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Tuesday, July 31, 2012


DOCKET NO. A-3971-10T4





Submitted March 7, 2012 – Decided July 5, 2012

Before Judges Sapp-Peterson and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0185-09.

Jeffrey H. Sutherland, attorney for appellant.

Law Offices of Riley & Riley, attorneys for respondents (Tracy L. Riley, on the brief).

Plaintiff, Maria M. Holman, appeals from the trial court order granting summary judgment dismissing her complaint against defendants City of Atlantic City (the City), Atlantic City Department of Sanitation, and City employee Wayne I. Davis (collectively defendants), in which she sought to recover non-economic damages for injuries she sustained following a motor vehicle accident with a City vehicle being operated by Davis. The motion judge concluded plaintiff's injuries failed to vault the verbal threshold for the recovery of damages for pain and suffering under N.J.S.A. 59:2-9(d). We affirm, substantially for the reasons expressed by Judge Nelson C. Johnson in his February 4, 2011 oral opinion.
These are the facts viewed most favorably towards plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On February 8, 2007, plaintiff was operating her vehicle on Bacharach Boulevard in Atlantic City when it was struck by the vehicle operated by Davis as she entered the intersection of Bacharach and Arkansas Avenue. Davis disregarded a stop sign as he drove into the same intersection, striking plaintiff's vehicle and causing it to strike two other parked automobiles and a chain link fence before it came to rest.
Immediately following the accident, plaintiff was transported to a local hospital for treatment. She was diagnosed as suffering from muscle strain and contusion and directed to follow up with her personal care physician within one to two days. Two weeks following the accident, an MRI was taken of plaintiff's lumbar spine. The diagnostic impression was that plaintiff had "mild multilevel degenerative changes" in the lumbar spine without any evidence of disc herniation. She came under the care of Dr. Bruce M. Hairston of Atlantic Pain and Physical Medicine, who treated her through the fall of 2008. In January 2009, nearly two years following the accident, plaintiff underwent a cervical MRI. The diagnostic impression from that study was that plaintiff had a "small to moderate broad[-]based disc protrusion at C3-4 which extends to the chord, yet without deformity."
Following this cervical MRI, plaintiff returned to Dr. Hairston, who noted that plaintiff, who had undergone gastric bypass surgery in 2005, had gained weight and continued to gain weight over the next three months that he saw her. In an April 8, 2009 report, Dr. Hairston wrote that he had "general concerns in reference to this patient as she at one point was improving, however, I suspect that her decline is due to stress, weight gain, and inability to exercise regularly." Plaintiff's treatment for her injuries also included receiving chiropractic treatment and undergoing EMG/NCS1 testing of her cervical spine in September 2007, which revealed "right-sided C5-6 radiculopathy." In his September 19, 2010 report, Dr. Hairston expressed the opinion that "within a certain degree of medical probability, that as a result of the motor vehicle accident which occurred on 2/8/2007, [plaintiff] sustained permanent injuries to her neck and low back."
In her certification submitted in opposition to defendants' summary judgment motion, plaintiff stated that as a result of the accident, the constant pain she experienced severely restricted her ability to walk or exercise in any fashion, which caused her to gain back all of the seventy pounds she lost following gastric bypass surgery. In addition, she also stated she had become very depressed and tried to commit suicide in September 2008.
In granting summary judgment, Judge Johnson did not question that plaintiff sustained injuries as a result of the accident. Rather, he characterized her injuries as "lingering pain resulting in lessened ability to perform certain tasks," which he concluded "isn't the loss of a bodily function" within the meaning of N.J.S.A. 59:9-2(d), and noted that he saw no "evidence supporting [any] specific bodily function that has been impaired." The present appeal followed.
Since Davis was a public employee operating the sanitation truck during the course of his employment with the City, plaintiff's claim for recovery for pain and suffering resulting from the injuries she sustained in the accident are subject to the provisions of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. In order to recover damages for her pain and suffering, plaintiff must establish she has sustained a permanent loss of a bodily function. N.J.S.A. 59:9-2(d).
To establish a permanent loss of a bodily function, plaintiff must prove (1) the existence of a permanent injury by objective medical evidence, and (2) the "permanent loss of a bodily function that is substantial." Gilhooley v. Cnty. of Union164 N.J. 533, 541 (2000) (citingBrooks v. Odom150 N.J. 395, 402-06 (1997)).
In reviewing an appeal from a decision on a motion for summary judgment, we employ the same standard applied by the trial court.Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied154 N.J. 608 (1998). Summary judgment will be granted where no genuine issue of material fact is present and the movant is entitled to judgment as a matter of law. R. 4:46-2(c). When determining whether a material fact is present sufficient to defeat summary judgment, we consider the competent evidence "in the light most favorable to the non-moving party" and determine whether that evidence is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brillsupra, 142 N.J. at 540. If the evidence is sufficient to meet that standard, the motion will be denied. Accordingly, we review the evidence in the light most favorable to the non-moving party, who in this instance is plaintiff. Ibid.
Plaintiff's proofs establish that she sustained sprains and strains, but there is no objective evidence from which a genuinely disputed issue of fact exists that these injuries have resulted in the permanent loss of a bodily function. Plaintiff was able to return to work and perform the duties of a crossing guard, without the necessity, for example, of any artificial devices. See, e.g.Kahrar v. Borough of Wallington171 N.J. 3, 15-16 (2002) (finding that the plaintiff demonstrated permanent loss of a bodily function after she suffered a broken elbow and knee and a massive tear of her rotator cuff in an accident that required intrusive surgery, despite returning to work as a secretary without restrictions other than it taking longer to complete certain tasks, because she suffered from a permanent forty percent loss of the normal range of motion in her arm). Although plaintiff contends the injury has left her severely depressed, she failed to present any evidence raising a factual dispute that her depression, a condition from which she suffered prior to the accident, was causally related to the accident and had been exacerbated to the degree that it constituted a permanent loss of a bodily function. See Collins v. Union Cnty.150 N.J. 407, 422 (1997) (holding that the Legislature could not have intended, within the meaning of the TCA, that recovery for rape injuries be limited to those injuries manifested by physical injury alone and thereby exclude permanent post-traumatic stress); see also Willis v. Ashby, 353 N.J. Super. 104, 113 (App. Div.), certif.denied174 N.J. 547 (2002) (concluding that psychological injuries without physical sequelae should be treated the same as physical injuries under the TCA if they arise in the context of a stillborn infant).
In short, the fact that plaintiff has established she sustained injuries to her lumbar and cervical spine that are permanent is not enough. She must also produce "objective evidence of permanent substantial impairment." Gilhooleysupra, 164 N.J. at 541; see also Hammer v. Twp. ofLivingstonsupra, 318 N.J. Super. 301, 305 (finding the record devoid of objective medical evidence of a permanent loss of a bodily function resulting from plaintiff's fracture of her nose, left fibula and elbow). Plaintiff failed to make the required showing, and defendants were entitled to the entry of summary judgment dismissing plaintiff's damages claim for pain and suffering.
1 Electromyography/Nerve Conduction Study