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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...