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Rivera v. Gerner

Decided: May 26, 1982.


On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Pashman, Schreiber, Handler, Pollock and O'Hern. For affirmance -- None. The opinion of the Court was delivered by O'Hern, J.


This case arises from a personal injury suit by an infant pedestrian against a school bus operator and another motorist. The first question in this appeal is whether the trial court acted improperly by raising for the first time after summation the issue of the statutory limitation of damages for pain and suffering against the public entity under N.J.S.A. 59:9-2(d). The second question is whether the trial court properly instructed the jury on this issue.

On November 12, 1976, the seven year old plaintiff, Fernandito Rivera, was severely injured by the defendant Gerner's automobile as Fernandito tried to walk across the street to his home after alighting from the Morris District's school bus driven by defendant Marinaro. Plaintiff was in a special education class (only because of his unfamiliarity with the English language). His school bus was a blue van without the familiar yellow color, red and amber flashers or school bus markings. After stopping at a T intersection, the van driver signaled Fernandito to cross the throat of the T. Marinaro put his blinkers on, and as Fernandito reached the road's center, the van started to turn right. Gerner was overtaking the van as it turned right when

Fernandito suddenly veered left and crossed into Gerner's path. The plaintiff was struck and thrown, suffering multiple injuries including a comminuted (3 pieces) angulated (bowed) fracture of the shaft of the right thigh bone, a laceration of the forehead, a laceration of the left big toe with the nail torn off, a laceration atop the left foot with torn tendons, and displaced and angulated fractures of the lower leg bones just above the ankle joint. He was confined to a hospital for almost three months. Before being released he had to be retrained to walk and could do so only with crutches. Over the months and years before trial, a shortening of the right leg, measured by x-ray, gradually lessened from 3/4" to 1/4". During the period of treatment, Fernandito had a noticeable limp and used a lift in his right shoe for equalization. As of his last doctor's visit prior to trial in 1978, the physician concluded that the angulation in the left leg was slight and was not expected to pose a functional problem, and that the leg length discrepancy eventually would be insignificant.

Plaintiff sued the two drivers, Gerner and Marinaro, and the latter's employer, the Morris School District Board of Education. Marinaro and the School District filed answers asserting as affirmative defenses that: 1) the plaintiff was guilty of contributory negligence, 2) any damages allegedly sustained by the plaintiff resulted from the negligence of parties over whom the defendants maintained no control, and 3) the claim was barred by the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 et seq.

At trial, both court and counsel addressed numerous legal issues, including the application of various Department of Education and Division of Motor Vehicles regulations, dealing with school bus signals, as well as certain sections of the TCA, N.J.S.A. 59:2-3(a) (d) (discretionary activities) and N.J.S.A. 59:4-6 (plan or design immunity). At no time before the charge to the jury, however, did the court or counsel ever discuss N.J.S.A. 59:9-2(d), prohibiting the award of pain and suffering damages against a public entity or public employee unless the

case involves "permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $1,000.00."

During the trial, plaintiff's physician testified that there would be no permanent effect from the toe injury, that the facial laceration had healed, that the plaintiff's overall prognosis was good, and that the discrepancy in leg length would eventually diminish to a point where it would be insignificant. Presumably in view of that testimony, neither defendant produced further medical testimony.

After summation, the trial court, for the first time, raised with counsel the issue of directing a special interrogatory to ask the jury specifically: "Did any of the plaintiff's injuries result in permanent loss of a bodily function?" Plaintiff's counsel objected strenuously on the ground that there was no issue of permanency in the case in view of the undisputed evidence of a facial scar and the permanent leg shortening. The court responded that the jury had not been shown the facial scar and reasonable minds could differ on the issue of permanent loss of bodily function. The judge expressed the desire to make sure that "we have covered all of the possibilities." Gerner's counsel did not object to the proposed interrogatory. The court submitted to the jury a set of special interrogatories covering ten points including specific inquiries as to "permanent loss of a bodily function" and the award for pain and suffering.

The jury found Gerner 15% negligent, Marinaro 10% negligent, the Board 75% negligent and the child 0% negligent. Total damages were found to be $50,000, with $30,000 of that amount attributed to pain and suffering. The panel found that none of the child's injuries resulted in the permanent loss of a bodily function.

The trial judge then molded the verdict, excluding the amount attributed to pain and suffering from the judgment against Marinaro and the Board. Because the municipality was immune from the pain ...

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