NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 1, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2049-09.
Drazin & Warshaw, P.C., attorneys for appellant (Brian D. Drazin, on the brief).
Weston, Stierli, McFadden & Capotorto, attorneys for respondents Jonas Salk Middle School and Old Bridge Township Board of Education (John Goworek, on the brief).
Law Offices of Joseph Carolan, attorneys for respondent DeFino Contracting (Joseph Carolan and George H. Sly, Jr., on the brief).
Before Judges Koblitz and Accurso.
Plaintiff Annmarie Termyna appeals from summary judgment in favor of Jonas Salk Middle School (JSMS) and Old Bridge Township Board of Education (BOE) entered on April 15, 2011, a judgment of no cause in favor of DeFino Contracting (DeFino) entered after a jury verdict on January 20, 2012, and a March 2, 2012 order denying a new trial. Plaintiff argues that she suffered a significant permanent disability within the meaning of N.J.S.A. 59:9-2(d) and that the verdict was against the weight of the evidence and based on an impermissible argument by defense counsel. After reviewing the record in light of the contentions advanced on appeal, we affirm.
In the summer of 2007, DeFino was hired to expand the JSMS' parking lot. Although a utility pole located in the original lot was not yet removed, DeFino paved around the pole to complete the lot's expansion. On November 29, 2007, plaintiff, who was employed as a school bus driver, fell into a pothole in the parking lot of JSMS. The hole had been created by the relocation of the utility pole after construction by DeFino ended in early August 2007. Jersey Central Power and Light (JCP&L) moved the pole no earlier than August 31. Thereafter, DeFino returned with hand tools to complete a punch list with tasks needed to complete the parking lot. The punch list was prepared August 23, prior to the removal of the pole. Hector DeFino, the president of DeFino, who oversaw the school project, testified that he was never asked to fill the hole left by the removal of the utility pole and was not aware of it.
The Director of Plant Services of the BOE, Frank Frazzitta, testified that he asked DeFino to repair the hole and it refused. Frazzitta stated that the utility pole left behind a hole approximately three feet deep. Plaintiff testified that at the time she fell the hole was about two to three inches deep.
Plaintiff suffered a non-displaced fracture at the base of the right fifth metatarsal bone, which connects to the little toe on the foot. An X-ray noted that she also had inflammatory arthritis in that foot. She was placed in a splint and then a fracture boot. Her treating doctor, Dr. Michael Cunningham, told her that the foot was healing properly and no physical therapy was needed.
A follow-up evaluation in May 2010 revealed persistent pain and EMG testing conducted in August 2010 revealed right-sided L-5 radiculopathy. Her orthopedist, Dr. Nasser Ani, indicated that ambulation relating to the fracture caused her right-sided radiculopathy with pain down her leg. He opined in his report that she suffered "a certain degree of permanency."
Plaintiff testified at deposition that her pain was weather-related. She has pain when standing for long periods, cannot wear shoes with elevated heels and has difficulty climbing into trucks. She was able to continue her job as a bus driver after the ...