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Zuniga v. Paterson Board of Education

May 21, 2009

ARACELI ZUNIGA AND ANTONIO TAPIA,*FN1 PLAINTIFFS-APPELLANTS,
v.
PATERSON BOARD OF EDUCATION, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4498-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 4, 2009

Before Judges R. B. Coleman and Sabatino.

Plaintiffs appeal a summary judgment order dismissing their lawsuit against defendant Paterson Board of Education, a public entity, for failure to satisfy the verbal threshold of the Tort Claims Act ("TCA"), N.J.S.A. 59:9-2(d). We affirm.

These are the pertinent facts. On October 29, 2003, after dropping off her daughter at Paterson Public School Number 19, plaintiff Araceli Zuniga*fn2 fell down on stairs inside the school. Plaintiff contends that the stairs were in a dangerous condition at the time of her fall. Although plaintiff injured herself as a result of the fall, she did not seek immediate medical attention and instead went to her job as a banquet waitress. She went home from work early because she was not feeling well. On the day of the accident, plaintiff was thirty-seven years old.

The following day, October 30, plaintiff went to the emergency room of a local hospital, complaining of back and hip pain and dizziness. The hospital staff took x-rays of plaintiff's pelvis, which showed no fractures. She was given a prescription for a pain killer and was discharged that same day.

About a week after the accident, plaintiff began obtaining treatment at a center for pain management and physical medicine.

She reported complaints of, among other things, neck pain radiating into her left arm, left wrist and hand pain, upper back and mid-back pain and stiffness, low back pain radiating into her right leg, numbness and tingling, headaches, and difficulty walking and bending. She was treated on several occasions by a chiropractor at the center, Dr. David Formanella. Plaintiff also had consultations with a neurologist, a physiatrist, and a pain management physician. The latter specialist administered three epidural injections in plaintiff's neck, which gave her some improvement but not complete relief.

An MRI conducted in February 2004 revealed that disc bulges appeared at plaintiff's C3-4 and C4-5 vertebrae levels. The MRI also showed what the attending radiologist described as "a disc osteophyte complex (defined as a soft and hard disc herniation) noted at the C5-6 level."

Plaintiff discontinued her chiropractic treatment with Dr. Fontanella in June 2004, after about seven months of visits. That same month, she resumed her work as a banquet waitress. Plaintiff has not had any medical or chiropractic treatment relating to this accident in the ensuing period of more than four years.

After his final session with plaintiff, Dr. Fontanella prepared a narrative report dated July 20, 2004. His report noted that plaintiff was still reporting symptoms of neck pain, lower back pain, upper back and mid-back stiffness, and numbness and tingling. With respect to the cervical spine, Dr. Fontanella found in his final examination of plaintiff "a mild amount of muscle spasm and hypertonicity," "mildly decreased" range of motion, and no weakness in the upper extremities. With respect to the lumbar spine, Dr. Fontanella likewise noted "a mild amount of muscle spasm and hypertonicity" and no weakness. The range of motion of plaintiff's lumbar spine was "within normal limits," although she reported pain in lumbar extension and in lateral flexion.

Relying on the abnormalities shown in the MRI study and his own examinations, Dr. Fontanella opined that plaintiff sustained injuries to her cervical, thoracic and lumbar spines "as a direct result of the slip and fall accident on October 29, 2003." The chiropractor further opined that these injuries are permanent, and that plaintiff "will continue to have difficulty with neck and low back pain." Dr. Fontanella suggested "further evaluation with EMG/NCV studies of [plaintiff's] upper and lower limbs if radiating symptoms worsen[]." No such follow-up studies have been undertaken.

Plaintiff sued defendant for pain and suffering damages under the TCA, alleging that it is liable for the alleged dangerous condition of the school steps. ...


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