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Baligian v. Hunterdon Central Regional High School

November 12, 2009

HEATHER J. BALIGIAN, AN INFANT BY HER GUARDIANS AD LITEM, DEBRA BALIGIAN AND PETER BALIGIAN, AND DEBRA BALIGIAN AND PETER BALIGIAN, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
HUNTERDON CENTRAL REGIONAL HIGH SCHOOL; FLEMINGTON BOARD OF EDUCATION; LIBBY WILHELMS; AND HUNTERDON CENTRAL REGIONAL HIGH SCHOOL BOARD OF EDUCATION, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-000041-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 1, 2009

Before Judges Stern and Sabatino.

This is an appeal from summary judgment dismissing plaintiff's complaint for damages under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 ("the Act" or "the TCA"), arising out of a high school cheerleading accident. On appeal, plaintiff contends that her injuries from the accident are permanent and sufficiently serious to satisfy the Act's verbal threshold, N.J.S.A. 59:9-2(d), and that the trial court consequently erred in dismissing her non-economic claims for pain and suffering. Plaintiff further argues that the trial court improperly dismissed her claims of economic loss. We affirm as to the verbal threshold ruling, but vacate and remand as to the dismissal of plaintiff's economic damages.

I.

The record contains the following evidence pertinent to our analysis, particularly as to plaintiff's injuries and treatment. In reviewing these facts, we do not elaborate upon the mechanics of the accident, or what may have caused it, because the appeal solely concerns the trial court's rulings on the compensability of plaintiff's damages under the TCA.

On January 25, 2005, plaintiff Heather Baligian, then a fourteen-year-old freshman, was practicing a maneuver with the junior varsity cheerleading team at Hunterdon Central High School ("the high school"). At the time she was under the supervision of her coach, Libby Wilhelms. Acting as the top person (or "flier"), plaintiff was hoisted upon the shoulders of another cheerleader who served as the "base." During her dismount from that elevated position, plaintiff fell forward and struck her chin.

Following the accident, plaintiff was transported to a local emergency room. The emergency room report noted that plaintiff had pain in her jaw and chin from a fall. The staff attending her found no immediate signs of a fracture. Plaintiff received stitches in her jaw. She was discharged from the hospital with a diagnosis of a soft tissue injury of jaw strain with a laceration of the chin.

The day after the accident, January 26, 2005, plaintiff saw Joel Efron, D.M.D., for complaints of separation between her lower front teeth, problems with her bite, and difficulty opening her mouth. Dr. Efron opined that plaintiff's occlusion appeared stable, but he noticed a small separation between her teeth. He also diagnosed plaintiff with a hairline fracture through her central incisor. The next day, January 27, Dr. Efron issued a note temporarily restricting plaintiff from gym class and other physical activities "until further notification[,]" due to a fractured mandible.

On January 31, 2005, Douglas L. Worden, M.D., removed the sutures from plaintiff's chin. His report noted that her chin was "healing well."

Dr. Efron reexamined plaintiff on February 7, 2005. He observed that her occlusion was stable, that the space between her lower and central incisors had closed, and that she exhibited full range of motion.

A month later, on March 7, 2005, plaintiff returned to Dr. Efron. He found that her occlusion continued to be stable, and the closure between her lower and central incisors intact. He also noted that plaintiff's chin was well-healed.

In the meantime, plaintiff's general dentist, Lillian Vidal, D.D.S., treated her fractured teeth (specifically teeth numbered 5, 13, and 30) with restorative dentistry. Tooth #13 and tooth #30 required periodontal surgery prior to restoration. Consequently, Peter G. Cornick, D.M.D., performed pre-prosthetic periodental crown lengthening on teeth #13 and #30. After completing those ...


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