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Perez v. Township of Egg Harbor

July 27, 2007


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. ATL-L-5391-05.

Per curiam.


Argued July 10, 2007

Before Judges C.S. Fisher and Grall.

In this appeal, we review the sufficiency of a summary judgment entered in favor of defendants. The trial judge concluded that plaintiff's proofs were insufficient to meet the threshold contained in the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, to permit plaintiff's maintenance of a suit for pain and suffering. We find that plaintiff provided sufficient evidence of a permanent loss of bodily function and that the judge mistakenly granted summary judgment.

Plaintiff commenced this action, alleging that she suffered personal injuries as a result of an automobile accident in Pleasantville that occurred on June 18, 2003. On that occasion, plaintiff's vehicle was struck by a vehicle driven by defendant Garth. The vehicle was owned by defendants Township of Egg Harbor and Farmingdale Voluntary Fire Company (defendants). Because defendants are public entities, and entitled to the benefits of the Tort Claims Act, plaintiff was required to establish, in order to pursue a claim for pain and suffering, that she sustained an injury that constituted a "permanent loss of a bodily function, permanent disfigurement or dismemberment," and that the medical treatment expenses for the injury exceeded $3,600. N.J.S.A. 59:9-2(d).

Plaintiff seeks to recover damages as the result of injuries to her left knee, neck and back. Whether the requirements of N.J.S.A. 59:9-2(d) have been met turns on the application of a two-prong test, which the Supreme Court has described as requiring a plaintiff to show "(1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial." Gilhooley v. County of Union, 164 N.J. 533, 541 (2000).

As for the first prong, plaintiff provided, among other things, the report of Dr. Lawrence I. Barr, who concluded that plaintiff suffered a tear to the anterior cruciate ligament (ACL) in her left knee. Dr. Barr certified that this injury was revealed by arthroscopic evaluation and MRI studies, and concluded that the injury is permanent and was proximately caused by the automobile accident. This evidential material was sufficient to satisfy, for purposes of summary judgment, the requirements of the test's first prong.

The second prong requires a determination that plaintiff sustained a "permanent loss of a bodily function that is substantial." Gilhooley, supra, 164 N.J. at 541. See also Kahrar v. Bor. of Wallington, 171 N.J. 3, 12 (2002). The Court has held that this aspect of the threshold "depends on a fact-sensitive analysis," Knowles v. Mantua Tp. Soccer Ass'n, 176 N.J. 324, 331 (2003), because it is "the nature or degree of the ongoing impairment that determines whether a specific injury meets the threshold requirement under the Tort Claims Act," Ponte v. Overeem, 171 N.J. 46, 53 (2002). Although recognizing that there is no "per se rule that would be decisive in all cases of this kind," the Court has indicated that its "past precedents are useful in classifying injuries as either 'substantial' or minor," Knowles, supra, 176 N.J. at 331, and described the distinctions among its prior precedents in the following way:

First, we have recognized that "injuries causing blindness, disabling tremors, paralysis and loss of taste and smell" satisfy the threshold because they are inherently "objectively permanent and implicate the substantial loss of a bodily function (e.g., sight, smell, taste and muscle control)." Gilhooley, supra, 164 N.J. at 541 (citing Brooks, supra, 150 N.J. at 403). Second, we have held that when a plaintiff suffers an injury that permanently would render a bodily organ or limb substantially useless but for the ability of "modern medicine [to] supply replacement parts to mimic the natural function," that injury meets the threshold. Id. at 542-43. Third, we have concluded that there must be a "physical manifestation of [a] claim that [an] injury . . . is permanent and substantial." Ponte, supra, 171 N.J. at 54. An injury causing lingering pain, resulting in a lessened ability to perform certain tasks because of the pain, will not suffice because "[a] plaintiff may not recover under the Tort Claims Act for mere 'subjective feelings of discomfort.'" Gilhooley, supra, 164 N.J. at 540. Finally, we have recognized that neither an absence of pain nor a plaintiff's ability to resume some of his or her normal activities is dispositive of whether he or she is entitled to pain and suffering damages under the TCA. Kahrar, supra, 171 N.J. at 15-16. [Knowles, supra, 176 N.J. at 332 (some citations omitted).]

In Knowles, the Court suggested that judges approach the problem by comparing a plaintiff's claim to those cases in which an injury was found sufficient to pass through the threshold, i.e., Gilhooley and Kahrar, against those in which the Court held to the contrary, i.e., Brooks and Ponte. See Knowles, supra, 176 N.J. at 332. See also Heenan v. Greene, 355 N.J. Super. 162, 165-67 (App. Div. 2002); Newsham v. Cumberland Reg. High School, 351 N.J. Super. 186, 191-95 (App. Div. 2002). In following that approach, the trial judge here concluded that plaintiff's claim was most closely akin to Ponte. We disagree.

Plaintiff suffered a tear in the ACL in her left knee. In describing the repair of plaintiff's knee, the trial judge concluded that plaintiff's surgery is distinguishable from Gilhooley in that her surgery has proven capable of correcting her injury without resort to medical appliance.

This is true even though plaintiff certifies that she has been prescribed a 'knee stimulator' to reduce the pain in her knee, this device is far different than pins and wires necessary to restore a knee to its proper mechanical functioning in that the need for the latter can be determined with objective evidence whereas the need for the former relies upon plaintiff's subjective assertions that she is in pain. Likewise, any limitation in plaintiff's range of motion is distinguishable from the limitation suffered by the plaintiff in Kahrar because plaintiff's doctor has not indicated any objective reason for the limitation -- such as a short tendon.

We interpret this holding as drawing a brightline between surgeries to repair damage through the utilization of "pins and wires" and injuries that are surgically corrected without the use of such foreign materials. We are not willing ...

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