ADRIANNE BRUCE v. BOROUGH OF COLLINGSWOOD

NOT FOR PUBLICATION WITHOUT THE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-4531-16T1

ADRIANNE BRUCE,

          Plaintiff-Appellant,

v.

BOROUGH OF COLLINGSWOOD,

          Defendant-Respondent,

and

HADDON TOWNSHIP, COUNTY
OF CAMDEN, STATE OF NEW
JERSEY, CHARLES STOREY,
and ARMAND DEL ROCINI, JR.,

     Defendants.
_________________________________

                    Argued September 17, 2018 – Decided October 18, 2018

                    Before Judges Messano and Rose.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Docket No. L-1361-15.

                    Jordan R. Irwin argued the cause for appellant
                    (Begelman & Orlow, PC, attorneys; Jordan R. Irwin, on
                    the brief).
            John M. Palm argued the cause for respondent.

PER CURIAM

      Plaintiff Adrianne Bruce slipped and fell on a patch of ice in an alley

allegedly owned and maintained by defendant, Borough of Collingswood.

Defendant moved for summary judgment, arguing plaintiff's injuries failed to

meet the requirements of the Tort Claims Act,  N.J.S.A. 59:1-1 to 12-3 (the

TCA), specifically  N.J.S.A. 59:9-2(d), which provides: "No damages shall be

awarded against a public entity . . . for pain and suffering resulting from any

injury; provided, however, that this limitation . . . shall not apply in cases of

permanent loss of a bodily function, [or] permanent disfigurement . . . ."

Following oral argument, the judge agreed and entered an order dismissing

plaintiff's complaint for non-economic damages. 1 Plaintiff timely moved for

reconsideration, which the judge denied. 2

      Before us, plaintiff argues her injuries were "permanent and substantial,"

thereby meeting the standard first announced by the Court in Brooks v. Odom,


1
   The judge entered a separate order granting summary judgment to co-
defendants Charles Storey and Armand Del Rocini, Jr. Plaintiff does not appeal
from that order.
2
  The parties subsequently agreed to dismiss with prejudice plaintiff's claim for
economic damages.
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 150 N.J. 395, 406 (1997). Additionally, plaintiff argues she suffered "permanent

disfigurement," an issue fully briefed before the motion judge, but which he

never addressed.

      We agree that for purposes of summary judgment, plaintiff raised a

genuine issue of material fact as to whether her injuries were permanent and

substantial. Therefore, summary judgment was inappropriate and we reverse.

Moreover, because the appellate record is unclear regarding plaintiff's claim of

permanent disfigurement, and because the judge never addressed the issue, we

remand to the trial court to determine whether that specific allegation should

survive summary judgment.

      Lastly, although defendant argued it was immune from any claim pursuant

to  N.J.S.A. 59:4-7, the TCA's so-called "weather immunity," the judge

admittedly "punted" on the issue and never decided it. Inexplicably, defendant

has not reasserted this argument before us. See, e.g., Smith-Bozarth v. Coal.

Against Rape & Abuse, Inc.,  329 N.J. Super. 238, 244 n.1 (App. Div. 2000)

("[W]ithout filing a cross appeal, a respondent may seek an affirmance of the

judgment on any ground raised in the trial court."). Nevertheless, we do not

deem the argument to be waived, and, therefore, on remand, defendant is free to

raise this defense anew before the trial judge.


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

standard used by the trial court, which

            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 Fort Lee Condo. Ass'n, Inc. 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)).

      Viewed in a light most favorable to plaintiff, the motion record revealed

that in the early evening of January 29, 2014, while walking her dogs, she

slipped and fell on ice and fractured her left wrist; plaintiff is left-hand


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dominant. She underwent surgery, requiring the internal placement of pins and

the attachment of an external fixator device, which remained in place for

approximately two months. By May, plaintiff completed physical therapy and

her surgeon opined that plaintiff's fracture was clinically and radiographically

healed. At that time, the range of motion in her left wrist was five degrees less

than that of her right. Plaintiff missed only three days of work as a legal

secretary and by May was able to type using both hands.

      Plaintiff's treating surgeon reevaluated her wrist in January 2016, and

found that although her surgical incisions had healed properly, plaintiff still

lacked five-to-seven degrees range of motion in her left wrist. Additionally,

plaintiff made complaints of pain and stiffness with increased physical activity

and changes in weather. The surgeon opined with a reasonable degree of

medical certainty that plaintiff's injury was permanent, i.e., her wrist will never

function normally, and plaintiff will be unable to perform some life activities

such as repetitive pushing, pulling or lifting heavy objects.

      In her certification opposing the motion, plaintiff complained of varying

degrees of pain and limited range of motion in her wrist. She cannot lift heavy

items, sometimes loses her grasp and drops things. Plaintiff also claimed her

injured wrist forced her to limit her exercise routines.        However, plaintiff


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admitted that she was able to paint some of the rooms in her home after the

accident.

      Since Brooks, the Court has again clarified that to survive summary

judgment, a plaintiff must establish "(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). Here, defendant concedes plaintiff suffered

a permanent injury to her left wrist but argues any loss of function was not

substantial.

      The motion judge observed, and we agree, that each case is fact-sensitive,

and it is virtually impossible to find, as he put it, "[a] line in the sand" that

demarcates what is or is not a substantial loss of function. However, plaintiff's

ability to return quickly to work and perform her functions as a legal secretary

is not dispositive. See, e.g., Kahrar v. Borough of Wallington,  171 N.J. 3, 15

(2002) (noting that "dicta in Brooks should not be understood to suggest that

plaintiffs with permanent and substantial impairments who, nevertheless, can

manage to perform adequately routine tasks at work and at home are barred from

recovery").

      In Kahrar, the plaintiff suffered a massive tear of her rotator cuff that

required surgery to "remove[] a portion of the bone in her shoulder and reattach[]


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the severed tendon to the shoulder." Id. at 7. Although the plaintiff's incision

healed properly, she "had approximately forty percent loss of full motion in her

left shoulder." Id. at 8. The Court held that "[i]f the loss of bodily function is

permanent and substantial, . . . a plaintiff's eligibility to recover pain and

suffering damages will not be defeated merely because she can perform some

routine functions almost as well as she could prior to her injury." Id. at 15. The

Court considered several objective factors such as the seriousness of the injury,

the invasiveness of the surgery, and the extent of reduction in normal range of

motion. Id. at 16.

     In Gilhooley, the plaintiff suffered a fractured patella as the result of a fall.

She underwent open reduction surgery with internal fixation, by which wires

and pins were permanently inserted into her patella.  164 N.J. at 536, 542.

Although she returned to work in her full capacity shortly after the fall, she

experienced continued stiffness and pain in her knee. Id. at 537.

      In reversing our affirmance of the trial court's grant of summary judgment,

the Court held that the plaintiff sustained a permanent loss of a bodily function

that was substantial. Id. at 541. Justice Long writing for the Court explained:

                   We are satisfied that the Legislature intended to
            include within the notion of aggravated cases those
            involving permanent injury resulting in a permanent
            loss of normal bodily function even if modern medicine

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            can supply replacement parts to mimic the natural
            function. 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. The same would
            be true of a plaintiff whose vision is restored with a
            lens, one whose hearing is restored with a hearing aid,
            and one whose heart is operating efficiently with a
            pacemaker or implanted valve. We conclude that those
            are all aggravated cases within the contemplation of the
            Legislature when it enacted the “permanent loss of
            bodily function” language and that they fall squarely
            within the “substantial” requirement of Brooks.

            [Id. at 542-43.]

See also Leopardi v. Twp. of Maple Shade,  363 N.J. Super. 313, 333-34 (App.

Div. 2003) (holding the plaintiff's spinal fusion surgery, which did not include

installation of hardware, that left some decreased mobility and increased

potential for more damage to his spine, satisfied the TCA's requirement of a

permanent injury that was substantial), certif. granted,  179 N.J. 370 (2004),

appeal dismissed,  187 N.J. 486 (2005).

      Surgical intervention alone is not dispositive because, as defendant notes,

the Court has held in other circumstances that the plaintiffs failed to demonstrate

a "substantial" loss of a bodily function under the TCA despite having

undergone surgical procedures. For example, in Ponte v. Overeem,  171 N.J. 46

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(2002), decided the same day as Kahrar, the Court concluded that although the

plaintiff underwent arthroscopic knee surgery, there was no evidence his "range

of motion [was] limited, his gait impaired or his ability to ambulate restricted."

Id. at 54.

      Similarly, in Hammer v. Township of Livingston, the plaintiff underwent

surgery on her knee and elbow because of injuries suffered in a motor vehicle

accident.  318 N.J. Super. 298, 301 (App. Div. 1999). We held that the plaintiff's

subjective complaints of residual pain were insufficient, particularly in light of

objective medical evidence indicating she suffered no restrictions on range of

motion or limits on the functioning of her joints. Id. at 301-02.

      In Knowles v. Mantua Township Soccer Association, the Court explained

the types of injuries that satisfy the threshold.  176 N.J. 324 (2003). These

include "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,'" id. at 332 (quoting Gilhooley,

 164 N.J. at 542-43), if there is "a 'physical manifestation of [a] claim that [an]

injury … is permanent and substantial.'" Ibid. (quoting Ponte,  171 N.J. at 54).

"[N]either an absence of pain nor a plaintiff's ability to resume some of his or




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her normal activities is dispositive of whether he or she is entitled to pain and

suffering damages under the TCA." Ibid. (citing Kahrar,  171 N.J. at 15-16).

      Admittedly, this is a close case. Plaintiff can perform most of her routine

tasks without significant limitation. However, like the plaintiff in Gilhooley,

only the insertion of pins in plaintiff's wrist permits the joint to " mimic [its]

natural function."  164 N.J. at 542. Moreover, the objective medical evidence

demonstrates permanent limitations on the range of motion in her dominant

wrist, albeit much less than was the case of the plaintiff in Kahrar.

      We conclude that for purposes of summary judgment, plaintiff has

demonstrated a material factual dispute as to whether her wrist injury meets the

requirements of the TCA. 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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