DENISE M. MAROTTA v. KARIN J. ABRAHAMSEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1726-04T11726-04T1

DENISE M. MAROTTA,

Plaintiff-Appellant,

v.

KARIN J. ABRAHAMSEN,

Defendant-Respondent.

________________________________________________________________

 

Argued October 25, 2005 - Decided

Before Judges Lefelt and R. B. Coleman.

On appeal from the Superior Court of

New Jersey, Law Division, Ocean County,

Docket No. L-1068-03.

Danielle S. Chandonnet argued the cause

for appellant (Shebell & Shebell,

attorneys; Ms. Chandonnet, on the brief).

Martin R. McGowan, Jr. argued the cause

for respondent (Methfessel & Werbel,

attorneys; Lori Brown Sternback, on the

brief).

PER CURIAM

On June 23, 2001, plaintiff Denise Marotta was rear-ended by a vehicle driven by defendant, Karen Abrahamsen. Plaintiff brought suit against defendant and the matter eventually came before Judge Oles who, upon defendant's summary judgment motion, dismissed plaintiff's complaint for failing to surmount the verbal threshold. Plaintiff appeals from this judgment, and we affirm.

Although Judge Oles dismissed plaintiff's complaint for failure to meet both prongs of Oswin v. Shaw, 129 N.J. 290, 318-19 (1992), the second prong, which required a serious impact upon plaintiff's life, no longer pertains. DiProspero v. Penn, 183 N.J. 477, 506 (2005); Serrano v. Serrano, 183 N.J. 508, 518 (2005). Plaintiff argues in this appeal that Judge Oles erred because she met the only surviving prong of Oswin, which requires that one of the qualifying injuries under N.J.S.A. 39:6A-8a, in this case a "permanent injury," be established by objective medical evidence. An injury, under the statute is considered permanent when "the body part or organ or both has not healed to function normally and will not heal to function normally with further medical treatment." Ibid.

Here, plaintiff, who suffers from neck and back pain, submitted objective proof consisting of MRIs that showed at L5-S1 "small disc bulging," "grade I spondylolisthesis," and "hyperlordotic lumbosacral curvature." None of plaintiff's medical reports, including those that she hoped to add by extending discovery, explained these conditions or why they were permanent. Even though the conditions were diagnosed by objective medical evidence, none of plaintiff's medical reports explained whether the disc bulge, spondylolisthesis, or lumbosacral curvature had not healed and will not heal to function normally with further medical treatment.

In addition, none of plaintiff's expert reports linked any of her conditions to the automobile accident. Instead, the only references to causation were that plaintiff related "the onset of her current symptoms to a motor vehicle accident," and that plaintiff had no back pain before the motor vehicle accident.

Even after DiProspero and Serrano, plaintiff must at least raise a factual dispute sufficient to demonstrate: (1) that she has suffered a permanent injury, meaning the injured body part will neither heal nor function normally in the future even with further medical treatment; and (2) that the permanent injury was caused by the automobile accident. Juarez v. J.A. Salerno & Sons, 379 N.J. Super. 91 (App. Div. 2005). Though plaintiff claims she is young and never had any neck or back pain before the accident, this showing is insufficient to raise a factual dispute sufficient to withstand summary judgment. Without medical opinion it cannot be inferred simply from plaintiff's age, the absence of a history of prior complaints, and the course of treatment that a disc bulge, spondylolisthesis, and spine curvature are permanent or related to the automobile accident. Without such a showing, plaintiff may not pass over the verbal threshold. Ibid.

 
Affirmed.

(continued)

(continued)

4

A-1726-04T1

November 4, 2005