February 9, 2012
ERIKA TYREE, PLAINTIFF-APPELLANT,
ORANGE BOARD OF EDUCATION, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4433-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 29, 2011
Before Judges Messano and Kennedy.
Plaintiff, Erika Tyree, appeals from the January 7, 2011 order that granted partial summary judgment to defendant, Orange Board of Education (Board of Education), dismissing plaintiff's complaint for pain and suffering under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3.*fn1 The trial court, relying upon Brooks v. Odom, 150 N.J. 395 (1997), and its progeny, held that plaintiff had not shown by objective medical evidence that she sustained a permanent loss of a bodily function that is substantial. We affirm.
On May 31, 2007, plaintiff, then forty years of age, fell while descending the stairs at the Central Elementary School which was owned and operated by the Board of Education. Plaintiff was taken to Saint Michael's Medical Center in Newark, New Jersey where an x-ray revealed she had suffered a fracture to the base of the fifth metatarsal in her right foot. She received a soft cast for the right foot which was replaced two days later with a hard cast. The cast was removed in August 2007, and plaintiff went back to work as a claim specialist at the VA Medical Center in September 2007. She returned for some follow-up visits to the Saint Michael's Medical Center until released from its care on December 5, 2007. She received no physical therapy, and an x-ray on discharge showed a "moderate" calcaneal spur and "no obvious fracture or dislocation."
Over a year after the accident, plaintiff sought medical treatment from Dr. Frank Brady, D.P.M., on October 30, 2008.
She went to see Dr. Brady because she felt she could not "keep a shoe on [her] foot" due to her injury. Dr. Brady's impression was that plaintiff was suffering from tendonitis and he provided her with steroid injections on October 30 and November 7, 2008. On December 4, 2008, he noted that plaintiff still suffered from "very slight discomfort" and that "no treatment [was] necessary." On January 8, 2009, he determined plaintiff was in "little to no pain" and that there was "no treatment necessary." Plaintiff sought no further care from Dr. Brady.
Plaintiff filed her complaint against the Board of Education on May 29, 2009. She then went to the Suburban Orthopedic and Medical Center in the spring of 2010 for a number of visits and "therapy." The diagnosis was "healed fracture" and "unspecified right foot sprain." She was advised to stop therapy on June 14, 2010, and the right ankle range of motion was found to be "within normal limits."
On June 21, 2010, plaintiff was seen by Dr. Theodora Maio of Sall/Myers Medical Center. Dr. Maio's examination of the plaintiff's right foot revealed lateral swelling, "compression tenderness" and some limitation of range of motion. Dr. Maio's diagnosis was "post-traumatic sprain/strain injury to the right foot and ankle with fracture of the fifth metatarsal with residuals of interosseous myositis and fybromyositis and ankle synovitis with loss of range of motion, power and function."
At her deposition, plaintiff claimed that she could not "go walking like [she] used to, wear high heels or dance." When asked if she suffered any other limitations as a consequence of her injury, she replied, "that's about it."
On appeal, plaintiff argues that the trial court erred in granting summary judgment to the Board of Education on the basis that her injury did not constitute a permanent loss of a bodily function that is substantial. We disagree.
When reviewing a grant of summary judgment, we apply the same legal standards utilized 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). Initially, we determine whether the moving party has demonstrated that there were no genuine issues of material fact and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillsdale Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). It is not any disputed fact that is sufficient to defeat a motion for summary judgment. Rather, the disputed fact must be material and warrant resolution by the trier of fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 530 (1995). We view the evidence in the light most favorable to the non-moving party. Id. at 523, 540.
The controlling principle of the Tort Claims Act is that "immunity from tort liability is the general rule and liability is the exception." Coyne v. State Dep't. of Trans., 182 N.J. 481, 488 (2005). "[P]ublic entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established" in the statute. N.J.S.A. 59:1-2.
The Tort Claims Act precludes recovery for non-economic damages
against public entities except "in cases of permanent loss of a bodily
function, permanent disfigurement or dismemberment" where medical
expenses exceed $3,600. N.J.S.A. 59:9-2(d). To defeat a motion for
summary judgment a plaintiff must prove by objective medical evidence
that the injury sustained is permanent and substantial.*fn2
Gilhooley v. Cnty. of Union, 164 N.J. 533, 541 (2000);
Brooks, supra, 150 N.J. at 406.
In Brooks, plaintiff brought suit against New Jersey Transit when she was injured by a bus. Plaintiff complained of headaches, dizziness, blurred vision and pain and stiffness in the neck, back and shoulder. She ultimately was diagnosed with "residuals of post-traumatic headaches, residuals of flexion/rotation injury of the cervical, dorsal and lumbar spine with post-traumatic myositis and fybromyositis." Id. at 400. She eventually returned to work. The trial court granted summary judgment based upon the nature of the plaintiff's injuries and we reversed. The Supreme Court however, reinstated the Law Division judgment explaining that to recover under the Tort claims Act for pain and suffering, a plaintiff must prove by objective medical evidence that the injury is permanent.
Temporary injuries, no matter how painful and debilitating are not recoverable.
Further, a plaintiff may not recover under the Tort Claims Act for mere subjective feelings of discomfort . . . . [A] claim for permanent injury consisting of impairment of plaintiff's health and ability to participate in activities merely iterates a claim for pain and suffering. [Id. at 402-03 (citations omitted) (internal quotation omitted).]
The Tort Claims Act does not specify what constitutes a permanent loss of bodily function. "Each case is fact-sensitive." Gilhooley, supra, 164 N.J. at 539.
Here, we agree with the trial judge that plaintiff has not shown by objective medical evidence that she sustained a permanent loss of use of a bodily function that is substantial. While plaintiff did sustain a facture of the base of the fifth metatarsal on the right foot, an x-ray taken on December 5, 2007 nonetheless revealed no "obvious fracture or dislocation." Over a year later, Dr. Brady noted that plaintiff had "little to no pain" and that there was "no treatment necessary." The records of Suburban Orthopedic and Medical Center revealed that plaintiff had sustained a "healed fracture" with an unspecified right foot sprain and a range of motion within normal limits. While Dr. Maio claims that plaintiff sustained a sprain/strain injury to the right foot, with myositis, fybromyositis and synovitis, given the course of plaintiff's treatment and the nature of the limitations she claims, we do not find that plaintiff's injuries are substantial and consequently the motion for summary judgment was properly granted.
Our review of the record shows that plaintiff's limitations are insufficient for recovery under the Tort Claims Act because she complains only of lingering pain, resulting in a diminished ability to perform certain tasks because of the pain, Knowles v. Mantua Twp. Soccer Association, 176 N.J. 324, 332 (2003), that constitute "mere 'subjective feelings of discomfort.'"
Gilhooley v. County of Union, supra, 164 N.J. at 539 (quoting Brooks, supra, 150 N.J. at 403). Moreover, we have previously found that limitations like those described by plaintiff do not rise to the level of a substantial loss of bodily function.
See, e.g., Newsham v. Cumberland Reg. High Sch., 351 N.J. Super. 186, 195-96 (App. Div. 2002) (finding no substantial loss of a bodily function where plaintiff complained that she was unable to sit for longer than forty-five minutes, could not lift more than minimal weight, could not exercise as strenuously as she once could, and "required 'medicine and frequent breaks to complete her eight-hour work shift'"); Heenan v. Green, 355 N.J. Super. 162, 167 (App. Div. 2002) (where plaintiff suffered permanent injury reducing the range of motion in her neck, her resulting limitations did not constitute a substantial loss of bodily function because she continued to play sports, interval train, perform household chores "to some extent[,]" and was able to continue working as a teacher despite no longer being able to work with emotionally disturbed children); compare Knowles, supra, 176 N.J. at 333-34 (permanent injury resulted in substantial loss of bodily function where plaintiff experienced "lack of feeling in his left leg and inability to stand, sit or walk comfortably for a substantial amount of time, engage in athletics, and complete household chores" even though he was able to work).
Plaintiff remains able to perform substantially all of the activities she engaged in prior to the 2007 accident. Though plaintiff's injuries have caused her subjective pain while performing tasks, and occasionally have required her to modify the way she performs those tasks, we agree with the trial judge that such limitations do not meet the threshold required for recovery under N.J.S.A. 59:9-2(d).