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Thorpe v. Cohen

Decided: July 22, 1992.

JAY THORPE AND KIM THORPE, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
PATROLMAN HARVEY COHEN, INDIVIDUALLY AND AS A POLICE OFFICER OF HOWELL TOWNSHIP POLICE DEPT., HOWELL POLICE DEPARTMENT, HARVEY MORRELL, CHIEF OF HOWELL TOWNSHIP POLICE DEPARTMENT, JOHN DOE, PATROLMAN COHEN'S IMMEDIATE SUPERVISOR, HOWELL TOWNSHIP, A MUNICIPALITY OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

Stern and Keefe. The opinion of the court was delivered by Stern, J.A.D.

Stern

The opinion of the court was delivered by

STERN, J.A.D.

Plaintiffs appeal from the grant of summary judgment on May 17, 1991, in favor of defendants, a police officer, police chief, municipal police department and municipality. The complaint was dismissed because of plaintiffs' failure to meet "the threshold" requirement of N.J.S.A. 59:9-2(d) which provides:

No damages shall be awarded against a public entity or public employee for pain and suffering resulting from an injury; provided, however, that this limitation on recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $1,000.00.

Plaintiffs contend that Jay Thorpe's medical expenses for the "permanent loss of a bodily function" exceed $1,000;*fn1 that even if the injury did not constitute "a permanent loss of a bodily function," the preclusion embodied in N.J.S.A. 59:9-2(d) relates only to recovery for "pain and suffering," and that "the preclusion of N.J.S.A. 59:9-2(d) does not bar Jay Thorpe from recovering an award for his permanent injuries even if it bars an award for pain and suffering."

It was uncontested, for purposes of the motion for summary judgment, that the treating physician, Dr. Munir Ahmed, reported that plaintiff Jay Thorpe suffered a "chronic lumbosacral sprain" and "approximately 15% permanent disability." Doctor Ahmed's bill totalled $340.00 for visits and a "molded" corset over a period of time from February 1987 through May 1987 and then for one more visit in October 1989. There was also a bill for physical therapy of $820.00. Therefore, the bills for medical expenses aggregated more than $1,000 for "medical treatment expenses." The issue before us, therefore, is whether plaintiff has presented a sufficient showing of "permanent loss of a bodily function" to survive the motion for summary judgment.

For purposes of the summary judgment motion, we must accept that plaintiff was pulled out of a car, and assaulted with a gun and excessive force by Police Officer Cohen incident to a motor vehicle stop. For purposes of the motion, we must also assume culpability and proximate cause. Dr. Ahmed's report, on which plaintiff relies, states:

Mr. Thorpe reported difficulty with performing "basic" tasks such as lifting his child and skiing because they hurt his lower back.

Clinical examination, however, reveals straight leg raising test to be negative. No motor sensory deficit was elicited. There did not appear to be any evidence of disc herniation or of any other severe problems. Other systemic review was unremarkable and non-contributory.

It is my opinion that Mr. Thorpe is left with a Chronic Lumbosacral Sprain. There is nothing further orthopedically to be done for that. He has a probably 15% permanent disability with regard to the lower back. This disability is functional and he is discharged from further care to come back ...


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