MINA DIMETRY et al. v. CITY OF JERSEY CITY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0644-05T36422-05T3

MINA DIMETRY and

GEORGE GARAS,

Plaintiffs-Appellants,

v.

CITY OF JERSEY CITY,

Defendant/Third Party

Plaintiff-Respondent,

v.

JERSEY CITY MUNICIPAL

UTILITIES AUTHORITY,

Third Party Defendant.

 
________________________________________________________________

Submitted March 21, 2007 - Decided April 17, 2007

Before Judges Cuff and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5568-05.

Miller, Meyerson, Schwartz & Corbo, attorneys for appellants (John R. Schwartz, of counsel and on the brief).

William C. Matsikoudis, Jersey City Corporation Counsel, attorney for respondent (Steven R. Maslo, Assistant Corporation Counsel, of counsel; Nora L. Kallen, Assistant Corporation Counsel, on the brief).

PER CURIAM

Plaintiffs Mina Dimetry and George Garas appeal from an order granting summary judgment to defendants City of Jersey City (the City) and Jersey City Municipal Utilities Authority, based upon a finding that neither plaintiff satisfied the requirements of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, which requires a plaintiff to demonstrate a "permanent loss of a bodily function" before a claim for non-economic loss can be maintained. N.J.S.A. 59:9-2d.

On appeal, plaintiffs argue that they presented sufficient objective medical evidence of permanent injury that was substantial to have survived the motion for summary judgment. We disagree and affirm. Gilhooley v. County of Union, 164 N.J. 533, 540-41 (2000).

I.

On December 20, 2003, Dimetry parked his vehicle at a curb in Jersey City. When his passenger, Garas, exited Dimetry's car, Garas fell into a sewer in the street because the sewer plate had been improperly maintained. When Dimetry attempted to remove the manhole cover to extricate Garas, he dislocated his shoulder. Both plaintiffs sought medical treatment. Dimetry was treated by Robert A. Fogari, M.D., who diagnosed Dimetry's injury as a shoulder separation and directed him to place his left arm in a sling. An MRI revealed subacromial effusion, defined as accumulation of fluid in the area of the joint; however, no rotator cuff tear or any other more serious injury was found. Two months after the accident, Fogari reported "moderate shoulder stiffness and pain continued," but "[t]here was less swelling." Dimetry discontinued treatment on February 17, 2004, less than two months after the accident. At that time, Fogari opined that Dimetry had "suffered a serious injury, [and] may continue to suffer recurrent stiffness from time-to-time for the rest of his life."

Dimetry testified in his deposition, conducted on September 20, 2005, that other than being unable to lift more than twenty-five pounds with his left arm, he was able to do everything that he could before the accident, and that he still belonged to the gym where his only limitation was the twenty-five pound weight lifting restriction. Dimetry also testified that subsequent to the accident, he was promoted from the position of Service Banker to his current title of Financial Specialist.

Garas was treated by Burgess Lee Berlin, M.D., who diagnosed him as having sustained a torn rotator cuff as a result of the accident. X-ray examination revealed decreased intervertebral disc space height, consistent with herniated discs in both the cervical spine and lumbar spine. Berlin opined in his April 25, 2005 report that Garas's injuries to his neck, low back and right shoulder are permanent and have a "profound debilitating and adverse effect on his ability to engage in normal and customary activities of daily living especially those involving prolonged standing, sitting and walking, together with activities involving lifting and bending."

At his September 20, 2005 deposition, Garas stated that his only remaining injury was his back. He explained that the accident had caused him to restrict his weight lifting activities to a few times a month and to limit his bench presses to 100 pounds of weight. Other than that single restriction, Garas pointed to no other limitations or restrictions on his activities.

Both defendants moved for summary judgment. In his ruling, Judge O'Shaughnessy carefully summarized the medical reports pertaining to each plaintiff and discussed the pertinent parts of their deposition testimony. As to plaintiff Dimetry, Judge O'Shaughnessy concluded that "none of plaintiff's treating physicians attest to a permanent injury and plaintiff fails to rebut defendant's assertion that his injury does not satisfy the objective test of the Tort Claims Act." Judge O'Shaughnessy further concluded that plaintiff Dimetry "also fails to demonstrate that his injuries are substantial because a plaintiff may not recover . . . for mere subjective feelings of discomfort."

As to plaintiff Garas, Judge O'Shaughnessy concluded that Dr. Berlin had relied on objective medical testing in order to support his conclusion that Garas has suffered a permanent injury to the cervical and lumbar spine. Nonetheless, Judge O'Shaughnessy held that Garas had failed to satisfy the "subjective prong of the Tort Claims Act." The judge summarized Garas's deposition testimony in which plaintiff acknowledged that "his back is okay and that the only restriction on his back involved weight lifting." The judge therefore concluded that the limitation on Garas's activities was not significant enough to satisfy the Tort Claims Act's requirement of an injury "which is substantial."

II.

As the Supreme Court explained in Brill v. Guardian Life Insurance Co. of America, summary judgment should be denied only where the party opposing the motion has presented evidence that creates a "genuine issue as to any material fact challenged." 142 N.J. 520, 529 (1995). The motion judge must view the evidence in the light most favorable to the non-moving party, and determine whether that evidence is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Id. at 540. The judge's function is not to resolve factual disputes, but solely to determine whether there are any genuine issues of material fact for a jury to determine. Ibid. If the party opposing the motion fails to raise a genuine issue of material fact, and the moving party has demonstrated an entitlement to summary judgment as a matter of law, summary judgment should be granted. Ibid.

It is undisputed that defendant City is a "public entity" as defined by N.J.S.A. 59:1-3, and accordingly, plaintiffs' claims are governed by the provisions of the TCA. A public entity such as the City is liable only in those instances specifically provided for under the TCA. N.J.S.A. 59:2-2. In order to make a recovery against a public entity for injuries sustained as a result of the public entity's negligence, a plaintiff must demonstrate an injury satisfying the requirements of N.J.S.A. 59:9-2d, which provides in relevant part:

No damages shall be awarded against a public entity or public employee for pain and suffering resulting from an injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function . . . .

In order to satisfy the requirements of the TCA, a plaintiff must first demonstrate that he has sustained an "objective permanent injury" consisting of a "permanent loss of a bodily function that is substantial." Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324, 329 (2003) (quoting Gilhooley v. County of Union, 164 N.J. 533, 540-41 (2000)). Any injury claimed to be permanent must be supported by objective medical evidence, and a plaintiff's subjective complaints are insufficient to satisfy the requirements of the TCA. Gilhooley, 164 N.J. at 540.

As to plaintiff Dimetry, we agree with Judge O'Shaughnessy's observation that none of Dimetry's treating physicians certified that he had sustained a permanent injury as required by the TCA. Fogari merely concluded that Dimetry "may continue" to suffer recurrent stiffness for the rest of his life. Such an equivocal opinion fails to satisfy the reasonable degree of medical probability threshold that our courts have required of an expert opinion concerning future damages. Mauro v. Raymark Indus., 116 N.J. 126, 133 (1989). Even if we were to ignore that deficiency, we conclude, as did Judge O'Shaughnessy, that Fogari's opinion was not supported by any objective medical evidence. Fogari pointed to no x-ray studies, MRI or physical examination to support his opinion that Dimetry's shoulder stiffness "may continue for the rest of his life." Objective medical evidence is required. Gilhooley, supra, 164 N.J. at 540.

As to the substantiality requirement established in Brooks, supra, 150 N.J. at 406, Judge O'Shaughnessy correctly concluded that Dimetry's inability to bench press more than 100 pounds was clearly not the type of substantial injury required by the TCA. Indeed, the impairment described by Dimetry is far less significant than the limitations suffered by the plaintiff in Ponte v. Overeem, which the Court concluded were not sufficient to constitute an injury that was "substantial." 171 N.J. 46, 54 (2002). There, the plaintiff certified that problems with his knee prevented him from biking three to four times per week, as he had done prior to the accident, and one year after the accident he was instead able to bicycle "only infrequently." Id. at 51. After the accident, he could lift weights only "sporadically" rather than twice weekly before the accident. Ibid. He could not sit for more than ten minutes without pain and his sleep was disturbed each night. Ibid. Under the facts presented here, we agree with the trial judge's conclusion that Dimetry had not presented sufficient evidence of a "substantial" injury to survive summary judgment.

As to plaintiff Garas, our inquiry is more focused. Defendant does not contend that Garas failed to provide objective evidence of a permanent injury. Instead, the City confines its argument to an analysis of whether any permanent injury sustained by Garas was sufficiently substantial to satisfy the requirements of the TCA. See Knowles, supra, 176 at 332 (holding that an injury is substantial when a bodily organ or limb has been rendered substantially useless). Here, assuming that Garas's injuries to his cervical and lumbar spine were permanent, an assumption we are required to make, Brill, supra, 142 N.J. at 523, we conclude that Garas has failed to demonstrate a substantial inability to perform many of the functions he was capable of prior to pulling the manhole cover from Dimetry's back.

Garas's expert, Berlin, noted an adverse effect on Garas's customary activities such as standing, sitting, walking, lifting and bending; however, by the time of Garas's deposition some six months after Berlin last examined him on March 29, 2005, Garas acknowledged that his back was "okay," that only his weight lifting activity was restricted and all of his other injuries were completely resolved. Accordingly, we agree with Judge O'Shaughnessy's conclusion that Garas failed to demonstrate a "substantial inability to perform many of the functions he previously enjoyed." Knowles, supra, 176 N.J. at 334.

Affirmed.

 

The Notice of Appeal spells appellant's name as Demetry. We use the spelling contained in his complaint.

Defendant Jersey City Municipal Utilities Authority did not file a brief or participate in this appeal.

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A-6422-05T3

April 17, 2007