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October 28, 2014


Submitted October 8, 2014 Decided

Before Judges Fuentes, Ashrafi, and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No.


Edward L. Gibson, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis Scheindlin, Assistant Attorney General, of counsel; Benjamin E. Bryant, Deputy Attorney General, on the brief).


Plaintiff Edward L. Gibson appeals from two orders of the Law Division, one granting summary judgment to defendant New Jersey Transit, and the other denying plaintiff's motion to reopen discovery. We affirm.

Plaintiff alleges he was injured while riding a New Jersey Transit bus on March 31, 2009. In April 2009, an attorney filed a notice of claim on behalf of plaintiff in accordance with the Tort Claims Act. See N.J.S.A. 59:8-1 to -11. On March 28, 2011, four days before the statute of limitations would have run, see N.J.S.A. 2A:14-2(a), plaintiff commenced this lawsuit by filing a pro se complaint.

Plaintiff claimedhe waswalking to a seat in the bus when it braked abruptly and collided with another vehicle. He alleged he was thrown backwards to the floor and sustained injuries to his head, teeth, neck, shoulders, back, hips, and left knee. Plaintiff also alleged damage to a digital camera, to a mobile communication device, and to other personal property. He claimed the accident was caused by the bus driver's negligence. New Jersey Transit filed an answer denying liability.

During discovery, plaintiff did not provide any evidence of a doctor's evaluation or treatment of his alleged injuries. The minimal medicalrecords heprovided indicatedvisits totwo doctors in May 2009 but no reports by the doctors and no indication of the nature and severity of his injuries or determination of the cause. In the fall of 2011, plaintiff retained new counsel to represent him in the lawsuit but still did not provide discovery of medical evidence to support his claims.

After the discovery period ended on May 2, 2012, New Jersey Transit moved for summary judgment on the ground that plaintiff could not show permanent injury caused by the bus accident. Plaintiff filed a cross-motion to reopen discovery. He stated he was attempting to obtain medical evidence, and presumably expert testimony. Plaintiff claimed he had been unable to seek treatment for his injuries because he did not have medical insurance and New Jersey Transit refused to pay for a medical examination and treatment of his injuries. After hearing counsel's arguments, the trial court granted defendant's motion and entered an order for summary judgment on July 27, 2012, from which plaintiff now appeals.

Also on July 27, 2012, the presiding judge of the Civil Division denied plaintiff's cross-motion to reopen discovery, stating among reasons that plaintiff's proposed order did not "describe the discovery to be completed and set forth proposed dates for completion, as required by R. 4:24-1(c)." Plaintiff moved for reconsideration. He declared in a supporting certification that he had made an appointment with an orthopedic surgeon for August 21, 2012. Plaintiff now appeals from the court's order of September 17, 2012, denying his motion for reconsideration and to reopen discovery.

We conduct plenary review of an order granting summary judgment, and we apply the same standard under Rule4:46-2(c) that governs the trial court. Oyola v. Xing Lan Liu, 431 N.J. Super. 493, 497 (App. Div.), certif. denied, 216 N.J.86 (2013). We 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).

"Under general principles of tort law, 'there are two essential elements of a [negligence] cause of action . . . which must exist in order to make that cause of action viable and a suit based thereon maintainable, . . . the act of negligence itself and a consequential injury resulting therefrom.'" White v. Mattera, 175 N.J. 158, 165 (2003) (quoting Montag v. Bergen Bluestone Co., 145 N.J. Super. 140, 144 (Law Div. 1976)); see also Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 45 (1984) ("It is well established that the plaintiff must show a breach of duty and resulting damage to prevail in a negligence action.").

Because this matter arises on defendant's motion for summary judgment, we examine the facts in the light most favorable to plaintiff. Soto v. Scaringelli, 189 N.J. 558, 564 (2007) (citing DiProspero v. Penn, 183 N.J. 477, 482 (2005)). We will assume for purposes of this appeal that plaintiff can prove the bus driver was negligent and that plaintiff fell as a result of that negligence and injured one or more parts of his body. Those assumptions are not enough for plaintiff to defeat summary judgment.

Defendant is a public agency. Muhammad v. N.J. Transit, 176 N.J. 185, 194 (2003). Any claim against it is subject to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 14-4. A plaintiff seeking damages for pain and suffering from a public agency faces a higher burden than an ordinary negligence plaintiff in proving the nature of the injuries.

N.J.S.A. 59:9-2(d) provides in relevant part

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.

This limitation on damages "reflects the policy judgment that in view of the economic burdens presently facing public entities a claimant should not be reimbursed for non-objective types of damages, such as pain and suffering, except in aggravated circumstances[] . . . ." Gilhooley v. Cnty. of Union, 164 N.J. 533, 539 (2000) (quoting Harry A. Margolis and Robert Novack, Claims Against Public Entities, 1972 Task Force Comment on N.J.S.A. 59:9-2 (Gann 2000)).

To recover damages for pain and suffering, a plaintiff must prove through objective medical evidence that he suffered a permanent injury resulting in "a loss that is substantial." Brooks v. Odom, 150 N.J. 395, 402-03, 406 (1997). "Temporary injuries, no matter how painful and debilitating, are not recoverable." Id. at 403.

Plaintiff never offered any objective medical evidence of any kind at all, let alone any objective evidence showing that the bus accident caused a substantial permanent injury, or in the words of the statute, a "permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses [were] in excess of $3,600.00." N.J.S.A. 59:9-2(d). Consequently, he cannot pursue a claim for pain and suffering against New Jersey Transit.

Nor is there anything in the record to indicate plaintiff suffered any economic losses as a result of the accident. In sum, whether or not the bus driver drove negligently, plaintiff failed to produce any evidence establishing an essential part of his negligence claims that he suffered substantial losses because of the bodily injuries he claims were caused by the bus accident.

With respect to plaintiff's claim that his fall caused damage to his personal property, plaintiff did not provide any evidence in discovery regarding those alleged losses. He cannot proceed on those claims with no supporting evidence of the nature of the damages, the repair costs, or the value of his personal property.

Plaintiff also argues that the trial court erred in denying his motion to reopen discovery. We review the trial court's discovery ruling under an abuse of discretion standard. Bender v. Adelson, 187 N.J. 411, 428 (2006). When the request to reopen discovery occurs after a date has been fixed for trial or non-binding court arbitration pursuant to Rule 4:21A, the party making the motion must show "exceptional circumstances." R. 4:24-1(c). Here, a date for arbitration was fixed, and it was in fact conducted on July 18, 2012.

In Rivers v. LSC Partnership, 378 N.J. Super. 68, 79 (App. Div.), certif. denied, 185 N.J. 296 (2005), we listed the showing of "exceptional circumstances" required to reopen and extend discovery

[T]he moving party must satisfy four inquiries: (1) why discovery has not been completed within time and counsel's diligence in pursuing discovery during that time; (2) the additional discovery or disclosure sought is essential; (3) an explanation for counsel's failure to request an extension of the time for discovery within the original time period; and (4) the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time.

See also Zadigan v. Cole, 369 N.J. Super. 123, 133 (Law Div. 2004) (similar listing of exceptional circumstances for extending discovery). If any of these factors is not satisfied, the motion should be denied. Ibid. Furthermore, a party "requesting additional time for discovery should establish that he or she did make effective use of the time permitted under the rules. A failure to pursue discovery promptly, within the time permitted, would normally be fatal to such a request." Rivers, supra, 378 N.J. Super. at 79 (quoting Vitti v. Brown, 359 N.J. Super. 40, 51 (Law Div. 2003)).

Because plaintiff did not show exceptional circumstances, the trial court acted within its discretionary authority when it denied plaintiff's motion to reopen discovery. Not only did plaintiff fail to obtain medical evidence in the three years since the accident, he provided no true prospect that he would obtain the necessary evidence within a reasonable time.

At the time of his motion to reopen and extend discovery, plaintiff had not yet been examined by an orthopedist or other potential expert witness. There was no indication that the appointment he had belatedly scheduled for August 21, 2012, would produce the necessary expert report and testimony. In fact, the doctor's report he subsequently obtained was insufficient to meet plaintiff's evidentiary needs. The doctor reviewed only a few x-rays taken long after the accident, and otherwise indicated he was relying on plaintiff's subjective complaints and reports of injuries allegedly caused by the accident. Even accepting plaintiff's self-reported claims, the doctor assessed plaintiff as experiencing only "[m]ild chronic back pain, right hip and left knee pain with underlying degenerative changes and possibly a post traumatic component." The doctor was not in a position to render an opinion to a degree of medical certainty and based on objective medical evidence that the bus accident caused injury resulting in permanent substantial loss of a bodily function. The doctor also gave no indication that he was retained as an expert witness on behalf of plaintiff. There was no abuse of discretion in the trial court's denying plaintiff's motion to reopen discovery.