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Gerber v. Springfield Board of Education

February 03, 2000

JENNIFER P. GERBER, AN INFANT BY HER GUARDIAN AD LITEM, FRANCINE GERBER, AND RICHARD AND FRANCINE GERBER, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
V.
SPRINGFIELD BOARD OF EDUCATION, RUTH D. BRINEN, KENNETH FAIGENBAUM, RICHARD FALKIN, STEPHEN M. FISCHBEIN, ROBERT B. FISH, KEITH B. KURZNER, JACQUELINE P. SHANES, BENITO STRAVATO, GARY TISS, TOWNSHIP OF SPRINGFIELD, THE FLORENCE M. GAUDINEER SCHOOL, DAVID CHADWICK, KENNETH BERNABE, BETH GILARDI, LORI LUKE, AND DENNIS MCCARTHY, DEFENDANTS-RESPONDENTS,
AND
SONOCERRA HUNTER AND JOHN DOES, DEFENDANTS.



Before Judges Petrella, Braithwaite and Coburn.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 3, 2000

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

In this appeal we must determine whether the injuries suffered by plaintiff *fn1 Jennifer P. Gerber, a junior high school student, as a result of being attacked by her classmate, defendant Soncerra Hunter ("Hunter"), are sufficient to meet the threshold requirements for pain and suffering under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, and whether the individual members of the Springfield Board of Education are immune from suit in the present litigation. The motion judge concluded that plaintiff's injuries did not meet the requirements of N.J.S.A. 59:9-2(d) and granted summary judgment to defendants: Springfield Board of Education ("Board"); Florence M. Guardineer School ("School"); and School employees Kenneth Bernabe, Beth Giladi, Lori Luke, Dennis McCarthy, and David Chadwick ("Chadwick"). The motion judge also granted summary judgment to the individual Board members: defendants Ruth Brinen, Keith Faigenbaum, Richard Falkin, Steven Fischbern, Robert Fish, Keith Kurzner, Jacqueline Shanes, Benito Stravato and Gary Tish, based on the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11. We conclude that the motion judge erred in dismissing plaintiffs' claim for pain and suffering and therefore reverse. We affirm, however, the grant of summary judgment to the individual board members.

Because this matter arises on defendants' motions for summary judgment, "we assume the truth of plaintiff[s'] version of the facts, giving plaintiff[s] the benefit of all favorable inferences that version supports." Brooks v. Odom, 150 N.J. 395, 398 (1997) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)). Plaintiff attended the School in Springfield for approximately two years, from 1992 to September 16, 1994. During that time, plaintiff was subjected to various degrading and tormenting acts by her classmates. School officials were aware of these ongoing problems. Gary Friedland, the school superintendent, wrote to Francine and Richard Gerber, plaintiff's parents, in May 1994, in response to their grievances. His letter concerned plaintiff's general welfare and her safety in the School.

The situation worsened for plaintiff in the beginning of the 1994 school year. In her English class, she was verbally harassed and hit in the eye with a paper clip, which resulted in a corneal abrasion. Then, on September 16, 1994, plaintiff was attacked in the classroom by Hunter. After some horseplay in the hallway, plaintiff and Hunter entered English class. Hunter then went to plaintiff's desk, pulled her out of her chair and threw her against the wall. Hunter picked up plaintiff by her hair, repeatedly smashed her face into the chalkboard and punched her in the face and stomach. Chadwick, the English teacher, was apparently present in the classroom throughout the attack and made no attempt to assist plaintiff. Ultimately, the teacher from across the hall took plaintiff to the nurse's office, where, despite the fact that plaintiff was wounded and bleeding, the school nurse waited approximately half an hour to call plaintiff's mother.

Thereafter, plaintiff was taken to the emergency room at St. Barnabas Medical Center in Livingston, where she was diagnosed with possible nasal fractures. Plaintiff was treated by John Bonanno, M.D., beginning September 20, 1994.

Dr. Bonanno diagnosed plaintiff with:

a distorted nasal pyramid with the nasal dorsum deviated to the right. A fractured and depressed left nasal bone and out-fracture of the right nasal bone were present as was crepitus overlying the areas of the nasal bone fractures. Rhinoscopy revealed the nasal septum to be fractured in multiple places. A large mucosal tear was present in the cephalic portion of the right side of the septum which appeared to be healing satisfactorily. The turbinates were congested bilaterally, further adding to the nasal airway impairment. Evidence of recent bilateral epistaxis was also noted. Marked ecchymosis was present in the left lower eyelid and left cheek areas. Multiple contusions, abrasions, and areas ecchymosis were also noted in the occipital scalp, right shoulder and right trapezius area.

On September 20, 1994, plaintiff underwent surgery for a "closed reduction of nasal bone and septal fractures." Since the surgery, plaintiff has had difficulty breathing through the nose. She has also suffered with intermittent headaches, for which she takes prescribed medication. On October 25, 1994, plaintiff saw Dr. Bonanno and complained of difficulty breathing through the nose. Dr. Bonanno observed a shifting of the nasal septum to the right. On December 27, 1994, Dr. Bonanno observed a further shifting to the right, and told plaintiff that further surgery may be necessary. Dr. Bonanno again discussed the possibility of corrective surgery with plaintiff on March 28, 1996, but cautioned that "[d]ue to the nature of the nasal injury, however, scarring would always be present and although the airway could be improved, there was no possibility of obtaining a completely normal airway."

Dr. Bonanno recommended reconstructive surgery, but stated:

Her injuries are permanent. In time her symptomatology will most likely become worse. She may develop increased airway impairment, nasal dryness and epitaxis. The patient's headaches may also increase in both frequency and intensity, the end point of which may be chronic rhinitis and sinusitis. If this occurs it will require more intense medical treatment and possibly sinus surgery. Also, if the intra-nasal scarring and dryness eventually cause a septal perforation, a collapse of the nasal dorsum may follow which may cause a significant cosmetic deformity in this female patient, further reducing her quality of life.

Plaintiff was evaluated by several other doctors. Walter Molofsky, M.D., an associate professor of neuroscience and pediatrics at UMDNJ *fn2 , observed that plaintiff had "a slight indentation on the occiput measuring about 2X2 cm long which was tender to palpation." He also noted that she has a "combination of post concussive dysthetic feeling as well as some migraine headaches." David J. Gallina, M.D., a neuropsychiatrist, diagnosed plaintiff with post-traumatic stress disorder, manifested by sleep difficulties, recurrent dreams of assault, depression, anxiety, and loss of interest in normal activities, stemming from the attack and the events surrounding the attack. Nazar H. Haidiri, M.D., a neuropsychiatrist, diagnosed ...


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