The opinion of the court was delivered by: Hon. Joseph H.
MEMORANDUM OPINION & ORDER
This matter comes before the Court on a motion for summary judgment filed by the Defendant New Jersey Turnpike Authority. Oral argument was heard on the motion on June 14, 2011, and the record of that proceeding is incorporated here. For the reasons expressed on the record that day, as well as those set forth below, the motion will be denied.
This action arises as the result of an automobile accident on the New Jersey Turnpike. On October 18, 2007 at approximately 10:30 a.m., Plaintiff Laurie Heller was driving her Nissan Armada northbound from her home Ocean City, Maryland to New York City to take a two-day cruise. She was accompanied by friends Rina Thaler, who sat in the front passenger seat, and Plaintiff Jamie Albright, who sat in the back seat behind the driver.
At mile marker 13.4 on the New Jersey Turnpike, Defendant New Jersey State Trooper Juan Fajardo was conducting stationary laser speed checks from an overpass. Defendant Fajardo has testified that he twice clocked a black Mercedes Benz traveling north at 81 miles per hour. Fajardo therefore made a u-turn on the overpass and drove down a ramp to pursue the Mercedes on the Turnpike.
At that time, Heller's vehicle was traveling in the left lane. Fajardo came up quickly on the Heller vehicle, with some overhead lights on, but no siren. Heller began to shift into the right lane so that the trooper could pass, but Fajardo simultaneously attempted to pass the Heller vehicle on the right, so that both vehicles were moving right at the same time. Fajardo therefore moved back into the left lane, but ricocheted off the center median into the Heller vehicle. The Heller vehicle ended up rolling over three times before coming to rest, and Fajardo's Troop Car 6812, allegedly owned by Defendant New Jersey Turnpike Authority, traveled into the grass on the right side of the highway. Both Heller and Albright were transported to Cooper Hospital.
Jamie Albright has sued the New Jersey Turnpike Authority and Juan Fajardo, alleging that Fajardo was negligent in the operation of his motor vehicle. In Count One of her Second Amended Complaint, Albright asserts that she "has in the past and continues to expend monies and incur obligations for . . . medical care and treatment." (Albright's Second Am. Comp. ¶ 25.) In Count Two, Stephen Albright states a claim for loss of consortium.
Laurie Heller has also sued Trooper Fajardo (Count I), the New Jersey Turnpike Authority (Count II), and the New Jersey State Police (Count III) for negligence, claiming losses for "severe and permanent injuries to her body," (Heller's Am. Comp. ¶ 16), pain and suffering, loss of earnings and earning capacity, and damage to her vehicle. (Heller's Am. Comp. ¶¶ 16-19; 22-25; 28-31.) Stephen Heller has made a claim (Count IV) for loss of consortium.
This Court has jurisdiction over the instant matter under 28 U.S.C. § 1332, as the Plaintiffs are citizens of Maryland and the Defendants are citizens of New Jersey, and the amount in controversy exceeds $75,000.
A. Summary Judgment Standard "Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (a). The Court will enter summary judgment in favor of a movant who shows that it is entitled to judgment as a matter of law, and supports the showing that there is no genuine dispute as to any material fact by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56 (c)(1)(A).
An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 256-57. "A nonmoving party may not 'rest upon mere allegations, general denials or . . . vague statements . . . .'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.
Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot be genuinely disputed by showing that "an adverse party cannot produce admissible evidence to support the [alleged dispute of] fact." Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2).
In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility determinations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
B. New Jersey Tort Claims Act
Pursuant to the New Jersey Tort Claims Act, N.J. Stat. Ann. § 59:9-2(d), No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.
There is a two-pronged standard for evaluating whether a plaintiff's injury constitutes a permanent loss of bodily function in order to recover for pain and suffering. Brooks v. Odom, 696 A.2d 619, 622-24 (N.J. 1997). First, a plaintiff must show objective evidence of a permanent injury, and second, a plaintiff must prove a permanent loss of a body function that is substantial. Id.
Defendants have moved for summary judgment under the Tort Claims Act, arguing that Plaintiff Heller suffered neither an objective permanent injury caused by the accident nor a permanent loss of bodily function that is substantial, and further arguing that Plaintiff Albright's injuries ...