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Gilhooley v. County Of Union

July 11, 2000

CATHERINE P. GILHOOLEY, PLAINTIFF-APPELLANT,
v.
COUNTY OF UNION AND UNION COUNTY SHERIFF'S DEPARTMENT, DEFENDANTS-RESPONDENTS, AND JOHN DOES 1-4 (SAID NAMES BEING FICTITIOUS AND UNKNOWN), DEFENDANTS.



The opinion of the court was delivered by: Long, J.

Argued May 1, 2000

On certification to the Superior Court, Appellate Division.

Once again we are faced with the issue of whether a particular injury constitutes the "permanent loss of a bodily function" within the meaning of the Tort Claims Act, N.J.S.A. 59:l-l to 59:12-3, so as to justify the award of pain and suffering damages under N.J.S.A. 59:9- 2(d).

I.

In 1994, plaintiff, Catherine Gilhooley, was employed as a clinical social worker for the United States Department of Veterans Affairs("VA"). In that capacity, Mrs. Gilhooley was responsible for supervising the VA's methadone maintenance clinic in Newark. As part of her responsibilities, Mrs. Gilhooley accompanied nurses who administered methadone to incarcerated veterans.

On December 31, 1994, Mrs. Gilhooley accompanied a VA nurse to the Union County Jail to administer methadone. Upon completion of the visit, Mrs. Gilhooley stepped off the elevator into the entrance lobby of the building where a maintenance worker was cleaning the floor. Because the floor was wet with soap, a sheriff's officer standing nearby assisted Mrs. Gilhooley across the floor. Mrs. Gilhooley exited the building and proceeded down an inclined cement ramp where she slipped and fell forward, injuring her right knee and nose. Mrs. Gilhooley claims that her fall was caused by the soapy residue that had accumulated on the bottom of her shoes after walking through the lobby of the jail.

After her fall, Mrs. Gilhooley was transported by ambulance to St. Elizabeth's Hospital in Elizabeth where doctors diagnosed her with a fractured nose and fractured right patella. The following day, Mrs. Gilhooley was examined by Kevin J. Egan, M.D., an orthopaedic surgeon. Dr. Egan determined that Mrs. Gilhooley's knee fracture resulted in the disruption of the extensor mechanism leaving her with a complete loss of quadriceps power.

As explained in a letter from Dr. Egan, the loss of quadriceps power is "a very disabling injury prohibiting stair climbing, chair ascent and descent as well as any form of efficient walking." Accordingly, Dr. Egan advised Mrs. Gilhooley that her patella required restructuring through a surgical procedure known as an open reduction internal fixation. That surgery required Dr. Egan to insert into Mrs. Gilhooley's patella two K-wires, or "pins," and a single "AO tension band wire." Those fixation devices were necessary to "re-establish the integrity" of Mrs. Gilhooley's patella.

Mrs. Gilhooley recovered in the hospital for five days and wore a cast that extended from the top of her thigh to her ankle for three weeks. After the surgical cast was removed, Mrs. Gilhooley wore a "long-leg rehab brace" for an additional two-and-a-half months. Mrs. Gilhooley remained out of work until April 2, 1995.

After recovering from the surgery, Mrs. Gilhooley was left with a scar that measures approximately four to five inches long and extends in a linear fashion over the forward portion of her knee from the bottom of her thigh down to just below the kneecap. Since the accident, Mrs. Gilhooley has returned to work in her full capacity; however, she experiences constant stiffness and pain in her knee. The injury to Mrs. Gilhooley's nose did not require any form of surgery or treatment, although she complains of nasal drip.

On December 23, 1996, Mrs. Gilhooley filed a complaint alleging negligence on the part of the County of Union and the Union County Sheriff's Department (collectively, "defendants"). Defendants filed a motion for summary judgment, asserting that Mrs. Gilhooley's injuries did not meet the threshold required by the Tort Claims Act ("Act") pursuant to N.J.S.A. 59:9-2(d), which prohibits recovery of pain and suffering damages unless the injured party can demonstrate either permanent loss of a bodily function, permanent disfigurement, or dismemberment.

Following oral argument, the trial court granted summary judgment in favor of defendants. The record reveals, however, that that determination was not based on Mrs. Gilhooley's claim that the injury to her knee constituted a permanent loss of a bodily function. Indeed, although both parties briefed the issue, neither argued it and the trial court failed to address that component of Mrs. Gilhooley's claim. In granting summary judgment, the trial court relied on the standard enunciated in Falcone v. Branker, 135 N.J. Super. 137, 152 (Law Div. 1975), and determined that Mrs. Gilhooley's scar did not constitute a permanent disfigurement.

In an unpublished opinion, the Appellate Division affirmed the trial court's grant of summary judgment in favor of defendants. Although the trial court had omitted consideration of Mrs. Gilhooley's claim that her knee injury constituted the permanent loss of a bodily function, the Appellate Division determined that the objective medical evidence presented in the record did not support such a claim. Rather, the Appellate Division determined that Mrs. Gilhooley suffered only a temporary loss of bodily function, evidenced by the fact that she was fully capable of returning to work, sought no further treatment for either injury, and takes no medication for her condition. Finally, the Appellate Division affirmed the trial court's determination that Mrs. Gilhooley's scar did not constitute a permanent disfigurement under N.J.S.A. 59:9-2(d).

We granted Mrs. Gilhooley's petition for certification. 163 N.J. 11 (2000).

II.

In 1972, in response to the judicial abrogation of sovereign immunity in Willis v. Department of Cons. & Econ. Dev., 55 N.J. 534, 540 (1970), the Legislature adopted the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3. The overall purpose of the Act was to re-establish the immunity of public entities while coherently ameliorating the harsh results of the doctrine. N.J.S.A. 59:1-2. The theme of the Act is immunity for public entities with liability as the exception. Collins v. Union County Jail, 150 N.J. 407, 413 (1997). Even where liability is present, the Act sets forth limitations on recovery. One is the limitation on the recovery of pain and suffering damages:

No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment ...


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