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Natale v. Kisling

January 09, 2001

MARIE R. NATALE AND GREGORY NATALE, PLAINTIFFS-APPELLANTS,
v.
MICHELE H. KISLING AND GECAL DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Somerset County, L-1202-98.

Before Judges Newman and Wells.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued:November 27, 2000

Plaintiff, Marie Natale, suffered personal injury as the result of a rear end motor vehicle collision on July 9, 1998. In the lawsuit which followed defendant asserted that the action was barred by N.J.S.A. 39:6A-8, the verbal threshold statute and, after discovery was complete, filed a motion to dismiss on that ground. The motion judge granted the motion and dismissed the complaint. Upon careful consideration of the record and the applicable law, we reverse.

The record, which must be considered in a light most favorable to plaintiff, reveals the following facts. The car that rear-ended Natale was driven by defendant Michele Kisling, and owned by defendant GECAL. According to Natale's deposition testimony, she was thrown forward, her knees hit the driver's side door, and her chest hit the steering wheel. Although plaintiff told the police officer who arrived at the accident scene that her neck and knee were painful, she declined to go to the hospital, and instead drove herself and her children home.

Two days later, however, Natale visited her family physician, Dr. Anthony Frisoli, complaining of continuing pain in her neck and right knee. Dr. Frisoli noted that Natale had swelling and marks on her knee, for which he prescribed Naprosin. He sent her for x- rays of her neck, shoulder and knee, which revealed that the she had suffered no bone fractures as a result of the accident.

In February 1997, Natale was examined by Dr. Norman M. Heyman, an orthopedic surgeon. Dr. Heyman noted that Natale, as of February 1997, was still reporting pain in her head, neck, shoulder and right knee. He concluded that Natale was suffering from acute cervical strain and sprain, acute lumbosacral strain and sprain, contusion with overload to both shoulders, contusion with overload to both hands, contusion of the right knee, and an aggravation of her pre-existing hand arthritis. Dr. Heyman opined that these diagnoses were causally related to the accident of November 9, 1996, but noted that it was at that point too early to discuss whether plaintiff's disability was permanent. After a few office visits, Dr. Heyman did report that the physical therapy that he had prescribed appeared to be working fairly well, reducing the plaintiff's muscle spasm and increasing the range of motion in her neck.

Following the initiation of this lawsuit, however, Dr. Heyman again examined Natale. On September 26, 1999, he issued a report in which he stated that she still complained of persistent neck and back pain, and exhibited decreased range of motion and muscle holding in the back, and muscle holding, decreased range of motion, and spasm in the neck. Due to the fact that these symptoms persisted after three years, and despite rehabilitative therapy, the doctor concluded at that time that Natale's disability - which he once again attributed to the accident of November 9, 1996 - was probably permanent.

Natale's deposition testimony relates the manner in which her accident-related disability has impacted her life. According to her, she attended a gym three times a week as part of her rehabilitative regimen, using a treadmill and doing sit-ups and other exercises. Natale testified that she has pain in her neck, back and knees, and must take several Advil every day. She also asserted that she can no longer wash floors, vacuum, do laundry or do other household chores, and that her husband and children have to do these chores for her. She noted that she now is unable to go on trips in the car with her family to Canada, or to the shore, which she was previously able to do so. Natale also testified that she and her husband now only have sex once a month, when prior to the accident, they averaged once every other day. Natale also noted that she no longer works overtime at her job as a manual laborer.

According to her testimony, prior to the accident she would often work twenty-two hours of overtime per week, never once turning down the opportunity to take extra hours, but has not since the accident been physically able to do so.

The motion judge held that the proofs presented an issue of fact with respect to the first prong of Oswin v. Shaw, 129 N.J. 290 (1992). He held, however, that they were insufficient to raise such an issue on the second, or subjective prong. That is, there was little evidence of a serious impact on the plaintiff's life.

Plaintiff raises for our consideration four areas which she contends demonstrate such an impact: (1) the effect of the injury on her sex life; (2) the loss of her ability to work overtime; (3) the loss of her ability to do many household chores; and (4) her inability to take long automobile vacation trips.

Our case law treats loss of sexual activity in verbal threshold cases as being an important signifier of "serious impact" for Oswin purposes, especially when the loss of sexual activity is combined with loss of overtime or other economic loss. In Cineas v. Mammone, 270 N.J. Super. 200, 211 (App. Div. 1994), we found that an accident which decreased a plaintiff's ability to have sexual relations, when combined with loss of overtime and inability to perform household chores, had impacted the plaintiff's life sufficiently to overcome summary judgment under the Oswin test. Likewise, Cavanaugh v. Morris, 273 N.J. Super. 38, 41 ...


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