TOBY WELLINGTON v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE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-2781-19
TOBY WELLINGTON,

          Plaintiff-Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

          Defendant-Respondent,

and

OFFICER MARSHALL,

     Defendant.
___________________________

                   Submitted February 1, 2021 – Decided March 12, 2021

                   Before Judges Rothstadt and Susswein.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Cumberland County, Docket No. L-0274-18.

                   Franzblau Dratch, PC, attorneys for appellant (Brian M.
                   Dratch, on the briefs).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Jane C. Schuster, Assistant Attorney
             General, of counsel; Patricia Nigro, Deputy Attorney
             General, on the brief).

PER CURIAM

      Plaintiff Toby Wellington appeals from the trial court's April 13, 2018

order granting defendant the New Jersey Department of Corrections (DOC)

motion to transfer venue, its May 25, 2018 order denying plaintiff's motion for

reconsideration of that order, and from the March 11, 2020 order granting

defendants' motion for summary judgment and dismissing plaintiff's complaint

seeking damages for injuries he allegedly sustained in two incidents while a

prisoner at one of the DOC's facilities. In granting summary judgment, the trial

court determined that plaintiff had not vaulted the statutory threshold

requirements under the New Jersey Tort Claims Act (TCA),  N.J.S.A. 59:1-1 to

12-3, for bringing claims against the State to recover for pain and suffering. On

appeal, plaintiff argues the trial court erred by changing venue and in granting

defendants' motion for summary judgment after finding "that there were no

material issues of fact with respect to plaintiff's injury."

      We affirm the award of summary judgment substantially for the reasons

expressed by the trial court. Because we conclude that summary judgment was

properly granted, we do not address in detail the balance of plaintiff's arguments.




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      The facts when viewed in the light most favorable to plaintiff are

summarized from the record as follows. On June 22, 2016, while incarcerated

at Northern State Prison in Essex County, plaintiff injured his back in a slip-

and-fall accident. Almost a year later, plaintiff sustained further injuries to his

back that caused him to suffer nerve damage when a DOC vehicle in which

plaintiff was a passenger that was being driven by defendant Officer Marshall

collided with another vehicle at the prison.

      Thereafter, plaintiff served the DOC with timely tort claims notices as

required by the TCA. On January 8, 2018, plaintiff filed his complaint that laid

venue in Essex County. Defendants filed a timely answer and simultaneously

filed a motion to transfer venue from Essex County to Cumberland County

because at that time, plaintiff was incarcerated at another DOC facility located

in Cumberland County. However, on February 23, 2018, defendants withdrew

their motion to transfer venue, replacing it with a second motion to transfer

venue with an amended brief in support of the motion. The trial court issued an

order "deleting" defendants' first motion to transfer venue. As to the second

one, plaintiff did not file any opposition. On April 13, 2018, the trial court

granted defendants' unopposed second motion and transferred the case to

Cumberland County.



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      On April 27, 2018, plaintiff filed a motion for reconsideration, arguing

that he was "not sure how the motion was relisted, but it should not have been

as venue [wa]s correct in Essex County." Plaintiff did not address defendants'

second motion. On May 25, 2018, noting that plaintiff had "not met [the] burden

for reconsideration," the trial court denied plaintiff's motion.

      Turning to plaintiff's injuries, his complaint alleged that as a result of the

first incident, he suffered a back injury and nerve damage radiating down both

legs. Prior to his deposition, on May 10, 2018, plaintiff had surgery on his back.

Specifically, he underwent hemilaminectomies with medial facetectomies,

foraminotomies, and nerve root decompressions along his spine at the L4-5 and

L5-S1 disc sites.

      At his deposition, plaintiff was asked to describe how his injury impacted

his daily routine. According to plaintiff, since July 2018, he had been living at

a halfway house. On a typical day he would get up at around 7:30 a.m., do his

daily stretching, go to the gym to do some light exercises, leave the gym to call

his family, go to school at 11:30 a.m., eat lunch, study for about two hours, and

then work as a welder for three hours before returning to his room to shower,

talk on the phone, lay down and start his day again. Plaintiff explained that

performing certain tasks such as bending too far was painful.



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        Plaintiff stated that he suffered from back pain, including sharp shooting

pain down his leg. He also claimed that he had difficulty sitting for long periods,

and while his back pain was tolerable, he avoided moving in any manner that

caused him to feel pain. However, plaintiff confirmed that despite his pain,

there was not "anything that [he] used to be able to do before the[] accidents that

[he could not] do now." According to plaintiff, he was "not handicapped."

Plaintiff also confirmed that his doctor never told him to stop doing any type of

task.

        Plaintiff's expert, Dr. Joshua Landa, examined plaintiff on December 20,

2019, and observed that plaintiff had suffered damage to his lumbar spine

including "disc bulges at L4/5 and L5/S1" and concluded that "within a

reasonable degree of medical probability," these injuries "occurred as a di rect

result of the [first] accident that [plaintiff] sustained . . . and [were] aggravated

by the [second] accident." He also observed that plaintiff had "pain in his back

and left lower extremity"; "pain and difficulty with bending, lifting and

twisting"; pain that "interfere[d] with his normal activities of daily living"; and

"pain with prolonged sitting and standing."

        According to the doctor, while plaintiff's surgery "relieved the pressure

on his nerves, he unfortunately remain[ed] with ongoing back and left lower

extremity pain[, which] is likely due to permanent nerve damage that could not

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be undone with the decompression surgery."            Dr. Landa concluded that

plaintiff's injuries were permanent and unlikely to improve with medical or

surgical treatment.

      On October 10, 2019, defendants filed their motion for summary

judgment, arguing that plaintiff, who had at that time not yet secured an expert's

report, failed to establish that he vaulted the injury threshold under the TCA.

Plaintiff did not file any opposition, and the trial court entered an order granting

the motion on December 20, 2019.

      On January 10, 2020, plaintiff filed a motion for reconsideration,

explaining that the failure to file opposition was the result of his counsel's

mistaken belief that the motion had been adjourned because a December 2019

order had extended discovery through January 15, 2020. He also explained that

on the day defendants' motion for summary judgment had been granted, plaintiff

was being examined by Dr. Landa to facilitate the doctor's preparation of his

expert report, which was ultimately completed on January 5, 2020, and which

plaintiff intended to file in opposition to defendants' motion.

      On February 28, 2020, the trial court granted plaintiff's motion for

reconsideration and considered plaintiff's expert report and the parties' oral

arguments before granting defendants' motion. In an oral decision placed on the

record that day, the trial court noted that the TCA "requires that no damages

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shall be awarded against a public entity for pain and suffering resulting from

any injury . . . [except] in cases of permanent loss of a bodily function where the

[expenses for] medical treatment" exceed the minimum statutory threshold

provided under  N.J.S.A. 59:9-2(d). The court found that although plaintiff had

established that he had sustained a permanent injury, he had failed to show that

he suffered "a permanent loss of a bodily function" that was "substantial," even

when the facts were considered in the light most favorable to him. As the court

explained, under the controlling case law, plaintiff was required to demonstrate

"not only a permanent loss of a bodily function, but . . . an objective permanent

injury and a permanent loss of a bodily function that is substantial."

        Discussing the factual materials submitted by the parties, the court noted

that although Dr. Landa's report clearly established a permanent injury, in his

deposition, plaintiff described his daily routine following his injuries and

complained of "back stiffness," "shooting pain" in his left leg, and "numbness

in his left leg," but also noted "there is nothing that he can't do now that he could

do before the accident." Considering the facts in the light most favorable to

plaintiff, the court found that plaintiff could not "meet the substantial portion of

the statute, and therefore the defense [was] entitled to judgment as a matter of

law."



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      On March 11, 2020, the judge issued an order granting plaintiff's motion

to reconsider and defendants' motion for summary judgment.          This appeal

followed.

      We review de novo a trial court's grant of summary judgment. Branch v.

Cream-O-Land Dairy,  244 N.J. 567, 582 (2021). Accordingly, we apply the

same standard as the trial court and determine "whether '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.'"   Ibid. (quoting R. 4:46-2(c)). In doing so, we afford the

nonmoving party "all legitimate inferences." Steinberg v. Sahara Sam's Oasis,

LLC,  226 N.J. 344, 366 (2016) (quoting R. 4:46-2(c)). "If there is no genuine

issue of material fact," we must determine "whether the trial court correctly

interpreted the law."   DepoLink Ct. Reporting & Litig. Support Servs. v.

Rochman,  430 N.J. Super. 325, 333 (App. Div. 2013) (quoting Massachi v. AHL

Servs., Inc.,  396 N.J. Super. 486, 494 (App. Div. 2007)).

      On appeal, plaintiff argues that the trial court incorrectly found that he

failed to satisfy the two-pronged test that courts apply in determining whether a

plaintiff has vaulted the injury threshold under the TCA. He contends that he

has "submitted proof of objective medical evidence of an injury that resulted in

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a lumbar decompression surgery" and which resulted in "permanent nerve

damage to his lumbar spine, which causes him daily pain," "permanent

numbness to his left leg[,] . . . daily back stiffness," sometimes results in "an

inability to sleep[,] and requires daily stretching in order to . . . function."

Plaintiff argues that the materials he submitted evidencing the above are

sufficient to overcome the threshold showing, and therefore the trial court erred

in granting summary judgment. We disagree.

       N.J.S.A. 59:9-2(d), commonly referred to as the "verbal threshold" of the

TCA, see Nieves v. Adolf,  241 N.J. 567, 580 (2020), provides:

            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.

            [N.J.S.A. 59:9-2(d).]

      The verbal threshold is not a grant of immunity; it is a limitation on

recoverable damages when the public employee or entity is not immune. See

Gilhooley v. Cnty. of Union,  164 N.J. 533, 538 (2000) ("Even where liability is

present, the [TCA] sets forth limitations on recovery. One is the limitation on

the recovery of pain and suffering damages [in N.J.S.A. 59:9-2(d)]."). To vault

the threshold, "[a] plaintiff must show '(1) an objective permanent injury, and

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(2) a permanent loss of a bodily function that is substantial.'" Knowles v.

Mantua Twp. Soccer Ass'n,  176 N.J. 324, 329 (2003) (quoting Gilhooley,  164 N.J. at 540-41). Whether a party has met this second prong requires "a fact-

sensitive analysis." Id. at 331. A trial court must consider whether the facts and

circumstances place a plaintiff's injuries on "that part of the 'continuum of cases'

in which [our] Court has determined that an injury is substantial and permanent."

Ibid. (quoting Gilhooley,  164 N.J. at 541).

      A plaintiff must provide objective evidence of a substantial impairment in

order to meet the  N.J.S.A. 59:9-2(d) threshold. Gilhooley,  164 N.J. at 540.

"[No]t every objective permanent injury results in substantial loss of a bodily

function." Id. at 541. A substantial loss does not mean that a plaintiff must

demonstrate a "total permanent loss of use." Brooks v. Odom,  150 N.J. 395, 406

(1997). But, "[a]n injury causing lingering pain, resulting in a lessened ability

to perform certain tasks because of the pain, will not suffice because '[a] plaintiff

may not recover under the [TCA] for mere subjective feelings of discomfort'"—

it is a plaintiff's reduced ability that makes his injury "substantial," not the

discomfort he suffers when performing certain tasks. Knowles,  176 N.J. at 332

(second alteration in original) (quoting Gilhooley,  164 N.J. at 540). However,

"neither an absence of pain nor a plaintiff's ability to resume some of his or her



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                                        10
normal activities is dispositive of whether he or she is entitled to pain and

suffering damages under the TCA." Ibid.

      Cases that present sufficient evidence of a permanent and substantial loss

of a bodily function include Gilhooley,  164 N.J. at 542 (finding a patella fracture

was an objective permanent injury causing the plaintiff "to lose forever the

normal use of her knee . . . without permanent pins and wires to re-establish its

integrity") and Kahrar v. Borough of Wallington,  171 N.J. 3, 16 (2002) (finding

reattachment of a torn rotator cuff tendon resulted in the shortened length of the

tendon, impairing the plaintiff's ability to use her arm to complete normal tasks).

Summarizing Kahrar and Gilhooley, the Court in Knowles noted that those

plaintiffs "presented objective medical evidence linking an injured body part to

the plaintiff's inability, without extensive medical intervention, to perform

certain bodily functions." Knowles,  176 N.J. at 332-33.

      At the other end of the "continuum" are cases in which an injured party

was merely "unable to perform certain tasks without pain." Id. at 333. In

Brooks, the Court found the plaintiff did not show substantial loss where she

"experience[d] pain" as a result of soft tissue injuries in her neck and back but

where she could still "function both in her employment and as a homemaker."

Brooks,  150 N.J. at 399, 406. As the Knowles Court summarized, the Brooks



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defendant prevailed "because the plaintiff's daily activities, although painful,

were not substantially precluded by her injuries." Knowles,  176 N.J. at 333.

      Similarly, in Ponte v. Overeem,  171 N.J. 46, 51-54 (2002), the Court

found no substantial loss where the plaintiff's knee injury, which required

surgery, temporarily hindered his ability to exercise and do housework, but

where the record did not establish he was permanently "restricted" in performing

daily activities. The Court observed the absence of "any evidence that plaintiff's

range of motion is limited, his gait impaired or his ability to ambulate restricted."

Id. at 54. The Court noted that plaintiff failed to demonstrate "any permanent

instability" and that the record did not show plaintiff's knee injury continued to

restrict him "in performing his work responsibilities, household chores, yard

work, or in his weightlifting or biking activities." Ibid.

      Applying these principles to the instant matter, plaintiff did not satisfy the

threshold because he did not suffer a "substantial loss" of use of any bodily

function. He testified that he was not handicapped and that he could perform all

activities, albeit with some pain. While plaintiff's injury has undoubtedly caused

him discomfort and made performing some activities more difficult, there is no

genuine dispute that he is still able to carry out his daily activities. Accordingly,

plaintiff has not suffered a "substantial loss" of use of a bodily function.



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      Based on the foregoing, because plaintiff did not present material facts

demonstrating he has suffered the "loss of a bodily function that is substantial"

resulting from his injuries, he failed to satisfy the threshold requirement for

recovery against defendants under the TCA, and defendants were entitled to

judgment as a matter of law.

      Because we conclude that summary judgment was properly entered in

defendants' favor, we need not address in detail plaintiff's contentions about the

trial court's transfer of venue from Essex County to Cumberland County. We

only note that we discern no abuse of the trial court's discretion to change venue

where appropriate, especially in matters involving public entities. See R. 4:3-2;

R. 4:3-3; Fine v. Rutgers, State Univ. of N.J.,  163 N.J. 464, 472 (2000) ("The

right of a litigant to choose his own forum is required to yield to the venue Rule's

objective of minimizing inconveniences to public entity defendants.").

      Affirmed.




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