TATIANA SARACINO v. TOMS RIVER REGIONAL HIGH SCHOOL EAST

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0957-08T20957-08T2

TATIANA SARACINO,

Plaintiff-Appellant,

v.

TOMS RIVER REGIONAL HIGH SCHOOL

EAST, TOMS RIVER BOARD OF

EDUCATION, RON DEVITO, MICHAEL

ARABITG,

Defendants-Respondents.

__________________________________

 

Argued September 16, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-171-07.

John Robertelli argued the cause for appellant (Rivkin Radler, LLP, attorneys; Mr. Robertelli, of counsel and on the brief; Robert E. Spitzer, on the brief).

Jared J. Monaco argued the cause for respondents, Toms River Regional Schools Board of Education and Ron DeVito (Gilmore & Monahan, P.A., attorneys; Mr. Monaco, on the brief).

Mark G. Esposito argued the cause for respondent, Michael Arabitg (Amy F. Loperfido & Associates, attorneys; Mr. Esposito, on the brief).

PER CURIAM

Plaintiff Tatiana Saracino appeals the dismissal on summary judgment of her personal injury action arising out of an injury sustained during a physical education class at Toms River Regional High School East (Toms River East). We affirm.

I.

We glean the following facts and procedural history from the documents and deposition transcripts contained in the record.

A.

On April 11, 2005, Saracino was a student at Toms River East. During a physical education class, the students were directed by defendant Ron DeVito, an employee of defendant Toms River Regional Schools Board of Education (Board), to participate in a game of "floor hockey." Although the students were given hockey sticks and a ball, they were not given any safety equipment, such as face masks, helmets or padding. The parties agree, however, that the students understood that hockey sticks were not supposed to be swung above the player's waist in "floor hockey."

According to Saracino, defendant Michael Arabitg, a fellow student at Toms River East, struck her in the nose with his hockey stick during a "face-off." She described how she and Arabitg "tapped" their blades together three times "as is customary" with face-offs, after which Arabitg "violently swung his hockey stick, missed the [ball] and struck [her] nose, face and mouth" with the blade of his hockey stick. According to Saracino, Arabitg's hockey stick was "well above his waist and close to the height of his shoulder as the blade came forward and struck [her] in the face." Saracino, who is approximately four feet and eleven inches tall, was "bent over enough" that her stick could touch the floor, but she testified at her deposition that she was not "hunched over."

Arabitg's description of the incident was quite different. He related that at some point after play began, he was in possession of the ball and had the blade of his stick near the floor.

Q. At any time did you -- when the accident happened, the blade was on the ground?

A. Yes, sir.

Q. And when the accident happened did you swing the stick at all or anything?

A. No, sir. I had no clear shot at the goal. So I was looking to pass it. And as I went to go pass it to one of the teammates, that's when the incident occurred. I looked back. I didn't know what happened. And I was -- when I turned around, all I saw was, like, her holding her nose.

Q. Was Tatiana in back of you or in front of you?

A. Behind me.

Arabitg did not see what part of his hockey stick struck Saracino.

Another Toms River East student, Angela Lepore, described the event as follows:

Well, the boys were getting really into the game. And [Arabitg] had swung back, like, hard and fast, but, to hit the ball. And when he did it, [Saracino] was behind him. And he accidentally hit her in the face when he swung back.

Lapore also said that Saracino was "just walking around with her stick" and responded "[n]ot really" when asked whether Saracino was "paying attention."

Jaime LaTorre, another student, witnessed the incident while sitting on the bleachers. According to LaTorre, Arabitg did not face off with Saracino. After he faced off with another student, Arabitg had the ball and was heading toward the goal. Saracino was in front of him and to the side, but not playing aggressively or going after the ball. LaTorre described Arabitg as swinging to hit the ball, but missing it and hitting Saracino on the upswing. She said that Arabitg swung his stick up "past his head," apparently at the end of the swing. She later stated that the stick was "shoulder" high. She believed that Arabitg was attempting to hit the ball into the goal.

According to Saracino, DeVito left the area before the game began. Both Arabitg and LaTorre testified at their depositions that he was present when the game was taking place, although LaTorre asserted that he was not watching the play when the incident actually took place. DeVito described the event as follows:

I remember vividly being in the middle of the floor with my whistle and I remember this young man, Michael Arabitg, taking that ball and dribbling it and keeping the blade on top of that ball, as vividly as I saw it then, I see it now as I did then. He had that bottom, he had that blade on that ball. No time did that stick leave the floor. And as he's dribbling the ball and making crossover moves, you know, he's moving the ball around pretty good, Ms. Saracino, who I was encouraging to play a little bit more, put a little bit more effort in, was just kind of standing like this with the stick in front of her like this (indicating). And I remember, you know, with all the kids, not just her, if they weren't, if they weren't moving as much, c'mon, you know, c'mon, get into it. C'mon, you know, move around a little bit, don't just stand there. And I'm doing it in a positive way.

And I remember a few minutes later, she saw this young man, Michael, making a move, Michael put on a little juke move going left and right, and what I remember seeing was as it happened was she went with him moving left and she moved over and then he came back because he saw that there was an opening going that way, so he pushed the ball, again with the stick on the ball. And as he came back to the right, she actually walked right into the end of the stick. I don't know how else to say it. She basically just moved over thinking he was going to go here, just moved over like this (indicating), again not being really focused on what she was doing, and the head of the stick, here's the stick, he's got the blade on the ground, the stick is, you know, about five feet high, a little bit higher, she walks, she moves over and as he's going like this to swing the ball over, her nose goes right into the end of the stick (indicating).

And, you know, she's grabbing her nose, there was no have violent swing, there was no elbowing, it was just swinging it over. . . .

. . . .

A. Okay. The handle.

Q. The handle of the stick?

A. The handle itself. So the blade never came off the ground. It wasn't even a question of a high stick. The blade was on the ground the whole time as he's pushing his ball and she sees him moving left and again she's not paying attention, and that happens in class, I mean, you know, they're kids. But she moves over and I'm making a move over towards her, she moves over, you know, over there and he's moving over now crossing the thing over and she basically kind of stepped right into the stick with her nose.

B.

Saracino was taken to the school nurse and then to Community Medical Center in Toms River, where she was treated and released. On April 15, 2005, she was seen by Dr. Frank J. Scaccia, who is board certified in otolaryngology as well as facial plastic and reconstructive surgery. In his October 2007 report, Scaccia related the following initial findings:

Tatianna Saracino [was] first presented to me on [April 15, 2005] with complaints of a possible nasal fracture that occurred as a result of being struck in the face with a hockey stick four days earlier. She was seen in the emergency room at Community Hospital at the time of the injury and underwent x-rays of her nose which reportedly demonstrated no evidence of fracture. When she eventually presented to my office, she did complain that her nose was sore and swollen and she was having increased problems with breathing and nasal congestion on the left side. She does relate a prior history of nasal obstruction and sinusitis, however, she feels that her nasal congestion had been enhanced by the trauma that she received four days earlier from the hockey stick. She also claimed that at the time of the accident there was some hemorrhage from her nose.

On physical exam, her septum was deviated to the right anteriorly and to the left posteriorly. Because of her deviated septum and her turbinate hypertrophy, she had about a 95% obstruction of her right nasal cavity and 85% obstruction on the left. Examination of the outward appearance of her nose demonstrated a possible hairline fracture along the mid portion of the dorsum but with no significant signs of displacement or curvature. She did though have a small dorsal hump which could possibly have been partially pre-existing but most likely, enhanced by her recent trauma as a result of periosteal thickening and possible irregularities from the hairline fracture that I had palpated.

Saracino declined further treatment of her pre-existing sinus problems with antibiotics and decongestants "because of undesirable side-effects that she suffered in the past from them." Scaccia ordered a CAT scan of her sinuses "[b]ecause of her history of sinus infections over the years." The CAT scan revealed significant sinus disease. Scaccia noted "a possible hairline fracture along the mid-portion of the dorsal hump but with no significant signs of displacement or curvature."

Based upon the medical history and CAT scan results, Scaccia concluded that Saracino was a "candidate for sinus surgery, septoplasty and turbinectomy." In the October 2007 report, he added: "In addition, since she was unhappy with the appearance of her nose a reconstructive rhinoplasty [was] performed simultaneously." The surgeries took place on June 3, 2005. After the surgeries, Scaccia described Saracino as "now happy with the appearance of her nose and the significant improvement in her breathing."

Scaccia concluded his October 2007 report as follows:

In conclusion, I feel that her sinus issues are not related to the accident and were the result of a pre-existing condition. However, her deviated septum within a certain degree of medical certainty did sustain injury causing it to be more deviated than it previously was as a result of the accident and, as such, she developed an exacerbation of her nasal obstruction. I also feel that the small hump on her nose was also exacerbated by the trauma to her nose causing a slight build up in the periosteal covering and bony deposition to enhance an already pre-existing nasal deformity. I do feel that within a degree of medical certainty that Ms. Saracino, as a result of the injury to her nose with a hockey stick on April 11, 2005, developed an increase in her nasal obstruction secondary to added deviation of her septum and also additional deformity to her nose by the bony depositions along the dorsum. The surgery was necessary in order to correct her breathing and help improve the appearance of her nose. The surgery done to improve the appearance of the tip, however, was not related to her accident and was secondary to congenital hypertrophy of the cartilages of her tip. Again, I reiterate that her sinus condition was also pre-existing and probably not exacerbated by the injury. I feel her prognosis is very good and that she should continue to enjoy improved nasal breathing, decreased frequency of sinus infections and a more attractive nose for many years to come.

C.

The complaint in this action was filed in January 2007. Following discovery, defendants moved for summary judgment. After oral argument on August 15, 2008, the motion judge granted Arabitg's motion for summary judgment, explaining his reasons as follows:

This is, for the record, this is a gym class in which the participants were students at Toms River High School East. They were instructed to take part in a floor hockey game and the plaintiff, the young lady was -- I forgot the term that they were doing in the middle of the court -- a face-off. I'm sorry. And during the course of that particular face-off she was struck in the nose by the hockey stick of the defendant. And the criteria that we must address in this particular case is found in the case of Crawn versus Campo, 136 N.J. 494. It's a Supreme Court case of 1994 vintage. And the Court in that particular case indicated that when you participate either in recreational sports or in an organized sport scenario the standard is one of recklessness and/or intentional conduct.

Even assuming that someone could establish that someone, that the defendant committed a violation by a high sticking, that doesn't rise to the level of recklessness nor does it rise to the level of intentional conduct. And no one in this particular case has testified that the actions of this particular defendant were intentional. Therefore, I find as a matter of law that the standard had not been met, and the motion is granted.

The judge deferred decision on DeVito's and the Board's motion pending his review of photographs of Saracino.

On September 12, 2008, the motion judge reviewed photographs showing Saracino before the injury and following the surgery. The motion judge was unable to see any indication of the scar that Saracino's counsel asserted was located on the right side of her nose. He determined that he could not "tell that she ever had an accident" and that there was "nothing unsightly about her." Consequently, he granted DeVito and the Board's motion for summary judgment.

This appeal followed.

II.

On appeal, Saracino argues that the motion judge applied the wrong standard of care with respect to Arabitg and that, even if a reckless or intentional standard were appropriate, the motion judge erred in concluding that there was no genuine issue of material fact with respect to whether Arabitg's conduct satisfied that standard. With respect to the motion brought by DeVito and the Board, she argues that the motion judge erred in concluding that her injuries did not satisfy the verbal threshold found in the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, specifically N.J.S.A. 59:9-2(d).

A.

An appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Generally, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).

Although the participants and witnesses related very divergent descriptions of the incident, for the purposes of a motion for summary judgment, Saracino is entitled to have the facts viewed in the light most favorable to her, including all reasonable inferences. Brill, supra, 142 N.J. at 540. Consequently, we will assume for the purposes of this appeal that Arabitg's hockey stick hit Saracino in the face when he was making a hard swing at the ball and that his stick went above the level of his waist up to or above the level of his head. We will also assume that Arabitg was "into the game" and playing aggressively, and that he was trying to score a goal at the time he hit Saracino in the face.

B.

We turn initially to Saracino's claim against Arabitg, her fellow student at Toms River East. She contends that the motion judge erred in applying the heightened, reckless or intentional, standard of care established by the Supreme Court for informal sports activities. Crawn v. Campo, 136 N.J. 494 (1994). She also argues that, even if that standard were applicable, genuine issues of material fact required that the issue of Arabitg's liability be submitted to a jury for decision.

Saracino argues that Crawn is not applicable to her claim against Arabitg because they were not participating in a voluntary sports activity, as were the parties in Crawn, but were in fact required to participate in the physical education class under circumstances in which their failure to do so would result in a lower grade. While we agree that Crawn arose in the context of voluntary participation in sports and that the voluntariness of that participation was a factor in the Court's decision, we conclude that the two public policies that underlie the Supreme Court's imposition of the heightened standard of care in Crawn apply in broader contexts, including the one before us. Those policies are "the promotion of vigorous participation in athletic activities" and the avoidance of "a flood of litigation." Crawn, supra, 136 N.J. at 501.

In Schick v. Ferolito, 167 N.J. 7, 12-13 (2001), the Supreme Court outlined those policies as follows:

In Crawn, the Court considered the nature of a sports participant's duty to avoid inflicting physical injury on another player. Crawn, supra, 136 N.J. at 497. In that case, a catcher suffered an injury when a base runner slid into home plate during an informal softball game. Id. at 498. Our holding in Crawn was stated broadly. "[T]he duty of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct." Id. at 497. Two important considerations supported the decision to apply a standard of care that exceeded negligence: the promotion of vigorous participation in athletic activities, and the avoidance of a flood of litigation generated by participation in recreational games and sports. Id. at 501. The Court determined that those policies outweighed concerns that raising the standard of care implicitly immunized conduct that otherwise would be considered tortious and actionable. Id. at 502.

In applying the recklessness standard, the Court sought to avoid the complexities inherent in applying a negligence standard to conduct in recreational sports. Id. at 507-08. The Court reasoned that in that context, "a legal duty of care based on the standard of what, objectively, an average reasonable person would do under the circumstances is illusory, and is not susceptible to sound and consistent application on a case-by-case basis." Ibid. Ascertaining whether a participant acted so as to create a risk of harm that was not a normal or ordinary part of the game is a difficult task. Id. at 506. The Court explained further:

Our conclusion that a recklessness standard is the appropriate one to apply in the sports context is founded on more than a concern for a court's ability to discern adequately what constitutes reasonable conduct under the highly varied circumstances of informal sports activity. The heightened standard will more likely result in affixing liability for conduct that is clearly unreasonable and unacceptable from the perspective of those engaged in the sport yet leaving free from the supervision of the law the risk-laden conduct that is inherent in sports and more often than not assumed to be "part of the game."

One might well conclude that something is terribly wrong with a society in which the most commonly-accepted aspects of play--a traditional source of a community's conviviality and cohesion--spurs litigation. The heightened recklessness standard recognizes a commonsense distinction between excessively harmful conduct and the more routine rough-and-tumble of sports that should occur freely on the playing fields and should not be second-guessed in courtrooms. Id. at 508.

In Crawn, the Court held that "'[t]he imposition of a duty is the conclusion of a rather complex analysis that considers the relationship of the parties, the nature of the risk -- that is, its foreseeability and severity -- and the impact the imposition of a duty would have on public policy'" and that the "[r]ecognition of a duty of care, ultimately rests on considerations of public policy and on notions of fairness." Crawn, supra, 136 N.J. at 503 (quoting Dunphy v. Gregor, 136 N.J. 99, 108 (1994)). Consequently, the Court considered the voluntary nature of consensual sporting events, observing that the "relationship among sports participants is derived from a consensual arrangement that involves both articulated and unarticulated rules, obvious and obscure conventions, and clear and not-so-clear expectations." Id. at 507.

The question, then, is whether the same heightened standard for tort liability should be applied when the consensual nature of the participation is absent. We conclude that it should, based on the fact that the participation of both parties before us was equally involuntary because statutorily required. Because physical education classes are a mandatory part of the curriculum in New Jersey's public schools, N.J.S.A. 18A:35-5, application of the reckless or intentional standard under the circumstances such as those found in this case would serve the public policy favoring "the promotion of vigorous participation in athletic activities" mentioned in Crawn, supra, 136 N.J. at 501. And, because all students, including potential plaintiffs and defendants, must participate in physical education classes, the public policy seeking "to avoid a flood of litigation" would also be served.

Participation in mandatory physical education classes necessarily involves the risk of injury that Crawn describes as "a common and inherent aspect of informal sports activity." Id. at 500. We conclude that students required by statute to participate in such activities should not be subjected to liability for injuries that occur during their mandatory participation on a simple negligence standard. Application of the heightened standard "will more likely result in affixing liability for conduct that is clearly unreasonable and unacceptable from the perspective of those engaged in the sport[,] yet leav[e] free from the supervision of the law the riskladen conduct that is inherent in sports and more often than not assumed to be 'part of the game.'" Id. at 508.

Like the Supreme Court in Crawn, we are aware that "[a]nytime a court raises the standard of care that defines the legal duty that is owed for the safety of others, it implicitly immunizes a part of the conduct that otherwise would be considered tortious and actionable." Id. at 502. The Supreme Court concluded in Crawn that the "societal importance" of "informal recreational sports" warranted application of the limited immunity created by the heightened standard. Id. at 504. We conclude that the "societal importance" of mandatory physical education, as embodied in the legislative mandate of N.J.S.A. 18A:35-5 and -7, warrants a similar approach.

The conduct of students taking mandatory physical education classes in schools should no more be subject to "second-guess[ing] in courtrooms" than that of those who participate in voluntary sporting activities. In Schick, supra, 167 N.J. at 19, the Supreme Court held that "[t]he recklessness or intentional conduct standard of care articulated in Crawn was not meant to be applied in a crabbed fashion" because it "represented the enunciation of a more modern approach to our common law in actions for personal injuries that generally occur during recreational sporting activities."

Having determined that the reckless or intentional standard is applicable, we turn to Saracino's contention that the motion judge should have denied Arabitg's motion for summary judgment because there were genuine issues of material fact requiring submission of the question of whether Arabitg's conduct was reckless or intentional to a jury.

In Schick, supra, 167 N.J. at 19-20, the Supreme Court addressed the issue as follows:

The question presented here is whether plaintiff's case can survive a summary judgment motion under a recklessness standard. Prosser & Keeton have stated that an actor acts recklessly when he or she intentionally commits an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences. Prosser & Keeton on the Law of Torts, 34 at 212 (5th Ed. 1984). The standard is objective and may be proven by showing that a defendant "proceeded in disregard of a high and excessive degree of danger either known to him [or her] or apparent to a reasonable person in his [or her] position." Id. at 214. Reckless conduct is an extreme departure from ordinary care, in a situation in which a high degree of danger is apparent. Ibid. Reckless behavior must be more than any "mere mistake resulting from inexperience, excitement or confusion, and more than mere thoughtlessness or inadvertence, or simple inattention . . . ." Ibid.

The Restatement (Second) of Torts articulates the standard as follows, contrasting negligence and recklessness:

The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

[Restatement (Second) of Torts 500 at 587 (1965).]

Recklessness, unlike negligence, requires a conscious choice of a course of action, with knowledge or a reason to know that it will create serious danger to others. Negligence may consist of an intentional act done with knowledge that it creates a risk of danger to others, but recklessness requires a substantially higher risk. The quantum of risk is the important factor. Ibid.

Application of that standard to this matter requires an analysis of whether a finding of recklessness would be open to the jury. If so, summary judgment rightfully was denied defendant and the matter should proceed to trial. . . .

See also Dunlea v. Twp. of Belleville, 349 N.J. Super. 506, 512 (App. Div.), certif. denied, 174 N.J. 189 (2002); Obert v. Baratta, 321 N.J. Super. 356, 359-60 (App. Div. 1999).

There is nothing in the record before us to support a finding that Arabitg intentionally struck Saracino in the face with his hockey stick, so we must determine whether a rational jury could find that his conduct was "reckless." All witnesses agree that Arabitg was actively playing the game at the time of the incident. There is evidence, as we have noted, that he was "into the game," playing aggressively and enthusiastically, and attempting to hit the ball into the goal, but no testimony from which a legitimate inference can be drawn that he was doing anything beyond being "into the game."

There was evidence that Arabitg brought his hockey stick above his waist and up as high as his head, which all agree was against the rules of "floor hockey." Violation of a sporting rule, however, does not necessarily "compel a determination of recklessness," being "but one factor in the totality of circumstances to be examined in the context of a defendant's motion for summary judgment under a recklessness standard of care in a recreational sports context." Schick, supra, 167 N.J. at 21.

To survive summary judgment, a plaintiff must demonstrate that there is a "scenario present[ing] a set of facts that a jury could find constitutes reckless conduct because it may reflect a conscious choice of a course of action with knowledge or reason to know that the action will create serious danger to others." Ibid. Having reviewed the differing versions of the event, we conclude that there is no such scenario in this case, despite the apparent swinging of the hockey stick above the waist.

Reckless conduct is an extreme departure from ordinary care, in a situation in which a high degree of danger is apparent. Reckless behavior must be more than any "mere mistake resulting from inexperience, excitement or confusion, and more than mere thoughtlessness or inadvertence, or simple inattention . . . ."

[Id. at 19 (citations omitted) (emphasis added).]

In contrast to the defendant in Schick, there is no evidence that Arabitg knew Saracino was in harms way and made a dangerous play notwithstanding.

Consequently, we affirm the motion judge's grant of summary judgment to Arabitg.

C.

We now turn to Saracino's contention that the motion judge erred in granting summary judgment to the Board and its employee, DeVito. Here, the issue is whether there were sufficient facts in the record to create a jury question as to whether Saracino's injuries satisfied the threshold for non-economic damages in N.J.S.A. 59:9-2(d), which provides:

No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any 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, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.

It is undisputed that Saracino meets the monetary threshold.

Scaccia, Saracino's treating physician who performed the post-injury surgery, opined as follows: (1) "her sinus issues are not related to the accident and were the result of a pre-existing condition"; (2) "her deviated septum within a certain degree of medical certainty did sustain injury causing it to be more deviated than it previously was as a result of the accident"; (3) as a result "she developed an exacerbation of her nasal obstruction"; (4) "the small hump on her nose was also exacerbated by the trauma to her nose causing a slight build up in the periosteal covering and bony deposition to enhance an already pre-existing nasal deformity"; (5) the injury resulted in "an increase in her nasal obstruction secondary to added deviation of her septum and also additional deformity to her nose by the bony depositions along the dorsum"; (6) "surgery was necessary in order to correct her breathing and help improve the appearance of her nose"; (7) "her prognosis is very good"; and (8) "she should continue to enjoy improved nasal breathing, decreased frequency of sinus infections and a more attractive nose for many years to come." We have also had the benefit of the photographs that were reviewed by the motion judge.

In Brooks v. Odom, 150 N.J. 395, 406 (1997), the Supreme Court held that "a plaintiff must sustain a permanent loss of the use of a bodily function that is substantial." While the Court acknowledged that Brooks's injuries were permanent, it held that her injuries were not substantial because she had returned to work and could function as a homemaker. Ibid.

In Gilhooley v. County of Union, 164 N.J. 533, 536 (2000), the plaintiff slipped and fell on a wet floor in a public building. As a result of the fall, she fractured her nose and right patella. Ibid. The knee fracture left her with a complete loss of quadriceps power. Ibid. She was required to undergo a surgical reconstruction of the knee. Ibid. Although she made a good recovery and returned to work, she regained function of her knee and right leg through the permanent insertion of wires and pins. Id. at 536-37. The Court held that Gilhooley's injury satisfied the statutory threshold of a "permanent loss of a bodily function." Id. at 542. The Court reasoned that she had lost forever the normal use of her knee. Ibid. Furthermore, her knee could not function without the internal fixation devices. Id. at 542-43.

Going beyond the specific case presented by the plaintiff in Gilhooley, the Court stated

We are satisfied that the Legislature intended to include within the notion of aggravated cases those involving permanent injury resulting in a permanent loss of normal bodily function even if modern medicine can supply replacement parts to mimic the natural function. As is the case with dismemberment and disfigurement, when pins, wires, mechanisms and devices are required to make the plaintiff normal, the statutory standard is met. The fact that a physician has jury-rigged the knee to function with pins and wires in no way inhibits the characterization of that injury as the permanent loss of a bodily function. The same would be true of a plaintiff whose vision is restored with a lens, one whose hearing is restored with a hearing aid, and one whose heart is operating efficiently with a pacemaker or implanted valve. We conclude that those are all aggravated cases within the contemplation of the Legislature when it enacted the "permanent loss of bodily function" language and that they fall squarely within the "substantial" requirement of Brooks.

[Ibid.]

The Court observed, however, that not every objectively determined permanent injury results in a substantial loss of a bodily function. Id. at 541.

In Kahrar v. Borough of Wallington, 171 N.J. 3, 5 (2002), the plaintiff fell in a hole while crossing the street. As a result of the fall, she fractured her elbow and right ankle. 171 N.J. at 6. After the elbow fracture healed and following complaints of persistent pain, an MRI revealed a massive tear of the rotator cuff. Ibid. An open surgical procedure was required to repair the tear and a torn tendon. Id. at 6-7. The procedure shortened the length of the tendon and reduced the shoulder range of motion by forty percent. Ibid. Nevertheless, the plaintiff was able to return to work as a secretary two months after the surgery. Id. at 8.

Initially, the Court observed that a two-prong test had emerged from Brooks. Id. at 12. A plaintiff must prove an objective permanent injury and a permanent loss of a bodily function that is substantial. Ibid. (citing Gilhooley, supra, 164 N.J. at 541). The Court also recognized that the issue in Kahrar was the substantiality requirement of the Brooks test. Ibid. The Court noted that the rotator cuff and the tendon that required surgical repair were essential to every function of the arm. Id. at 15-16. The Court considered the injury and repair analogous to the injury and knee reconstruction in Gilhooley. Id. at 15.

Gerber v. Springfield Board of Education, 328 N.J. Super. 24 (App. Div. 2000), cited with approval in Kahrar, supra, 171 N.J. at 13, dealt with a student who was beaten by a fellow student and received serious facial injuries, including multiple fractures of the nasal septum. Gerber, supra, 328 N.J. Super. at 31. In spite of reconstructive surgery, the plaintiff continued to have difficulty breathing through the nose and suffered from intermittent but recurring headaches. Ibid. We held that she had submitted objective evidence of permanent injury and substantiality that defeated a motion for summary judgment, Id. at 35-36, observing that there was medical evidence that the basic life function of respiration was permanently restricted to a significant degree. Id. at 36.

In the case now before us, Saracino had serious, pre-existing sinus and septum problems for an extended period prior to her injury. Her sinus problems were not exacerbated by the injury, according to her treating physician. While the injury did add to the deviation of the septum, to "a certain degree of medical certainty," the deviated septum was corrected surgically. (Emphasis added). Saracino's treating physician also corrected the "slight build up in the periosteal covering and bony deposition [that] enhanced an already pre-existing nasal deformity," at the time he performed the rhinoplasty. There is simply no factual basis for a rational jury to conclude that Saracino's injuries, especially in light of the significant pre-existing conditions and resulting corrective surgeries primarily addressed to those pre-existing conditions, resulted in a "permanent loss of a bodily function."

We have seen the same pictures that were presented to the motion judge by counsel for Saracino in lieu of her personal appearance. Having reviewed them, we see absolutely no basis to submit the issue of "permanent disfigurement" to a jury. We "conclude that no rational fact-finder could find that [the barely visible surgical scar or the shape of her nose] rendered [Saracino's] appearance unattractive, objectionable, or as the subject of pity or scorn, or that they, individually or collectively, substantially detract from [her] appearance or impair or injure [her] beauty, symmetry, or appearance so as to render her unsightly, misshapen, or imperfect." Soto, supra, 189 N.J. at 577-78.

We conclude, therefore, that the motion judge correctly determined that there are insufficient facts in the record to satisfy the N.J.S.A. 59:9-2(d) threshold for recovery of non-economic damages.

III.

In summary, we conclude that the motion judge did not err in applying the heightened duty of care to Arabitg's conduct, and that he correctly determined that the facts in the record, when viewed most favorably to Saracino, could not support a finding that Arabitg's conduct was reckless or intentional. We also conclude that the motion judge correctly found that the facts in the record, when viewed most favorably to Saracino, could not support a finding that her injuries satisfied the threshold for non-economic damages found in N.J.S.A. 59:9-2(d). Consequently, we affirm the order granting summary judgment in its entirety.

 
Affirmed.

There was conflicting testimony as to whether there was a puck or a ball. For the sake of convenience, we refer only to a ball.

Physical education classes in public schools are required by N.J.S.A. 18A:35-5, and physically capable students are required to participate by N.J.S.A. 18A:35-7.

We do not understand "informal sports activities" to require that participation be purely voluntary.

Although Lapore testified that the "boys were very aggressive," she was clear that it "was for the game . . . they just wanted to win."

As previously noted, Scaccia also reported "a possible hairline fracture" with "no significant signs of displacement or curvature."

Ordinarily, a plaintiff opposing a motion for summary judgment with respect to scarring or disfigurement is expected to make him or herself available to the motion judge for direct observation. Soto v. Scaringelli, 189 N.J. 558, 573 (2007).

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A-0957-08T2

October 20, 2009