The opinion of the court was delivered by: Menza
This opinion is an elaboration of one rendered by the court at the trial of this matter.
This case involves the novel question of whether a particularly horrid incident resulting in a permanent psychological injury, without physical injury, is enough to satisfy the verbal threshold requirement of the Tort Claims Act. (N.J.S.A. 59:9-2(d)).
Plaintiff was raped by a Corrections Officer while an inmate in the Union County Jail and has brought suit against the County of Union and other County employees alleging that their negligence contributed to the incident. The plaintiff contends that as a result of the occurrence, he suffers a post-traumatic stress disorder for which he has received treatment from a licensed psychologist and which the doctor has concluded is permanent. The symptoms which form the basis for the diagnosis are set forth in the doctor's report:
Mr. Collins first came to our office on 10/17/91 presenting difficulties with anxiety and stress. These difficulties seemed to be related to being raped while incarcerated at the Union County facility by a Corrections Officer. Mr. Collins was experiencing recurrent flashbacks to the incident, usually waking up in the middle of the night with profuse sweating, palpitations and an overall sense of fear. According to this patient, his social life has been seriously restricted. At the time of interview, he claimed that he has been staying home baby sitting for his sister, and watching television.
Defendants moved at trial to dismiss the plaintiff's claim contending that plaintiff has failed to meet the verbal threshold of the Tort Claims Act.
The pertinent provision of that Act (N.J.S.A. 59:9-2(d)) provides:
No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery for 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 one $1,000.00.
The 1972 Task Force Comment to the statute states:
The limitation on the recovery of damages in subparagraph (d) reflects the policy judgment that in view of the economic burdens presently facing public entities a claimant should not be reimbursed for non-objective types of damages, such as pain and suffering, except in aggravating circumstances - cases involving permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $1,000.00. The limitation that pain and suffering may only be awarded when medical expenses exceed $1,000.00 insures that such damages will not be awarded unless the loss is substantial.
Case law which has interpreted the statute makes it clear that injuries involving emotional distress are non-objective types of damages, constituting pain and suffering, and thus noncompensable under the Act.
In Ayers v. Jackson Tp. 106 N.J. 557, 525 A.2d 287 (1987), the court denied damages to the plaintiffs for emotional distress resulting from possible exposure to toxic materials. In doing so, the Court stated:
the subjective symptoms such as depression, fear and anxiety ...constitute "pain and suffering" for the ...