TARA HUDSON v. COLLEEN P. ELLIOTT AND CARYN A. ELLIOTT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1469-04T11469-04T1

TARA HUDSON,

Plaintiff-Appellant,

v.

COLLEEN P. ELLIOTT AND

CARYN A. ELLIOTT,

Defendants-Respondents

and

JOSEPH J. SYNNAMON,

Defendant.

 

Argued November 30, 2005 - Decided

Before Judges Winkelstein and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-3389-03.

David J. Anderson argued the cause for appellant (Ferguson & Anderson, attorneys; Mr. Anderson, on the brief).

Angela B. Kosar argued the cause for respondents (Zeller & Bryant, attorneys; Eric J. Riso, of counsel; Ms. Kosar and Michael A. Weiner, on the brief).

PER CURIAM

Plaintiff Tara Hudson appeals from the Law Division's orders dismissing her personal injury action on summary judgment on the grounds that she failed to satisfy the verbal threshold of N.J.S.A. 39:6A-8. We reverse.

On March 3, 1999, plaintiff, fifteen years old and a sophomore in high school, was a passenger in a vehicle operated by defendant Joseph Synnamon at the intersection of Browning Road and Ellen Drive in Bellmawr. Synnamon's vehicle collided with a vehicle driven by defendant Colleen Elliott and owned by defendant Caryn Elliott.

As a result of the impact, plaintiff's right knee struck the dashboard. She was taken by ambulance to the emergency room at the Underwood Hospital where she was evaluated, x-rayed and released. X-rays were negative.

Two weeks after the accident she sought treatment from Enrico Marcelli, D.O. because she continued to experience knee pain. Specifically, she complained of knee pain with sitting, standing and climbing stairs. Dr. Marcelli's evaluation was negative for heat, redness or swelling of plaintiff's knee. Nevertheless, McMurray's sign produced pain and clicking with full knee extension. The doctor's clinical impression at that time was that plaintiff "had the possibility of a patellofemoral articular surface injury, particularly with a clicking sensation out toward full extension." He prescribed physical therapy; plaintiff was to be reevaluated several weeks later.

When seen on May 5, 1999, plaintiff complained of continued knee pain. She had a "mildly positive grind." She experienced tenderness along the medial aspect of her knee, as well as some joint pain and tenderness. The doctor observed clicking between fifteen degrees and full extension, suggestive "of patellofemoral dysfunction." According to Dr. Marcelli, plaintiff had not improved with therapy.

In September 1999, plaintiff continued to complain of anterior knee pain. Despite a negative MRI, she continued to have clinical symptomatology suggestive of patellofemoral pain and tenderness with crepitus. The doctor observed that, six months post-injury, plaintiff remained unable to run, jump or attend gym class.

When, in December 1999, plaintiff continued to complain of "burning, pain, clicking, [and] popping" in her knee, and extension of her knee produced a patellofemoral grind, the doctor determined that plaintiff required arthroscopic surgery, which he performed on January 21, 2000. According to the operative report, "the entire superomedial portion of the patellofemoral articulation and anterior knee joint . . . were filled with fat pad and a large median parapatellar plica." During the procedure, the doctor removed the fat pad and plical band.

Subsequent to the surgery, plaintiff slowly improved; nevertheless, by December 17, 2001, she continued to have persistent anterior knee pain. On examination, Dr. Marcelli found "a tight lateral retinaculum with a positive grind." Plaintiff returned to physical therapy.

In April 2002, she had "signs and symptoms of patellar tendonitis" with "patellofemoral pain." Six months later she described her knee pain as unbearable. As a result, Dr. Marcelli sent plaintiff to Frederick C. Balduini, M.D., for a second opinion.

Plaintiff told Dr. Balduini that she continued to experience pain and her knee occasionally "snap[ped] and pop[ped]" on her, and felt like "it gives way." On examination, her right knee had "a fairly resounding pop" emanating from the "lateral puncture site." On several occasions during the examination when plaintiff felt a pop in her knee it brought tears to her eyes. Dr. Balduini reported that he did not think plaintiff "is malingering at all." He recommended a repeat arthroscopy.

Dr. Marcelli performed a second arthroscopic procedure on February 19, 2003. He debrided a grade two defect of the lateral femoral condyle.

By July 21, 2003, plaintiff had progressed well, but she continued to complain of mild swelling in the knee accompanied by pain. She had mild weakness in her quadriceps; aside from that, her symptoms "had essentially resolved." Dr. Marcelli opined that plaintiff's knee injury was caused by the motor vehicle accident. While he noted that her long-term prognosis was good, he indicated she could have occasional discomfort in the patellofemoral articulation, and may require ice and anti-inflammatory medication.

In response to the summary judgment motions filed by defendants, plaintiff submitted an affidavit explaining the impact the accident and its residuals had on her life. At the time she prepared the affidavit, five and one-half years post-accident, she found it difficult to walk more than twenty minutes; to sit for more than twenty minutes without knee cramping; and she had difficulty climbing stairs without right knee pain. She was unable to play softball, which she enjoyed, unable to walk in high heels, and, while attending college, had difficulty walking across campus without pain. She also said: "My knee often goes out. Approximate[ly] once a month it will pop out of place. It may cause me to fall. It usually snaps back in by itself. However, on one (1) occasion last year, I had to go to the emergency room to have it put back in."

To determine whether a plaintiff vaults the verbal threshold for purposes of summary judgment, the court must decide:

(1) whether under any view of the plaintiff's injuries they can be said to fall within at least one of the nine categories that New Jersey's statute specifies, and (2) if so, whether the evidence before the court on a motion for summary judgment demonstrates a material dispute of fact regarding the nature and extent of the plaintiff's injuries.

[Oswin v. Shaw, 129 N.J. 290, 307 (1992).]

The applicable statute, in pertinent part, reads as follows:

Every owner, registrant, operator or occupant of an automobile to which section four of P.L.1972, c. 70 (C. 39:6A-4), personal injury protection coverage, regardless of fault, applies, and every person or organization legally responsible for his acts or omissions, is hereby exempted from tort liability for non-economic loss to a person who is subject to the subsection and who is either a person who is required to maintain the coverage mandated by this act, or is a person who has a right to receive benefits under section 4 of P.L.1972, c. 70 (C. 39:6A-4), as a result of bodily injury, arising out of ownership, operation, maintenance or use of such automobile in this State, unless that person has sustained a personal injury that results in death [Type 1]; dismemberment [Type 2], significant disfigurement [Type 3]; a fracture [Type 4]; loss of fetus [Type 5]; permanent loss of use of a body organ, member, function or system [Type 6]; permanent consequential limitation of use of a body organ or member [Type 7]; significant limitation of use of a body function or system [Type 8]; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute that person's usual and customary daily activities for not less than 90 days during 180 days immediately following the occurrence of the injury or impairment [Type 9]. [N.J.S.A. 39:6A-8a (our emphasis).]

[Cineas v. Mammone, 270 N.J. Super. 200, 209 (App. Div. 1994).]

Based on the medical proofs submitted in this case, we conclude that under the summary judgment standard plaintiff's knee injury satisfies the criteria needed to demonstrate a Type 8 injury.

Plaintiff's use of her knee has been significantly limited as a result of the accident. The term significant has been construed to mean "more than a minor limitation of use." Oswin, supra, 129 N.J. at 316. Plaintiff has met that test. At the time of the accident she was fifteen years old. When she signed the affidavit in September 2004 she was a few months past her twenty-first birthday. She had already undergone two knee surgeries; in the first, the surgeon removed a fat pad from her knee and in the second, he debrided an internal defect. She continues to experience pain and her knee often pops out of place. Drawing all inferences in plaintiff's favor for purposes of summary judgment, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the medical evidence shows that plaintiff has satisfied the objective prong of the verbal threshold that as a result of the accident she has sustained a significant limitation of use of her knee.

Next, then, we turn to the second prong of Oswin whether plaintiff has demonstrated that the injuries have had a serious impact upon her life. Supra, 129 N.J. at 307, 318-19. Plaintiff has met that test too.

She continues to have knee pain that has affected her ability to walk, bend and sit for extended periods. Her knee pops out of place, sometimes causing her to fall. She is unable to walk in high heels, is distracted in the classroom, and has, in fact, lost financial aid at college as a result of missing time from class because of her knee problems. Nor can she continue to play softball, which had been an important part of her life. These facts create a jury issue to survive a summary judgment motion. See Moreno v. Greenfield, 272 N.J. Super. 456, 465-66 (App. Div. 1994) (inability of plaintiff, a young woman, to dance, exercise and perform household chores was serious impact on her life); Owens v. Kessler, 272 N.J. Super. 225, 233-34 (App. Div. 1994) (inability of former high school athlete to participate in sports was serious impact on his life); Cineas, supra, 270 N.J. Super. at 211-12 (App. Div. 1994) (plaintiff's limitation on working overtime, household chores, and sexual relations had serious impact on his life); Dabal v. Sodora, 260 N.J. Super. 397, 401-02 (App. Div. 1992) (fifty-nine-year-old plaintiff unable to dance a primary social activity in her life); Brown v. Puente, 257 N.J. Super. 203, 205-06 (App. Div. 1992) (plaintiff student's inability to engage in scholastic athletics was serious impact on his life).

In sum, the medical reports from plaintiff's treating doctors were sufficient to meet the objective requirements of the verbal threshold. Her affidavit creates a sufficient factual dispute to satisfy the second prong of Oswin.

 
Reversed and remanded.

The accident in this case occurred prior to the effective date of the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. Consequently, we apply the law in effect prior to that legislation.

(continued)

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9

A-1469-04T1

December 15, 2005