Before Judges King, Lefelt and Carchman.
The opinion of the court was delivered by: Carchman, J.A.D.
On appeal from Superior Court of Jersey, Law Division, Morris County.
Defendant Denville Board of Education appeals from the trial court's grant of attorneys' fees pursuant to N.J.S.A. 59:9-5, to plaintiff Samantha Yakal-Kremski. Plaintiff, six at the time of the accident, fell and cut her knee while on the playground at her school. The laceration required eight stitches and left a scar on her knee. She subsequently filed an action against the school board under the Tort Claims Act, N.J.S.A. 59:9-1 to -7, seeking damages for her injuries. At trial, the jury found the school to be liable, but awarded only $1000 in damages. The trial judge entered judgment on liability, but set aside the damage award and ordered a new trial on damages. At the second trial, the jury awarded plaintiff $2000 in damages. The trial court subsequently granted plaintiff's motion for attorney's fees, awarding plaintiff $10,500 in fees and $491 in costs.
Defendant appeals and argues that the trial judge abused her discretion in awarding attorneys' fees, and particularly in awarding fees under N.J.S.A. 59:9-5, in an amount so clearly disproportionate to the amount of the verdict. We conclude that the trial judge did not engage in the balancing test required when imposing such fees and failed to consider the policy of such statute seeking to compensate plaintiff fully for her economic loss. We reject plaintiff's contention that this was a lawsuit of significant public importance that resulted in wholesale change to the playground. Accordingly, we reverse the judgment awarding such fees and, exercising original jurisdiction, R. 2:10-5, award counsel fees of $3000 and taxed costs and expert fees of $100.
These are the relevant facts. On May 7, 1993, plaintiff tripped and fell on the playground at the Riverview School in Denville. The accident occurred one week before plaintiff's seventh birthday. She was taken to the hospital where she received eight stitches to her lacerated knee. Plaintiff only missed school on the day of the accident and her ability to engage in gym class or other activities was limited for two weeks until her stitches were removed. Fortunately, she currently has no limitations on her ability to engage in physical activity.
Plaintiff's knee was scarred as a result of the fall. The scar has been described as about a half an inch below the lateral midline at its highest point and about an inch below the lateral midline at its lowest point. It is a tea cup handle shaped scar that is lower at each extreme and highest in the middle. It is noticeably white compared to the surrounding skin . . . .
In the summer, plaintiff experiences embarrassment because the scar does not tan as does the rest of her leg. As a result, plaintiff and her parents sought to have the scar, which is probably permanent, removed. The cost of such surgical removal was estimated to be between $8000 and $10,000.
Plaintiff, through her mother, filed a complaint against defendant seeking damages for the injuries plaintiff sustained in the fall on the playground. The matter was tried before a jury which found 1) defendant did not provide negligent supervision; 2) the playground area created a substantial risk of injury; 3) the dangerous condition of the playground was the proximate cause of the accident; 4) the dangerous condition of the playground created a foreseeable risk of injury; 5) defendant had constructive notice of the dangerous condition; 6) the conduct of defendant was palpably unreasonable; 7) that $1000 would fairly compensate plaintiff for her economic damages and future medical expenses; and 8) plaintiff did not suffer a permanent disfigurement. Plaintiff moved for judgment notwithstanding the verdict and for additur, or, alternatively, for a new trial on damages.
The trial judge ordered a new trial on damages and, thereafter, entered judgment for plaintiff on the issue of liability only. The second jury returned a verdict, finding that plaintiff was not permanently disfigured, that a reasonable person in her position would not seek surgical revision of her scar, and awarded plaintiff $2000 in damages for past and future injury and $1000 for damages for past and future pain and suffering. The trial judge entered judgment in favor of plaintiffs in the amount of $2000 setting aside the $1000 award for past and future pain and suffering, noting this amount was not recoverable pursuant to N.J.S.A. 59:9-2(d) (permitting recovery of damages for pain and suffering only where a plaintiff has suffered permanent injury or disfigurement).
Plaintiff filed a motion for judgment notwithstanding the verdict and for additur, or, alternatively, for a new trial on the issue of damages and/or attorneys' fees. The trial judge found that the jury verdict, while certainly low, did not shock the judicial conscience. She did, however, award to plaintiff's counsel $100 as an expert fee, $391 in costs, and $10,500 in attorneys' fees for sixty hours of work.
N.J.S.A. 59:9-5 vests a trial judge with discretion to award attorneys' fees to successful plaintiffs who sue under the Tort Claims Act. No recovery is permissible, however, if damages are awarded for pain and suffering. The statute states, in pertinent part:
In any action brought against a public entity or a public employee under this act, the court may, in its discretion, award a successful claimant (a) costs ordinarily allowable in the private sector (b) expert witness fees not exceeding a total of $100.00 and (c) reasonable attorney's fees; provided however that there shall be no ...