TYRONE BEATTY v. MICHAEL BRESCHARD

NOT FOR PUBLICATION WITHOUT THE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-2169-17T3

TYRONE BEATTY,

           Plaintiff-Appellant,

v.

MICHAEL BRESCHARD and
NEW JERSEY TRANSIT
CORPORATION,

     Defendants-Respondents.
____________________________

                    Submitted November 27, 2018 – Decided December 26, 2018

                    Before Judges Hoffman and Geiger.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Docket No. L-1405-16.

                    Spear, Greenfield, Richman, Weitz & Taggart, PC,
                    attorneys for appellant (Marc F. Greenfield and Jeremy
                    M. Weitz, on the brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondents (Melissa H. Raksa, Assistant Attorney
                    General, of counsel; Andrew C. Munger, Deputy
                    Attorney General, on the brief).
PER CURIAM

      Plaintiff appeals an order that granted summary judgment to defendants

Michael Breschard and New Jersey Transit Corporation (NJ Transit), dismissing

his claims for economic and non-economic damages with prejudice. The motion

judge concluded plaintiff failed to present a prima facie case of liability under

the Tort Claims Act (TCA),  N.J.S.A. 59:1-1 to 12-3, finding plaintiff failed to

demonstrate he suffered the permanent loss of a bodily function that was

substantial. We reverse.

      We summarize the following facts from the summary judgment record,

viewing "the facts in the light most favorable to [plaintiff,] the non -moving

party." Globe Motor Co.v. Igdalev,  225 N.J. 469, 479 (2016) (citing R. 4:46-

2(c)). On September 19, 2014, plaintiff was the operator of a motor bus that

was stopped in traffic in the right lane when a NJ Transit bus, operated by

Breschard, struck the bus operated by plaintiff on the driver's side, forcing it up

onto the raised pavement on the side of the road.

      Plaintiff struck the interior side of the bus and felt a "pop" in both of his

shoulders while he held onto the steering wheel to attempt to keep the bus from

being further forced off the roadway. Plaintiff suffered a small superior labral

tear at the acromioclavicular joint in his left shoulder, a partial thickness tear of


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the long head of the biceps tendon, and a SLAP tear 1 of the glenoid labrum in

his right shoulder. Plaintiff underwent two arthroscopic procedures for his right

shoulder and one arthroscopic procedure for his left shoulder.

      Four months after the accident, Dr. Todd Chertow performed a right

shoulder arthroscopic debridement of the SLAP tear, as well as arthroscopic

rotator cuff repair.   Anchors were implanted as part of the procedure.         In

November 2015, Dr. Joseph M. Sewards performed a second right shoulder

arthroscopy with open subpectorial biceps tenodesis. A seven millimeter by ten

millimeter BioComposite screw was implanted. In July 2016, Dr. Sewards

performed a left shoulder arthroscopy and debridement of a partial-thickness

supraspinatus tear, with an open subpectorial biceps tenodesis.

      In May 2017, Dr. Mark D. T. Allen, a Board Certified Orthopedic

Surgeon, conducted a medical evaluation of plaintiff. Dr. Allen found plaintiff

has forward flexion in both shoulders to 160 degrees and abduction to 160

degrees.   Plaintiff's left shoulder exhibited a positive apprehension sign,

particularly with downward pressure. His right shoulder exhibited a positive

impingement sign. Dr. Allen's diagnosis was "[s]tatus post arthroscopic surgery


1
  SLAP is an acronym for "superior labral tear from anterior to posterior," and
refers to an injury to the labrum of the shoulder, which is the ring of cartilage
surrounding the socket of the shoulder joint.
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of the left shoulder with evidence of a superior labral tear" and "[s]tatus post

arthroscopic surgery of the right shoulder x2 for residual symptoms after a

debridement procedure for a superior, anterior, and posterior labral tear and

indications of residual rotator cuff dysfunction." Dr. Allen opined "within a

reasonable degree of medical certainty" that these:

            diagnoses are a direct result of the incident that
            occurred while on duty as a bus driver on September
            19, 2014. Mr. Beatty remains symptomatic despite the
            arthroscopic procedures. It is clear that these injuries
            have become chronic and will continue to limit the use
            of both upper extremities on an ongoing basis. . . .
            Overall, this patient warrants a guarded prognosis.

      Plaintiff was deposed and testified he was unable to perform household

chores and other activities, which require him to either "stretch out" his

shoulders by reaching high above his head or down low, such as carrying

groceries, stirring while cooking, or performing yardwork. He cannot play with

his daughter for too long, play basketball for more than one shot, or throw a

football. Plaintiff also testified he is unable to "carry as much" as he used to be

able to and that he often has trouble washing his back on his own. Plaintiff

stated he was employed as a trash truck driver.

      At the conclusion of discovery, defendants moved for summary judgment,

arguing plaintiff did not meet the TCA’s verbal threshold for recovery of non -


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economic damages,  N.J.S.A. 59:9-2(d). During oral argument on defendants'

motion, plaintiff conceded he had no uncompensated economic damages

because all of his economic damages had been covered by workers'

compensation benefits. The motion judge concluded plaintiff's injuries were not

significant enough to meet the threshold requirements of  N.J.S.A. 59:9-2(d), and

granted defendants' motion. This appeal followed.

      Plaintiff argues the trial court erred in granting summary judgment to

defendants because he demonstrated by objective medical evidence that his

injuries vault the threshold imposed by  N.J.S.A. 59:9-2(d). Plaintiff asserts he

has provided objective medical evidence of permanent shoulder injuries through

MRIs, operative reports detailing his shoulder surgeries, and an expert report

opining his injuries are permanent.           Plaintiff contends he has suffered a

permanent loss of a bodily function that is substantial because of the adverse

impact his injuries have had on his ability to perform household chores and other

activities and because his injuries required surgical intervention and the

implantation of metal screws and other hardware in his right shoulder to mimic

its natural function.

      We review the grant of summary judgment de novo, applying the same

standard used by the trial court, which


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            mandates that summary judgment be granted "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."

            [Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.
            Co. of Pittsburgh,  224 N.J. 189, 199 (2016) (quoting R.
            4:46-2(c)).]

      We also determine "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." Davis v. Brickman Landscaping, Ltd.,  219 N.J. 395,

406 (2014) (quoting Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 540

(1995)). We owe no deference to the trial court's legal analysis or interpretation

of a statute. The Palisades At Ft. Lee Condo. Ass'n v. 100 Old Palisade, LLC,

 230 N.J. 427, 442 (2017) (citing Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan,  140 N.J. 366, 378 (1995)).

      "[I]n order to vault the pain and suffering threshold under the [TCA], a

plaintiff must satisfy a two-pronged standard by proving (1) an objective

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

substantial." Gilhooley v. Cty. of Union,  164 N.J. 533, 540-41 (2000) (citing

Brooks v. Odom,  150 N.J. 395, 402-03 (1997)). "Temporary injuries, no matter

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how painful and debilitating, are not recoverable." Brooks,  150 N.J. at 403. In

addition, plaintiff's medical expenses must exceed $3600.  N.J.S.A. 59:9-2(d).

      Based on his physical examination of plaintiff and his review of the

medical records, plaintiff's expert opined plaintiff suffered permanent shoulder

injuries as a result of the motor vehicle accident. Defendants do not dispute

plaintiff has presented objective medical evidence of a permanent injury.

Instead, they argue plaintiff is able to function, albeit with limitations. As noted

by the Court in Gilhooley, "that every objective permanent injury results in

substantial loss of a bodily function does not follow."  164 N.J. at 541. "Each

case is fact sensitive." Ibid.

      "[W]hen a plaintiff suffers an injury that permanently would render a

bodily organ or limb substantially useless but for the ability of 'modern medicine

[to] supply replacement parts to mimic the natural function,' that injury meets

the threshold." Knowles v. Mantua Twp. Soccer Ass'n,  176 N.J. 324, 332 (2003)

(quoting Gilhooley,  164 N.J. at 542). In Gilhooley, the plaintiff injured her knee

so severely that open reduction and internal fixation with surgically implanted

pins were required to make it functional again.  164 N.J. at 536-37. The plaintiff

returned to work in her full capacity but continued to experience stiffness and




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pain in her knee. Id. at 537. In reversing our affirmance of the trial court's grant

of summary judgment, the Court said:

            As is the case with dismemberment and disfigurement,
            when pins, wires, mechanisms and devices are required
            to make the plaintiff normal, the statutory standard is
            met. The fact that a physician has jury-rigged the knee
            to function with pins and wires in no way inhibits the
            characterization of that injury as the permanent loss of
            a bodily function.

            [Id. at 542-43.]

      Plaintiff's situation is similar. Plaintiff is employed as a truck driver and

can perform some routine tasks without significant limitation. However, " a

plaintiff's ability to resume some of his or her normal activities is [not]

dispositive of whether he or she is entitled to pain and suffering damages under

the TCA." Knowles,  176 N.J. at 332 (citing Kahrar v. Borough of Wallington,

 171 N.J. 3, 15-16 (2002)).

      Viewing the evidence in the light most favorable to plaintiff, the grant of

summary judgment was improper. Like the plaintiff in Gilhooley, only the

insertion of anchors in plaintiff's right shoulder during two surgeries permits the

joint to "mimic [its] natural function." Id. at 542. Plaintiff's medical proofs

support a claim of permanent injury that is based on objective evidence, not

mere subjective complaints. "[S]uch evidence raises an issue for the jury, and


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removes the case from the realm of summary judgment." Knowles,  176 N.J. at
 335 (quoting Gerber v. Springfield Bd. of Educ.,  328 N.J. Super. 24, 35 (App.

Div. 2000)). We therefore reverse summary judgment and remand the matter to

the trial court for further proceedings consistent with this opinion. We do not

retain jurisdiction.

      Reversed and remanded.




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