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Lesniak v. County of Bergen

Decided: September 21, 1989.


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


Plaintiffs brought suit to recover for personal injuries sustained by the infant plaintiff when a tree branch fell on him in a park maintained by the Bergen County Park Commission. The trial court refused plaintiffs' request to charge the jurors that in assessing damages that might be awarded the infant plaintiff, they could consider his loss of income-earning capacity. On plaintiffs' appeal to the Appellate Division challenging the adequacy of the verdict, that court, by a divided vote, upheld the trial court's ruling in respect of the requested jury charge. The Appellate Division ruled largely on the strength of Coll v. Sherry, 29 N.J. 166 (1959), in which this Court declared that

if the plaintiff introduces evidence showing there is a reasonable probability that his injuries will impair his future earning capacity, and sufficient factual matter upon which the quantum of diminishment can reasonably be determined, the jury may properly be instructed that it can consider this item in establishing damages. [ Id. at 176.]

The majority below concluded that plaintiffs' proofs were insufficient to warrant the requested instruction under the Coll two-pronged standard. Lesniak v. County of Bergen, 219 N.J. Super. 468, 475-77 (1987). Moreover, the majority was of the view that in the case of an infant plaintiff, satisfaction of the Coll standard requires expert testimony of a "medical, economic or employment nature." Id. at 476. The dissenter below favored a more relaxed standard than that set forth in Coll when the injured plaintiff is an infant.

Loss of earning capacity of an employed adult, considered in Coll, is susceptible to measurement by methods of projection more definite than can reasonably be applied in the case of an infant whose aptitudes, skills, capacity and inclinations have yet to meet worldly tests. [ Id. at 478 (Landau, J.A.D., dissenting).]

The dissenting member of the Appellate Division panel concluded that the trial court erred in refusing to charge as plaintiffs had requested, and that the error could not be viewed as

harmless because the failure to give the requested instruction could have materially affected the quantum of damages. Id. at 479. Because of the dissent below, plaintiffs' appeal is here as of right. R. 2:2-1(a)(2). We reverse.


Plaintiffs' complaint against defendant, County of Bergen, seeks damages under the Tort Claims Act, N.J.S.A. 59:1-1 to :12-3, for injuries sustained on September 21, 1980, by the infant plaintiff, Paul Lesniak, then age seven, in Dunkerhook Park, a County-maintained facility in Paramus. The infant's parents sue per quod. Reference henceforth in this opinion to "plaintiff" indicates the infant plaintiff, Paul. Plaintiff charges that the County was "palpably unreasonable" in its failure to guard against the reasonably foreseeable risk of the kind of injury he sustained when a limb fell from a tree and struck him.

Resolution of the issue on this appeal requires us to focus on the nature and extent of plaintiff's injuries. The tree limb, weighing about thirty pounds, fell nearly forty feet and crushed the left side of the infant's head while he was seated at a picnic table. Unconscious and bleeding, Paul was rushed to Valley Hospital in Ridgewood, where emergency surgery was performed that same day. In the emergency room, plaintiff's condition was considered to be a "neurosurgical emergency." X-ray photos revealed that the boy's skull was severely depressed and fractured on the left side. At the fracture points the skull bone had splintered, and bone was exposed through layers of the scalp. Shards of bone had been pushed three-quarters of an inch into the brain.

The hospital surgeon removed the bone fragments and evacuated an acute hematoma that had formed between the brain and skull. The surgeon also removed a quantity of damaged brain tissue from the left hemisphere, after which the skull was repaired and closed. Although the operation was successful, plaintiff's evidence at trial demonstrated that the accident and brain surgery left lasting impairment of Paul's mental and

motor functioning, and some psychological disability. Plaintiff argues that his proof on these residual defects warranted a specific jury charge on the loss of future-income-earning capacity.

Plaintiff's evidence dealing with the remedial defects was extensive and detailed. This opinion provides only a summary of the proof, to illustrate that his injuries left plaintiff with prolonged and lasting effects: permanent impairment of motor ability, permanent defect in mental or cognitive ability, and long-lasting psychological sequelae manifested by depression and emotional lability.

The accident's effects on plaintiff's motor ability were most prominently displayed in his lack of dexterity in the right hand and arm, his awkward gait, and his poor grip and deficiency in fine motor skills in using his right hand. These were accompanied by a shift from right-hand to left-hand dominance. Dr. Martin Diamond, who oversaw a course of physical and occupational therapy at Children's Specialized Hospital in Westfield, continued to monitor plaintiff's progress. He testified that throughout his evaluations his patient showed some improvement but displayed poor coordination and asymmetrical reflexes between his right and left sides, and often carried his arm and hand in a deformed, claw-shaped position.

Plaintiff also introduced the results of tests administered at the Columbia University Neurological Institute (Institute) two-and-one-half years after the accident. Dr. Rita Haggerty, a professor of psychology at the College of Physicians and Surgeons, testified that the testing

certainly suggests that certain technical areas will be difficult for him to do if he ever, if he ever has to do anything that involves manual dexterity or constructing things, he will be limited, be slower to do that.

In addition to the proof of loss of manual dexterity, plaintiff introduced evidence tending to show that the accident left him with permanent impairment of his mental functioning. At the Children's Specialized Hospital, an initial evaluation by the Speech & Hearing Department led to the conclusion that Paul

"presented a language disorder of auditory processing and word retrieval skills." Despite a six-week speech-therapy program at the Hospital that revealed progress, the discharge evaluation concluded that Paul was still behind his age level in activities calling for reasoning and judgment, and that his immediate auditory recall was poor. Although the results of standardized testing administered in all New Jersey public schools put plaintiff's performance in at least the average level, Dr. Haggerty and the Institute staff concluded that despite those indicia of normal intelligence, Paul suffered from deficits in memory, organization, and attention abilities. The fact that plaintiff performed reasonably well on standardized tests would not change her evaluation because those tests did not probe the same abilities. She commented:

They don't necessarily assess the skills that one needs in everyday life or that one's going to need for the future in terms of being able to * * * organize information, being able to speak bluntly, being able to express one's ideas * * *.

You know, information comes at you in a disorganized way. And, what you've got to do in your life and what he's going to have to do, is organize it. * * * And, that's the kind of things he can't do. And it's not the kind of thing that that test measures.

In Dr. Haggerty's opinion the lasting effects of the head injury were such that several years after the accident, plaintiff was "still showing a problem with retention," one that she considered "permanent":

[These] are going to be continuing problems in the future; * * * he had problems in copying and writing and * * * these signs suggest that he would continue to have difficulties in writing and expressing his ideas orally as well as motor difficulties.

Dr. Marion Blank, a developmental psychologist and professor in the Psychiatry Department of the Albert Einstein College of Medicine, also evaluated plaintiff's mental abilities, in January 1984. She too concluded that the boy had lasting cognitive difficulties. Although Dr. Blank did not express the view that Paul's residuals were permanent, she did recommend cognitive therapy for two to four years. She felt that plaintiff's

actual functioning * * * [is] probably worse than his testing functioning. Because if you just take out a single skill, it will show up all right. But when you are actually reading, for example, a text or a book you have to do everything all at once; you have got to be able to organize which page you were at; you've got to be able to mark when you finish it so you can go back to it; you've got to be able to comprehend it and go to a dictionary if you don't understand it.

Those are the kinds of things he would really start falling down on because any normal activity requires you to do everything all at once.

The final testimony on Paul's cognitive abilities came from Dr. Jeffrey Mandell, a psychologist who worked with plaintiff in weekly sessions from November 1983 to December 1984. He testified that plaintiff had great difficulty perceiving a problem and developing options to solve it, and that he planned poorly and could not follow a line of reasoning. Although the doctor noticed that plaintiff was making slow improvement, he stated, "I don't feel that he'll ever return to full function cognitively, no."

In addition to the foregoing proof of injury affecting plaintiff's motor and cognitive abilities there was evidence that the accident and resulting condition had left Paul depressed and psychologically scarred. Dr. Haggerty concluded that Paul suffered from clinical depression, which she characterized as a common catastrophic reaction in left-hemisphere brain-injury cases, and from low self-esteem due to his perception of the loss of functioning. Although Dr. Haggerty did not state that either the depression or the emotional lability was permanent, she urgently recommended that the boy undergo psychotherapy to help sustain him through his depression and restore his self-image. A course of therapy with Dr. Mandell, the psychologist, apparently produced some improvement, inasmuch as plaintiff became more open and his personality was less blunted by the end of their sessions.

To counter all the foregoing, defendant introduced evidence through expert testimony, school records, and testimony concerning plaintiff's family life. The thrust of that evidence was that ...

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