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Villanueva v. Lesack

February 18, 2004

RAYA VILLANUEVA, PLAINTIFF-APPELLANT,
v.
BURTON LESACK, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-4686-00.

Before Judges Axelrad, Winkelstein and Lario.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 14, 2004

The primary issue presented by this appeal is whether plaintiff, an automobile accident victim who sustained a displaced fracture in an area of her cervical spine, may maintain a suit for non-economic losses under the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-1.1 to -35, as amended by L. 1998 c. 21, without demonstrating that the injury had a serious impact on her and her life. See Oswin v. Shaw, 129 N.J. 290, 318 (1992); James v. Torres, 354 N.J. Super. 586, 591 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003). The motion judge dismissed plaintiff's complaint; he concluded that plaintiff failed to meet this serious impact test to maintain her cause of action for non-economic damages. We reverse. Because a displaced fracture falls within one of AICRA's categories of self-defined injuries, see N.J.S.A. 39:6A-8a, once a displaced fracture has been demonstrated, a plaintiff need not prove that the injury had a"serious impact on the plaintiff and her life." See Oswin, supra, 129 N.J. at 318.

We construe the facts in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Because we reverse the summary judgment dismissing plaintiff's complaint on the grounds that plaintiff was not required to prove that her injuries had a serious impact on her and her life, we do not address the motion judge's finding that plaintiff's injuries did not meet that test. Rather, for purposes of this opinion only, we assume that plaintiff's injuries have not had a serious impact upon her life and she would not qualify for non-economic damages under the Oswin/James analysis.

Plaintiff was injured in an automobile accident on October 21, 1999, when defendant's vehicle turned into her lane of travel and struck her vehicle head-on. At the time of the accident, plaintiff was thirty-three years old. She remained out of work for seven months following the accident.

From the accident scene, plaintiff was taken by ambulance to the emergency room at West Jersey Hospital with complaints of neck pain and"numbness and tingling going down her upper extremities." Although plaintiff's complaints and symptoms abated over time, her diagnosis remained elusive. Because of the location of the spinal injuries, the fractures were difficult to visualize on radiographic studies. However, the evidence is sufficient to raise a factual dispute as to whether plaintiff's fracture was displaced.*fn1

As early as December 10, 1999, a radiological report of plaintiff's cervical spine showed a"fracture deformity through the posterior arch of C2 with a few [millimeters] of displacement of the fracture fragment...." A February 2, 2000 CT scan of plaintiff's upper cervical spine found both a nondisplaced fracture of the left lamina of C2, partially healed, and a complete fracture of the right pedicle of C2, without"obvious bony union." Henry E. David, D.O., after reviewing various radiological reports, observed at the C5 level,"a radial lucency... significantly wider and displaced several millimeters, as well as... some inferior displacement of the fracture fragment...." From these facts a jury could conclude that plaintiff's fracture was displaced. Thus, the critical question then becomes whether plaintiff needs to show that the displaced fracture has had a serious impact on her and her life to maintain a claim for non-economic damages under AICRA. We hold that she does not.

In the predecessor to AICRA, N.J.S.A. 39:6A-8a, passed in 1988, (the 1988 Act), recovery for non-economic losses was restricted to nine types of injuries:

TYPE 1: death;

TYPE 2: dismemberment;

TYPE 3: significant ...


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