RONDA Y. OLIVER v. CITY OF TRENTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2373-07T22373-07T2

RONDA Y. OLIVER,

Plaintiff-Appellant,

v.

CITY OF TRENTON,

Defendant-Respondent.

_______________________________________________

 

Argued October 8, 2008 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2507-05.

Lara Persichetti Lovett argued the cause for appellant (Start & Stark, attorneys; Ms. Lovett and J. Robert Bratman, of counsel and on the brief).

Kimberley M. Wilson, Assistant City Attorney, argued the cause for respondent (R. Denise Lyles, Trenton City Attorney; Ms. Wilson, of counsel and on the brief).

PER CURIAM

In this appeal, we review the sufficiency of a summary judgment entered in favor of defendant City of Trenton. The trial judge concluded that plaintiff's proofs were insufficient to meet the threshold contained in the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, to permit plaintiff's maintenance of this suit. After careful examination of the record, we conclude that plaintiff failed to demonstrate a permanent loss of bodily function and that the judge properly granted summary judgment.

Plaintiff commenced this action, alleging she suffered personal injuries on October 7, 2003 as a result of stepping in a pothole at the intersection of Wall Street and North Clinton Avenue in Trenton. Because defendant is a public entity, and entitled to the benefits of the Tort Claims Act, plaintiff was required to establish, in order to pursue a claim for pain and suffering, that she sustained an injury that constituted a "permanent loss of a bodily function, permanent disfigurement or dismemberment." N.J.S.A. 59:9-2(d). Whether the requirements of N.J.S.A. 59:9-2(d) have been met turns on the application of a two-prong test, which the Supreme Court has described as requiring a plaintiff to show "(1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial." Gilhooley v. County of Union, 164 N.J. 533, 541 (2000).

As for the first prong, plaintiff provided the report of Dr. Thomas Bills, an orthopaedist, who stated that an x-ray revealed a "small longitudinal fracture on the inferior pole of the patella." Dr. Bills also indicated that plaintiff's prognosis was "guarded" and he "anticipated" that "she has permanent posttraumatic arthritis that is expected to progress with time." Although defendant forcefully argues that a healed fracture does not constitute a permanent injury, we will assume that the fracture observed by Dr. Bills was sufficient to meet the first prong of the applicable test.

The second prong requires a determination that plaintiff sustained a "permanent loss of a bodily function that is substantial." Gilhooley, supra, 164 N.J. at 541. See also Kahrar v. Bor. of Wallington, 171 N.J. 3, 12 (2002). The Court has held that this aspect of the threshold "depends on a fact-sensitive analysis," Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324, 331 (2003), because it is "the nature or degree of the ongoing impairment that determines whether a specific injury meets the threshold requirement under the Tort Claims Act," Ponte v. Overeem, 171 N.J. 46, 53 (2002). Although recognizing that there is no "per se rule that would be decisive in all cases of this kind," the Court has indicated that its "past precedents are useful in classifying injuries as either 'substantial' or minor," Knowles, supra, 176 N.J. at 331, and described the distinctions among its prior precedents in the following way:

First, we have recognized that "injuries causing blindness, disabling tremors, paralysis and loss of taste and smell" satisfy the threshold because they are inherently "objectively permanent and implicate the substantial loss of a bodily function (e.g., sight, smell, taste and muscle control)." Gilhooley, supra, 164 N.J. at 541 (citing Brooks, supra, 150 N.J. at 403). Second, we have held that when a plaintiff suffers 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," that injury meets the threshold. Id. at 542-43. Third, we have concluded that there must be a "physical manifestation of [a] claim that [an] injury . . . is permanent and sub-stantial." Ponte, supra, 171 N.J. at 54. An injury causing lingering pain, resulting in a lessened ability to perform certain tasks because of the pain, will not suffice because "[a] plaintiff may not recover under the Tort Claims Act for mere 'subjective feelings of discomfort.'" Gilhooley, supra, 164 N.J. at 540. Finally, we have recognized that neither an absence of pain nor a plaintiff's ability to resume some of his or her normal activities is dispositive of whether he or she is entitled to pain and suffering damages under the TCA. Kahrar, supra, 171 N.J. at 15-16.

[Knowles, supra, 176 N.J. at 332 (some citations omitted).]

In Knowles, the Court suggested that judges approach the problem by comparing a plaintiff's claim to those cases in which an injury was found sufficient to overcome the threshold, i.e., Gilhooley and Kahrar, against those in which the Court held to the contrary, i.e., Brooks and Ponte. See Knowles, supra, 176 N.J. at 332. See also Heenan v. Greene, 355 N.J. Super. 162, 165-67 (App. Div. 2002); Newsham v. Cumberland Reg'l High Sch., 351 N.J. Super. 186, 191-95 (App. Div. 2002).

As revealed by the judge's written decision, the fracture to plaintiff's patella was not the only medical issue that plaintiff had to deal with following her alleged unfortunate encounter with a pothole as claimed in this suit. The record reveals that in December 2003, three months after the pothole accident, plaintiff fell down the steps at her workplace. She claimed in her deposition that her right knee buckled at the time, and her fall injured her right knee and back. In addition, plaintiff's expert revealed that plaintiff had a "previous problem with this right knee approximately two years prior," and had been evaluated due to numbness in her anterior thigh and knee region on the right side. She also had a history of multiple sclerosis.

In applying the summary judgment standard, we must view the evidence in the light most favorable to plaintiff and give her the benefit of all reasonable inferences. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In asserting that she sustained a "permanent loss of a bodily function that is substantial," Gilhooley, supra, 164 N.J. at 541, plaintiff relies upon her deposition testimony in claiming that, prior to the accident in question, she used to walk thirty to forty-five minutes at a time for exercise. Subsequent to the fall, plaintiff acknowledged that she does "a lot of walking at work," following which she has to sit for a while. When asked why, plaintiff explained and provided this other testimony regarding the limitations on her daily life:

A. My knee, it hurts, and my back, so I have, like, radiating pain.

Q. All right. Are you limited in your ability to do things around your household?

A. Yes.

Q. Like give us an example of the type of things that you're limited in your ability to do.

A. Vacuuming, standing in one position too long to wash the dishes, making the beds, almost everything.

Plaintiff also testified that she feels "[c]onstant pain, [with a] change in weather" in her right knee, and that, "[w]hen I come home from work I have to put it up or put ice or something on it because I'm on my feet [at work]." Plaintiff was further questioned on this last assertion:

Q. Do you ice down your knee every day when you get home from work or some other frequency?

A. It's not every day but it's frequent.

Q. How often do you ice down your knee when you come home from work?

A. Depends on my hours of work. Maybe two days a week, maybe.

She also claimed the need to use a knee brace "sometimes," and that she no longer had the same range of motion in her right knee as she had prior to the accident.

As the Court held in Knowles, "lingering pain, resulting in a lessened ability to perform certain tasks because of the pain" does not overcome the threshold contained in N.J.S.A. 59:9-2(d). 176 N.J. at 332. Accepting plaintiff's allegations in their best light demonstrates she has failed to submit sufficient evidence of a substantial inability to perform many of the functions that she previously enjoyed, and that she has failed to avoid the application of Knowles's declaration about "lingering pain" and the "lessening ability" to perform certain tasks as a result.

 
Affirmed.

In light of this assumption, we need not determine whether the trial judge correctly refused to consider a supplemental report that asserted the fracture constituted a permanent injury. Even though this supplemental report would appear to constitute a net opinion and even though its submission was quite tardy, we may sustain the summary judgment through an analysis of the second prong of the applicable test.

(continued)

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A-2373-07T2

November 3, 2008