On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, L-222-00.
Before Judges Skillman, Wallace, Jr. and Wells.*fn1
The opinion of the court was delivered by: Wallace, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff appeals from a grant of summary judgment dismissing her personal injury complaint against Cumberland Regional High School District and its employees. We agree with the motion judge that plaintiff did not satisfy the requirements of the New Jersey Tort Claims Act, N.J.S.A. 59:9-2(d), and affirm.
Viewing the evidence in the record in the light most favorable to plaintiff, as we must, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the record established the following facts. On November 14, 1994, plaintiff, a then fourteen-year old high school cheerleader, was injured while performing a "pyramid" stunt. Plaintiff fell from the top of the pyramid to the gymnasium floor. She was taken to South Jersey Hospital on the same day where X-rays revealed a compression fracture at the T7 vertebra. Plaintiff came under the care of Dr. Seth M. Silver, an orthopedic surgeon, who ordered physical therapy and scheduled visits periodically. Following a March 15, 1995 evaluation, Dr. Silver informed plaintiff to return in six months for X-rays, but that she need not limit her activity in any way.
Plaintiff also visited Alfred I. duPont Institute (DuPont Institute) shortly after the accident in November 1994. She informed the doctor that her back pain did not keep her up at night and that she did not limit her daily activities. The doctor instructed plaintiff not to perform cheerleading or heavy lifting for a few weeks. About two years later, plaintiff was again evaluated at the DuPont Institute. She had no neurologic complaints at that time, but did have intermittent back pain. She reported no night pain. The August 6, 1996 report from DuPont Institute indicated that the radiographs showed "a mild 10 degree lumbar scoliosis and evidence of well-healed compression fracture at the level of T7 with no residual kyphotic deformity at the injury level."
Plaintiff next visited DuPont Institute on August 7, 1997. She complained of intermittent pain in her back, which was relieved by Motrin, and denied any new symptoms. In the report, Dr. Jayakumar opined that plaintiff was doing relatively well, and ordered physical therapy for back and scapular strengthening. Dr. Jayakumar did not think plaintiff's scoliosis was related to her fall.
Plaintiff again visited DuPont Institute on June 15, 1998. In the report, DuPont summarized the prior evaluations and noted that plaintiff "has done fairly well from her compression fracture," which resulted from the November 1994 fall.
In October 1998, plaintiff visited Dr. Barry Gleimer, D.O., an orthopedic surgeon. Dr. Gleimer diagnosed plaintiff with a T7 compression fracture and scoliosis. He was uncertain about the cause of the scoliosis. Plaintiff was again evaluated by Dr. Gleimer on January 13, 1999. In his report, Dr. Gleimer opined that plaintiff would develop degenerative arthritis in her thoracic spine due to the trauma and that she has "a significant limitation of intersegmental motion at this area consistent with her injury and scarification about this injury." Plaintiff also visited Dr. Gleimer on April 12, 1999, and he found that her condition was unchanged.
In February 1999, plaintiff was evaluated by Dr. Rosemary Calio, D.C., a chiropractor. At that time, plaintiff's primary complaint was pain in her mid-back region. In her September 13, 2000 report, Dr. Calio reviewed plaintiff's medical history following her November 1994 accident, diagnosed plaintiff with a cervical strain and sprain, and noted that:
[T]he patient demonstrated improvement in motion and a decrease in upper, mid and lower back pain with treatment. However, due to the nature of this injury and the structural changes that resulted, treatment will not be curative, and she will be prone to exacerbations depending upon her level of activity. Ms. Newsham has suffered a compression (0%-25%) of one vertebral body associated with recurring pain of a chronic nature. This is considered a permanent impairment. Structure affects function. Even subtle changes can alter functionality over time making this patient significantly more vulnerable to post traumatic arthritic changes of the spine. With regard to the thoracic spine, the area of her fracture, an abnormal curvature or scoliosis is also present resulting in a hump on the right of the spine due to posterior protrusion of the rib and shoulder blade. This area of abnormal curvature is not addressed by the physicians at the DuPont Center.
Dr. Calio opined that plaintiff's injuries were permanent and resulted from her fall on November 14, 1994.
In Dr. Calio's subsequent report, dated February 1, 2001, she noted that plaintiff was diagnosed with scoliosis following her accident, which was secondary to the trauma of November 14, 1994. Dr. Calio opined that, based on the subjective complaints of plaintiff and the objective positive tests and studies, plaintiff suffered a significant, permanent impairment of ...