A post-judgment motion requires interpretation of a previously unconstrued section of the 1972 Tort Claims Act, N.J.S.A. 59:9-5, which provides that
In any action brought against a public entity or a public employee under this act, the court may, in its discretion, award a successful claimant (a) costs ordinarily allowable in the private sector (b) expert witness fees not exceeding a total of $100.00 and (c) reasonable attorney's fees; provided however that there
shall be no such recovery in any case where damages are awarded for pain and suffering.
The suit was brought by a 71-year-old widowed mother for the death of John Rich, her unmarried 44-year-old son, in Martland Medical Center in Newark in November 1976, after a scalding attributed to the negligence of a hospital attendant. At that time the hospital was run by the College of Medicine and Dentistry of New Jersey which had been authorized to acquire it by a provision (N.J.S.A. 18A:64G-17) of the Medical and Dental Act of 1970 (L. 1970, c. 102; N.J.S.A. 18A:64G-1 et seq.) which created the college. Since the act designated the college as a state agency in the Department of Higher Education (N.J.S.A. 18A:64G-3), but without the power to sue and be sued (N.J.S.A. 18A:64G-6), the "public entity" which was sued was the State itself (N.J.S.A. 59:1-3).
The complaint had two counts, a survival action (N.J.S.A. 2A:15-3) seeking recovery for the decedent's pain and suffering, and one for wrongful death (N.J.S.A. 2A:31-1) asking compensation for the mother's economic loss. Pretrial negotiations with the Attorney General's department led to a concession of negligence and proximate cause, and thus of liability as well. N.J.S.A. 59:2-2. There is said to have been a recommendation of a $30,000 settlement, but this failed of approval by the Attorney General. The matter thus went to trial as to damages only. The jury returned verdicts of $10,000 in the survival action and $2,500 in the death action, and judgment for $12,500 was entered without prejudgment interest N.J.S.A. 59:9-2. A motion for an additur , or in the alternative for a new trial, was timely made. Joined with it was a motion under N.J.S.A. 59:9-5 for allowance of costs, witness fee and an attorney's fee. An affidavit supporting the motion listed disbursements of $1,876.75. Of these, $1,500 was paid to the expert medical witness (of which only $100 would be allowable in any event
under the statute), and roughly $200 was for legitimate disbursements not taxable.
The evidence was that decedent had had difficulties years before with both drugs and alcohol, was in an advanced stage of cirrhosis of the liver and, when admitted to Martland in August 1976, was in serious condition with simultaneous oral and anal hemorrhages. Several weeks of treatment relieved the acute physical symptoms but there were psychotic manifestations, and he was transferred to the psychiatric ward at Martland where he remained for more than a month. On the evening of November 1 he had two incidents of incontinence, after each of which he was led by an attendant to a tub and bathed. On the second occasion, after he had been placed in the tub with the water running, the attendant was called away and upon his return found the decedent badly scalded around the thighs, buttocks and groin. He was transferred back to a medical ward, treated for another two weeks and died.
There was also evidence that for several years before his death decedent had made progress against his earlier addiction problems. After hospitalizations at Skillman and elsewhere he went on a methadone maintenance program, and in May 1973 was hired by the City of Newark in the Sanitation Department. He was a satisfactory employee, but in January 1975 he was injured on the job and was out on disability thereafter. His annual salary at the time of the injury was $8,278.
He resided with his mother in a public housing project, but also stayed frequently at the home of a married sister in Newark. When working he had given his mother $25 to $35 a week, and after the accident it was said he contributed the same amount to her out of each disability check. He also helped with household chores and shopping errands.
A New York physician who had done special research on liver conditions in alcoholics and drug addicts testified for plaintiff and discussed the variable life expectancies of patients suffering from ...