On certification to the Superior Court, Appellate Division.
The opinion of the Court was delivered by Pollock, J. Chief Justice Poritz and Justices Handler, O'hern, Garibaldi, Stein and Coleman join in Justice Pollock's opinion.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Bertha Brooks, et al. v. Willie Mae Odom, et al., 150 N.J. 395, 696 A.2d 619, (1996)
Argued April 28, 1997 -- Decided July 15, 1997
POLLOCK, J., writing for a unanimous Court.
There are two issues raised in this appeal; 1) what constitutes a "permanent loss of bodily function" under the New Jersey Tort Claims Act (the Act); and 2) whether Bertha Brooks may recover from Willie Mae Odom and New Jersey Transit Corporation (NJT) her co-payments and deductible amounts under her health insurance policy.
On November 18, 1991, as Bertha Brooks (plaintiff) was entering her parked car, an NJT bus driven by Willie Mae Odom struck the car door, knocking plaintiff into the car. Plaintiff was taken to the emergency room at Newark Beth Israel Hospital, where she complained of pain in her neck, back, and head. The hospital took x-rays, prescribed medication, fitted plaintiff with a cervical collar, and released her.
Plaintiff then saw Dr. Jack Siegel. After Dr. Siegel administered twelve heat treatments to plaintiff's back, she stopped seeing him because the treatments were not effective. In August 1992, plaintiff started treatment with Sall/Myers Associates. She complained of headaches, dizziness, blurred vision, pain and stiffness in her neck, upper and lower back, pain radiating in her left shoulder, and increased discomfort on a change of weather. She was diagnosed with residual post-traumatic myositis and fibromyositis of the cervicodorsal and lumbosacral region and post-traumatic headache syndrome. Myositis is the inflammation of muscle tissue. Fibromyositis is characterized by pain, tenderness, and stiffness of joints, capsules, and adjacent structures.
Dr. Myers treated plaintiff with physical therapy and a transcutaneous electrical nerve stimulation (TENS) unit, which applies mild electrical stimulation to an affected area. X-rays revealed marginal spurs in the upper lumbar vertebra area and disc space narrowing at C5-C6 and C6-C7, with reversal of curvature of the spine. Dr. Peter Crain, a neurologist and psychiatrist also diagnosed plaintiff as suffering from post-traumatic headaches.
Notwithstanding several months of therapy, plaintiff's neck and back pain continued. Dr. Myers discharge diagnosis was residuals of post-traumatic headaches, residuals of flexion/extension injury of the cervical, dorsal and lumbar spine with post-traumatic myositis and fibromyositis. He concluded that there was a direct causal relationship between plaintiff's condition and the accident. His objective findings were hardness, spasm, and tenderness with secondary scar formation. Dr. Myers concluded that plaintiff had sustained significant and permanent loss of function with chronic pain that was exacerbated by the usual activities of daily living. He further concluded that plaintiff's overall prognosis for significant improvement was poor.
After the accident, plaintiff missed eight days of work and stayed home for two weeks. She has since returned to work as a teachers' aide, but claims she cannot sit or stand for long without experiencing pain. She still suffers from headaches, dizziness, and severe lower back pain that radiates into her left leg. She also has difficulty performing household chores.
Plaintiff filed suit, seeking recovery for her pain and suffering. Her husband, John, asserts a claim for loss of his wife's services. On a motion for summary judgment filed by NJT and Odom (hereinafter defendants), the trial court dismissed plaintiff's complaint, holding that her injuries did not constitute a permanent loss of bodily function as required under the Act and that plaintiff could not recover her out-of-pocket medical expenses. The court reasoned that the Act imposes a stricter threshold than the verbal threshold in the No-fault Law and, therefore, plaintiff could not recover.
On appeal, the Appellate Division reversed, finding that evidence of muscle spasm, loss of spinal curvature, and marginal spurs constituted objective evidence of plaintiff's injury and that that objective evidence established that her injuries were permanent. The Appellate Division concluded that plaintiff could recover her deductible and co-payment amounts.
The Supreme Court granted defendants' petition for certification.
In order to recover for pain and suffering under the Tort Claims Act, a plaintiff must sustain a permanent loss of a bodily function that is substantial. Furthermore, Bertha Brooks cannot recover from Willie Mae Odom and New Jersey Transit Corporation her co-payments and deductible amounts under her health insurance policy.
1. When construing a statute, a court must give effect to the legislative intent. When the statutory language is ambiguous, a court must look to the legislative history, statutory purpose, and related legislation. In this case, the Court must ascertain the legislative intent of N.J.S.A. 59:9-2(d), which precludes recovery for pain and suffering, except in cases of permanent loss of a bodily function. (pp. 6-7)
2. The purpose of the Act was to reestablish the general rule of immunity of public entities from liability for injuries to others. Both the history and purpose of the Act suggest that the Legislature intended a strict interpretation of a public entity's exposure to liability. (pp. 7-9)
3. To recover under the Act for pain and suffering, a plaintiff must prove by objective medical evidence that the injury is permanent. Temporary injuries, no matter how problematic, are not recoverable. Furthermore, a plaintiff may not recover under the Act for mere subjective feelings of discomfort. (pp. 9-10)
4. In concluding that plaintiff suffered a permanent loss of bodily function under the Act, the Appellate Division relied on decisions interpreting the No-Fault Act. However, substantive standards in the two statutes differ. The No-fault Act manifests a legislative recognition that something less than "permanent loss of a use of a body organ, member, function or system" (category six) would satisfy the verbal threshold. Under the Tort Claims Act, however, the Legislature intended that a plaintiff sustain a permanent loss of the use of a bodily function that is substantial. (pp. 10-14)
5. Plaintiff experiences pain and the limitation of motion in her neck and back is permanent. Nonetheless, she can function in her work and as a homemaker. Therefore, because her loss is not substantial, plaintiff has not sustained a permanent loss of a bodily function within the meaning of the Act. (p. 14)
6. Under the No-Fault Act, a plaintiff may not recover from the defendant his or her out-of-pocket expenses for co-payments and deductibles under his or her Personal Injury Protection (PIP) coverage. The underlying policy of that limitation is to prevent the clogging of the court system with minor claims for reimbursement. That same consideration applies to suits against public entities under the Act. Given the general legislative intent to immunize public entities from liability, it would be contradictory to allow a plaintiff to recover against a public entity when he or she could not recover against a private party. (pp. 14-15)
Judgment of the Appellate Division is REVERSED and the judgment of the Law Division dismissing ...