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Jackson v. Contento

October 6, 2010


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-745-08.

Per curiam.


Submitted June 7, 2010

Before Judges R. B. Coleman and Coburn.

In this personal injury action, plaintiff Tracey Jackson appeals from a June 12, 2009 order granting summary judgment in favor of defendants Township of Hamilton police officer Daniel Contento and Township of Hamilton. The order dismissed plaintiff's complaint with prejudice for failing, as a matter of law, to meet the injury threshold of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. More specifically, the judge ruled that though the plaintiff's injuries were permanent, there was not a permanent loss of bodily function that was substantial. We affirm.

On April 9, 2006, the vehicle driven by Contento rear-ended plaintiff's stationary vehicle while Contento was acting in the course of his employment as a police officer with the Township of Hamilton. After the collision, plaintiff drove herself home. The next morning, she awoke in a great deal of pain and contacted her primary care physician. On April 11, 2006, plaintiff visited her primary care physician and was instructed to take Tylenol and warm baths.

Subsequently, plaintiff was treated by Dr. Barry D. Fass for complaints that included headaches, neck pain, mid-back pain, lower back pain, dizziness, disorientation and right shoulder and right arm paresthesias. After multiple visits with Dr. Fass and several other specialists, Dr. Fass opined as of April 28, 2008, two years after plaintiff's motor vehicle accident, that plaintiff suffered from the following conditions:

(1) cervical strain; (2) disc bulges C2-3, C3-4, C4-5, C5-6, C6- 7; (3) improved thoracic strain; (4) lumbar strain; (5) disc herniation L4-5; (6) tendonitis right shoulder; and, (7) right C6 and C7 radiculopathies. Dr. Fass concluded in his narrative report that plaintiff "ha[d] sustained permanent injury to her cervical spine, lumbar spine and right upper extremity as a direct consequence of the motor vehicle accident that occurred on April 9, 2006."

In addition to Dr. Fass, plaintiff was evaluated by Dr. Pendino, a board certified neurologist. On September 26, 2006, Dr. Pendino opined that plaintiff suffered from (1) posttraumatic migraine headaches; (2) multilevel cervical disc bulges; and, (3) cervical sprain and strain/cervical radiculopathy.

Plaintiff was also seen by Dr. Jeffrey Abrams, a board certified orthopedic surgeon, and Dr. Mahoney, board certified in pain management and anesthesiology. Dr. Abram's impression was that plaintiff suffered from cervical radiculopathy and mild rotator cuff tendonitis and bursitis. Dr. Mahoney recommended cervical epidural injections for the treatment of cervical disc displacement and cervical radiculopathy, however, those interventions remained pending as of the date of Dr. Fass's narrative report. Throughout 2007, plaintiff was evaluated by several other physicians, including two psychologists, diagnosing plaintiff with various physiological symptoms.

Plaintiff has asserted that all treatments for her injuries have been ineffective. Six months to a year of physical therapy provided only temporary relief. In her deposition taken on February 10, 2009, plaintiff testified she would feel better for twenty-four to forty-eight hours after each session, "and then I would need it again, I would be in pain began [sic] or I would be stiff again." Plaintiff has not engaged in physical therapy since 2007. She testified that she continues to be afflicted by headaches two to three days a week, sometimes more. As of the date of her deposition, plaintiff was not on any kind of medication for the headaches or any other injury sustained in the accident. She testified that ibuprofen helps and relieves her headache pain.

Plaintiff is a single parent, providing care to her two minor children. One of her daughters is afflicted by cerebral palsy and is severely disabled. That child requires plaintiff's assistance, among other things, to eat, bathe, and use stairs. Plaintiff lifts her daughter and carries her from one floor of the house to another. As a result of her injury, she can no longer carry her daughter as she once did and must sit on her rear and hold her daughter against her as they slide down the stairs.

Significantly, plaintiff acknowledged during her deposition that there is nothing she could previously do that she can no longer do as a result of the accident. Plaintiff asserted, however, that she is limited in sexual activity, sitting, bending, reaching, driving, concentrating, sleeping, and focusing. Plaintiff experiences pain when bending, and sometimes becomes dizzy when she "bend[s] and tr[ies] to come back up[.]" When reaching, plaintiff experiences pain in her arms, neck and shoulder. Plaintiff testified she is unable to achieve restful sleep. She is limited in her ability to dance and avoids traveling as a result of the accident, an activity she once enjoyed. Plaintiff is still able to drive her car, grocery shop, clean her house, go to the mall with her able-bodied daughter, commute to Edison twice weekly, and she went to Atlantic City for a day trip with both of her children.

Since the accident, plaintiff has obtained her Insurance Producer's license with the State of New Jersey and is employed full-time as a licensed New York Life insurance agent. She commutes to the Edison office from her Trenton home twice a week. Plaintiff's headaches, dizziness, or limitations have neither ...

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