div. 2014) (emphasis added). Plaintiffs have not

established that a hearsay exception applies to the statements in the report.

      B. Bruno's Proposed Trial Testimony.

      Plaintiffs contend the trial judge erred by refusing to permit them to call

Bruno as a witness at trial. The record shows that Bruno's counsel advised the

judge that Bruno would exercise his Fifth Amendment right against self-

incrimination. The judge also held a N.J.R.E.104 hearing, at which Bruno

invoked his Fifth Amendment right and refused to answer any questions.

      Nevertheless, plaintiffs argue they should have been permitted to call

Bruno and question him in front of the jury about his interactions with Johnson

on July 26, 2012. Plaintiffs contend the jury should have been able to witness

Bruno invoking his constitutional right to remain silent.

      The judge found, however, that there was no probative value in having

Bruno appear at trial and refuse to answer any questions. The judge correctly

ruled that Bruno would not offer any relevant testimony. The ruling was not a

mistaken exercise of discretion.


                                                                          A-0843-17T3
                                       28
      C. Calderon's Statement.

      Plaintiffs argue that the trial judge erred by refusing to allow them to

admit the recorded statement that Calderon gave to the police. This was an out-

of-court statement that plaintiffs intended to offer for its truth. Therefore, the

statement was inadmissible hearsay under N.J.R.E. 801(c) and N.J.R.E. 802.

      Plaintiffs argue, however, that the statement could be admitted as an

excited utterance under N.J.R.E. 803(c)(2), or as a business record under

N.J.R.E. 803(c)(6). These arguments were not presented in the trial court.

      Even so, we are convinced the judge did not err by excluding Calderon's

statement. As stated previously, the statement would only be admissible as an

excited utterance under N.J.R.E. 803(c)(2) if it related to a "startling event or

condition" and was "made while the declarant was under the stress of excitement

caused by the event or condition and without opportunity to deliberate or

fabricate."

      In determining whether to admit a statement pursuant to N.J.R.E.

803(c)(2), the court must consider whether "'the circumstances reasonably

warrant the inference that [it] was made as an uncontrollable response to the

shock of the event before reasoned reflection could have eliminated a self-




                                                                          A-0843-17T3
                                       29
serving response.'" State v. Cotto, 182 N.J. 316, 328 (2005) (quoting Cestero v.

Ferrara, 57 N.J. 497, 504 (1971)).

      Calderon's statement was recorded four days after the July 27, 2012,

attack. Plaintiffs failed to show that her statements were an "uncontrollable

response" to this event. She also had several days in which to deliberate before

she made her statement. Therefore, Calderon's statement was not admissible as

an excited utterance under N.J.R.E. 803(c)(2).

      Calderon's statement also was not admissible as a business record under

N.J.R.E. 803(c)(6). The rule permits the admission of

            [a] statement contained in a writing or other record of
            acts, events, conditions and, subject to [N.J.R.E.] 808,
            opinions or diagnoses, made at or near the time of
            observation by a person with actual knowledge or from
            information supplied by such a person, if the writing or
            other record was made in the regular course of business
            and it was the regular practice of the business to make
            it, unless the sources of information or the method,
            purpose or circumstances of preparation indicate it is
            not trustworthy.

            [Ibid.]

      Calderon's statement was not a record made in the regular course of

business. Even if the recording was such a record, her statements would only

be admissible if they came within the purview of a separate hearsay exception.



                                                                        A-0843-17T3
                                      30
Manata, 436 N.J. Super. at 345. Plaintiffs have not established that Calderon's

statements are admissible under any hearsay exception.

      Moreover, even if the judge erred by excluding Calderon's recorded

statement, the error was harmless. Calderon testified at trial, and her trial

testimony was consistent with her recorded statement. Plaintiffs suffered no

prejudice from the exclusion of the statement.

      D. Mahan

      Plaintiffs argue that the trial judge erred by not permitting them to

question Mahan about the internal affairs investigation he undertook, including

statements made by Bruno, Johnson, and Fresse during the investigation .

Plaintiffs also argue that Mahan should have been permitted to testify about the

JCPD's procedures for checking on outstanding warrants and responding to

inquiries about warrants. They further argue that Mahan should have been

allowed to testify that the computer system the JCPD used to check warrants

was operational on July 26, 2012.

      These arguments lack sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E). We note, however, that any out-of-court statements

by Bruno, Johnson, and Fresse that were set forth in Mahan's report were hearsay




                                                                        A-0843-17T3
                                      31
and plaintiffs have not shown these statements were admissible under any

hearsay exception.

         Furthermore, testimony by Mahan was not needed to establish the

procedures the JCPD followed for checking on warrants, since the jury heard

such testimony from Johnson and Blaettler. In addition, it was undisputed that

the computer system the JCPD used to check on warrants was operational on

July 26, 2012, and Johnson did not use the system to determine if there were any

outstanding warrants for Bruno.

         E. Fresse

         Plaintiffs contend the trial judge erred by not permitting them to question

Fresse about her interactions with Bruno on July 26, 2012, at the municipal

court.     The judge ruled that Fresse could not testify because she had no

recollection of interacting with Bruno. Moreover, when Fresse was shown the

JCPD's internal investigation report during her deposition, the report did not

refresh her recollection.

         The judge therefore ruled that Fresse would not be able to present relevant

evidence to the jury. Relevant evidence is "evidence having a tendency in reason

to prove or disprove any fact of consequence to the determination of the action."

N.J.R.E. 401. Since Fresse could not recall her interactions with Bruno, she had


                                                                            A-0843-17T3
                                         32
no relevant information to provide to the jury. The judge's ruling was not a

mistaken exercise of discretion.

      F. Comey

      Plaintiffs contend the trial judge should have permitted them to present

Comey as a witness regarding the JCPD's policies with respect to responding to

inquiries by members of the public regarding outstanding warrants. The judge

ruled that plaintiffs could not call Comey as a witness to testify regarding the se

policies because during discovery plaintiffs failed to request that defendants

designate a witness for this purpose, as required by Rule 4:14-2(c). The judge

also found there was no probative value to Comey's testimony because he

testified in the N.J.R.E. 104 hearing that he had only a "sketchy" recollection of

the policies at issue.

      The judge's ruling was not a mistaken exercise of discretion. As the judge

noted, plaintiffs failed to ask defendants to identify a witness with a current

knowledge of the JCPD's policies, as permitted by Rule 4:14-2(c). Furthermore,

since Comey had only a "sketchy" recollection of the department's policies, he

had no relevant testimony to provide concerning those policies.

      In addition, plaintiffs have not shown that they were prejudiced by an

inability to present testimony from Comey. The trial judge did not err by


                                                                           A-0843-17T3
                                       33
dismissing plaintiffs' claim based on the failure to accurately respond to Bruno's

warrant inquiry because, as the record shows, Johnson sought to obtain

identifying information from Bruno, but he was unable to obtain that

information because Bruno was uncooperative and left the police station.

Testimony by Comey on the JCPD's procedures for answering warrant inquiries

would not have affected the outcome of this matter.

                                        V.

      Plaintiffs also argue that the trial court erred by granting defendants'

motion under Rule 4:6-2(e) to dismiss their claims based on an alleged failure

to arrest Bruno. In their complaints, plaintiffs alleged that defendants were

liable for the injuries and losses they sustained because defendants failed to

perform their "ministerial duties to arrest and detain [Bruno], a known criminal

who had an outstanding arrest warrant and active restraining order . . . and who

personally appeared at the Jersey City police station to make inquiries

concerning any open arrest warrants."

      The motion judge found that defendants were immune from liability under

N.J.S.A. 59:5-5 for failing to arrest Bruno. Defendants also were immune from

liability because the alleged failure-to-arrest was "clearly discretionary" and not

a ministerial act. See N.J.S.A. 59:2-3(a); N.J.S.A. 59:3-2(a).


                                                                           A-0843-17T3
                                        34
        In reviewing an order dismissing a claim pursuant to Rule 4:6-2(e), we

undertake a de novo review of the claim. Dimitrakopoulos v. Borrus, Goldin,

Foley, Vignuolo, Hyman & Stahl, PC, 237 N.J. 91, 108 (2019). Our "inquiry is

limited to examining the legal sufficiency of the facts alleged on the face of the

complaint." Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746

(1989).

        On appeal, plaintiffs argue that the PDVA creates an exception to the

arrest immunity of N.J.S.A. 59:5-5 because it requires the arrest of persons who

allegedly commit acts of domestic violence. The PDVA provides in pertinent

part:

             When a person claims to be a victim of domestic
             violence, and where a law enforcement officer
             responding to the incident finds probable cause to
             believe that domestic violence has occurred, the law
             enforcement officer shall arrest the person who is
             alleged to be the person who subjected the victim to
             domestic violence and shall sign a criminal complaint
             if:

             (1) The victim exhibits signs of injury caused by an act
             of domestic violence;

             (2) A warrant is in effect;

             (3) There is probable cause to believe that the person
             has violated [N.J.S.A.] 2C:29-9, and there is probable
             cause to believe that the person has been served with
             the order alleged to have been violated. If the victim

                                                                          A-0843-17T3
                                           35
            does not have a copy of a purported order, the officer
            may verify the existence of an order with the
            appropriate law enforcement agency; or

            (4) There is probable cause to believe that a weapon as
            defined in [N.J.S.A.] 2C:39-1 has been involved in the
            commission of an act of domestic violence.

            [N.J.S.A. 2C:25-21(a).]

      Plaintiffs contend that because the PDVA requires an arrest under certain

circumstances, the decision to arrest Bruno was ministerial rather than

discretionary and therefore subject to potential liability under N.J.S.A. 59:2 -

3(d). We disagree.

      A police officer's decision to arrest or not arrest a suspect for an alleged

act of domestic violence is a discretionary act for which the officer is immune

from liability under the TCA. S.P. v. Newark Police Dep't, 428 N.J. Super. 210,

228-33 (App. Div. 2012). See also Turner v. Twp. of Irvington, 430 N.J. Super.

274, 285-86 (App. Div. 2013) (rejecting argument that the PDVA's mandatory

arrest provision trumps the TCA's immunity for failure to arrest in N.J.S.A.

59:5-5).

      We therefore conclude the motion judge did not err by dismissing

plaintiffs' claim against defendants based on the alleged failure to arrest Bruno

for an act of domestic violence.


                                                                          A-0843-17T3
                                      36
                                       VI.

      In their cross-appeal, defendants argue that the trial court erred by denying

their motion for summary judgment on plaintiffs' claims for negligent failure to

serve the TRO and accurately respond to Bruno's station-house inquiry

regarding outstanding warrants. Defendants contend there were no genuine

issues of material fact as to these claims, and they were entitled to summary

judgment. Because we have found that the judge did not err by dismissing these

claims at trial pursuant to Rule 4:37-2(b), the issues raised in the cross-appeal

are moot.

      Affirmed on the appeal; the cross-appeal is dismissed.




                                                                           A-0843-17T3
                                       37
