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Kahrar v. Borough of Wallington

February 27, 2002

SHARON KAHRAR AND BERNARD KAHRAR, PLAINTIFFS-APPELLANTS,
v.
BOROUGH OF WALLINGTON, DEFENDANT-RESPONDENT.



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

DISSENTING OPINION BY Justice Verniero

Argued September 25, 2001

On certification to the Superior Court, Appellate Division.

The issue on appeal is whether plaintiff, Sharon Kahrar, has satisfied the threshold for awarding pain and suffering damages under the Tort Claims Act, N.J.S.A. 59:9-2d, based on a torn rotator cuff that was surgically repaired. The Appellate Division affirmed the dismissal of plaintiff's cause of action, concluding that plaintiff's shoulder injury did not constitute a "permanent loss of a bodily function" that was "substantial," the standard adopted by this Court in Brooks v. Odom, 150 N.J. 395, 406 (1997). We hold that on the facts in this record the shoulder injury satisfies the statutory threshold requirement.

I.

On June 28, 1997 at approximately 12:00 p.m., plaintiff, then 51-years-old, drove to a market in Wallington, New Jersey. Before entering the market, plaintiff decided to throw out some trash from her vehicle into a trash receptacle located across the street. Holding the trash in front of her body with both hands, plaintiff proceeded across the street without using the designated crosswalk. As she walked across the street, her right foot entered a hole in the middle of the street, causing her to fall forward on her hands and knees.

Plaintiff's foot had entered an opening seven-and-a half inches in diameter in a water valve-box area that was located two inches below the pavement's surface. Ideally, that type of valve box would be covered with a lid that sits on the valve's rim so as to be even with the pavement above. However, in this instance, the lid cover fit improperly.

Following her fall, plaintiff noticed that she had cuts and bruises on her hands and left knee. Despite her injuries, plaintiff managed to crawl over to the side of the road. After declining the assistance of a passerby and sitting on the side of the road for a few minutes, plaintiff again gathered her trash, threw it into the receptacle and proceeded to the market as planned.

Plaintiff later informed the police of the condition in the road. When plaintiff arrived home, her daughter applied ice to her right ankle. Plaintiff's left shoulder, knee and the palms of her hands were painful. During the day her ankle swelled, her left shoulder stiffened, and she experienced increased pain in that shoulder. However, plaintiff did not seek professional medical attention until the following morning when her husband drove her to a hospital emergency room and X-rays revealed a broken elbow and right ankle. Hospital personnel placed an ace bandage on her ankle and told her to schedule a follow-up visit with the emergency room physician, Dr. Eugene Coyle.

Plaintiff was examined by Dr. Coyle within a week of the accident. She met with Dr. Coyle on a weekly basis and also received physical therapy three times a week. However, after three weeks of treatment plaintiff was still in pain. Dr. Coyle recommended that she see an orthopedist.

Plaintiff was seen by Dr. Gary Savatsky, an orthopedist, in July 1997. Dr. Savatsky took an MRI that revealed a massive tear of plaintiff's rotator cuff. Dr. Savatsky performed surgery in August 1997 to repair the torn rotator cuff. The operative record revealed that plaintiff

had a massive tear of the cuff with entire retraction of the proximal 90% of the supraspinatus[,] [one of the muscles that make up the rotator cuff]. Roughly two-thirds of the [top of the ball portion of the shoulder] was exposed. Only the posterior aspect of the supraspinatus remained intact. There was also delamination into the tendon itself which was thickened and inflamed. . . .

The cuff tear was deemed too large to repair adequately with an arthroscopic assisted technique. Therefore, a traditional Neer skin incision was made from the coracoid to the anterolateral acromion. The skin and subcutaneous tissues were divided down. The deltoid was taken from the anterior acromion and then split distally for 3 cm. The coracoacromial ligament was divided. A formal Neer acromioplasty [surgical removal of the anterior portion of the acromion] was performed with the above noted findings.

Consistent with the operative record, plaintiff characterized the surgical intervention as one in which "the surgeon removed a portion of the bone in her shoulder and reattached the severed tendon to the shoulder. This procedure shortened the length of the tendon which reduced the function of the patient's arm movement."

Within three weeks of surgery, Dr. Savatsky noted that plaintiff was improving. Approximately two months after surgery, Dr. Savatsky observed that plaintiff's incision was well-healed and that there was no swelling in the shoulder, although she still had pain and achiness.

However, three months after surgery Dr. Savatsky also observed that she could rotate her shoulder only twenty-five degrees, and subsequent post-operative reports described significant limitation in the movement of plaintiff's left arm.

Thus, Dr. Savatsky's last and next-to-last reports--rendered 150 and 227 days after surgery--describes her forward flexion (raising of the arm forward and upward) as measuring 120 degrees, compared with 170 degrees for the right arm. Similarly, external rotation with the arm abducted (moving the arm horizontally with the elbow at the side, extending the hand sideways) measured forty-five degrees, compared with eighty degrees for the right arm. Finally, her ability to extend her arm behind her back was compromised because she was able to reach only the second of the five lumbar vertebra (lower back) with her left hand, but could extend her right arm higher to reach the eighth of the twelve thoracic vertebra (mid back).

Defendant's expert's observations also confirm the plaintiff's surgeon's post-operative reports that plaintiff's loss of motion in her left arm is medically significant. The defense's expert, Dr. Lawrence Livingston, examined plaintiff in July 1998, approximately one year after surgery. Dr. Livingston noted that

[t]here is only 90 degrees of abduction, 100 degrees of forward flexion as compared to 180 degrees of abduction and forward flexion of the opposite shoulder. There is approximately 45 degrees of external rotation of the left shoulder, 90 degrees of the right. Internal rotation is present to the belt line on the left side and present to the mid thoracic spine on the right side with about 6" loss of internal rotation, terminal position. There is mild weakness to the external rotation and abduction of the left shoulder. There is negative drop test. The biceps and triceps are normal. The deltoid was slightly atrophied but sensory was intact. The supra- and infrascapula fossae were non tender.

Significantly, Dr. Livingston noted that plaintiff had approximately forty percent loss of full motion in her left shoulder. Accordingly, both examining physicians agreed that plaintiff had sustained substantial motion loss in her left arm that apparently was attributable to weakness in the reattached tendon.

After surgery, plaintiff began a course of physical therapy that continued for about nine months. By the time she returned to her employment, she had missed approximately 100 days of work. Plaintiff sustained approximately $6,225 in lost wages and approximately $25,000 in medical bills.

Plaintiff returned to work as a secretary almost two months after her surgery and was noted to be performing her full duties without restrictions. Plaintiff's employment as a secretary includes typing on the computer and answering incoming telephone calls for a work force of twenty-two employees. She indicates that it takes her longer to perform her normal responsibilities and that she often requires the assistance of others to complete some of her duties.

Plaintiff, who is left hand dominant, indicates that she has had to compensate for the weakness and loss of mobility in her injured arm by using her right arm more, which often causes the right shoulder to swell. She especially experiences difficulty when performing normal household tasks, requiring her husband's or her children's assistance to clean, vacuum or move furniture. In addition to the difficulty in performing normal household tasks, plaintiff also states that she has difficulty driving, sleeping through the night without pain, reaching certain areas of her body and continuing her hobbies that include woodworking and furniture stripping.

Plaintiff and her husband filed suit under the Tort Claims Act, N.J.S.A. 59:1-1 to -12-3, alleging that defendant was negligent in failing to repair and keep in good condition the surface of the roadway and failing to give any warning of the allegedly dangerous condition. Defendant filed a motion for summary judgment, claiming that plaintiff's injuries did not satisfy the threshold requirement of "permanent loss of a bodily function" set forth in N.J.S.A. 59:9-2d, and that the condition in the roadway was not a "dangerous condition," pursuant to N.J.S.A. 59:4-2.

The trial court granted summary judgment for defendant on both grounds. The trial court observed that our decision in Brooks required, as a predicate to recovery for pain and suffering, an injury that prevents a plaintiff from performing any or most of the tasks performed at work and at home prior to the injury. The Appellate Division disagreed with the trial court's determination on the issue of whether the recessed valve box was a dangerous condition, but affirmed the trial court's determination that plaintiff's injury was not permanent. We granted plaintiff's petition for certification to consider whether plaintiff's shoulder injury constitutes a "permanent loss of a bodily function" that satisfies the Tort Claims Act's threshold requirement. 167 N.J. 89 (2001).

II.

In Willis v. Department of Conservation & Economic Development, 55 N.J. 534, 540 (1970), this Court abrogated the doctrine of sovereign immunity for tort claims. In response, the Legislature adopted the Tort Claims Act in 1972, primarily to "re-establish immunity of public entities in New Jersey, on a basis more current and equitable than that which had obtained prior to Willis." Harry A. Margolis & Robert Novack, Claims Against Public Entities, Introduction, at ix (2001). What emerged is the general rule that public entities are immune from tort liability unless there is a specific statutory provision imposing liability. Collins v. Union County Jail, 150 N.J. 407, 413 (1997). The Tort Claims Act further limits recovery for pain and suffering damages to cases involving "permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00." N.J.S.A. 59:9-2(d). The 1972 Attorney General's Task Force on Governmental Immunity explained that

[t]he limitation on the recovery of damages . . . reflects the policy judgment that in view of the economic burdens presently facing public entities a claimant should not be reimbursed for non-objective types of damages, such as pain and suffering, except in aggravated circumstances--cases involving permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of [$3,600] The limitation that pain and suffering may only be awarded when medical expenses exceed [$3,600] insures that such damages will not be awarded unless the loss is substantial. [Comment, N.J.S.A. 59:9-2.]

The Court echoed that public policy in Collins, supra, 150 N.J. at 413, stating that

[w]hat emerges from the Task Force comments and the legislative expression is an intent that N.J.S.A. 59:9-2(d) should preclude recovery for pain and suffering based on subjective evidence or minor incidents. Where, however, there are aggravating circumstances such as the permanent loss of a bodily function, a permanent disfigurement, or dismemberment, and the medical expenses exceed [$3,600], recovery for pain and suffering may not be prohibited.

In Brooks, supra, 150 N.J. at 400, the Court elaborated on the "permanent loss of a bodily function" requirement under N.J.S.A. 59:9-2d. There, a New Jersey Transit bus struck the open door of the plaintiff's car, knocking her back into the car. The plaintiff arrived at the hospital complaining of pain in her neck, back and head. X-rays were taken, and she was prescribed medication, fitted for a cervical collar and discharged. The plaintiff subsequently sought treatment from a physician who administered twelve heat treatments to her back. Finding those treatments ineffective, plaintiff then came under the care of a new doctor, complaining of headaches, dizziness, blurred vision, pain and stiffness in her neck, upper and lower back, and in her left shoulder. The plaintiff was diagnosed with "'residual of post-traumatic myositis and fibromyositis of the cervicodorsal and lumbosacral region and post-traumatic headache syndrome.'" Id. at 399. Despite treatment with transcutaneous electrical nerve stimulation, the plaintiff's complaints of pain persisted.

The evidence in Brooks included X-rays of the plaintiff's back that revealed "small marginal spurs" and spinal curvature. An EMG indicated elevated muscle activities in her neck. Ibid. We also considered the plaintiff's persistent complaints of pain, muscle spasms and limited motion when performing household chores. We concluded that "[i]n reviewing the sufficiency of plaintiff's case, we accept that she experiences pain and that the limitation of motion in her neck and back is permanent." Id. at 406. We also explained that a partial, as well as a total, permanent loss of a bodily function would satisfy the statutory standard provided that the loss of bodily function was substantial. Ibid. Nonetheless, we held that the plaintiff's complaint reflected essentially a subjective claim for pain and suffering that did not rise to the level of a substantial and permanent loss of a bodily ...


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