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Ogborne v. Mercer Cemetery Corp.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 6, 2007

SUZANNE K. OGBORNE, PLAINTIFF-RESPONDENT,
v.
MERCER CEMETERY CORPORATION, DEFENDANT, AND CITY OF TRENTON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. 1371-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 23, 2007

Before Judges Axelrad, Coleman and Gilroy.

Defendant City of Trenton (City) appeals from the grant of partial summary judgment, determining that it was negligent and that plaintiff had met the threshold for pain and suffering damages under the New Jersey Tort Claims Act*fn1 (Act), N.J.S.A. 59:9-2d, and from the denial of its motion for reconsideration. The City also appeals from the order of October 19, 2005, entering judgment following a jury verdict in the amount of $1,640,000. We affirm in part; reverse in part; and remand the matter to the trial court for further proceedings consistent with this opinion.

Plaintiff is employed by the State Department of Personnel (DOP) in Trenton. On November 26, 2001, the Monday after the Thanksgiving holiday, plaintiff took a thirty-minute lunchtime walk through the Mercer Cemetery Park (the Park).*fn2 The Park is approximately five acres and contains walking paths and benches, providing individuals with places to picnic and relax. The Park is located on South Clinton Avenue, near the intersection with Raoul Wallenberg Boulevard, approximately 150 feet from the Trenton train station. It is surrounded by numerous government office buildings, including the DOP and State Department of Environmental Protection (DEP). In addition, there are bus stops near the Park's front gate, along South Clinton Avenue. Accordingly, there is consistently a fair amount of pedestrian and motor vehicle traffic around the Park.

The Park is maintained and operated by the City's Department of Recreation, Natural Resources and Culture. The hours of operation of the Park are from 7:30 a.m. to 4:30 p.m., Monday through Friday. Its perimeter is entirely enclosed, at parts by a wrought iron picket fence approximately five or six feet in height, and at other parts by a brick wall, ranging in height between two and seven feet. The Park has two wrought iron gates that are used as public entrances, one on South Clinton Avenue and one across from the DEP building. When the Park is not in operation, the two gates are secured with chains and padlocks. The padlocks can only be opened by a key made for a limited number of padlocks specially purchased by the City, and only certain City employees have possession of the keys. When the gates are unlocked in the morning, the chain is secured to one side of the gate and locked in place with the padlock, preventing removal of the chain during the day while the Park is open. In order to close the gates, a City employee has to unlock the padlocks, close the gates, secure them with the chains, and relock the padlocks.

Approximately thirty minutes after plaintiff entered the Park, she attempted to leave, only to discover that both gates had been closed, chained, and padlocked. Plaintiff walked around the inside perimeter of the Park in search of help, or an alternate means of egress, but her search proved fruitless. Even though plaintiff did not possess a cell phone, she did not feel comfortable yelling for help because she believed she was in a vulnerable position and did not want to draw attention to herself.

In a bid to exit the Park, plaintiff, who was thirty-five years old at the time, climbed the brick wall at its lowest point inside the Park, approximately two to three feet in height. She then jumped from a seated position on top of the wall down to a grassy area on the exterior side of the wall, a drop of between six and seven feet. In her fall, plaintiff suffered a comminuted segmental fracture of her right tibia which involved two fracture lines, breaking her tibia into three pieces. A pedestrian, having observed plaintiff lying on the ground, asked if she needed assistance and summoned help from a police officer at the train station.

First aid arrived, transporting plaintiff to the emergency room at St. Francis Medical Center where her leg was x-rayed and splinted, and she received medication for her pain. Three days later, plaintiff underwent a closed intramedullary rodding of the tibia at Monmouth Medical Center.*fn3 After surgery, plaintiff remained in the hospital for five days. Post-operatively, plaintiff remained out of work for three months, during which time she required physical therapy. She also took medication for pain and for treatment of a pulmonary embolism that had developed from either the injury, or the treatment of the injury, or both. During those three months, plaintiff was unable to move about without the assistance of a wheelchair, walker, crutches, or a cane.

Ultimately, plaintiff returned to work and performed her daily activities with the use of a cane through the spring of 2003. Plaintiff complains of a loss of strength in her right leg; weather-related aches, pains, and swelling; fatigue with extended physical activity; and an inability to participate in certain physical activities that she formerly enjoyed, such as yoga and swimming. Plaintiff's medical expert opined that these complaints are permanent. It was also Dr. Lessing's opinion that although the fractures had healed, the hardware would remain in plaintiff's leg for the rest of her life because "there's significant risk to taking it out . . . . Any surgery from the pelvis on down is high risk for her in terms of another clot and another embolus. There's no reason to take the rod out and there's good reason not to." Although defendant's medical expert opined that plaintiff could have the rod and screws removed because the factures had healed, possibly alleviating some of her present complaints, he did not recommend that course of action. Plaintiff's life expectancy was forty-one years from the date of the accident.

On May 16, 2003, plaintiff filed her complaint against Mercer Cemetery Corporation*fn4 and the City, alleging that defendants were negligent in their maintenance and control of the Park, causing her to fall and suffer permanent injuries. On or about March 16, 2005, plaintiff moved for partial summary judgment on the issues of the City's negligence, proximate cause, and whether she had met the threshold for the recovery of pain and suffering damages under the Act. On May 2, 2005, the motion judge granted partial summary judgment, determining that the City was negligent and that plaintiff's injuries were sufficient to recover pain and suffering damages under N.J.S.A. 59:9-2d. However, the judge denied plaintiff's motion to strike defendants' comparative negligence defense, determining that the issues of plaintiff's comparative negligence and proximate causation as to both parties were jury questions. The City moved for reconsideration, and the motion was denied by order of August 19, 2005. Following a jury trial before a different judge, the jury returned a verdict in favor of plaintiff on all remaining issues and awarded her damages in the amount of $1,640,000. An order confirming the jury's verdict was entered on August 19, 2005.

On appeal, the City argues:

POINT I.

THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR RECONSIDERATION IN FINDING THAT THE CITY OF TRENTON WAS NEGLIGENT AS A MATTER OF LAW AND THAT THE PLAINTIFF MET THE TITLE 59 INJURY THRESHOLD AS A MATTER OF LAW.

POINT II.

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION IN LIMINE THAT IT APPLY THE TORT CLAIMS ACT REQUIREMENTS FOR DANGEROUS CONDITIONS OF PUBLIC PROPERTY UNDER THE GOVERNING STANDARD, N.J.S.A. 59:4-1, ET SEQ.

POINT III.

THE TRIAL COURT IMPROPERLY BARRED THE TESTIMONY OF A CRITICAL DEFENSE WITNESS, THEREBY EXCLUDING EVIDENCE THAT WAS MATERIAL AND NECESSARY FOR THE PRESENTATION OF LIABILITY DEFENSES AT TRIAL.

POINT IV.

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S CASE AT THE CLOSE OF THE EVIDENCE BASED UPON THE PLAINT[I]FF'S FAILURE TO PROVE LIABIL[IT]Y AGAINST THE DEFENDANT UNDER N.J.S.A. 59:4-1 ET SEQ. AND HER FAILURE TO MEET THE REQUIREMENTS FOR PAIN AND SUFFERING DAMAGES UNDER N.J.S.A. 59:9-2[d].

POINT V.

THE JURY'S VERDICT ON LIABILITY AND DAM[A]GES WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT VI.

THE APPELLATE COURT SHOULD REVERSE THE JUDGMENT OF THE TRIAL COURT AND RULE ON THE MERITS DISMISSING THE PLAINTIFF'S CASE.

I.

The City argues that the motion judge erred in granting partial summary judgment, determining it negligent and denying its motion for reconsideration. The City contends that the judge erred by applying the standard of ordinary negligence, rather than the palpably unreasonable standard governing the liability of a public entity for a dangerous condition of its property, N.J.S.A. 59:4-2. The City asserts that summary judgment was not appropriate because disputed material facts existed regarding the opening and closing of the Park gates on the date in question. In particular, the City disputes that plaintiff was locked in the Park by a City employee on that date. Plaintiff counters, as she did in the Law Division, that the judge was correct in applying the standard of ordinary negligence because she did not seek to hold the City liable for a dangerous condition of its property. Plaintiff contends she sought to hold the City vicariously liable for the operational or ministerial negligent act of its employee: locking plaintiff in the Park, N.J.S.A. 59:2-2a; N.J.S.A. 59:3-1a.

A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2006). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Because we are satisfied that the issue of the City's negligence should have been decided under the enhanced, palpably unreasonable standard governing dangerous conditions of public property, we reverse that part of the order granting summary judgment.

The Act re-established sovereign immunity after common law immunity had been abrogated by the Supreme Court in Willis v. Dep't of Conservation & Econ. Dev., 55 N.J. 534, 540-41 (1970). See Velez v. City of Jersey City, 180 N.J. 284, 289 (2004); Alston v. City of Camden, 168 N.J. 170, 176, 181 (2001). The Act is dispositive with respect to the nature, extent, and scope of state and local tort liability for causes of action accruing on and after the Act's effective date. N.J.S.A. 59:1-2; Velez, supra, 180 N.J. at 289-90.

With respect to the general liability of public entities, the Act states:

a. Except as otherwise provided by this act, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.

b. Any liability of a public entity established by this act is subject to any immunity of the public entity and is subject to any defenses that would be available to the public entity if it were a private person.

[N.J.S.A. 59:2-1.]

Thus, under the Act, public entity immunity is the rule; liability is the exception. Coyne v. State of N.J., Dep't of Transp., 182 N.J. 481, 488 (2005).

Here, while the parties do not dispute that the Act applies to plaintiff's claim, they dispute which liability exception applies. Plaintiff contends that only the exception creating respondeat superior liability applies. Specifically, under the Act:

a. A public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances.

b. A public entity is not liable for an injury resulting from an act or omission of a public employee where the public employee is not liable.

[N.J.S.A. 59:2-2.]

This provision is considered the primary source of public entity liability. See N.J.S.A. 59:2-2 (1972 Task Force Comment); Tice v. Cramer, 133 N.J. 347, 355 (1993); Harry A. Margolis & Robert Novack, Claims Against Public Entities, comment to N.J.S.A. 59:2-2, at 35 (2006) (hereinafter "Margolis & Novack"). It provides for public entity liability for the "ordinary negligence" of public employees in performance of their ministerial duties. However, it "yields to a grant of immunity" provided for under any other section of the Tort Claims Act or the common law. Pico v. State of New Jersey, 116 N.J. 55, 62-63 (1989). Here, the City does not claim any "immunity" under the Act.

Plaintiff argues that the City is subject to respondeat superior liability for its employee's negligence in performing the ministerial act of locking the Park gates on November 26, 2001, while plaintiff was still in the Park. The City asserts that the section of the Act creating respondeat superior liability cannot be viewed alone, but rather it is subject to, and must be viewed in the context of, other provisions of the Act, in particular, the Act's creation of liability for a dangerous condition of public property.

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable. [N.J.S.A. 59:4-2.]

Under the City's analysis, in order to establish a dangerous condition claim, plaintiff would bear the burden of proving that: (1) the cemetery was in a dangerous condition at the time of her injuries; (2) her injuries were proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injuries that were incurred; (4) a City employee created the dangerous condition; and (5) the action or inaction on the part of the City in protecting against the dangerous condition was palpably unreasonable. Kolitch v. Lindedahl, 100 N.J. 485, 492-93 (1985).

A "dangerous condition" is defined as "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1a. A "substantial risk" is "'one that is not minor, trivial or insignificant,'" Kolitch, supra, 100 N.J. at 493 (quoting Polyard v. Terry, 160 N.J. Super. 497, 509 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979)), and the phrase, "palpably unreasonable," implies a standard of liability greater than that of ordinary negligence. Coyne, supra, 182 N.J. at 493. For a public entity to have acted in a manner that is palpably unreasonable, the conduct must have been "patently unacceptable under any given circumstance," Kolitch, supra, 100 N.J. at 493, and "'it must be manifest and obvious that no prudent person would approve of its course of action or inaction.'" Ibid. (quoting Polyard v. Terry, 148 N.J. Super. 202, 216 (Law Div. 1977), rev'd on other grounds, 160 N.J. Super. 497 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979)).

The City's analysis is correct. In Pico, supra, 116 N.J. at 63, the Supreme Court cautioned that the respondeat superior liability of a public entity, N.J.S.A. 59:2-2a, "is subject to other provisions of the [A]ct," not only the sections of the Act that provide for public entity immunity, but also those sections of the Act that provide for alternative theories of public entity liability. The Court stated:

The liability of the employee, N.J.S.A. 59:3-1a, as well as the vicarious liability of his or her employer, N.J.S.A. 59:2-2a, is subject to other provisions of the [A]ct.

One such provision, N.J.S.A. 59:4-2, specifically treats the liability of a public entity for a dangerous condition on its property. This section imposes liability on a public entity for such a condition when it was created by the negligence of an employee acting within the scope of his or her employment, provided the negligence was "palpably unreasonable." In effect, the statute immunizes a public entity from liability for a dangerous condition when its negligence "was not palpably unreasonable." We conclude that even if the weather immunity [N.J.S.A. 59:4-7] did not apply, plaintiff's claim [relating to icy road conditions] should have been evaluated not by the standard of ordinary negligence, as the Appellate Division evaluated it, but by the standard of palpably unreasonable conduct of N.J.S.A. 59:4-2. [Ibid.]

See Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 338 (App. Div. 2000), where, in interpreting Pico, we held that: "Where the vicarious [respondeat superior] liability arises out of a dangerous condition of public property, the palpably unreasonable standard set forth in N.J.S.A. 59:4-2 is used to determine liability for employees' acts."

Furthermore, as succinctly stated in an authoritative treatise:

It should be noted that public entity liability for dangerous conditions of public property is not governed by the general rule of vicarious liability as set forth under 59:2-2 relating to the public entity's liability for injuries caused by the acts of its employees. Rather, public entity liability with respect to dangerous conditions of public property is governed by the specific provisions of Chapter 4 and a claimant must satisfy all of the requirements of 59:4-2 in order for liability to attach. Thus, in cases asserting that a dangerous condition of public property arose from the negligence of an employee, and that the public entity is liable for that dangerous condition, the standard of care is not ordinary negligence such as would be true under 59:2-2a and 59:3-1a, but rather palpable unreasonableness. Pico v. State, 116 N.J. 55, 63 (1989), rev'g, 223 N.J. Super. 446, 450-51 (App. Div. 1988) on this issue. [Margolis & Novack, supra, comment to N.J.S.A. 59:4-2, at 112-13.]

Accordingly, we are satisfied that the motion judge erred by considering plaintiff's negligence claim under the ordinary negligence, respondeat superior standard of N.J.S.A. 59:2-2, and not assessing the claim under the standard for a dangerous condition of public property, N.J.S.A. 59:4-2.

Plaintiff argues that she never asserted a dangerous condition of public property claim, and therefore N.J.S.A. 59:4-2 does not apply. Plaintiff contends that her injury was caused by the negligence of the City's employee or employees imprisoning her in the Park. We disagree.

It is not the phraseology of a complaint that determines which liability section of the Act governs, but the facts underlying the cause of action that control. Plaintiff was not injured by the negligent actions of a City employee when closing and locking the gates, e.g., an employee striking plaintiff's hand with the gate while closing it. If plaintiff's injuries were caused by such action, then the City could be held vicariously liable for the negligent acts of its employee under the doctrine of respondeat superior. N.J.S.A. 59:2-2; Steward v. Magnolia, 134 N.J. Super. 312, 319 (App. Div.), certif. denied, 68 N.J. 481 (1975). The underlying negligence claim against the employee in performing a ministerial act would be determined by the ordinary negligence standard. N.J.S.A. 59:3-1a.

Here, plaintiff complains of the static condition of the Park after the employee's actions had ceased. Stated another way, it was the locked condition of the gates that allegedly rendered the Park in a dangerous condition, necessitating plaintiff's efforts to escape. Under the Court's holding in Pico, supra, 116 N.J. at 63, the fact that City employees were responsible for locking the gates, thus creating the alleged dangerous condition of public property, does not mean that the vicarious liability standard of N.J.S.A. 59:2-2 should apply. Rather, the City's liability should be considered under the dangerous condition of public property standard, N.J.S.A. 59:4-2. See, e.g., Roe v. N.J. Transit Rail Operations, 317 N.J. Super. 72, 77-79 (App. Div. 1998) (reasonable jury could conclude that public property was in a dangerous condition as a result of an access gate having been permanently bolted open), certif. denied, 160 N.J. 89 (1999). See also, Margolis & Novack, supra, comment to N.J.S.A. 59:2-2 at 36, noting "that where the negligent activities of an employee involved creating a dangerous condition of public property, the vicarious liability provisions of this section do not govern."

Moreover, we are also satisfied that a question of material fact exists as to whether the locked Park represented a dangerous condition of public property because there are questions concerning whether plaintiff objectively used the property with due care. The statutory definition of "dangerous condition" requires that the property has been used "with due care." N.J.S.A. 59:4-1. This is a standard of objective reasonableness. As such, "used with due care" refers to objectively reasonable use by the public generally, and not to the specific conduct of the injured party. See Garrison v. Twp. of Middletown, 154 N.J. 282, 292 (1998), where the Court held:

When the property poses a danger to all users, an injured party may establish that property was in a dangerous condition notwithstanding his or her failure to exercise due care. In such cases the plaintiff's negligence more appropriately relates not to the determination whether the property was dangerous, but to the issues of proximate causation or comparative negligence.

[C]courts concentrate on the activity in which the plaintiff engaged. The purpose of the evaluation is to ascertain whether the plaintiff had engaged in an activity that is so objectively unreasonable that liability for resulting injuries may not be attributed to the condition of the property. The focus of the inquiry is not on the details of the plaintiff's activity, but on the nature of the activity itself. [(internal citations omitted).]

Accordingly, a plaintiff's conduct must be considered in determining whether the property was in a dangerous condition, as well as the questions of proximate causation and comparative negligence. Id. at 294. Here, it is arguable that the Park, with gates locked, posed a danger to all users. As such, plaintiff may be able to establish that the property was in a dangerous condition, notwithstanding her failure to exercise due care in exiting the property. However, it is equally arguable that the locked Park did not represent a danger to all users. It was not an inherent danger to patrons, so long as the patrons did not attempt to enter or exit the Park by scaling its walls or fences.

The motion judge noted, when denying summary judgment on the issues of proximate cause and comparative negligence, that legitimate questions were presented regarding whether a reasonable person in plaintiff's position could be considered to have exercised due care by choosing to scale the wall and jump six to seven feet to the outside, rather than wait for assistance from a passerby. As to this issue, it is significant that the Park was located in a very active part of town, near the train station, near bus stops, surrounded by office buildings, and that the event at issue occurred in the middle of a weekday afternoon. Although plaintiff contended that the City was relatively quiet on the day of her accident, there was evidence suggesting a contrary conclusion, including, for example, the fact that this area of town was usually busy, and that a passerby came to plaintiff's assistance within a relatively short period of time after she was injured. Accordingly, it is debatable whether a reasonable person in plaintiff's position, having an emergent need to flee the Park, would have acted in the manner in which she did.

We are satisfied, however, that the motion judge correctly determined that a City employee was responsible for locking the gates. The City argues that factual questions were presented as to whether a City employee closed and locked the gates while plaintiff was inside the Park, thereby creating the allegedly dangerous condition. The City implies, but does not expressly assert, that plaintiff is not telling the truth about having been locked in the Park.

However, on summary judgment, the City did not expressly contest that: (1) plaintiff entered the Park on November 26, 2001; (2) the gates were open when plaintiff entered the Park; and (3) the gates were closed and padlocked while plaintiff was inside the Park. At most, in opposition to plaintiff's statement of material facts not in dispute, the City proffered that Jeff Mark Benson, Sr., the City employee who was normally assigned to open and close the Park gates, was not at work on November 26, 2001; therefore, he did not open or close the gates on that date. Assuming that is true, it does not raise a material fact as to the opening and closing of the gates. Benson was not the only City employee who had keys to the padlocks. As of November 2001, he was the only employee who typically opened the gates in the morning, at approximately 7:30 a.m., and closed the gates in the afternoon, at approximately 4:30 p.m. However, a total of six or seven other City employees had keys to the padlocks, and significantly, only City employees had access to those keys. Based upon this record, we are satisfied that the motion judge correctly determined that, assuming the validity of plaintiff's allegations, a City employee was responsible for locking the gates.

Lastly, the issues of proximate cause and comparative negligence must be resubmitted to the jury because a new trial is required on the determination of the City's negligence. Issues concerning the dangerous condition of the property and whether the City acted in a palpably unreasonable manner are intertwined with the issues of causation and foreseeability. See Conklin v. Hannoch Weisman, 145 N.J. 395, 410 (1996), where the Court held that in most civil tort cases, the concept of negligence is "usually inextricably intertwined with the concept of proximate cause." Therefore, where a retrial has been ordered, all issues "should be retried together unless the issue unaffected by error is entirely distinct and separable from the other issues." Ahn v. Kim, 145 N.J. 423, 434 (1996). Accord Conklin, supra, 145 N.J. at 410. Here, the issues are not distinct and separable.

II.

Under Point I, the City argues that the motion judge erred in granting partial summary judgment to plaintiff, determining that her injuries were sufficient to warrant pain and suffering damages, N.J.S.A. 59:9-2d. Under Point IV, the City contends that the trial judge erred in denying its motion for judgment at the close of the evidence, R. 4:40-1, seeking dismissal of plaintiff's non-economic damage claims. We disagree.

Motions for judgment, whether made under Rule 4:37-2(b) at the close of the plaintiff's case, under Rule 4:40-1 at the close of evidence, or under Rule 4:40-2(b) after the verdict, are "governed by the same evidential standard: '[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied . . . .'" Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (citations and quotations omitted). This is the same standard which applies to trial courts, Frugis v. Bracigliano, 177 N.J. 250, 269 (2003), and which governs a motion for summary judgment. Schneider v. Simonini, 163 N.J. 336, 360 (2000); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

This court will review the findings de novo, using the same standard applied in the trial court. See Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003) (appellate courts review grants of summary judgment de novo under standard that applied at trial).

N.J.S.A. 59:9-2d provides, in pertinent part, that:

No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any 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 where the medical treatment expenses are in excess of $3,600.00.

It is undisputed that plaintiff's medical treatment expenses exceeded $3,600. Therefore, the court's inquiry is limited to whether plaintiff suffered a permanent loss of bodily function, or permanent disfigurement or dismemberment.

Instructive is Gilhooley v. County of Union, 164 N.J. 533, 536 (2000), where the plaintiff slipped and fell at the Union County Jail, fracturing her nose and her knee. Orthopedic surgery, including the implantation of pins and wires, was necessary to re-establish the structural integrity of the plaintiff's knee. Id. at 536-37. Post-surgery, the plaintiff was left with a permanent scar on her knee, and she complained of continued pain and stiffness. Id. at 537.

Summarizing the applicable legal standard, the Court stated that, "in order to vault the pain and suffering threshold under the Tort Claims Act, a plaintiff must satisfy a two-pronged standard by proving (1) an objective permanent injury, and (2) a permanent loss of bodily function that is substantial." Id. at 540-41. Accord Brooks v. Odom, 150 N.J. 395, 402-06 (1997).

The Court noted, for example, that "a completely healed fracture without any objective evidence of permanent substantial impairment" would not meet the standard. Gilhooley, supra, 164 N.J. at 541 (citing Hammer v. Twp. of Livingston, 318 N.J. Super. 298, 305 (App. Div. 1999)). See also Rocco, supra, 330 N.J. Super. at 333-34 (completely healed laceration of thumb and broken bone in wrist, with only continuing symptom being a subjective complaint of pain, was not permanent injury sufficient to support claim for pain and suffering damages); Gerber v. Springfield Bd. of Educ., 328 N.J. Super. 24, 35 (App. Div. 2000) (there must be objective medical evidence of permanent injury; subjective complaints are insufficient).

Nevertheless, the Court in Gilhooley held that the plaintiff's injuries satisfied the legal standard. First, the plaintiff's fractured knee was "plainly" an objective permanent impairment. Gilhooley, supra, 164 N.J. at 541-42. Second, the permanent implantation of pins and wires established that the plaintiff's injuries had resulted in a permanent loss of bodily function. Id. at 542-43. As to this issue, the Court stated:

[T]he accident caused [the plaintiff] to lose forever the normal use of her knee that, thereafter, could not function without permanent pins and wires to re-establish its integrity. Like the victim who suffers an eye injury requiring a lens implant or an ear injury requiring a hearing mechanism, [the plaintiff] has permanently lost a bodily function. We have absolutely no doubt that the Legislature intended that pain and suffering damages could be awarded to such persons even if their ability to use their bodily parts efficiently is restored through pins, wires, lenses or any other artificial mechanisms or devices. Defendants' essential claim is that, after the surgery, [the plaintiff] was as good as new. Not so. She now requires pins and wires inside her body in order for her knee to function. . . . .

We are satisfied that the Legislature intended to include within the notion of aggravated cases those involving permanent injury resulting in a permanent loss of normal bodily function even if modern medicine can supply replacement parts to mimic the natural function. As is the case with dismemberment and disfigurement, when pins, wires, mechanisms and devices are required to make the plaintiff normal, the statutory standard is met. The fact that a physician has jury-rigged the knee to function with pins and wires in no way inhibits the characterization of that injury as the permanent loss of a bodily function. The same would be true of a plaintiff whose vision is restored with a lens, one whose hearing is restored with a hearing aid, and one whose heart is operating efficiently with a pacemaker or implanted valve. We conclude that those are all aggravated cases within the contemplation of the Legislature when it enacted the "permanent loss of bodily function" language and that they fall squarely within the "substantial" requirement of Brooks. [Id. at 542-43.]

Also instructive is Leopardi v. Twp. of Maple Shade, 363 N.J. Super. 313 (App. Div. 2003), appeal dismissed, 187 N.J. 486 (2005). In that case, in the course of a false arrest, the plaintiff allegedly suffered injuries that required back and neck surgery. Id. at 325-26. Although the surgery had not required the installation of any hardware, it had entailed the fusion of three vertebrae. As such, the court held that it represented a significant medical intervention that had permanently changed the structure of the plaintiff's vertebrae, reduced his mobility, and made him more susceptible to damage to discs above and below the fusions. Therefore, it satisfied the pain and suffering threshold of N.J.S.A. 59:9-2d. Id. at 333-34.

Here, as in Gilhooley, plaintiff's fractured tibia is clearly an objective permanent injury. On the second issue of substantial permanent loss of bodily function, however, the present case is distinguishable from Gilhooley on the ground that the rod and pins implanted in plaintiff's leg were necessary only on a temporary basis, to promote correct healing of the fracture. Once healing had occurred, the rod and pins could be removed without causing any loss of functioning of plaintiff's leg, and their removal could even alleviate some of her present-day complaints relating to the functioning of her leg.

Nevertheless, the record reveals that removal of plaintiff's rod and pins is only theoretical because plaintiff suffered a pulmonary embolism during the course of either, or both, her injury or treatment. As a result, plaintiff's physician did not recommend that she undergo any elective surgeries, such as the removal of the rod and pins, for fear that she might suffer another embolism. Consequently, the rod and pins will remain permanent fixtures in plaintiff's body; and, as in both Gilhooley and Leopardi, the medical intervention necessary to repair plaintiff's injury has had the effect of permanently altering her normal physiology. Accordingly, we are satisfied that the motion judge correctly granted partial summary judgment to plaintiff, determining that she had satisfied the threshold for pain and suffering damages under N.J.S.A. 59:9-2d. We are also satisfied that the trial judge correctly denied the City's motion for judgment on the same issue.

III.

The City argues next that the jury's damage award was against the weight of the evidence. In the Law Division, the City did not move for a new trial based upon the weight of the evidence. R. 4:49-1. Therefore, the City is precluded from raising this issue on appeal. "In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." R. 2:10-1. The rule should be strictly enforced, particularly in civil cases such as this, where there are no constitutional rights at stake. Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 362-63 & n.1 (App. Div. 1998).

We perceive no interest of justice warranting a relaxation of R. 2:10-1 in this case. The damages verdict may be preserved because it is severable from the issue of liability. Although the damages award is high ($1,640,000), we believe it is reasonably supported by the evidence relating to the severity and permanence of plaintiff's injuries, combined with plaintiff's long life expectancy. Given these factors, and the inherently subjective nature of pain and suffering damages, DeHanes v. Rothman, 158 N.J. 90, 97 (1999); Goss v. Am. Cyanamid Co., 278 N.J. Super. 227, 240-41 (App. Div. 1994), we do not perceive the damage award as so high as to shock the judicial conscience and warrant intervention in the form of either remittitur or a new trial on damages. Baxter v. Fairmont Food Co., 74 N.J. 588, 596-99 (1977); McRae v. St. Michael's Med. Ctr., 349 N.J. Super. 583, 597 (App. Div. 2002).

Reversed on the issue of liability, and remanded for a new trial applying the correct liability standard, N.J.S.A. 59:4-2. The judgment on damages is affirmed.


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