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Tuesday, July 31, 2012

Dutcher v. Phillipsburg Housing Authority

DOCKET NO. A-0639-11T1




Argued May 1, 2012 – Decided July 16, 2012

Before Judges Messano and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket No. L-682-09.

Travis J. Savoia argued the cause for appellant/cross-respondent (Pfeiffer, Bruno, Minotti & DeEsch, attorneys; James L. Pfeiffer, of counsel; Mr. Savoia, on the brief).

Peter J. King argued the cause for respondent/cross-appellant (King and Petracca, attorneys; Matthew R. Petracca, on the brief).

Plaintiff appeals from an order granting summary judgment to defendant dismissing her complaint for pain and suffering under the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 12-3. The trial court held that plaintiff had not shown by objective medical evidence that she sustained a permanent loss of a bodily function. Defendant cross-appeals from the trial court's failure to rule upon its alternative ground for summary judgment, that defendant is immune from liability under N.J.S.A. 59:2-6.
For reasons expressed hereinafter, we reverse on the appeal and deny the cross-appeal. The matter is remanded to the trial court; we do not retain jurisdiction.
Plaintiff, then 17 years of age, claimed that on December 17, 2007, she was walking on a public sidewalk adjacent to property owned and controlled by defendant, a public housing authority, when she fell as a consequence of the "negligent condition (i.e. the presence of snow and/or ice) of said property[.]" She was taken by family members to the Warren Hospital where an x-ray revealed a "comminuted fracture through the mid and distal shaft of the right fibula" and a "[n]ondisplaced fracture of the posterior malleolus at the level of the ankle."
Plaintiff was put into a splint and released, but returned to the hospital four days later at the request of her treating orthopedist because plaintiff was in a "considerable amount of pain" and the doctor was concerned she might develop "compartment syndrome." The doctor applied another splint to plaintiff's right leg and determined that plaintiff had no signs of compartment syndrome at that time. He gave plaintiff pain medication, released her from the hospital and arranged for follow-up evaluations.
Plaintiff was on crutches for approximately two months and wore a special "boot" for four or five months. Plaintiff was also instructed to perform exercises for strengthening her leg and ankle. She continued to be evaluated by her orthopedist several months after the accident, and then was released from his care. Plaintiff complains that her foot "starts hurting really bad[ly]" and swells "the more [she] walk[s]." She adds that her ankle is tender and hurts upon palpation.
In an office note dated October 13, 2008, plaintiff's orthopedist reported that x-rays of the right ankle demonstrated a "normal appearance" and that plaintiff walked with a "normal appearing gait." He added that plaintiff had "healed very nicely."
On November 11, 2010, plaintiff was examined by Arthur Becan, M.D., an orthopedic surgeon. Dr. Becan noted plaintiff's complaints of daily ankle and lower leg pain and stiffness, and he observed a "mild limp" secondary to "right ankle pain" and that her right foot was externally rotated at 25 degrees. He opined that plaintiff sustained the fractures noted earlier, as well as "rotational malunion of fracture of right tibia and fibula" and post-traumatic tendinitis in the right ankle. Dr. Becan concluded that these are "permanent orthopedic impairments" caused by the fall. In a subsequent report, Dr. Becan noted that he reviewed the films from plaintiff's 2007 x-rays and CT scan and that the review required "no changes" in his earlier findings and opinions.
Defendant moved for summary judgment and apparently claimed that plaintiff had not suffered a permanent loss of bodily function underN.J.S.A. 59:9-2(d) and that defendant cannot be liable for a "negligent inspection" of its property under
N.J.S.A. 59:2-6.1 The judge granted defendant's motion, finding there was "no objective evidence, medical evidence" of the rotational malunion. She added that Dr. Becan "just doesn't connect it up with that x-ray."
The trial judge further explained that as to defendant's "other point[,]" she did not "study it that closely" because she was "hung up on . . . the injury." The trial judge also denied plaintiff's motion for reconsideration, explaining that "your expert did not show in . . . his reports objective medical evidence of the malunion and the tendinitis . . . alleged as the permanent injury[.]"
This appeal followed.
When reviewing a grant of summary judgment, we apply the same legal standards utilized by the motion judge. Spring Creek Holding Co. v.Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div.), certif. denied, 196 N.J. 85 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307N.J. Super. 162, 167 (App. Div.), certif. denied, , 154 N.J. 608 (1998). Initially, we determine whether the moving party has demonstrated that there were no genuine issues of material fact and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co.v. Hillsdale Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied189 N.J. 104 (2006). It is not any disputed fact that is sufficient to defeat a motion for summary judgment. Rather, the disputed fact must be material and warrant resolution by the trier of fact. Brill v.Guardian Life Ins. Co. of Am.142 N.J. 520, 530 (1995). We view the evidence in the light most favorable to the non-moving party. Id. at 523, 540. We accord no deference to the motion judge's conclusions on issues of law, Manalapan Realty, L.P., v. Township Committee of Manalapan,140 N.J. 366, 378 (1995), which we review de novo. Spring Creeksupra, 399 N.J. Super. at 180; Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super.597, 601 (App. Div. 2007).
The New Jersey Tort Claims Act "was . . . intended to reestablish a system in which immunity is the rule, and liability the exception [in tort cases against public entities]." Bombace v. City of Newark125 N.J. 361, 372 (1991). The Act precludes recovery for non-economic damages against public entities except "in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment[.]" N.J.S.A. 59:9-2(d). Thus, in order to defeat a motion for summary judgment (1) "a plaintiff must prove by objective medical evidence that the injury is permanent[,]" Brooks v. Odom150 N.J. 395, 402-3 (1997), that resulted in (2) "a permanent loss of a bodily function that is substantial."Gilhooley v. Cnty. of Union164 N.J. 533, 541 (2000). Here, we are called upon to determine if the trial judge erred in her conclusion that the alleged rotational malunion of the fracture in plaintiff's lower right leg is not supported by "objective medical evidence." Given the trial judge's determination that it was not supported by objective medical evidence, she did not address the substantiality requirement.
As noted, plaintiff is required to establish an "objective injury." Thorpe v. Cohen, 258 N.J. Super. 523, 530 (App. Div. 1992). The Act's bar on pain and suffering claims against government defendants is intended to apply to the "intangible, subjective feelings of discomfort that are associated with personal injuries." Ayers v. Twp. of Jackson106 N.J. 557, 571 (1987). The Legislature recognized 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 aggravating circumstances." Srebnik v. State, 245 N.J. Super. 344, 349-50 (App. Div. 1991) (citations omitted). An objective injury is typically established by "objective medical evidence in the record of any permanent loss of bodily function . . . ."
Hammer v. Twp. of Livingston, 318, 305 (App. Div. 1999). "[S]ubjective complaints of pain" alone are insufficient. Id. at 305-06.
Guided by these principles, we conclude that Dr. Becan's observation that plaintiff's right foot is externally rotated by 25 degrees as a consequence of a "malunion" at the fracture site is sufficient to establish a material fact issue for determination by a jury. Dr. Becan's opinion is not based upon subjective complaints of the plaintiff, but rather upon his clinical observation of the plaintiff and his review of the medical records which plainly substantiate a comminuted fracture through the mid and distal shaft of plaintiff's right fibula.
The fact that a jury could disagree with Dr. Becan's findings and conclusions does not justify dismissal of plaintiff's complaint at the summary judgment stage, at which we indulge all legitimate factual inferences in favor of the party opposing the motion. R. 4:46-2(c). While Dr. Becan's opinion could have been stated more declaratively, the clear inference from his report is that the marked abnormality of the external rotation of plaintiff's right foot was due to the manner in which the comminuted fracture site had healed.
We do not reach the issue of whether the injury sustained by plaintiff resulted in a permanent loss of a bodily function that is "substantial."Brookssupra, 150 N.J. at 406. The trial judge did not rule on that issue and the issue is not before us on this record.
Similarly, we deny defendant's cross-appeal on its apparent alternative ground for summary judgment pursuant to N.J.S.A. 59:2-6. Not only did the trial judge not decide the issue, but also, as we have noted, neither party has presented us with their briefs, affidavits and statements of material fact as required by Rule 4:46-2(a); see Rule 2:6-1(a)(1),(2). Consequently, we are left to guess at what claims or issues were actually before the trial court and under such circumstances, justice requires that the matter be remanded for a more orderly and complete presentation of these issues to the trial court. Cf. Nieder v. Royal Indemnity Ins. Co.62 N.J. 229, 235 (1973).
Reversed on the appeal; denied on the cross-appeal. The matter is remanded to the trial court for further proceedings. We do not retain jurisdiction.

1 We use the word "apparently" because neither party provided the briefs, affidavits or statements of material fact they filed pursuant to R.4:46-2(a). See Rule 2:6-1(a). We thus are unsure precisely what issue was raised by defendant under N.J.S.A. 59:2-6.