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Ponte v. Overeem

February 26, 2001

ROBERT PONTE AND PRISCILLA PONTE, PLAINTIFFS-APPELLANTS,
v.
RICHARD OVEREEM AND NEW JERSEY TRANSIT, INC., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, HUD-L-0267-97.

Before Judges Pressler, Ciancia and Alley.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 6, 2001

On March 8, 1995, Richard M. Overeem, a New Jersey Transit bus operator, was driving New Jersey Transit bus #6329 westbound on Route 495 on the helix leading up from the Lincoln Tunnel, traveling in the far right lane. It was dark and raining. Somewhere ahead of the bus in the dark was Robert Ponte's car, immobilized in the far right-hand lane due to an electrical malfunction. For motorists who have traveled the same route, this scenario may create an apprehension of impending doom equal to a ticking suitcase in a Hitchcock thriller.

The seemingly inevitable occurred. The bus driven by Overeem came upon the scene and rammed the rear of the vehicle occupied by Ponte. The aftermath fortunately was not a fatality, but plaintiff's right knee hit the dashboard from the impact, and he claims that permanent and substantial harm resulted.

In a complaint dated January 22, 1997, Robert Ponte and his wife, Priscilla Ponte, filed an action to recover for injuries that Robert Ponte sustained in the accident. Defendants, Richard Overeem and New Jersey Transit, filed a motion for summary judgment, asserting that plaintiff had failed to satisfy the verbal threshold provision of the Tort Claims Act, N.J.S.A. 59:9- 2(d). By order dated February 4, 2000, the motion court granted an order for summary judgment in favor of defendants, from which plaintiffs now appeal.

Plaintiffs assert that the Law Division erred in granting defendants' motion for summary judgment because, based on the New Jersey Torts Claims Act, Ponte's injuries were substantial.

On appeal, we apply the same standard as the trial court in determining whether the grant or denial of a summary judgment motion was correct. See Kopin v. Orange Products, Inc., 297 N.J. Super. 353, 366 (App. Div.), certif. denied, 149 N.J. 409 (1997); Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affida vits, if any, show that there is no genuine issue as to any mate rial fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill v. Guardian Life Insurance Company of America, 142 N.J. 520, 528-29 (1995).

In determining whether there is a genuine issue of material fact for summary judgment purposes, the court must ascertain "what reasonable conclusions a rational jury can draw from the evidence," a test that is similar to the one used to resolve a motion for involuntary dismissal under R. 4:37-2(b). See id. at 535. A motion for involuntary dismissal requires the court to determine "if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." Ibid. (quoting R. 4:37-2(b)). To make the determination, the judge must accept as true all evidence that supports the position of the party defending against the motion and accord him or her the benefit of all legitimate inferences which can be deduced therefrom. Ibid. If reasonable minds could differ, the motion must be denied. Ibid.

The "essence of the inquiry" is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). The Brill Court explained the process:

Of course, there is in this process a kind of weighing that involves a type of evaluation, analysis and sifting of evidential materials. This process, however, is not the same kind of weighing that a factfinder (judge or jury) engages in when assessing the preponderance or credibility of evidence. On a motion for summary judgment the court must grant all the favorable inferences to the non-movant. But the ultimate factfinder may pick and choose inferences from the evidence to the extent that "a miscarriage of justice under the law" is not created. [142 N.J. at 536]

In 1972, the Legislature enacted the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3. The purpose of the Act was to re-establish the immunity of public entities while relieving some of the harsh results of the doctrine. See N.J.S.A. 59:1-2. The substance of the Act provides immunity for public entities with liability as the exception. Collins v. Union County Jail, 150 N.J. 407 (1997). Even where liability is present, the Act sets forth limitations on recovery. One limitation of recovery is on pain and suffering damages:

No damages shall be awarded against a public entity or public employee for pain and suffering resulting from an 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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