ODALIS MEJIA v. MICHAEL EUBANKS

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0247-16T3

ODALIS MEJIA,

        Plaintiff-Appellant,

v.

MICHAEL EUBANKS and
CITY OF NEWARK,

        Defendants-Respondents.

_______________________________

              Submitted November 30, 2017 – Decided January 30, 2018

              Before Judges Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Docket No. L-7807-
              14.

              Amy L. Peterson, attorney for appellant.

              Kenyatta K. Stewart, Acting Corporation
              Counsel, attorney for respondents (Emilia
              Perez, Assistant Corporation Counsel, on the
              brief).

PER CURIAM

        Plaintiff, Odalis Mejia, sustained neck and back injuries

when the car she was travelling in as a passenger was struck in
the rear by a sanitation truck owned by defendant, City of Newark,

and driven by its employee defendant, Michael Eubanks.                 Plaintiff

filed suit for damages arising from her injuries and defendants

filed a motion for summary judgment, arguing that plaintiff's

injuries failed to vault the threshold required by New Jersey's

Tort Claims Act (TCA), 
N.J.S.A. 59:1-1 to -13-10.                   Judge Thomas

R.   Vena    entered   an    order    on    September    2,   2016,1    granting

defendants' motion and setting forth his reasons in a written

memorandum     opinion      after    finding   that     plaintiff     failed    to

establish that she sustained a "permanent loss of a bodily function

that [was] substantial."            On appeal from that order, plaintiff

argues that Judge Vena erred because there were material questions

of fact and her proofs "satisfied the [TCA's] threshold."                      She

also argues the judge erred by "prejudging the motion for summary

judgment."    We disagree and affirm.

     We review a trial court's order granting summary judgment de

novo, applying the same standard as the trial court.                   Conley v.

Guerrero, 
228 N.J. 339, 346 (2017).            In our de novo review, the

trial court's determination that a party is entitled to summary

judgment as a matter of law is "not entitled to any special

deference."    Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140


1
    The date stamp affixed to the order incorrectly stated it was
filed on September 1, 2016.

                                        2                                A-0247-16T
3 N.J. 366, 378 (1995).    We view the motion record in a light most

favorable to the non-moving party, "keeping in mind '[a]n issue

of fact is genuine only if, considering the burden of persuasion

at   trial,   the   evidence     submitted    by    the   parties      on   the

motion . . . would require submission of the issue to the trier

of fact.'"    Schiavo v. Marina Dist. Dev. Co., 
442 N.J. Super. 346,

366 (2015) (alteration in original) (quoting R. 4:46-2(c)).                   We

examine   "the   competent    evidential    materials     submitted    by   the

parties to identify whether there are genuine issues of material

fact and, if not, whether the moving party is entitled to summary

judgment as a matter of law."       Ibid.    "Summary judgment should be

denied unless" the moving party's right to judgment is so clear

that there is "no room for controversy."           Akhtar v. JDN Props. at

Florham Park, LLC, 
439 N.J. Super. 391, 399 (App. Div. 2015)

(quoting Saldana v. DiMedio, 
275 N.J. Super. 488, 495 (App. Div.

1994)).

     In order to succeed on a claim against a public entity for

pain and suffering, a plaintiff must prove both: "(1) an objective

permanent injury, and (2) a permanent loss of a bodily function

that is substantial."        Toto v. Ensuar, 
196 N.J. 134, 145 (2008)

(emphasis added) (quoting Knowles v. Mantua Twp. Soccer Ass'n, 
176 N.J. 324, 329 (2003)); see also 
N.J.S.A. 59:9-2(d).                   Proof of

injury to a neck or back accompanied by continual pain and lack

                                     3                                 A-0247-16T3
of a range in motion alone is not enough to establish the permanent

loss of a bodily function required by the TCA.                    See Gilhooley v.

Cty. of Union, 
164 N.J. 533, 541 (2000) (citing Brooks v. Odom,


150 N.J. 395, 406 (1997)).

       Here, there was no dispute that plaintiff was injured in the

accident.          The   medical      evidence   she   filed   in   opposition         to

defendant's summary judgment established she sustained permanent

injuries to her cervical and lumbar spine.                   Viewing the evidence

in the light most favorable to plaintiff, her medical records

indicated that while she was treated by a chiropractor and a pain

management         doctor,      who    administered     epidural         and   similar

injections to help relieve plaintiff's pain, there was no evidence

that she suffered a permanent loss of a bodily function that was

substantial.        See Brooks, 
150 N.J. at 406.

       We therefore conclude that Judge Vena correctly determined

that   defendants        were    entitled   to     summary   judgment      dismissing

plaintiff's complaint, substantially for the reasons stated in the

judge's cogent decision.

       We    find    plaintiff's       remaining    argument   about      Judge     Vena

prejudging the motion to be without sufficient merit to warrant

discussion in a written decision.                  R. 2:11-3(e)(1)(E).         Suffice

it   to     say,    plaintiff's       argument   was   premised     on    a    mistaken

assertion that the judge did not entertain oral argument before

                                            4                                   A-0247-16T3
deciding the motion and entering his order.     The record clearly

indicates counsel for both parties appeared before the judge for

oral argument on September 2, 2016, when he considered their

contentions before placing a summary of his findings on the record

that day and supplying counsel with the court's order and a written

memorandum of his decision.

     Affirmed.




                                5                           A-0247-16T3