MARY RAMIREZ v. PETER KIBILDIS et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1579-04T31579-04T3

MARY RAMIREZ,

Plaintiff-Appellant,

v.

PETER KIBILDIS and

NANCY KIBILDIS,

Defendants-Respondents.

 

Argued November 15, 2005 - Decided January 18, 2006

Before Judges Kestin, Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-484-03.

Paul J. Hirsh argued the cause for appellant.

Hugh P. Francis argued the cause for respondents (Francis & Berry, attorneys; Mr. Francis, of counsel; Kenneth J. Moeller, on the brief).

PER CURIAM

Plaintiff, Mary Ramirez, appeals from the November 1, 2004 order granting summary judgment in favor of defendants Peter and Nancy Kibildis and dismissing her automobile negligence complaint. We reverse and remand.

We have derived the following facts from the record. Plaintiff, then eighty-one years of age, was involved in an automobile accident on April 1, 2002 in which defendant Peter Kibildis hit her car in the rear as she approached an intersection. She was transported to the emergency room where she complained of numbness in the back of her head and a feeling of pressure behind her eyes. An X-ray of her cervical spine performed at the hospital revealed that she had narrowed disc spaces due to degeneration and evidence of muscle spasm.

A subsequently performed MRI study revealed that she had evidence of severe discogenic disease and that she had both bulging discs and three disc herniations in her lumbar spine. In his report, her treating chiropractor described plaintiff's health prior to the accident as good and commented that she had reported that before the accident she was not suffering from any symptoms for which he had previously treated her. That report referred in general to the process by which normal degeneration is traumatically accelerated and opined that plaintiff's cervical and lumbar injuries were permanent. Defendants' expert opined that all of plaintiff's injuries were degenerative rather than traumatic in nature.

Defendants moved for summary judgment, arguing that plaintiff's injuries were insufficient to cross the verbal threshold. See Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. The judge who considered defendants' summary judgment motion applied, as he was then required to, the two part Oswin test. See Oswin v. Shaw, 129 N.J. 290, 318-19 (1992); James v. Torres, 354 N.J. Super. 586, 596 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003). As a result, he considered the evidence in the record relating to the impact that the injuries had on plaintiff's lifestyle. That evidence revealed that prior to the accident, plaintiff worked as a greeter at Wal-Mart and engaged in a variety of household and other activities, all of which she had either been forced to curtail or give up after she was injured.

In granting the motion, the judge set forth his findings and conclusions as follows:

She has pains on the side of her knees, her neck hurts. She has problems -- most of these with walking. These conditions, the Court finds, hardly bespeak some extraordinary conditions which would be reflective of those objective types of injuries envisioned by the statute. Indeed, the injuries are, the Court finds, quite typical of a person of the age in question, especially in light of the diagnosis expressed by [defendants' expert.]

. . . The purpose of the statute is quite clear. It is to basically allow those cases which are frankly far more egregious and -- and objectively injurious and involve injuries far different than that presented here from going further to trial.

This reasoning rests squarely on the second of Oswin's two prongs, as it relies solely on the issue of whether the injuries sustained in the accident were sufficiently serious to support recovery. As this interpretation of the statute has since been abrogated by our Supreme Court, see Juarez v. J.A. Salerno & Sons, 185 N.J. 332, 333-34 (2005); DiProspero v. Penn, 183 N.J. 477, 481 (2005); Serrano v. Serrano, 183 N.J. 508, 509-10 (2005), we are constrained to reverse and remand this matter for further proceedings consistent with those decisions.

Reversed and remanded. We do not retain jurisdiction.

 

At oral argument, counsel for defendants urged us to affirm the judge's grant of summary judgment on the ground that plaintiff had failed to provide a comparative analysis of her injuries allegedly suffered in the accident as compared to her pre-existing degenerative disease. See Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993). Although we are aware of a recently published decision that questions the continuing viability of the Polk requirement, see Davidson v. Slater, 381 N.J. Super. 22, 29 (App. Div. 2005), the view there expressed is not universally accepted. See Ostasz v. Howard, 357 N.J. Super. 65, 67 (App. Div. 2003); Lucky v. Holland, 380 N.J. Super. 566, 570 (App. Div. 2005); Hardison v. King, 381 N.J. Super. 129, 134-36 (App. Div. 2005). We need not address that controversy in this appeal. First, plaintiff here is not making a claim of aggravation at all, rendering the Polk analysis unnecessary. Second, although the motion judge referred to the Polk analysis in general in his opinion, he did not decide the motion on that basis as a result of which we need not address it on appeal.

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A-1579-04T3

January 18, 2006