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Arencibia v. Rosas

Decided: February 7, 1994.

LIZETTE ARENCIBIA, PLAINTIFF-APPELLANT,
v.
JULIAN ROSAS, HECTOR ROSAS, AND CATHERINE ULRICH, DEFENDANTS-RESPONDENTS



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

Shebell, Long and Landau, JJ. The opinion of the court was delivered by Shebell, P.J.A.D.

Shebell

Plaintiff, Lizette Arencibia, appeals from the Law Division's dismissal of her personal injury action on summary judgment based on the Judge's determination that plaintiff had failed to satisfy the verbal threshold of N.J.S.A. 39:6A-8. We reverse and remand.

On September 21, 1989, plaintiff was a passenger in an automobile owned by Hector Rosas and driven by her then boyfriend, now husband, defendant Julian Rosas, in North Bergen, when it struck the rear of an automobile, owned and operated by defendant, Catherine Ulrich, that was stopped at a red traffic light. On January 31, 1991, plaintiff filed a complaint alleging that she had sustained injuries because defendants, Julian Rosas and Catherine

Ulrich, negligently and carelessly operated their vehicles so as to cause them to collide.

The matter was submitted to arbitration on January 24, 1992. The arbitrator found Julian Rosas, 100% liable and defendant, Catherine Ulrich, 0% liable. Plaintiff's damages were found to be $17,500. Rosas, requested a trial de novo pursuant to R. 4:21A-6(b) and R. 4:21A-6(c).

On November 23, 1992, Rosas filed a notice of motion for summary judgment, in which defendant, Ulrich, joined. The Law Division Judge granted summary judgment in favor of defendants, stating:

The plaintiff in this case does not seem to have had any treatment for these injuries which were basically a sprain of the cervical and lumbar regions for the last three years. The -- if I'm correct, the latest medical was in 1990. Dr. Dasika, whose report is dated February 28, 1990, said further diagnostic and therapeutic recommendations are to be predicated on her further course.

The Court simply is not satisfied that this accident has had a significant impact on the life of this young lady. She had a sprain, she went to her chiropractor, she had a neurological consultation. But it simply seems to be the kind of case that is contemplated by the Legislature and by Oswin as a soft tissue case, which does not meet the verbal threshold. In addition, there is evidence on the defendant's side by Dr. Foddai that any injuries she had were resolved. Therefore, I am going to grant defendant's motion in this case.

Plaintiff, twenty-five years of age, maintains that as a result of the impact, her upper forehead hit the windshield and her hands must have hit the dashboard. She thinks the windshield cracked as a result of this impact. She was bleeding from the top of her head, but did not notice what other parts of her body were in pain because she was "too much in shock." She did not get out of the car at the scene of the accident.

After the police officers had obtained all necessary information, Rosas drove plaintiff directly to a hospital. Plaintiff was not treated at the hospital because she was kept waiting too long. Plaintiff went home and the next day visited a specialist in internal medicine. She complained of headaches and lower back pains and was advised to see other physicians. She went to her family

physician the next night. He performed a physical examination and advised her to see a chiropractor.

Plaintiff sought treatment from Dr. Jose Bravo, a forensic neurologist, on October 7, 1989. Dr. Bravo's medical report of that date detailed plaintiff's complaints of pain in her neck, shoulders, and lower back. He found limited range of motion in her neck and moderate to severe spasm of her thoracolumbar spine. He listed his diagnosis as:

1. Cerebral concussion and post concussional syndrome.

2. Hyperextension injury to the neck with resultant cervical sprain and cervical radiculopathy C5-C6 on the left.

3. Thoracolumbar sprain and resultant ...


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