January 17, 2012
JEANETTE BUCKLEY, PLAINTIFF-APPELLANT,
MAYRA FLEITAS, BOROUGH OF KEANSURG, BOROUGH OF KEANSBURG PUBLIC WORKS BOROUGH OF KEANSBURG STREETS AND ROADS DEPARTMENT, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2322-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2011
Before Judges Grall, Alvarez and Skillman.
At approximately 11:00 p.m. on October 4, 2007, plaintiff Jeanette Buckley walked out of her first-floor rented apartment in the Borough of Keansburg. As she stepped into the street, she placed her left foot on one of four cinder blocks laid lengthwise in the street parallel to the sidewalk. The sidewalk at that location does not feature a curb. The cinder block tipped, and as Buckley twisted and braced herself against a nearby car to keep from falling, she allegedly injured her back, and now suffers from chronic pain on her left side radiating down into her left leg. Buckley subsequently sued the following defendants for damages: Mayra Fleitas, the building owner; the Borough of Keansburg; Borough of Keansburg Public Works; and the Borough of Keansburg Streets and Roads Department.
Buckley's documented medical history of back pain and related problems begins at least in 1990, when she complained of injuring her back while moving a patient at work. Thereafter, in 1997, she fell in a department store - the first of several falls resulting in additional pain to her neck and back areas, and radiating down her torso into her legs. She was seen in an emergency room on November 23, 1998, following a motor vehicle accident - the first of several in which she was involved over the years resulting in exacerbation of her back condition.
Prior to this fall, Buckley underwent multiple back surgeries, as many as nine, including a laminectomy, the placement of a stimulator, and the insertion of a caudal electrode threaded into her spine. Contrary to Buckley's deposition testimony, her medical records reflect that over the years, her complaints of pain included the left side, not just the right side, of her body.
On September 30, 2010, the Law Division judge granted defendants' motions for summary judgment. Buckley appeals the dismissal of her complaint, and we affirm.
Summary judgment is warranted where no genuine issue of material fact is present and the movant is entitled to judgment as a matter of law. R. 4:46-2(c). In making the determination, a court must consider the competent evidence "in the light most favorable to the non-moving party" and determine whether the evidence is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Only where the evidence is sufficient to meet that standard should the motion be denied. In reviewing appeals from such decisions, we employ the same analysis. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). After consideration of Buckley's arguments on appeal, we agree with the trial judge that defendants are entitled to judgment as a matter of law even viewing the facts in the light most favorable to Buckley.
Buckley's first contention of error is that summary judgment was granted improvidently because Fleitas, as the lessor, "had a duty to exercise reasonable care and to maintain the rented premises." Regardless of whether the contention has merit, it is clear that the concrete blocks which caused Buckley to twist her body to avoid a fall were located in the street and not in an area over which Fleitas had control. As Buckley readily acknowledged, the incident occurred when she stepped out onto the street, believing that the blocks were "cemented in place."
The definition of commercial property generally includes rental premises. Hambright v. Iglesias, 200 N.J. Super. 392 (App. Div. 1985); but see Luchejko v. City of Hoboken, 207 N.J. 191 (2011) (condominium building in which ten percent of the units are rentals is nonetheless considered residential in determining the duty of care of the condominium association to maintain the sidewalk in front of the building). These premises, occupied by residential tenants, fall within the definition of a commercial property. Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981) (commercial landowners are responsible to maintain abutting public sidewalks in reasonable conditions and are liable if they do not meet that standard of care); Hambright, supra, 200 N.J. Super. at 395. But Fleitas's duty of care does not include the street, the location of the fall. That area is the responsibility of the municipality.
In an attempt to impose a duty on Fleitas, Buckley relies upon the deposition testimony of Dennis O'Keefe, the Director of Keansburg Public Works, who asserted that it was the property owner's, not the municipality's, responsibility to maintain the "right-of-way," including the street. This assertion is contrary to well-established precedent. A curb is classified "as part of a street for purposes of determining municipal liability for pedestrian injuries relating to the dangerous condition of curbs." Norris v. Borough of Leonia, 160 N.J. 427, 446 (1999). Because a curb is part of the street, the municipality, not the adjoining property owner, is responsible for its maintenance. Ibid. It is undisputed that the cinder blocks were located in the street.
Buckley's claims against the municipal defendants are subject to the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Consequently, Buckley must meet the TCA threshold found at N.J.S.A. 59:9-2 in order to pursue her claim for damages for pain and suffering. The statute provides:
[N]o 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. [N.J.S.A. 59:9-2.]
In order to establish the permanent loss of a bodily function, Buckley must prove (1) the existence of a permanent injury by objective medical evidence, and (2) the "permanent loss of a bodily function that is substantial." Gilhooley v. Cnty. of Union, 164 N.J. 533, 541 (2000) (citing Brooks v. Odom, 150 N.J. 395, 402-06 (1997)).
The assessment of whether Buckley has suffered a substantial injury is fact-sensitive. See Knowles v. Mantua Twp. Soccer Assn., 176 N.J. 324, 334 (2003); Heenan v. Greene, 355 N.J. Super. 162, 165 (App. Div. 2002). An injury which results in some restrictions in movement, even if permanent, but which does not result in a substantial loss of bodily function, does not meet the TCA's threshold. Id. at 167.
Buckley, before this incident, suffered from extensive back problems radiating down her torso and into her legs, primarily the right side. Buckley claims that after this incident she now suffers from pain radiating into her left leg and hip area.
This claim is contradicted by the medical record, which shows that although Buckley's complaints of pain were predominantly on the right side, on several occasions over the past years, the complaints included her left lower back, left leg, and left foot. Even after this incident, Buckley suffered an additional fall in November 2008, eleven months prior to the examination by her own expert. She received emergency room treatment for that fall, but did not miss work as a result.
The substantial hurdle that Buckley cannot overcome is her failure to establish that this fall resulted in the permanent loss of a substantial bodily function, which is a necessary element for a viable TCA claim. See Gilhooley, supra, 164 N.J. at 541.
A discussion of the facts in Heenan is enlightening. In that case, the plaintiff alleged an objective permanent injury, which was substantiated. Heenan, supra, 355 N.J. Super. at 167. Despite that objective and undisputed permanent injury, the consequences did not result in a substantial loss of bodily function. Ibid. The plaintiff's subjective manifestations consisted of headaches, difficulty sleeping, low back pain, left shoulder pain, left arm pain, left leg pain, dizziness, and fatigue. Id. at 163. The plaintiff was diagnosed with "cervico-thoracic soft tissue, acute sprain/strain of the lumbar soft tissue, left shoulder sprain/strain, cervical disc syndrome with radicular sensation, post-traumatic cervicocranial syndrome, and post-traumatic myofascitis." Id. at 163-64. The plaintiff was a physically active individual who, although able to resume some of her prior day-to-day activities, was able to do so only by taking frequent rest periods. Id. at 164. The court concluded that these injuries did not provide substantial evidence of a loss of a bodily function. Id. at 166.
In this case, where Buckley similarly claims she continues to experience pain and has restrictions of movement, she has nonetheless failed to demonstrate that her injuries are more substantial in nature than the injury found wanting in Heenan. Buckley's assertions that her permanent injuries are so severe that she has constant pain in her back radiating down her left leg requiring her to take Ibuprofen daily simply does not satisfy the statutory standard. Although she may have an objective permanent injury, she has no substantial loss of a bodily function. See Gilhooley, supra, 164 N.J. at 541. For this reason, defendants were entitled to prevail as a matter of law and summary judgment was properly granted.
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