On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket No. L-682-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.
Plaintiff appeals from an order granting summary judgment to defendant dismissing her complaint for pain and suffering under the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 12-3. The trial court held that plaintiff had not shown by objective medical evidence that she sustained a permanent loss of a bodily function. Defendant cross-appeals from the trial court's failure to rule upon its alternative ground for summary judgment, that defendant is immune from liability under N.J.S.A. 59:2-6.
For reasons expressed hereinafter, we reverse on the appeal and deny the cross-appeal. The matter is remanded to the trial court; we do not retain jurisdiction.
Plaintiff, then 17 years of age, claimed that on December 17, 2007, she was walking on a public sidewalk adjacent to property owned and controlled by defendant, a public housing authority, when she fell as a consequence of the "negligent condition (i.e. the presence of snow and/or ice) of said property[.]" She was taken by family members to the Warren Hospital where an x-ray revealed a "comminuted fracture through the mid and distal shaft of the right fibula" and a "[n]ondisplaced fracture of the posterior malleolus at the level of the ankle."
Plaintiff was put into a splint and released, but returned to the hospital four days later at the request of her treating orthopedist because plaintiff was in a "considerable amount of pain" and the doctor was concerned she might develop "compartment syndrome." The doctor applied another splint to plaintiff's right leg and determined that plaintiff had no signs of compartment syndrome at that time. He gave plaintiff pain medication, released her from the hospital and arranged for follow-up evaluations.
Plaintiff was on crutches for approximately two months and wore a special "boot" for four or five months. Plaintiff was also instructed to perform exercises for strengthening her leg and ankle. She continued to be evaluated by her orthopedist several months after the accident, and then was released from his care. Plaintiff complains that her foot "starts hurting really bad[ly]" and swells "the more [she] walk[s]." She adds that her ankle is tender and hurts upon palpation.
In an office note dated October 13, 2008, plaintiff's orthopedist reported that x-rays of the right ankle demonstrated a "normal appearance" and that plaintiff walked with a "normal appearing gait." He added that plaintiff had "healed very nicely."
On November 11, 2010, plaintiff was examined by Arthur Becan, M.D., an orthopedic surgeon. Dr. Becan noted plaintiff's complaints of daily ankle and lower leg pain and stiffness, and he observed a "mild limp" secondary to "right ankle pain" and that her right foot was externally rotated at 25 degrees. He opined that plaintiff sustained the fractures noted earlier, as well as "rotational malunion of fracture of right tibia and fibula" and post-traumatic tendinitis in the right ankle. Dr. Becan concluded that these are "permanent orthopedic impairments" caused by the fall. In a subsequent report, Dr. Becan noted that he reviewed the films from plaintiff's 2007 x-rays and CT scan and that the review required "no changes" in his earlier findings and opinions.
Defendant moved for summary judgment and apparently claimed that plaintiff had not suffered a permanent loss of bodily function under N.J.S.A. 59:9-2(d) and that defendant cannot be liable for a "negligent inspection" of its property under N.J.S.A. 59:2-6.*fn1 The judge granted defendant's motion, finding there was "no objective evidence, medical evidence" of the rotational malunion. She added that Dr. Becan "just doesn't connect it up with that x-ray."
The trial judge further explained that as to defendant's "other point[,]" she did not "study it that closely" because she was "hung up on . . . the injury." The trial judge also denied plaintiff's motion for reconsideration, explaining that "your expert did not show in . . . his reports objective medical ...