November 5, 2007
TAKEERAH S. BRITTON, AN INFANT BY HER GUARDIAN AD LITEM, TONI JONES-BRITTON AND TONI JONES-BRITTON, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
CITY OF ELIZABETH AND DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANTS-RESPONDENTS, AND BOYS AND GIRLS CLUB OF ELIZABETH, THEODORE ROOSEVELT SCHOOL NO. 17, AND S.O.A.R. II (SPECIAL OPPORTUNITIES FOR ACHIEVEMENT AND REAWAKENING), DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1488-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2007
Before Judges Stern and C.S. Fisher.
Plaintiff appeals from an order entered on November 17, 2006, granting summary judgment to the City of Elizabeth and the City's Department of Health and Human Services. The defendant Boys and Girls Club of Elizabeth was dismissed by stipulation.
Plaintiff argues that summary judgment was improperly granted and that the trial judge improperly concluded that her injuries did not pierce the permanency threshold of N.J.S.A. 59:9-2(d).
Plaintiff sustained a fracture to her left fibula when falling from a swing at the Boys and Girls Club of Elizabeth. Defendant insists that she sustained a fractured ankle which healed satisfactorily and had no substantial impact on her life.
Plaintiff contends that because she remains under the care of Dr. Wolkstein, summary judgment was improperly granted and that "the order granting defendant's motion for summary judgment on the Title 59 injury threshold should be vacated because there are material questions of fact whether plaintiff had suffered a permanent injury that is substantial."
According to plaintiff, on May 3, 2003 she was on a children's play swing at the Club when it broke "causing her to fall and sustain severe injury to her left ankle."*fn1 "[A]n MRI of her left ankle revealed findings consistent with a bony fracture involving the interior talus adjacent to the talonavicular bone." Dr. Wolkstein's report of July 27, 2006 concluded that she had a permanent injury to her left ankle which was "still symptomatic." Plaintiff argues that it has a substantial impact on her life because "she is limited in performing the activities of other teenagers her age" and "is unable to play basketball now and other sports without experiencing pain due to the nature and extent of the injury. She is [also] unable to walk long distances and has difficulty standing for extended periods."
She still has pain, and plaintiff claims that there is objective medical evidence raising a jury question.
The judgment is affirmed substantially for the reasons expressed in the relevant portion of Judge Ross Anzaldi's oral opinion of November 17, 2006. See also Ponte v. Overeem, 171 N.J. 46, 54 (2002) (another case requiring "a permanent loss of a bodily function that is substantial").