CARMEN ACEVEDO v. TOWNSHIP OF EDGEWATER PARK BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1397-08T31397-08T3

CARMEN ACEVEDO and

JESUS ARTEAGA,

Plaintiffs-Appellants,

v.

TOWNSHIP OF EDGEWATER PARK

BOARD OF EDUCATION,

Defendant-Respondent,

and

TOWNSHIP OF EDGEWATER PARK;

COUNTY OF BURLINGTON; STATE

OF NEW JERSEY and TOWNSHIP

OF EDGEWATER PARK MUNICIPAL

AUTHORITIES,

Defendants.

________________________________________________________________

 

Submitted August 4, 2009 - Decided

Before Judges Lihotz and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-299-07.

John A. Klamo, P.C, attorney for appellants.

Powell, Birchmeier & Powell, attorneys for respondent (Erin R. Thompson, on the brief).

PER CURIAM

Plaintiffs Carmen Acevedo and Jesus Arteaga appeal from a September 29, 2008 order granting summary judgment and dismissing their personal injury complaint against defendant, Township of Edgewater Park Board of Education. On appeal, plaintiff maintains that the motion judge erred when he concluded that her injuries failed to satisfy the requirements of the Tort Claims Act. We affirm.

I.

On January 31, 2005, plaintiff slipped on a small patch of ice in a school parking lot owned by defendant Edgewater Park Board of Education. A February 7, 2005 MRI ordered by her treating physician, Dr. Eric Farrell, disclosed a full thickness tear of plaintiff's quadriceps tendon of her right leg. On February 15, 2005, Dr. Farrell performed a surgical repair of plaintiff's tendon, and he continued to treat her thereafter.

On March 1, 2005, Farrell noted that plaintiff had no complaints and was using the knee immobilizer that he prescribed for her following the surgery. He also noted that the surgical incision was "well healed." His clinical impression was that plaintiff was "doing well approximately two weeks status post . . . injury and surgery."

During plaintiff's next office visit on March 29, 2008, Farrell again commented that plaintiff was "without any complaints" but was reporting "some pain in the knee." He commented that she was "otherwise doing well." He did observe that plaintiff had some atrophy of the tendon, and he recommended physical therapy "to help wean her out of the walker."

After plaintiff's next visit to Farrell on July 11, 2005, he observed that plaintiff was no longer using the walker and was able to ambulate with a cane, which he commented was not medically required but was simply the result of plaintiff's "not feel[ing] confident when she [was] walking outside long distances." By the time of plaintiff's visit on February 28, 2006, Farrell observed that plaintiff had no locking of her knee or "giving way." He observed that she had full passive range of motion and could "actively extend to 0 as well." His only positive finding was atrophy of the tendon. He concluded his report of the July 11, 2005 visit by noting that "her tendon [was] healed and she should [have felt] confident that nothing [was] going to happen to it." He noted that she did "need to gain confidence and strength," which he opined she would gain by returning to physical therapy.

Plaintiff's last visit to Farrell on August 7, 2006, resulted in the following findings pertaining to plaintiff's successful recovery:

[Plaintiff] has full range of motion in the knee, 0 of extension to approximately 130 of flexion. She has excellent quad strength. Her motor sensory exam is normal. She does have some tenderness in the area of the lumbar spine, L5 area. She does have some pain with straight leg raise testing. She ambulates . . . with a cane. There are no motor sensory deficits.

. . . .

It was explained to [plaintiff] that her quad tendon rupture has healed nicely. She does not have much scar and she has excellent motion and good strength. She is actually quite surprised on how well this has healed up.

After hearing oral argument, Judge Baldwin granted defendant's summary judgment motion, finding that Dr. Farrell's August 7, 2006 report negated the existence of a permanent loss of a bodily function that is substantial. Reasoning that plaintiff showed "full range of motion in the knee, excellent quad strength, motor sensory exam is normal[,] . . . quad tendon rupture is healed nicely, [with] excellent motion and good strength," the judge concluded that plaintiff failed to present a genuine issue of material fact. He therefore granted defendant's summary judgment motion. In so doing, he expressly rejected plaintiff's effort to defeat the motion by pointing to Farrell's earlier reports. The judge observed that the earlier reports were prepared at a time when plaintiff was "still healing" and those reports therefore had no bearing on the doctor's final report of August 2006.

On appeal, plaintiff argues that: 1) her injuries satisfied the Tort Claims Act threshold established by N.J.S.A. 59:9-2(d); 2) the motion judge relied exclusively on Farrell's final report thereby improperly ignoring Farrell's earlier findings; and 3) Farrell's final report was sufficient to withstand summary judgment.

II.

We review the trial court's grant of summary judgment de novo. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Employing the same standard the trial court uses, ibid., we review the record to determine whether there are material factual disputes and, if not, whether the undisputed facts viewed in the light most favorable to plaintiff nonetheless entitle defendant to judgment as a matter of law. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

The Tort Claims Act (the Act), N.J.S.A. 59:1-1 to :12-3, limits recovery for pain and suffering damages to cases involving "permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600." N.J.S.A. 59:9-2(d). In Brooks v. Odom, 150 N.J. 395, 400 (1997), the Court analyzed the proofs a plaintiff must provide in order to satisfy N.J.S.A. 59:9-2(d). The Court was presented with evidence of soft tissue injuries that resulted in persistent complaints of pain, muscle spasm and limited range of motion when performing household chores. Id. at 398-400. The Court accepted the plaintiff's argument that she "experience[d] pain and that the limitation of motion in her neck and back [was] permanent." Id. at 406. The Court explained that a partial loss of a bodily function would satisfy the statutory standard provided that the loss of bodily function was both permanent and substantial. Ibid. The Court nonetheless held that the plaintiff's complaint did not satisfy the damages threshold of N.J.S.A. 59:9-2(d). Ibid. The Court later characterized the plaintiff's complaint in Brooks as merely "a subjective claim for pain and suffering" that failed to satisfy the Act's requirement of a substantial and permanent loss of a bodily function. Kahrar v. Borough of Wallington, 171 N.J. 3, 11 (2002).

In Brooks, the Court determined that to recover under the Act for pain and suffering, "a plaintiff must prove by objective medical evidence that the injury is permanent. Temporary injuries, no matter how painful and debilitating, are not recoverable. Further, a plaintiff may not recover under the Tort Claims Act for mere 'subjective feelings of discomfort.'" 150 N.J. at 402-03 (quoting Ayers v. Twp. of Jackson, 106 N.J. 557, 571 (1987)). The Court also held that although the Legislature did not intend to require a total loss of a bodily function, it also did not intend that "a mere limitation on a bodily function would suffice." Id. at 406.

Three years after its decision in Brooks, the Court had the occasion in Gilhooley v. County of Union, 164 N.J. 533 (2000) to again analyze the damages threshold contained in N.J.S.A. 59:9-2(d). The Court reviewed the criteria that had been established in Brooks. Id. at 540-41. After "[r]ecapping" the Brooks criteria, the Court held that in order to recover under the Act, a plaintiff must prove: "(1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial." Ibid. The Court observed that "[e]ach case is fact sensitive," and not "every objective permanent injury" will "result[] in substantial loss of a bodily function. . . ." Id. at 541. The Court observed, as an example, that the plaintiff in Brooks satisfied one prong of the Brooks standard, but failed to satisfy the other. Ibid.

In Knowles v. Mantua Twp. Soccer Ass'n., 176 N.J. 324, 331-33 (2003), and in Kahrar, supra, 171 N.J. at 15-16, the Court reversed the grant of the defendants' summary judgment motions that had been based on N.J.S.A. 59:9-2(d). However, because those decisions turned on whether the injury was substantial, and not, as here, on whether the injury was permanent, we need not discuss either Knowles or Kahrar.

Applying the Brooks and Gilhooley standard to the evidence presented here, we agree with Judge Baldwin's conclusion that plaintiff failed to raise a genuine issue of material fact on whether she sustained a permanent loss of a bodily function as a result of her fall on ice at defendant's parking lot. When plaintiff was last seen by Dr. Farrell on August 7, 2006, he found that her quad tendon rupture had healed well, that she did "not have much of a scar" and had "excellent motion and good strength." Tellingly, he commented that even plaintiff was "quite surprised" on how well her injury had healed. Although plaintiff expressed ongoing complaints of pain, Farrell opined that such pain was attributable to a pre-existing and unrelated degenerative process in her lumbar spine. Even if the pain was the result of the fall, pain is not sufficient to satisfy the Act's threshold. Brooks, supra, 150 N.J. at 406.

As to plaintiff's right knee, the medical evidence offered by plaintiff established that she has not sustained a permanent injury. She has no limitation of her range of motion, nor did she establish any instability of her knee or any other permanent injury that could be deemed substantial. Plaintiff's own proofs demonstrate that her right leg has been restored to normal functioning, and consequently, the grant of summary judgment was correct. Ibid.

We recognize that in Gilhooley, supra, the Court reversed a grant of summary judgment to the defendant, because even though the plaintiff's knee had been restored to full-functioning, it was only because of the extensive pins and wires that were permanently inserted into her knee that the plaintiff was able to return to her pre-injury functionality. 164 N.J. at 542. Here, unlike Gilhooley, plaintiff's surgery did not require any pins, wires, or any other form of medical prosthesis. Thus, plaintiff has suffered no permanent injury enabling her to withstand defendant's summary

judgment motion under N.J.S.A. 59:9-2(d).

III.

Plaintiff's remaining contentions lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E).

 
Affirmed.

Arteago, who is Acevedo's husband, sued per quod. All further references to plaintiff signify Acevedo.

While we recognize that plaintiff does have a scar as a result of the surgery, she did not contend that the scar satisfies the "disfigurement" portion of N.J.S.A. 59:9-2(d).

(continued)

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A-1397-08T3

August 17, 2009