ELAINE SPIEWAK v. BOROUGH OF STONE HARBOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4294-07T24294-07T2

ELAINE SPIEWAK,

Plaintiff-Appellant,

v.

BOROUGH OF STONE HARBOR,

Respondent-Defendant.

_______________________________

 

Argued: February 11, 2009 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-260-06.

Michael P. Albano argued the cause for appellant (Ragonese, Albano & Viola, LLC, attorneys; Mr. Albano, on the brief).

Neil Stackhouse argued the cause for respon dent (Law Offices of Neil Stackhouse, P.C., attorneys; Mr. Stackhouse, on the brief).

PER CURIAM

Plaintiff Elaine Spiewak appeals from a summary judgment in favor of defendant Borough of Stone Harbor dismissing her com plaint seeking damages under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, for injuries she suffered in a slip-and-fall accident on defendant's property. Because she did not suffer a "permanent loss of a bodily function" or a "perma nent disfigure ment" within the meaning and intendment of N.J.S.A. 59:9-2d, we affirm.

Our Supreme Court has interpreted the TCA injury threshold and concluded that a plaintiff must offer proof "by objective medical evidence that the injury is permanent. . . . Further, a plaintiff may not recover under the [TCA] for mere 'subjective feelings of discomfort.'" Brooks v. Odom, 150 N.J. 395, 402-03 (1997) (quoting Ayers v. Twp. of Jackson, 106 N.J. 557, 571 (1987)). When a permanent loss of a bodily function is claimed, the plaintiff must prove that the loss is "substan tial," although it need not be total. Id. at 406. Where a plaintiff can function in his or her employment or as a home maker, a per manent limitation of motion is not substantial. Ibid. This is the precise issue before us.

In reviewing a ruling on a summary-judgment motion, we apply the same standard as that governing the trial court. Pru dential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). Summary judg ment is only appropriate if there is no genuine issue as to any material fact in the record and "the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). We assume that all of the evidence advanced by the plaintiff is true and view that evidence in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

The injuries suffered by plaintiff in her fall, which was allegedly caused by a dangerous condition on public property, included a fractured left elbow, fractured nose, fractured left fourth toe, and soft tissue injuries to her left knee. She con cedes that her fractured toe "healed uneventfully." X-rays of plaintiff's left forearm taken the day after the fall revealed "an oblique intra-articular fracture of the radial head without displacement."

Plaintiff was treated by Robert M. Dalsey, M.D., an ortho pedic surgeon. He testified that plain tiff's left elbow frac ture "involved the joint and it had a cou ple pieces, part of which was depressed." The fracture healed, but left a depres sion in the articular surface. Dr. Dalsey opined such a depres sion "can affect the function of the joint [and] can affect whether she can have late problems with arthritis." Plaintiff's fracture was "a nonoperative case." An MRI of her left elbow ruled out any loose bodies in the joint, but did reveal posttraumatic arthritis in plaintiff's elbow.

As a result, plaintiff experiences aching, pain, and occa sional clicking in the joint of her left elbow. If in the future plaintiff develops "a lot of functional prob lems and sig nificant pain," Dr. Dalsey opined that radial head replacement may be con sidered. He further opined that plaintiff's residual problems with pain and discomfort from the posttraumatic arthri tis in her elbow are permanent, but stated that the clicking did not interfere with her functional use.

X-rays of plaintiff's nose taken the day after the fall revealed "a tiny chip fracture of the nasal tip" and "a chip fracture of the anterior nasal [maxillary] spine" without any depression of the nasal arch. Plaintiff was treated by a Dr. Schaefer for her nasal fractures, but she did not submit his records or a report in opposition to the motion for summary judgment. He did not operate or set the bones in any fashion. She consulted with Dr. Daniel G. Becker subsequently and he offered to perform cosmetic surgery on her nose to remove the bump caused by the fractures and to alleviate some breathing difficulties. Plaintiff has not had that surgery and Dr. Becker did not provide a report of his findings and recommendations. Thus, there is no evidence that her breathing difficulties were caused by the fall or that they are permanent. Plaintiff did not sub mit a photograph of her nose in opposition to the summary-judgment motion to permit evaluation of the deformity.

X-rays of plaintiff's left knee taken the date after the fall revealed mild patellofemoral spur formation, a fabella, and a small calcification posteriorly that could be a joint body with no fracture or joint effusion. A subsequent MRI ruled out any ligamentous tears or disrupted cartilage or meniscuses, but did show a loose body, which might be a bone chip. Dr. Dalsey diagnosed a contusion of plaintiff's knee and told her that he could perform an arthroscopic procedure to ascertain if there was a loose body or give her Synvisc injections, but plaintiff refused. When he last saw plaintiff, Dr. Dalsey noted that she still was having some knee pain, but had normal motion, no mechanical problems, no swelling, and no evidence of any liga mentous problems. Dr. Dalsey diagnosed an aggravation of plain tiff's preexisting knee arthritis, but then stated that it could have been caused by the fall or could be unrelated to it.

Plaintiff is fifty-seven years old and was employed as an environmental protection specialist with the United States Envi ronmental Protection Agency at the time of her deposition. She testified that she can no longer carry everything downstairs to the basement laundry in one trip because her arm starts both er ing her; instead, she makes multiple trips. She can no longer mow her lawn and cannot carry out her garbage. She no longer takes long walks because of pain in her knee and cannot ride her bicycle because of pain in her elbow. Sometimes at work when she is on the computer, her arm begins to ache down to the wrist and she takes Advil, Tylenol, or Vicodin for the pain. However, she has not missed any work since three months after her fall.

Based on this medical evidence, defendant moved for a sum mary judgment and plaintiff cross-moved for the same relief. The judge issued a written opinion in which he found that "a jury could reasonably decide that Plaintiff has suffered a per manent injury under N.J.S.A. 59:9-2(d). . . . However, even accepting all of the testimony of Dr. Dalsey as well as Plain tiff, this [c]ourt is not able to conclude that a jury could find that the injuries are substantial." This was so because the injury "must also render a bodily organ or limb substan tially useless but for modern medical replacement parts, and a perma nent and substantial injury must manifest itself physi cally," citing Gilhooley v. County of Union, 164 N.J. 533, 543 (2000). An amended order denying plaintiff's motion and granting defendant's motion was entered on February 7, 2008.

On February 22, 2008, plaintiff served a notice of motion for reconsideration of the February 7 order. The judge issued a written opinion in which he concluded that plaintiff had merely reargued the same point as on the initial motion and had not presented any additional information. He concluded that plain tiff had not met the standard for reconsideration under Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996), and D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), and denied the motion on March 28, 2008. Plaintiff filed this appeal from both orders on May 12, 2008.

There can be no doubt that the injuries to plaintiff's nose, knee, and fourth left toe are not qualifying injuries under the TCA as there is no objective medical evidence that these injuries were permanent, substantial, or caused by the accident. Brooks, supra, 150 N.J. at 402-03. As a consequence, we need only consider whether the injury to her elbow is a sub stantial injury under N.J.S.A. 59:9-2d, the only basis for the grant of summary judgment to defendant.

The determination of whether an injury is substantial is a fact-sensitive issue that cannot be resolved by per se rules. Gilhooley, supra, 164 N.J. at 541. Inju ries that have been found substantial include (1) a massive rotator-cuff tear requiring surgical repair that left plaintiff with a forty per cent reduction in the range of the motion in her arm, Kahrar v. Borough of Wallington, 171 N.J. 3, 15-16 (2002); (2) a fractured patella that "could not function without permanent pins and wires to re-establish its integrity," Gilhooley, supra, 164 N.J. at 541-42; (3) "injuries causing blindness, disabling tremors, paralysis and loss of taste and smell [because] such injuries, by their very nature, are objectively permanent and implicate the substantial loss of a bodily function (e.g., sight, smell, taste, and muscle con trol)," id. at 541 (citation omitted); (4) "an injury that permanently would render a bodily organ or limb substantially useless but for the ability of 'modern medicine [to] supply replacement parts to mimic the natural function,'" Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324, 332 (2003) (quoting Gilhooley, supra, 164 N.J. at 542-43); (5) disc herni ation causing severe back pain, "lack of feeling in [the] left leg and the inability to stand, sit, or walk comfortably for a substan tial amount of time, engage in athletics, and complete household chores," id. at 333; and (6) nasal airway impairment as a result of multiple nasal fractures causing permanent and con stant difficulty breathing, Gerber v. Springfield Bd. of Educ., 328 N.J. Super. 24, 35-36 (App. Div. 2000).

Injuries our Supreme Court has found to be not substantial include (1) permanent pain and limitation of motion in the neck and back where the plaintiff "can function both in her employ ment and as a home maker" even though she has some difficulty performing household chores, such as vacuuming, Brooks, supra, 150 N.J. at 400, 406; (2) partial medial meniscectomy, partial synovectomy and chondro plasty of the patella where there was no "evidence that plain tiff's range of motion [wa]s limited, his gait impaired or his ability to ambulate restricted," Ponte v. Overeem, 171 N.J. 46, 54 (2002); and (3) injuries "causing lin gering pain, resulting in a lessened ability to perform certain tasks because of the pain, . . . because '[a] plaintiff may not recover under the Tort Claims Act for mere "subjective feelings of discom fort."'" Knowles, supra, 176 N.J. at 332 (quoting Gilhooley, supra, 164 N.J. at 540).

The injury to plaintiff's elbow clearly falls within the class of injuries that are not substantial. Plaintiff has a full range of motion in her elbow, which is fully functional with only an occasional clicking that does not interfere with the use of her arm. She is fully functional at work, only occa sion ally taking medication for pain relief when her elbow aches. The only limitations she has suffered as a result of the pain and clicking are that she cannot carry everything to the laundry in one trip, mow the lawn, take out the garbage, or ride a bicy cle. Plaintiff cannot recover for these subjective discomforts under the TCA even though they may cause some slight lifestyle limitations.

Affirmed.

 

This is "a small fibrocartilage ossified . . . in the tendon of the gastrocnemius muscle, behind one or both of the femoral condyles." Merriam-Webster.com, MedlinePlus Medical Dictionary, http://www2.merriam-webster.com/cgi-bin/mwmednlm?book=Medical&va =fabella (last visited April 26, 2009).

Pursuant to Rule 1:3-1, the time to appeal a final judgment "shall be taken within 45 days of [its] entry." R. 2:4-1(a). The time to appeal is tolled

by the timely filing and service of a motion to the trial court . . . for rehearing or reconsideration seeking to alter or amend the judgment or order pursuant to R. 4:49-2. The remaining time shall again begin to run from the date of the entry of an order disposing of such a motion.

[R. 2:4-3(c).]

Plaintiff's motion for reconsideration was filed well within the time allowed by Rule 4:49-2. The reconsideration motion was filed on February 22, 2008, fifteen days after the entry of the order granting summary judgment to defendant. On the other hand, the notice of appeal was filed within the thirty days allowed by Rule 2:4-4(a). Although plaintiff did not request an extension, defendant has not raised the issue and the Clerk's Office also failed to detect the lapse. Moreover, a motion to extend the time for filing a notice of appeal would undoubtedly have been granted. Therefore, we decline to dismiss the appeal sua sponte and allow the appeal to proceed as timely filed.

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A-4294-07T2

June 25, 2009