WILLIAM MACSTUDY v. THE BOROUGH OF EATONTOWN (a Municipal Entity) et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1866-04T51866-04T5

WILLIAM MACSTUDY,

Plaintiff-Appellant,

v.

THE BOROUGH OF EATONTOWN

(a Municipal Entity) and

CHRISTOPHER W. KOHLER,

Defendants-Respondents.

 

Argued January 25, 2006 - Decided February 9, 2006

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, MON-L-1753-03.

Steven L. Kessel argued the cause for appellant (Drazin and Warshaw, attorneys; Mr. Kessel, on the brief).

Jessica Ann Schlee argued the cause for respondents (Connell, Connell & Camassa, attorneys; John A. Camassa, of counsel; Michael J. Deem, on the brief).

PER CURIAM

In this personal injury action, plaintiff appeals from a November 5, 2004 summary judgment dismissing his complaint. In point one of his brief on appeal, plaintiff claims the tort threshold is not applicable because defendant driver Christopher Kohler was convicted of driving while under the influence of alcohol, which rendered his conduct willful, and not subject to a defense under the New Jersey Tort Claims Act. See N.J.S.A. 59:2-10; N.J.S.A. 59:3-14(b). Plaintiff did not raise that issue before the motion judge and we decline to exercise our original jurisdiction to address it. Consequently, we remand to the Law Division to determine whether defendant Kohler's operation of his motor vehicle at the time of the accident constituted "conduct . . . outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct." See N.J.S.A. 59:3-14(b). We express no opinion on the meritoriousness of plaintiff's claim.

The thrust of defendant's second argument on appeal is that summary judgment was granted prematurely. The automobile accident that precipitated this lawsuit occurred on January 6, 2002, when plaintiff's vehicle collided in an intersection with an emergency vehicle driven by defendant Kohler, who was at the time driving for defendant Borough of Eatontown.

At the municipal court trial, the judge found plaintiff guilty of driving a motor vehicle in an unsafe manner pursuant to N.J.S.A. 39:4-97.2. The judge found Kohler guilty of driving under the influence of alcohol; his blood alcohol content was .148. See N.J.S.A. 39:4-50.

As a result of the collision, plaintiff, who is sixty-nine years old, alleges that he sustained, among other injuries, a left shoulder impingement stage II, and a right knee injury. Plaintiff has sought constant treatment since the accident. His argument on appeal is that summary judgment was granted prematurely because both his left shoulder injury and his right knee injury have become significantly more severe subsequent to the summary judgment order entered on November 5, 2004.

While we do not recite in detail the extensive medical treatment plaintiff has sought since the accident, he underwent arthroscopic surgery on October 8, 2004, to repair a torn medial meniscus in his right knee. According to the operative report, plaintiff's prognosis was "fair." On October 21, 2004, less than two weeks later, Dr. Grossman noted that plaintiff was "[r]eally doing great. Hard to believe he had arthroscopy ten days ago. He walks normally. Significantly torn up cartilage, he is now 2 w[ee]ks status post-arthroscopic meniscectomies and chondroplasty. He will not go back to a fireman at the racetrack for at least another month. He will try physical therapy." That was the last medical information concerning plaintiff's knee that the motion judge had before him at the time he granted summary judgment.

The status of plaintiff's left shoulder at the time of the summary judgment was that he had been diagnosed as having a positive impingement sign on the left. On examination, a physician found "mild left interscapular tenderness and tenderness on the left supraspinatus muscle with positive subacromial tenderness." Plaintiff had "reasonably good strength in all planes, although he [gave] way to resistive supraspinatus testing due to pain." In addition, Dr. Grossman found bursitis and impingement in plaintiff's shoulder in September 2004. If after physical therapy, the shoulder still continued to be problematic, Dr. Grossman said: "we will fix his shoulder."

That was essentially the status of plaintiff's medical situation at the time summary judgment was granted. Subsequent to that date, Dr. Grossman's office notes disclose the following:

July 25, 2005 (TF)

His right knee has only worsened. At this point, his leg is giving way. He cannot squat or sit for any periods of time and get out of a chair without difficulty. It is worse walking down stairs than upstairs. He has developed an osteoarthritic compartment to his knee after complex tears involving zones 4, 5, 6 of his lateral meniscus.

PHYSICAL EXAMINATION: He has an arthritic knee.

PLAN: We will treat him with injectable anti-arthritic medication. Failure to improve with this knee, he is quickly becoming a candidate . . . for knee replacement surgery.

His second problem was back in January of 2002. He has significant impingement problems with his shoulder. He cannot increase his activity level. He has two significant problems. The right knee is status post arthroscopy, has become arthritic, large lateral tear is resulting in a quickly developing into osteoarthritis which is coming to knee replacement. His left shoulder has been a candidate for surgical intervention and de-impingement. Both his knee and shoulder are injected today. Robert B. Grossman, MD/jd

August 1, 2005 (TF)

We saw him last time and were concerned he tore his rotator cuff in his left shoulder. He had a little relief from our injection.

MRI: MRI does not show a large tear. I think he still has a tear. I have not seen the films.

PLAN: Start a course of physical therapy for strengthening of his left shoulder. Failure to improve, I will encourage arthroscopy for rotator cuff repair.

In regard to his right knee, the injections into his osteoarthritic knee with meniscal tears is slightly improved. Physical therapy is recommended for this, but he does not want to go back. We will do an arthroscopy of his left shoulder. [His] problems are directly related to his 2002 accident and he has never resolved these problems with his shoulder. Robert B. Grossman, MD/jd

In an August 1, 2005 letter, Dr. Grossman noted, among other things, that plaintiff's "meniscal excised knee is at real risk and already has osteoarthritis. His left shoulder clearly needs surgical intervention." Furthermore, at oral argument before this court, plaintiff's counsel represented that plaintiff has subsequently undergone a right knee replacement that was directly related to the automobile accident.

In essence, plaintiff's position is that by reason of the left shoulder and right knee injuries he suffered in the accident, he has objective permanent injury and permanent loss of bodily function that is substantial.

Given the alleged state of deterioration of plaintiff's knee and shoulder since summary judgment was entered, and because we have determined that it is appropriate to remand to the Law Division in any event to examine plaintiff's allegations that defendant's conduct was willful and he is not protected by the New Jersey Tort Claims Act, we vacate the summary judgment in its entirety. We remand to the trial judge to examine both plaintiff's allegations of defendant's willful misconduct and plaintiff's claim that his injuries have become sufficiently severe that he now has objective medical evidence of a permanent injury sufficient to satisfy the verbal threshold of the New Jersey Tort Claims Act. See N.J.S.A. 59:9-2d; Gilhooley v. County of Union, 164 N.J. 533, 540-41 (2000); Brooks v. Odom, 150 N.J. 395, 402-03 (1997).

We reverse the November 5, 2004 order granting summary judgment. We remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

 
Reversed and remanded.

(continued)

(continued)

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A-1866-04T5

February 9, 2006