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James Sands and Gail Sands v. Borough of Bay Head


August 18, 2011


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-636-09.

Per curiam.


Submitted August 10, 2011

Before Judges J. N. Harris and Fasciale.

In this negligence case for pain and suffering against a public entity, plaintiffs James and Gail Sands appeal from an order granting summary judgment to defendant Borough of Bay Head (Bay Head). James Sands argues that he presented objective medical evidence that he suffered a permanent injury resulting in a substantial permanent loss of a bodily function. Because Sands' evidence created an issue of fact concerning whether his injury was substantial pursuant to the Tort Claims Act, N.J.S.A. 59:9-2(d), we reverse.

This matter comes before us on Bay Head's motion for summary judgment. Thus, we assume the truth of Sands' version of the facts, as the non-moving party, giving him the benefit of all favorable inferences. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 540 (1995).

James Sands, age seventy-one years old, slipped on ice and fell while walking on a pedestrian ramp owned by Bay Head. An ambulance transported him to Ocean Medical Center, where x-rays of his right ankle revealed a "non-displaced fracture of the distal fibula" and an "avulsion fracture of the medial malleolus." The next day, Dr. Arthur Mark examined Sands and placed his right ankle in a short cast.

Sands continued treatment with Dr. Mark for approximately three months. During that period, Dr. Mark noted persistent swelling in Sands' right ankle and a restricted range of motion. He also found, however, that the injury appeared to be a "very stable fracture" and that Sands had "good healing on his x- rays." By the third month, Dr. Mark observed that Sands had healed and discharged him.

Almost a year later, Sands returned to Dr. Mark complaining of "persistent right ankle stiffness." Dr. Mark observed that Sands had a restricted range of motion in his right ankle and recommended physical therapy. In Sands' follow-up visit, Dr. Mark noted no swelling or restricted motion in Sands' right ankle and again discharged Sands.

Sands was examined for his personal injury case by his own expert and by Bay Head's expert. Sands' expert, Dr. Lance Markbreiter, concluded from a review of the x-rays that Sands suffered a "spiral fracture" "with a rotational displacement." He opined that Sands lacked twenty degrees of dorsiflexion in his right ankle as compared to his left, and had "significant swelling." He also observed that Sands "demonstrated an antalgic limp" and that "[h]is leg externally rotated when ambulating so as to compensate for the lack of dorsiflexion [in his right ankle]." Dr. Markbreiter concluded within a reasonable degree of medical probability that Sands' injuries were "permanent in nature" and that they "greatly interfere in his activities of daily living causing limitations with . . . walking . . . going up and down stairs and causes pain with sleeping."

Bay Head's expert, Dr. Richard Sacks, contradicted Dr. Markbreiter's findings. Dr. Sacks found that Sands had a normal gait and did not walk with a limp; Sands' right ankle lacked only five degrees of dorsiflexion as compared to his left ankle, "which would be considered a non-significant degree of loss of mobility from a functional point of view;" and Sands' overall prognosis was "very good." Dr. Sacks also disputed Dr. Markbreiter's finding that Sands' suffered a displaced fracture.

At his deposition, Sands testified that as a result of his injury he has difficulty walking and sleeping due to pain. He explained that he walks with a limp, has difficulty using stairs and performing household tasks, and his ability to drive a car is impaired. Sands also testified that he no longer walks his dogs frequently, cannot dance with his wife anymore, and cannot enjoy spending time with his grandson because he is not as agile as before.

The motion judge granted Bay Head's motion for summary judgment. The judge recognized Dr. Markbreiter's report but explained Dr. Markbreiter "is the only one who found a [displaced fracture]" and concluded Sands' injury "didn't have a substantial impact on [his] life because "here you have a sedentary guy with a lot of issues." Sands moved for a motion for reconsideration, arguing that the judge "did not give proper weight to Dr. Markbreiter's findings . . . which would create factual issues as to whether or not the functional impairment . . . is substantial." The judge denied the motion.

On appeal Sands argues that genuine issues of material fact exist regarding whether he suffered a (1) a substantial injury; and (2) disfigurement within the meaning of N.J.S.A. 59:9-2(d). We agree and reverse.

When reviewing a grant of summary judgment, we employ the same legal standards used by the motion judge. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div.), certif. denied, 196 N.J. 85 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated that there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). We do not decide the disputed fact but ask only whether the allegedly disputed fact is material, warranting resolution by the factfinder. Brill, supra, 142 N.J. at 536. It is not any disputed fact that is sufficient to defeat a summary judgment motion. Rather, the disputed fact must be material and warrant resolution by the trier of fact. Id. at 530.

In so doing, we view the evidence in the light most favorable to the non-moving party and analyze whether the moving party was entitled to judgment as a matter of law. Id. at 523, 540. We accord no deference to the motion judge's conclusions on issues of law, Manalapan Realty, L.P., v. Township Committee of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. Spring Creek, supra, 399 N.J. Super. at 180; Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).

The New Jersey Tort Claims Act "was . . . intended to re-establish a system in which immunity is the rule, and liability the exception [in tort cases against public entities]." Bombace v. City of Newark, 125 N.J. 361, 372 (1991). The Act precludes recovery for non-economic damages against public entities except "in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment[.]"

N.J.S.A. 59:9-2(d). Thus, in order to defeat a motion for summary judgment (1) "a plaintiff must prove by objective medical evidence that the injury is permanent[,]" Brooks v. Odom, 150 N.J. 395, 402-3 (1997), and (2) "a permanent loss of a bodily function that is substantial." Gilhooley v. Cnty. of Union, 164 N.J. 533, 541 (2000). In determining whether an injury is substantial, our Supreme Court has explained, "distinctions between sedentary and non-sedentary plaintiffs in applying the Tort Claims Act standard are inappropriate. Rather, the appropriate focus is on the degree of injury and impairment." Borough of Wallington v. Kahrar, 171 N.J. 3, 14-15 (2002).

Here, summary judgment was not appropriate because Sands presented objective medical evidence to support his claim for a permanent loss of a bodily function that is substantial*fn1 in the form of Dr. Markbreiter's report, which claimed Sands' fracture caused him to lose significant range of motion in his right ankle and his foot. See Gerber v. Springfield Bd. of Educ., 328 N.J. Super. 24, 35 (App. Div. 2000) (citing Mack v. Passaic Valley Water Comm'n, 294 N.J. Super. 592, 600 (App. Div. 1996)). Sands' evidence of a diminished ability to walk, sleep, drive, and complete household tasks is of a significant degree of impairment for his injury to be considered substantial. See Kahrar, 171 N.J. at 15-16 (finding summary judgment inappropriate where "massive tear" of the rotator cuff significantly impaired "plaintiff's ability to complete normal tasks" including driving, sleeping through the night without pain . . . and continuing her hobbies"); cf. Ponte v. Overeem, 171 N.J. 46, 53-54 (2002) (threshold for awarding pain and suffering damages under Tort Claims Act not satisfied where there was no "evidence that plaintiff's range of motion [was] limited, his gait impaired or his ability to ambulate restricted"); Hammer v. Twp. of Livingston, 318 N.J. Super. 298, 305 (App. Div. 1999) (plaintiff's post-traumatic tendonitis from a fracture, which did not affect her gait, was not a substantial impairment); Gerber, supra, 328 N.J. Super. at 36 (summary judgment improper where injury resulted in restriction of breathing capabilities); Newsham v. Cumberland Regional High School, 351 N.J. Super. 186, 195 (App. Div. 2002) (summary judgment correctly granted where fracture of plaintiff's T7 vertebrae was not a substantial injury because "the limitations on her activities [were] minor"). Sands' impairment is more like that of the plaintiffs in Kahrar and Gerber than the plaintiffs in Ponte, Hammer, and Newsham. Thus, Dr. Markbreiter's report of Sands' impairment created a factual dispute regarding whether Sands' injury was "substantial" that can only be resolved by the finder of fact.


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