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Novak v. Norton


September 25, 2007


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-858-00.

Per curiam.


Submitted September 11, 2007

Before Judges Parker and Lyons.

Plaintiffs Kenneth L. and Joan M. Novak*fn1 appeal from three orders: an order entered on October 23, 2003 granting summary judgment in favor of the City of Trenton (City) and dismissing plaintiffs' claims under the Tort Claims Act, N.J.S.A. 59:1 to 12; and orders entered on November 21, 2003 and November 18, 2005 denying plaintiffs' motions for reconsideration of summary judgment. We reverse and remand.

Plaintiff Kenneth Novak stepped on a curb in Trenton on March 8, 1998. He alleges that the curb crumbled, causing him to fall and injure his left knee, lower back and left shoulder. On March 11, plaintiff sought treatment at a hospital emergency room, complaining of excruciating pain in the left knee.

On March 18, 1998, plaintiff was involved in a motor vehicle accident in Atlantic City. On March 31, 1998, he visited his treating physician, who opined that there was likely no additional injury to plaintiff's knee, back or shoulder from the auto accident.

In February 1999, an MRI indicated that plaintiff had bursitis and joint effusion in the left knee. Arthroscopic surgery was performed on July 1, 1999, but plaintiff continued to complain of pain and saw several other physicians.

Barry D. Fass, M.D., a board certified physical medicine and rehabilitation specialist, examined plaintiff and rendered a report on June 13, 2001, stating that he could "offer no further treatment . . . at this time" and "explained that unfortunately [plaintiff] has a permanent injury at this point." (Emphasis added). On December 6, 2001, Thomas F. Urbaniak, M.D., a board certified orthopedic surgeon, reported that plaintiff appears to have made a good recovery from his left knee surgery, however, his few remaining complaints referable to the left knee would be consistent with his eventual diagnosis and arthroscopic surgery and can be permanent in nature. (Emphasis added). On August 22, 2002, a board certified orthopedist and certified independent medical examiner, David Weiss, D.O., evaluated plaintiff and determined that he had a "permanent disability." (Emphasis added).

In November 2001, defendants Ronald and Sandra Norton, the owners of the property in front of which the accident occurred, were granted summary judgment. Defendant pursued his claim against the City and, in May 2003 after a jury trial on the issue of liability, the City was found to be seventy percent liable for plaintiff's injuries. A jury trial on the issue of damages was scheduled for October 2003.

In June 2003, the City moved for a new trial. That motion was denied and the City subsequently moved for partial summary judgment to limit plaintiff's recovery to economic loss under the Tort Claims Act. In other words, the City contended that plaintiff did not meet the tort claim threshold in N.J.S.A. 59:9-2(d). The motion was granted on October 23, 2003 after the trial court found that plaintiff suffered no permanent injury to satisfy the tort claim threshold. Plaintiff moved for reconsideration and that motion was denied on October 30, 2003. Two years later, plaintiff moved again for reconsideration and the motion was denied in the order of October 21, 2005.

In this appeal, plaintiff argues that partial summary judgment should not have been granted pursuant to N.J.S.A. 59:9-2(d) because (1) his medical treatment expenses exceeded the threshold amount of $3,600; (2) plaintiff provided objective medical proof of permanent and substantial injury; and (3) the trial court failed to appropriately review the summary judgment motion. The City argues that plaintiff did not meet the threshold of a permanent and substantial injury under N.J.S.A. 59:9-2(d) and Brooks v. Odom, 150 N.J. 395, 402-03, 406 (1997). We disagree.

In order to recover damages for pain and suffering under the Tort Claims Act, a plaintiff must demonstrate: (1) objective evidence of a substantial, permanent injury, Brooks, supra, 150 N.J. at 402-03, 406 (1997); and (2) medical treatment expenses exceeding $3,600, N.J.S.A. 59:9-2(d). There is no dispute that plaintiff's medical expenses exceeded $3,600. The question is whether he presented objective evidence of a substantial, permanent injury.

In rendering its decision on defendant's motion, the trial court focused on the absence of an "objective" MRI or X-ray showing a permanent injury. An MRI or X-ray is not the only "objective" evidence of a permanent injury. Here, Scott D. Miller, M.D., the orthopedic surgeon who performed plaintiff's arthroscopy, noted in his July 8, 1999 report that the plica in plaintiff's knee became fibrotic and painful after the fall. The surgical report indicates that the plica was resected arthroscopically. In our view, the surgeon's observation of the fibrotic plica constitutes objective evidence. Although neither the MRI report nor the surgical report mention a "permanent" injury, three of the expert reports do.

Dr. Barry Fass stated unequivocally that plaintiff suffered a permanent injury from "a slip and fall incident." The report incorrectly stated that the date of the incident was March 18, 1998, rather than March 8. Since the doctor described the "slip and fall incident," we must assume that the date was a typographical error and that he was referring to the fall resulting from the crumbling curb, rather than the auto accident that did occur on March 18, 1998. Dr. Fass concluded that the knee injury was permanent on the basis of his examination of plaintiff.

Dr. Weiss, who performed the independent medical evaluation (IME), similarly reviewed plaintiff's surgical and medical records and concluded that plaintiff had a "permanent orthopedic impairment[] involving the left knee." Finally, after reviewing plaintiff's history, Dr. Urbaniak concluded, that consistent with the diagnosis and surgery, "his few remaining complaints . . . can be permanent in nature."

We are satisfied, therefore, that plaintiff has met the threshold requirement of presenting objective evidence of a substantial permanent injury and may proceed with his claim for damages resulting from pain and suffering. N.J.S.A. 59:9-2(d). We emphasize that our decision is only a determination that plaintiff met the tort claims threshold. It will be for a jury to decide whether, in fact, plaintiff suffered a permanent injury and what, if any, damages should be awarded.

Reversed and remanded.

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