KATHLEEN R. BISCHER v. CITY OF CAPE MAY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2711-09T2

KATHLEEN R. BISCHER,

Plaintiff-Appellant,

v.

CITY OF CAPE MAY,

Defendant-Respondent.

_____________________________

March 14, 2011

Submitted January 5, 2011 - Decided

Before Judges Fuentes and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-92-09.

Thomas P. Farnoly, attorney for appellant.

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

PER CURIAM

Plaintiff Kathleen Bischer appeals from the January 22, 2010 order that granted summary judgment to defendant City of Cape May (the City). We affirm.

Viewed most favorably for plaintiff, the motion record reveals the following. On December 26, 2006, plaintiff slipped and fell on a public sidewalk injuring her right knee. On December 28, 2006, plaintiff presented herself to Dr. Stanley Bagan, her family physician. Dr. Bagan recommended that plaintiff see Dr. Mark Levitsky, an orthopedic surgeon, for an examination of her right knee. Dr. Levitsky examined plaintiff the same day. X-rays taken that day did not disclose any fractures involving the distal femur or proximal tibia. However, they did disclose a lytic lesion or lytic line through the lateral aspect of her patella. Dr. Levitsky placed plaintiff in a compression dressing or a leg immobilizer for approximately six weeks. The doctor next saw plaintiff one week later and instructed her to undergo a magnetic resource imaging (MRI) examination of her right knee to rule out any other injury to the knee. Plaintiff underwent the MRI on January 8, 2007. The MRI disclosed a moderate joint effusion and a "[r]upture of the lateral patellar retinaculum," but "no meniscal or ligamentous injury." Plaintiff returned to work as a school principal after the Christmas recess on a limited basis, and gradually resumed a full work schedule as her recovery progressed.

During the 2007 summer, after performing in-home therapy exercises, plaintiff complained that her "gait was off," she could not walk for any sustained period of time; she felt pain in her right knee when she exercised to strengthen; and her knee "clicked."

Plaintiff next returned to Dr. Levitsky for an examination on March 9, 2009. Plaintiff complained of a sharp pain while performing a walking program. "She has been doing 3 to 4 miles a day, but stopped over Christmas and resumed walking again in January." X-rays disclosed that the joint spaces of her right knee were well maintained, and there was no joint space narrowing for osteophyte formation. On Dr. Levitsky's recommendation plaintiff underwent a second MRI of her knee on March 11, 2009. According to Dr. Levitsky, the MRI "did reveal some degenerative changes involving her patellofemoral joint space. Both cruciates were intact. She had minor inflammatory changes in her quadriceps tendon. There were no apparent miniscal tears." The doctor opined that plaintiff was "probably developing some minor lateral compartment degenerative changes," believing that plaintiff's pain was emanating from her degenerative patella. After reviewing various treatment options with plaintiff ranging from the mere taking of medication as needed to a total knee replacement if all conservative treatment fails, plaintiff informed the doctor that she was going to continue taking Celebrex and would follow up with the doctor on an as needed basis.

On September 25, 2009, Dr. Levitsky issued a written report in which he opined that plaintiff's knee condition had a direct causal relationship to her fall. Although he stated that plaintiff's knee had not deteriorated to the point where she required a joint replacement, he believed that she suffered a permanent injury that will probably continue to gradually deteriorate. Plaintiff is no longer under the care of Dr. Levitsky.

When deposed on July 28, 2009, plaintiff testified that her knee not only continued to bother her, but also limited her ability to perform daily activities. For example, she curtailed the frequency and distance of her morning walks from three miles to one to two miles. She continues to ride her bicycle daily for exercise but limits her riding to between forty to fifty minutes. According to plaintiff, she is unable to climb out of a boat without assistance; she could no longer stand for long periods of time while cooking; she is unable to travel long distances in a car without her leg swelling; she feels that her knee is unsteady; she no longer sits with her legs crossed; and she has difficulty climbing stairs. Lastly, plaintiff testified that she ceased flower planting and sitting on the floor because of the difficulty she has rising from those positions.

On September 30, 2008, plaintiff filed her complaint against the City. Following the close of discovery, the City filed a motion for summary judgment arguing, among other things, that plaintiff failed to vault the New Jersey Tort Claims Act (TCA)1 threshold contained in N.J.S.A. 59:9-2d. The trial court agreed and granted the motion. In so doing, the court determined that although plaintiff may have suffered a permanent injury, she did not suffer a permanent loss of bodily function that was substantial.

To rebut City's claim [that] she has not met the Tort Claims Act damages threshold, Plaintiff offers Dr. Levitsky's diagnosis that her fall has "resulted in a permanent injury which will probably continue to gradually deteriorate." Plaintiff argues that her injury meets the two-prong test established in Brooks v. [Odom], 150 N.J. 395 (1997) and Gilhooley v. County of Union, 164 N.J. 533 (2000). The test requires (1) an objective permanent injury and (2) permanent loss of bodily function that is substantial. Plaintiff submits that she has suffered an objective injury, as both her doctor and defense's doctor report her knee was impacted by the fall she sustained at Washington Mall, and she should recover for pain and suffering damages.

However, there is nothing to indicate a substantial loss of bodily function. The activities of which Plaintiff complains do not meet the standard of permanent loss of bodily function. Where a plaintiff suffers permanent injury, but the limitations are minor, plaintiff does not meet the pain and suffering threshold of the Tort Claims Act. Newsham v. Cumberland Regional High School, 351 N.J. Super. 186 (App. Div. 2002). Plaintiff is still able to do most things she did previously, albeit with some modifications, but these are not as substantial as blindness, debilitating tremors, paralysis or loss of taste or smell, nor . . . was as bodily organ or limb rendered substantially useless. Knowles v. Mantua [Twp. Soccer Ass'n], 176[] N.J. 324 (2003).

On appeal, plaintiff argues that the trial court erred in: 1) granting defendant summary judgment on the basis that her injury "did not constitute a permanent loss of bodily function that is substantial"; and 2) failing to grant her all favorable inferences from the facts presented on the motion. We disagree.

A trial court will grant summary judgment to the moving party "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 and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler & Verniero, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2011). We employ the same standard that governs trial courts in reviewing summary judgment orders. Block 268, LLC v. City of Hoboken Rent Leveling & Stabilization Bd., 401 N.J. Super. 563, 567 (App. Div. 2008).

The controlling principle running through the TCA is that "immunity from tort liability is the general rule and liability is the exception." Coyne v. State Dep't of Transp., 182 N.J. 481, 488 (2005). "[P]ublic entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established" in the Act. N.J.S.A. 59:1-2.

Claims for personal injuries caused by a dangerous condition on public property are governed by N.J.S.A. 59:9-2. In addition to the other requirements of that statute, a claimant must prove:

d. 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.

[N.J.S.A. 59:9-2d.]

To establish that injuries meet the tort claims threshold, a 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, supra, 164 N.J. at 540-41. To be considered permanent within the meaning of N.J.S.A. 59:9-2d, the injury must constitute an objective impairment. Id. at 540.

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. The loss does not have to be a total loss, but it has to be more than a mere limitation of a bodily function. Id. 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. Ibid. Simply stated, 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, supra, 176 N.J. at 332. Rather, 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 have considered each of plaintiff's arguments in light of the record and applicable law. We are satisfied that neither of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Daryl F. Todd, Sr. in his written decision on January 22, 2010.

1 N.J.S.A. 59:1-1 to 12-3.