Before Judges Brochin and Kleiner.
The opinion of the court was delivered by: Kleiner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
The opinion of the court was delivered by
This appeal raises two separate issues. First, we must determine when and under what circumstances an injured plaintiff may recover damages for "permanent disfigurement" under the New Jersey Tort Claims Act ("the Act"), N.J.S.A. 59:9-2(d). Second, we must determine whether the Law Division properly granted summary judgment to defendant Borough of River Edge on plaintiff Michael Oslacky's complaint *fn1 alleging "permanent loss of a bodily function" under the Act. Ibid.
On November 8, 1994, plaintiff, a thirty-six-year-old Oradell police officer, was engaged in a night-time handgun qualification exercise required by his employer. Plaintiff and other police officers seeking handgun qualifications were using the firing range of defendant Borough of River Edge. One of the other police officers fired a handgun. The discharged bullet apparently struck a target backdrop and a bullet fragment ricocheted, striking plaintiff in the head severing his left temporal artery. Plaintiff underwent emergency trauma surgery during which the temporal artery was tied. X-rays and CAT scans confirmed that the bullet fragment had lodged in and remained embedded in plaintiff's head within the connective muscle tissue of plaintiff's left temporomandibular joint ("TMJ").
Two weeks thereafter, on November 21, 1994, plaintiff, who complained of persistent headaches and jaw pain, consulted Dr. Michael B. Sisti, a neurosurgeon. Because of dangers inherent in the operative procedure to remove the bullet fragment, Dr. Sisti recommended that the bullet fragment remain, but suggested that plaintiff be observed to guard against bullet fragment migration, infection, or toxic lead side effects.
On November 20, 1995, plaintiff returned to Dr. Sisti. A report of that examination noted, in part:
"[The] shrapnel fragment is lodged above the left temporal bone within the temporalis muscle itself. Over the year that the patient has had the bullet fragment within his skull, he has had 3 to 4 episodes per week of tenderness and headache at the site of the shrapnel injury. He had to go up a hat size as even pressure from his police officer cap would irritate this area. He has also noticed exercise headaches in the left temporal area and he is no longer able to sleep on the left side of his head.
Undoubtedly, the headaches, tenderness and discomfort the patient has is related to the bullet fragment in the left temporalis muscle. As this appears to be getting progressively worse over time, and is altering the patient's lifestyle and physical activities, and due to the low risk of surgical removal of this fragment, I would recommend that if the patient wishes, the fragment be removed . . . ."
Based on Dr. Sisti's advice, plaintiff, on April 17, 1996, underwent a stereotactically guided left temporal minicraniotomy. Despite this surgery, plaintiff alleges that he continues to have the same symptoms he had prior to surgery, i.e., persistent headaches, persistent pain in his left jaw, an inability to wear a correct hat size, and an inability to sleep on the left side of his head. On a further evaluation conducted September 18, 1997, Dr. Sisti opined that plaintiff's "main symptoms pain and discomfort in the left temporal area are undoubtedly due to the trauma of the gunshot wound and the surgical procedure to remove it." (emphasis added).
Defendant's motion for summary judgment was predicated upon its contention that plaintiff was barred from recovering damages for pain and suffering due to the limitation embodied in N.J.S.A. 59:9-2(d). *fn2 In response, plaintiff's counsel filed a certification contending, in part, that plaintiff has the ...