LAUREN KENNEDY AND JOHN KENNEDY v. CITY OF BAYONNE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2110-08T12110-08T1

LAUREN KENNEDY AND JOHN

KENNEDY,

Plaintiffs-Appellants,

v.

CITY OF BAYONNE,

Defendant-Respondent.

____________________________

 

Argued September 30, 2009 - Decided

Before Judges Gilroy and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1131-07.

Randi S. Greenberg argued the cause for appellants (Bruce S. Gates, attorney; Mr. Gates, on the brief).

Kathy A. Kennedy argued the cause for respondent (Florio & Kenny, L.L.P., attorneys; Edward J. Florio and Nita G. Raval, of counsel; Thomas R. Brophy, on the brief).

PER CURIAM

In this personal injury action, plaintiffs appeal from the November 7, 2008 Law Division order granting summary judgment to defendant City of Bayonne (City) for plaintiffs' failure to vault the Tort Claims Act (TCA) threshold set forth in N.J.S.A. 59:9-2d.. We affirm.

The facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On March 5, 2005, plaintiff Lauren Kennedy suffered a comminuted displaced intra articular fracture of the distal radius of her right wrist as a result of a fall on ice and snow on a sidewalk located in the Kill Van Kull Park in Bayonne. After removal of an external fixator applied after a closed reduction, plaintiff had seven physical therapy sessions. She was discharged from treatment on May 23, 2005, has received no treatment since then, and does not intend to seek future treatment.

Plaintiff's treating physician opined that as a result of the injury, plaintiff sustained a loss of motion of her right wrist and will be at risk for developing post-traumatic arthrosis of that wrist. The doctor concluded that the injury was permanent and causally related to the fall. Plaintiff's expert orthopedic surgeon opined, in relevant part, as follows:

At the time of this evaluation, this patient was seen to demonstrate signs and symptoms of arthrosis, ankylosis and median nerve irritation[,] i.e., carpal tunnel syndrome. This patient has a degree of palmar flexion instability and posttraumatic arthritis/arthroses. Consequently, this patient has sustained significant partial whole body permanent impairment consequent to the injury to the right distal radius and wrist leading to significant impairment of the right upper extremity consequent to the fall down accident of March 5, 2005. For forensic purposes, these injuries and conditions should be considered permanent [and] progressive.

The City's neurological expert opined that plaintiff's examination was "entirely normal[,]" with "no evidence of a carpal tunnel syndrome, ulnar neuropathy, or other neurological impairment." The City's orthopedic expert opined that that "[c]lincally there is no evidence of any carpal tunnel syndrome[,]" that there was "excellent healing of the fracture of the distal radius without any intra-articular component[,]" and that the "intra-articular component has healed without any radiographic residua."

Plaintiff filed a complaint against Bayonne, alleging negligent management, operation, inspection, construction, design and maintenance of the sidewalk where she fell. Her husband, plaintiff John Kennedy, filed a per quod claim. At her deposition, plaintiff testified that (1) she was employed as a legal secretary at the time of the accident; (2) she only lost eight days from work as a result of her injuries; (3) she has a new job making more money than before the accident; (4) she can perform her daily activities but "just [has] a hard time doing them[;]" and (5) there are no activities that she cannot do as a result of the injury.

In granting summary judgment, the trial judge found that plaintiff failed to advance objective medical evidence of a permanent loss of a body function that is substantial, as required by the TCA. The judge reasoned that plaintiff's subjective feelings of discomfort and her lingering pain resulting in a lessening ability to perform tasks were not sufficient to vault the TCA threshold.

We apply a de novo standard of review in regard to summary judgment motions. Trinity Church v. Atkin Olshin Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007). Thus, we must consider, as the Law Division did, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J. at 536). "The judgment or order sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged[.]" R. 4:46-2(c). If there is no genuine issue of material fact, we must then decide whether the lower court's ruling on the law was correct. Walker v. Atl. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987). Applying these standards, we conclude that summary judgment was properly granted.

The TCA is to be strictly construed. Ayers v. Jackson Twp., 106 N.J. 599 (1987); Hawes v. N.J. Dept. of Trans., 232 N.J. Super. 160 (Law Div.), aff'd, 232 N.J. Super. 159 (App. Div. 1988). With respect to the tort claims threshold, to recover damages for pain and suffering, N.J.S.A. 59:9-2d provides as follows:

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.

To establish whether injuries have met the tort claims threshold, the plaintiff must (1) prove by objective medical evidence that the injury is permanent; and (2) demonstrate that there is a permanent loss of use of a bodily function that is substantial. Gilhooley v. County of Union, 164 N.J. 533, 540-41 (2000) (citing Brooks v. Odom, 150 N.J. 395 (1997)). To be considered permanent within the meaning of N.J.S.A. 59:9-2d, an injury must constitute an objective impairment. Recovery cannot be obtained for subjective feelings of discomfort or for temporary injuries, no matter how painful and debilitating. Brooks, supra, 150 N.J. at 403; Ayers, supra, 106 N.J. at 571; Randall v. State, 277 N.J. Super 192, 196 (App. Div. 1994). The loss does not have to be a total loss, but it has to be more than a mere limitation of a bodily function. Brooks, supra, 150 N.J. at 406. Thus, recovery cannot be obtained for pain and suffering under N.J.S.A. 59:9-2d absent objective medical evidence of a permanent injury along with a substantial and permanent loss of use of a bodily function.

An injury only causing lingering pain that diminishes a person's ability to perform certain tasks is considered a subjective feeling of discomfort that is not compensable. Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324, 332 (2003). To be compensable, the injury must significantly impair the plaintiff's ability to use the injured body part to complete normal tasks. Kahrar v. Borough of Wallington, 171 N.J. 3, 16 (2002).

We agree with the trial judge that plaintiff's injury does not vault the tort claims threshold. Despite that plaintiff sustained a fractured wrist, a fully healed fracture will not meet the tort claims threshold absent "objective evidence of permanent substantial impairment." Gilhooley, supra, 164 N.J. at 541. There is no such evidence here. Plaintiff has received no treatment since May 2005, no future treatment is required, and the injury has not substantially impaired plaintiff's ability to complete normal tasks and perform all of her daily activities, including work. Based on these proofs no rational fact-finder could conclude that plaintiff sustained an injury within the meaning of the TCA.

 
Affirmed.

The doctor did not opine within a reasonable degree of medical certainty that plaintiff will require a wrist fusion in the future.

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A-2110-08T1

October 30, 2009