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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 ...

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