CARL MANN, JR. v. OFFICER CHAD WALDER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CARL MANN, JR., CARL

MANN, SR., and SHELLY

MANN,

Plaintiffs-Appellants,

v.

OFFICER CHAD WALDER;

OFFICER KENNETH K. KRIETE;

LIEUTENANT KELLY GOTTHEINER;

LIEUTENANT THERESA GENARDI,

in their individual and

official capacities; NEW JERSEY

STATE PARK POLICE, and STATE OF

NEW JERSEY,

Defendants-Respondents.

________________________________________________________________

October 31, 2013

Submitted July 30, 2013 Decided

Before Judges Espinosa and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2190-08.

Cotz & Cotz, attorneys for appellants (Lydia B. Cotz, on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondents (Lisa A. Puglisi, Assistant Attorney General, of counsel; Vincent J. Rizzo, Jr. and Randall B. Weaver, Deputy Attorneys General, on the brief).

PER CURIAM

Plaintiff Carl Mann, Jr. appeals from an order that dismissed his claim of negligent infliction of emotional distress. We affirm.

This action arose from the fatal shooting of Emil Mann on April 1, 2006. Plaintiff alleged that, at the age of sixteen, he witnessed the shooting of Mann, whom he described as an uncle, and suffered emotional damages thereafter. The two were part of a group that set up a barbecue at an abandoned farm known as the German House, just outside Ringwood State Park. There was an altercation late in the afternoon with three New Jersey State Park Police officers, defendants Chad Walder, Kelly Gottheiner, and Kenneth Kriete, that ended in Walder shooting Mann twice. He died nine days later from his wounds.

Plaintiff suffered no physical injuries. Plaintiff's expenditures for medical expenses related to his incident were $187.

Initially, plaintiff brought this action through his parents, Carl Mann, Sr., and Shelly Mann. A second amended complaint alleged: negligent infliction of emotional distress (count one); false arrest and imprisonment (count two); and negligent training, hiring, and supervision (count three). Defendants filed a motion for summary judgment and plaintiff did not oppose the motion as to counts two and three.

In support of his emotional distress claim, plaintiff produced an expert opinion by Peter Crain, M.D. Dr. Crain examined plaintiff once. Dr. Crain concluded that plaintiff suffers from uncomplicated bereavement and maladaptive health behavior (overeating) affecting his general medical condition, which was secondary to plaintiff's bereavement. Dr. Crain's report reveals that plaintiff graduated from high school; that he sleeps adequately at night with no nightmares; that he has no difficulty performing his job at T.J. Maxx; and that, although he continues to distrust police officers, his fear of them has receded. He also told Dr. Crain that he misses Mann when he and his family take outings on all-terrain vehicles.

The trial court granted summary judgment to defendants, ruling that plaintiff failed to meet the threshold criteria for maintaining an action under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. In this appeal, plaintiff presents the following arguments for our consideration:

POINT I

THE COURT BELOW ERRED BY HOLDING THAT PLAINTIFF DID NOT MEET THE TORT CLAIMS ACT THRESHOLDS.

A. TORT CLAIMS ACT LIABILITY CAN REST ON EMOTIONAL INJURY ALONE.

B. THERE WAS A PERMANENT INJURY.

C. TORT CLAIMS ACT LIABILITY SHOULD NOT STAND OR FALL BASED ON THE AFFLUENCE OF THE PLAINTIFF.

On appeal, a motion for summary judgment is reviewed de novo under the same legal standard applied by the trial court, that is, "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[s] in favor of the non-moving party." Spinks v. Twp. of Clinton, 402 N.J. Super. 465, 473 (App. Div. 2008) (quoting Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995)), certif. denied, 197 N.J. 476 (2009).

Here, the parties disagree as to whether plaintiff actually saw the shooting and whether Mann was his uncle. Because we view the evidential materials in the light most favorable to plaintiff, we will assume that he witnessed the shooting and that Mann was his uncle for the purpose of our analysis. Plaintiff's claim was governed by the TCA, which prohibits recovery from a public entity or employee for pain and suffering, unless two criteria are met:

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. 59:9-2(d)(emphasis added).]

Thus, in order to meet the threshold required to maintain this action, the TCA requires proof that a party has (1) suffered a permanent injury and (2) incurred related medical expenses that exceed the statutory threshold, now $3600. See Butkera v. Hudson River Sloop Clearwater, Inc., 300 N.J. Super. 550, 557 (App. Div. 1997); Thorpe v. Cohen, 258 N.J. Super. 523, 529 (App. Div. 1992). Plaintiff contends that he satisfied these criteria. We disagree.

In Ayers v. Twp. Of Jackson, 106 N.J. 557 (1987), the Supreme Court considered the application of the TCA to claims of emotional distress. The Court concluded that "subjective symptoms" such as depression, stress, health concerns, and anxiety constituted "pain and suffering" subject to the bar of N.J.S.A. 59:9-2(d). Id. at 576. Thus, an emotional distress claim is barred unless a plaintiff suffers "permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses" exceeded $3600. Srebnik v. State, 245 N.J. Super. 344, 349-50 (App. Div. 1991).

The plaintiff in Srebnik argued that the depression and stress disorder she suffered after watching her husband die constituted the requisite permanent injury under the TCA. We rejected that argument, stating, "[n]either the Act nor Ayers equates 'permanent' emotional injury with 'permanent loss of a bodily function.'" Id. at 350. We concluded that "damages for emotional distress are recoverable . . . if they result from a permanent debilitating or disfiguring physical injury [or] if they result in permanent physical sequelae such as disabling tremors, paralysis or loss of eyesight; that is, a 'permanent loss of a bodily function.'" Id. at 351. However, when a plaintiff's damages arise from "subjective symptoms . . . without the requisite indicia of permanent physical infirmity," they are not recoverable under the TCA. Ibid.

In Collins v. Union Cnty. Jail, 150 N.J. 407 (1997), the Court reinstated a plaintiff's claim based upon his brutal sodomization by a jail guard while he was an inmate. The Court noted that Collins had presented "strong evidence" he suffered permanent and severe psychological damage as a result of the assault. Id. at 414. In finding this emotional distress sufficient to constitute the requisite physical injury, the Court noted that, unlike the case in Srebnik, the plaintiff was subjected to "a direct physical violation" and presented evidence from his psychologist that his "post-traumatic stress disorder [was] directly attributable to the sexual assault." Id. at 417.

Plaintiff contends that his weight gain, from 250 to 330 pounds, was a physical manifestation of his emotional injury and therefore, constitutes a permanent injury under the TCA. However, he suffered no direct physical assault and has presented no evidence of "permanent physical sequelae such as disabling tremors, paralysis or loss of eyesight" that would rise to the level of a "permanent loss of a bodily function." Srebnik, supra, 245 N.J. Super. at 351. Because his claim rests upon "subjective symptoms . . . without the requisite indicia of permanent physical infirmity," they are not recoverable under the TCA. Ibid.

Plaintiff also failed to meet the monetary threshold of $3600. He argues that the value of the services he received and will need in the future exceeds that amount; that his expenses were reduced by the fact that he received services through Medicaid; and that to bar his claim on this ground discriminates against him because he is poor. Even if we ignored the legislative mandate that the cost, rather than the value, of medical expenses be measured, plaintiff's argument is unsupported by any evidence as to the value of the services received. In fact, he acknowledges that the total cost of his treatment expenses is unknown.

As plaintiff has failed to meet either of the two criteria established by N.J.S.A. 59:9-2(d), his claim is barred.