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Hammer v. Township of Livingston

February 18, 1999

SUSAN HAMMER AND ALAN HAMMER, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF LIVINGSTON AND CRAIG D. DUFFORD, DEFENDANTS-RESPONDENTS.



Before Judges Muir, Jr., Eichen and Coburn.

The opinion of the court was delivered by: Eichen, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 8, 1998

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

In this New Jersey Tort Claims Act case, N.J.S.A. 59:1-1 to -12-3 (the Tort Claims Act), plaintiffs Susan Hammer and Alan Hammer *fn1 appeal from a dismissal of their complaint following a successful motion for summary judgment by defendants Township of Livingston and Craig D. Dufford, the Chief of the Livingston Fire Department. The motion Judge concluded that plaintiff had not demonstrated she sustained a "permanent loss of a bodily function" or a "permanent disfigurement" that is substantial under N.J.S.A. 59:9-2(d). We reverse.

The underlying relevant facts are not in dispute. On October 27, 1994, at approximately 8:00 a.m., plaintiff, then age sixty-four, was crossing West Northfield Road in Livingston on foot when she was struck by a red fire chief station wagon operated by Fire Chief Dufford. The vehicle hit plaintiff on the left side of her body, and she was thrown, landing on her right side. The collision was of sufficient force to cause substantial damage to the station wagon.

Plaintiff was taken to Morristown Memorial Hospital where she underwent immediate surgeries to repair a severe laceration of her left knee that had penetrated into the knee joint; a soft tissue laceration of the left elbow involving the olecranon bursa; a laceration of the iliotibial band, vastus lateralis muscle and suprapatellar bursa; and numerous facial lacerations, including a one-centimeter laceration near the tear duct of plaintiff's right eye, a 0.5-centimeter laceration over the bridge of her nose, and a laceration of the lower lip approximately three centimeters long. In addition, plaintiff sustained fractures of both nasal bones, a non-displaced fracture at the top of her left fibula, and an avulsion fracture of her left olecranon bone (i.e., elbow) requiring removal of the displaced bone fragment. Following the surgeries, plaintiff was hospitalized for eight days and discharged on November 4, 1994. *fn2

Dr. Robert J. D'Agostini, plaintiff's treating orthopedic surgeon, noted as early as three months after the accident that plaintiff had "regained full knee motion and ... had excellent lateral stability." On May 15, 1995, he opined in his final report that "[she] should have excellent elbow and knee function." On April 26, 1997, Dr. Alan Tillis, a second treating orthopedist, concurred in part, observing that "[plaintiff] probably has healed the lacerations to the left side of her body fairly well." Plaintiff's deposition, taken September 27, 1996, also reflects that she had no discomfort in her left elbow or left leg and that her left fibula had healed.

Nevertheless, plaintiff complains of pain on the right side of her body. Specifically, she says she has pain in her right shoulder, elbow and ankle. Plaintiff maintains that since the accident she cannot walk with or lift her grandchildren, she cannot swim anymore except for the breaststroke, and she can no longer dance or play tennis. Plaintiff also alleges that, as a result of the accident, she no longer has sexual relations with her husband and that she suffers from permanent post-traumatic stress disorder.

On January 5, 1995, Dr. D'Agostini examined plaintiff's right elbow and reported "no swelling, no tenderness" and "a full and painless range of motion and good strength," concluding that from his perspective, "nothing [was] wrong." In April 1996, Dr. Tillis diagnosed post-traumatic tendinitis in plaintiff's right shoulder and ankle. Both doctors noted full range of motion in plaintiff's right shoulder. In November 1994, Dr. D'Agostini observed plaintiff had "excellent motion and gait," while Dr. Tillis noted in April 1996 that plaintiff walked with a "moderately antalgic gait." *fn3 X-rays were negative as reflecting any objective basis for plaintiff's right-sided complaints.

Beginning in November 1994, plaintiff was examined and diagnosed by Dr. Charles D. Semel, a psychiatrist, as suffering from post-traumatic stress disorder with severe phobic elements. In June 1996, Dr. Semel reported that although the condition "ha[d] moderated," it appeared to be "chronic" and "partially disabling." Several months later, on October 23, 1996, he described plaintiff's post-traumatic stress disorder as "characterized by elements of anxiety and depression" and that her "current level of distress ... [fell] into the mild range." He noted that "[p]rogress [was] evident[, but a] full resolution ha[d] not been achieved." In his final report, on July 29, 1997, Dr. Semel opined that "[w]ithin reasonable medical probability, [plaintiff] will remain as she is[,] less than fully recovered." He concluded that "[t]his partial disability appears to be permanent and ongoing." His report makes no mention of plaintiff's claimed sexual dysfunction except to reiterate her complaints. The only other reference to this allegation in a doctor's report is Dr. D'Agostini's observation on January 5, 1995 that he perceived no reason why plaintiff should not resume sexual activities with her husband.

Professional-quality color photographs, allegedly taken in January 1998, reveal residual scarring and swelling including a scar on plaintiff's left leg, a small scar on plaintiff's elbow, swelling around her nose, *fn4 and some facial scarring. Specifically, the photographs show a thin diagonal scar extending from her right lower lip to her chin and a vertical scar extending from the corner of her right eye to her nose. The scar on her left leg appears to be at least fifteen centimeters long and runs the length of her knee cap, ending in an indentation near the bottom of the scar that is discolored and mottled. The scar on her elbow is shaped like an inverted "V." Dr. D'Agostini opined in his final report that "[plaintiff] will have a permanent disfiguring scar on her knee and a smaller but still permanent scar on her left elbow." In addition, the photographs reveal a scar on Mrs. Hammer's abdomen approximately two inches in length which resulted from the excision of a mass discovered after the accident. Mrs. Hammer's doctor concluded that the accident caused the mass to form.

Defendants moved for summary judgment, asserting that plaintiff's claim for pain and suffering did not meet the threshold established by the Tort Claims Act, particularly N.J.S.A. 59:9-2(d), to permit her to recover against a public entity or its employee. On February 6, 1998, the motion Judge rendered the following brief opinion from the bench:

After reviewing the moving papers, as well as the opposing papers and the arguments of counsel, this Court is of the view that -- first of all, that the scarring does not ...


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