On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0426-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and J. N. Harris.
This case involves a slip and fall that occurred more than fourteen years ago. At that time, plaintiff Robert DiMatties, Jr. was eight years old and attending the second grade at the Somerdale Park School located in Somerdale. After being dropped off at school by his mother, DiMatties navigated a sloping pathway towards the school building, lost his footing on what he was later told was black ice, and fell, striking his head on the pavement.
This action was commenced in January 2007, when DiMatties was nineteen years of age. He asserted that as a result of the fall--proximately caused by the negligence of defendants, Somerdale Park School and the Somerdale Board of Education (collectively Somerdale)--he has suffered frequent debilitating migraine headaches and memory loss, both of which have prevented or limited him from attending to his normal daily activities and affairs.
Following the expiration of discovery, Somerdale moved for summary judgment on several grounds, all bottomed upon the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (TCA). The motion judge granted Somerdale's motion for summary judgment and dismissed plaintiff's complaint with prejudice. We reverse and remand for further proceedings.
The following facts are derived from evidence submitted by the parties both in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
On December 12, 1995, plaintiff--after leaving his mother's car but still under her watchful eye--slipped and fell as he walked downhill on a paved walkway towards the school. There had been a light snowfall a few days earlier, but plaintiff did not see any noticeable ice or snow on the roads that day. Plaintiff struck his head when he landed; he recalled only that "I got out of the car, I was walking towards my class and then all I remember is that I fell and I woke up." He alleged that he was told by multiple people who quickly arrived at the scene that he had slipped on black ice: a frozen combination of snow, slush, and moisture that is hard to detect because it is transparent and takes on the color of the material upon which it lays, often wet asphalt.
An incident report was completed by a school administrator on the same day as the accident. This report stated that plaintiff "slid on ice, fell and hit his head on ice." The incident report also indicated that plaintiff was immediately transported by an ambulance to West Jersey Hospital, where he was released later in the afternoon with, as his mother informed the school, "a slight concussion." Plaintiff remained absent from school for more than a week.
Edward Boyd was employed at the time as the "[d]irector of maintenance/custodian/plumber/electrician" by Somerdale and worked at plaintiff's school. His responsibilities included removing snow and ice from the school's sidewalks and near its entrances. Boyd claimed that he followed a standard and regularized procedure for ensuring that the walkways and entrances of the school grounds were clear of ice and snow; Boyd would conduct a walkthrough of the school grounds shortly after a snowfall or when temperatures dropped after it rained. He used a snow blower to clear snow and applied calcium chloride in order to melt any ice. At his deposition, Boyd said that he had no independent recollection of plaintiff's fall or its aftermath.
Shortly after this incident, plaintiff was subjected to a battery of examinations and tests, including: (1) x-rays of plaintiff's lumbar spine, left clavicle, and skull, which all returned normal findings; (2) an MRI of his cervical spine showed no irregularities; (3) a CT scan showed a "[n]ormal brain;" (4) an EEG was interpreted as a "[n]ormal BEAM study." Seven years later, on March 26, 2003, a follow-up MRI of the brain revealed "[n]o focal lesions in the brain."
Nevertheless, on February 6, 1996, plaintiff was further examined by Dr. Shiva Gopal, M.D., as part of a neurological consultation due to plaintiff's incipient problems. Dr. Gopal's report expressed the opinion that plaintiff had suffered a "[p]ost-concussive syndrome with persistent cephalalgia and cognitive behavioral and emotional changes."
Several weeks later, on June 30, 1996, licensed psychologist Dr. Michael J. Colis, Ph.D., noted that plaintiff had attentional difficulties which "are probably due to [his] persistent headaches, as well as the head injury." Dr. Colis also diagnosed plaintiff with post-concussion syndrome.*fn1
Two years later, because plaintiff had still not achieved a level of normalcy, Dr. David J. Massari, Ph.D., also a licensed clinical psychologist, evaluated plaintiff. Dr. Massari observed "areas of significant variability in functioning, which appear to be due to fluctuations in [plaintiff's] attention/concentration skills and his impulsive response style." The psychologist's report, based upon an examination conducted on November 20, 1997, further noted that the variability was "likely to be the residuals of [plaintiff's] closed head trauma, as there does not appear to be any previous history of such variability."
Plaintiff suffered from persistent headaches, together with experiencing behavioral and emotional changes, in the years immediately following the fall. Plaintiff's doctors prescribed several different medications for his headaches, some of which worked sporadically, but most did not. Plaintiff also sought emergency care on several occasions caused by persistent, intense headaches. He would become nauseated and vomited from time to time due to the severe incidents. Light was not ...