Soni v. Woodbridge Twp

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4483-10T4

BRIJAL SONI, as Administratrix

Ad Prosequendum and General

Administrator of the Estate of

Niranjankumar Soni and BRIJAL

SONI, as guardian ad litem of

Alkaben Soni, and ALKABEN SONI,

individually,

v.

TOWNSHIP OF WOODBRIDGE and

NEW JERSEY TRANSIT,

and

TOWNSHIP OF WOODBRIDGE,

Third-Party Plaintiff/

v.

ANKUR SONI,

____________________________

July 6, 2012

Argued March 20, 2012 - Decided

Before Judges Reisner, Simonelli and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2910-08.

Ronald B. Grayzel argued the cause for appellants (Levinson Axelrod, P.A., attorneys; Mr. Grayzel, on the briefs).

Christopher J. Killmurray argued the cause for respondent Township of Woodbridge (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Mr. Killmurray, of counsel; Jennifer A. Passannante, on the brief).

PER CURIAM

Plaintiffs Brijal Soni (Brijal)¹ and Alkaben Soni (Alkaben), appeal from the April 18, 2011 Law Division order, and the May 4, 2011 amended order, which granted summary judgment to defendant Township of Woodbridge (Township), and dismissed the complaint with prejudice. The trial judge granted summary judgment based on the weather immunity provision of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3. We reverse and remand for further proceedings.

We derive the following facts from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion,viewed in a light most favorable to plaintiffs. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

The incident forming the basis of this matter occurred in the underpass of a railroad trestle on Leesville Avenue in Woodbridge. Leesville Avenue is a two-lane street with a curb and gutter. Since at least 1989, the Township has known that the roadway under the overpass floods during heavy rains. Over the years, Township police reported numerous instances of flooding in the underpass, and numerous vehicles becoming stranded in the floodwater there. Many times the police blocked off the underpass on both sides of the roadway because of flooding, and they referred in their reports to the underpass as "the usual spot" for flooding. A police captain noted that when the underpass floods, the water "starts to push the manholes up from the center of the road and floods to about two to three feet" below the train trestle above the underpass. The Township's traffic safety coordinator noted that in "really heavy rains," the floodwater in the underpass would extend out beyond the underpass. In addition, a graduated depth gauge located in the underpass indicated that water levels of five feet and higher have occurred there. Ultimately, the Township erected large signs warning approaching drivers that the road descended thirteen feet, four inches in the underpass, and that the "Underpass Floods During Rain."

At 8:47 a.m. on April 15, 2007, the National Weather Service issued a flood warning for Middlesex County. By that time flooding had already occurred in Woodbridge, and an additional one to three inches of rain were expected to fall by the end of the day. Township police officers were dispatched the morning of April 15, 2007, to inspect the Leesville Avenue underpass. They saw flooding in the underpass, and placed orange traffic cones across both sides of the road just before the underpass.

By 8:00 p.m. on April 15, 2007, a total of approximately four inches of rain had fallen in Woodbridge. At approximately that time, Ankur Soni (Ankur) was driving his father, Niranjankumar Soni, his mother, Alkaben, and his sister, Brijal, in his Toyota RAV4 SUV from Newark Liberty International Airport to their home in Edison via Routes 1 & 9 southbound. Ankur was detoured due to flooding on Routes 1 & 9, and eventually came onto Leesville Avenue. It was dark at the time and raining lightly, and he did not see the warning signs for the underpass as he approached it. He also did not see the traffic cones, which had become submerged in the floodwater, nor did he see high floodwater in the underpass. He stopped for approximately thirty seconds before proceeding into the underpass, where his SUV became submerged and lost power, thereby making the automatic windows inoperable. Water eventually filled the SUV. Ankur pried open the driver's side window far enough to get himself, and his mother and sister out of the car and onto the SUV's roof, but unfortunately, he could not free his father from the car. Ankur saw a bystander, Andrea Yamakaitis, and asked her to call 9-1-1. Rescuers who arrived at the scene were unable to resuscitate the father, and he died from drowning. Yamakaitis, who had approached the underpass from the opposite direction of Ankur, said that there were barricades blocking the underpass on her side of the road, but not the other side.

According to plaintiffs' expert engineer, D. Rowland Lamb, the roadway drops in elevation over thirteen feet through the underpass. This forms a depression creating a "bottom of the bowl" effect for the storm drains in the underpass. There are two storm drains located at the lowest point of the underpass, which are part of the storm sewer system that flows approximately nine hundred feet north to the south branch of the Rahway River. The high water elevation of the south branch is approximately eleven feet. During rainfall creating high water conditions, backwater from the south branch reaches elevations that exceed eleven feet and restrict the capacity of the storm drains in the underpass.

Lamb opined that the underpass was unsafe because the containment of excessively deep water made it hazardous for motorists during heavy rainfalls; the Township knew about the flooding in the underpass during heavy rainfalls and should have closed Leesville Avenue to through traffic on April 15, 2007; the Township violated both the standards set forth in the Manual on Uniform Traffic Control Devices (MUTCD) for temporary traffic control for floods and the Township's police policy and procedures; and the Township should have installed a system for closing the underpass, such as sensors for alerting officials to rising water levels or in-place closing gates with signage. Lamb also opined that traffic cones did not comply with the MUTCD standards for an effective traffic control device and were ineffective in providing a barrier for road closure. The Township should have used Type III barricades with "Road Closed" signs to close Leesville Avenue in advance of the underpass, and its failure to do so constituted a deviation from standards and safe practices.

The Township's traffic safety coordinator acknowledged that when it rains, the storm drains in the underpass get backed up with water, which causes the flooding. The Township's municipal engineer acknowledged that the elevation of the underpass "affect[s] the ability [of] the pipeline to convey the water out." A sergeant from the Township's Traffic Enforcement Unit acknowledged that "[t]he underpass floods due to the fact that the storm sewer . . . feeds directly into the Rahway River," and when it rains heavily, "the underpass actually floods with water from the river flowing backwards in the sewer pipe and into the underpass." The Township's expert engineer opined that the heavy rain on April 15, 2007, raised the Rahway River's water elevation which, in turn, reduced the ability of the sewer system in the underpass to function that day.

The trial judge ultimately granted summary judgment to the Township based on weather immunity under N.J.S.A. 59:4-7, concluding that the weather solely caused the flooding in the underpass. The judge did not address other issues raised on summary judgment regarding the Township's liability for (1) a dangerous condition of public property, N.J.S.A. 59:4-2; (2) failure to provide emergency warning devices, N.J.S.A.59:4-4; (3) a discretionary decision, N.J.S.A. 59:2-3c; (4) allocation of resources, N.J.S.A. 59:2-3d; and (5) failure to provide ordinary traffic signals, N.J.S.A. 59:4-5. This appeal followed.

On appeal, plaintiffs contend, in part, that the judge erred in granting summary judgment based on weather immunity. They argue that they presented evidence establishing that the weather did not solely cause the underpass flooding; rather, the weather and other factors -- the depression of the road and the sewer system allowing water from the Rahway River to backfill the sewer and flood the road -- combined to cause the flooding. We agree.

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Coyne v. New Jersey Dep't ofTransp., 182 N.J. 481, 491 (2005); Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253, 261 (App. Div. 2011), certif. denied, 209 N.J. 98(2012). Thus, we consider, as the trial judge did, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J. at 536). Summary judgment must 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." R. 4:46-2(c). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). We review issues of law de novo and accord no deference to the trial judge's conclusions on legal issues. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).

Under the TCA, there is an underlying presumption of a public entity's immunity unless liability is specified. Manna v. State, 129 N.J. 341, 350 (1992). However, the public entity bears the burden of proof that a statutory immunity exists. Id. at 351; Kolitch v. Lindedahl, 100 N.J. 485, 497 (1985). In this case, the Township claims immunity under N.J.S.A. 59:4-7, which provides that a public entity will not be "liable for an injury caused solely by the effect on the use of streets and highways of weather conditions." N.J.S.A. 59:4-7.

In order for a public entity to obtain weather immunity under N.J.S.A. 59:4-7, the injury must have been caused solely by the weather, not by a combination of the weather and another factor. See Manna, supra, 129 N.J. at 350. "If an accident is caused by a factor in addition to the weather, that factor will preclude the applicability of the weather immunity regardless of whether the State is ultimately liable for that additional factor." Ibid.; see also Pico v. State, 116 N.J. 55, 61 (1989); Horan v. State, 212 N.J. Super. 132, 134 (1986); Meta v. Twp. of CherryHill, 152 N.J. Super. 228, 232 (App. Div.), certif. denied, 75 N.J. 587 (1977); McGowan v. Borough of Eatontown, 151 N.J. Super. 440, 447 (App. Div. 1977).

Here, the evidence established that the underpass flooding was caused by a combination of the rain, the depression of the road, and the sewer system, which allowed water from the Rahway River to backfill the storm drains and flood the underpass. Even defendants' witnesses acknowledged that when it rains heavily, the storm drains in the underpass get backed up with water from the river, which causes the underpass to flood, and the elevation of the underpass affects the ability of the sewer system to convey the water out.

The evidence, viewed in a light most favorable to plaintiffs, established that a combination of the weather and other factors caused the underpass to flood on April 15, 2007. Accepting this evidence as true, and giving plaintiffs all reasonable inferences arising therefrom, which the trial court did not do, we conclude that summary judgment was improvidently granted.

We decline to exercise original jurisdiction to address the additional issues raised on summary judgment, which the court did not address. We remand for the court to consider those issues.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 Because the parties share the same last name, we shall refer to them by their first names. In addition, we shall sometimes refer to Brijal and Alkaben collectively as plaintiffs.

HOLMAN, v. CITY OF ATLANTIC CITY, ATLANTIC CITY DEPARTMENT OF SANITATION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3971-10T4

MARIA M. HOLMAN,

v.

CITY OF ATLANTIC CITY,

ATLANTIC CITY DEPARTMENT OF

SANITATION, and WAYNE I.

DAVIS,

______________________________________

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).

PER CURIAM

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 Union, 164 N.J. 533, 541 (2000) (citingBrooks v. Odom, 150 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. denied, 154 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." Brill, supra, 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 Wallington, 171 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.denied, 174 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." Gilhooley, supra, 164 N.J. at 541; see also Hammer v. Twp. ofLivingston, supra, 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.

Affirmed.

1 Electromyography/Nerve Conduction Study

Dutcher v. Phillipsburg Housing Authority

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0639-11T1

KRYSTAL DUTCHER,

v.

PHILLIPSBURG HOUSING

AUTHORITY,

______________________________

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).

PER CURIAM

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.

I.

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.

II.

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. denied, 189 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 Creek, supra, 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 Newark, 125 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. Odom, 150 N.J. 395, 402-3 (1997), that resulted in (2) "a permanent loss of a bodily function that is substantial."Gilhooley v. Cnty. of Union, 164 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 Jackson, 106 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."Brooks, supra, 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.

Banar ad Prosequendum for the Estate of Paul Banar v. Rendek Inc./Regent Shop Center

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5633-10T1

MARY BANAR, Administratrix ad

Prosequendum for THE ESTATE OF

PAUL BANAR (Deceased),

v.

RENDEK INC./REGENT SHOP CENTER,

SUPER STOP & SHOP SHOPPING

CENTER, RENDEK INC./REGENT SHOP

CENTER CONSTRUCTION DIVISION,

EUROTECH MASONRY AND CONCRETE,

L.L.C., DEMARCO'S CATERING AND

DELI, BED BATH & BEYOND, DIETZ

AND ASSOCIATES, L.L.C., and

MENLO ENGINEERING ASSOCIATES, INC.,

__________________________________

GREATER NEW YORK MUTUAL INSURANCE

COMPANY,

Plaintiff-Respondent,

v.

REGENT SHOPPING CENTER and

REGENT SHOP CENTER CONSTRUCTION

DIVISION,

Defendants-Appellants,

and

RENDEK,INC./SUPER STOP & SHOP

SHOPPING CENTER, EUROTECH MASONRY

AND CONCRETE, L.L.C., DEMARCO'S

CATERING AND GOURMET DELI,

and BED BATH & BEYOND,

Defendants.

_______________________________________

Argued June 4, 2012 – Decided July 12, 2012

Before Judges Sabatino and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Docket Nos.

L-5756-08 and L-3211-09.

Mark A. Rothberg argued the cause for

appellants Regent Shopping Center and

Regent Shop Center Construction Division

(Wilf Law Firm, L.L.P., attorneys; Mr.

Rothberg, on the brief).

Valerie A. Vladyka argued the cause for

respondent (Schenck, Price, Smith & King,

L.L.P., attorneys; Ms. Vladyka, of counsel

and on the brief).

PER CURIAM

Defendants Regent Shopping Center and Regent Shop Center Construction Division (Regent) appeal from a June 24, 2011 order for summary judgment declaring that plaintiff Greater New York Mutual Insurance Company (GNY) is not required to provide a defense and indemnification to Regent in a wrongful death action brought on behalf of the estate of Paul Banar. The trial court concluded that the accident that allegedly caused Banar's death arose out of construction at the shopping center and was therefore excluded from coverage by a construction exclusion clause of the insurance policy issued by GNY. We affirm.

Viewed most favorably to Regent, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the summary judgment record revealed the following facts. At about noon on January 18, 2007, Paul Banar, eighty-two years old, fell off a raised sidewalk in front of the business premises of a tenant of Regent, DeMarco's Catering & Gourmet Deli. Banar's fall caused visible injuries to his face, and his wife took him to his doctor. At an unspecified later time, Banar died. His widow filed a wrongful death lawsuit against Regent and others alleging that their negligence was the cause of Banar's fall and subsequent death.

At the time of the accident, DeMarco's Deli was not open for business. The interior of the store was being refitted after the space had been divided from a larger retail space. The new front entrance to the store was higher than the level of the parking lot and the sidewalk adjacent to other stores, and an elevated sidewalk with an inclined ramp on one side and steps on the other had to be constructed to reach the deli's entrance.

The shopping center as a whole had been undergoing renovations and construction since 2005. The construction project involved both common areas under the control of Regent for purposes of insurance coverage — such as the building facades, the parking lot, and sidewalks — and some of the interior store spaces under the control of individual tenants.

Regent sought coverage from GNY for the wrongful death lawsuit pursuant to its comprehensive general liability policy. GNY provided a defense temporarily but later filed a declaratory judgment action seeking a judgment that it was not required to defend or indemnify Regent for the accident. GNY relied on the Basic Construction Exclusion endorsement of its liability policy, which states in relevant part:

This insurance does not apply to "bodily injury" . . . arising out of construction . . . operations which are performed by or on behalf of the Named Insured in the course of any job which involves the new construction . . . of any load bearing . . . floor . . . or structure, provided, however, that nothing herein limits, prohibits or restricts insurance coverage for the repair, alteration, maintenance or refurbishing of a load bearing . . . floor.

On GNY's summary judgment motion, the trial court considered the evidential record and concluded that the quoted exclusionary clause applies to the accident and permits GNY to decline coverage. Regent appeals that decision, arguing that evidence in the record shows that construction of the common areas of the shopping center had been completed before the date of Banar's accident and the only ongoing construction at that time was for interior refitting work to which the policy and its exclusion do not apply.

The interpretation of an insurance policy upon established facts is a question of law for the court to determine. Simonetti v. SelectiveIns. Co., 372 N.J. Super. 421, 428 (App. Div. 2004). Our standard of review is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,140 N.J. 366, 378 (1995). "Generally, '[w]hen interpreting an insurance policy, courts should give the policy's words their plain, ordinary meaning.'" Nav-Its, Inc. v. Selective Ins. Co. of Am., 183 N.J. 110, 118 (2005) (quoting President v. Jenkins, 180 N.J. 550, 562 (2004)). Courts must give effect to the parties' reasonable expectations in contracting for insurance coverage. Flomerfelt v. Cardiello, 202 N.J. 432, 441 (2010).

Exclusions in insurance policies are construed narrowly. Princeton Ins. Co. v. Chunmuang, 151 N.J. 80, 95 (1997). They will be enforced if the language is "'specific, plain, clear, prominent, and not contrary to public policy,'" Ibid. (quoting Doto v. Russo, 140 N.J. 544, 559 (1995)). Because an insurance policy is a contract of adhesion, ambiguous policy language is interpreted in favor of the insured to give effect to the insured's reasonable expectations. Doto, supra, 140 N.J. at 555-56. Ambiguity is present when "the phrasing . . . is so confusing that the average policyholder cannot make out the boundaries of coverage." Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 247 (1979). However, "[i]f the words used in an exclusionary clause are clear and unambiguous, 'a court should not engage in a strained construction to support the imposition of liability.'" Flomerfelt, supra, 202 N.J. at 442 (2010) (quoting Longobardi v. Chubb Ins. Co., 121 N.J. 530 (1990)). "[T]he burden is on the insurer to bring the case within the exclusion." Ibid. (quoting Am. Motorists Ins. Co. v. L-C-A Sales Co., 155 N.J. 29, 41 (1998)).

Here, we find no relevant ambiguity in the language of the construction exclusion we have quoted. To prove that Regent's claim fell under the construction exclusion, GNY was required to demonstrate that Banar's injuries arose out of construction operations by or on behalf of Regent in the course of new construction of a load bearing floor or structure. The question of contract interpretation is whether Banar's injury "arose out of construction," or whether, viewing the facts most favorably to Regent, the construction had been completed at the time of the accident.

Regent relies on undisputed construction documents, photographs, and deposition testimony it submitted in opposition to the summary judgment motion to argue that construction of the load bearing sidewalk had been completed some months earlier, as well as other common area improvements at the shopping center. It contends that only interior refitting work was continuing at the time of the accident. It argues that the construction exclusion does not apply to interior refitting work of the shopping center's tenants.

Regent does not dispute that the site of Banar's fall was within the common areas it controlled, or that its construction project was new construction that involved more than repair, alteration, maintenance, or refurbishing of its premises. It does not dispute that the elevated sidewalk was a load bearing floor that had been constructed as part of the project. Nor does Regent dispute that a protective railing was to be constructed at the site of Banar's fall but had not yet been installed. Banar's wrongful death suit alleged that the absence of a railing and Regent's failure to warn of the danger of the unprotected elevated sidewalk were part of the negligence that caused his accident and injuries.

Regent argues that the delay in installing a railing was intended only to accommodate movement of equipment and materials for the refitting work continuing in the interior of DeMarco's Deli. Regent contends that the absence of a railing does not mean that the sidewalk was still under construction, and the factual issue of whether or not it was should be determined at a trial, not by summary judgment.

Although the summary judgment record may demonstrate some disputed facts pertaining to completion or continuation of the construction project as to the common areas of the shopping center, those disputed facts are not relevant to the issue on appeal. They do not affect the basis upon which the trial court concluded that no genuine issue of material fact existed as to whether construction of the load bearing sidewalk was complete or ongoing and therefore still excluded from the insurance policy.

Regent or its contractors had attempted to block access to the elevated sidewalk with barrels and possibly construction tape.¹ DeMarco's Deli was not open for business, and the sidewalk without the railing was not intended to be used at that time by the public. The question is whether the absence of a railing means that the sidewalk was still under construction and, therefore, the exclusion of the policy still applies.

The reason for the delay in installing a railing is not determinative of whether the sidewalk was still under construction. The undisputed fact is that the railing was part of the exterior sidewalk construction and its absence was an alleged cause of the fall. Construction of the load bearing sidewalk was not yet completed because the railing had not been installed. In fact, DeMarco's Deli did not obtain a temporary certificate of occupancy until several months after the accident and after a railing was installed. The time that a certificate of occupancy was issued is not dispositive of when construction of the sidewalk was completed, but it is relevant evidence that the court could consider within the totality of all the evidence on the summary judgment record.

We conclude that the trial court correctly interpreted the insurance policy and its exclusion.² It did not err in granting summary judgment to GNY on the factual record presented.

A

ffirmed.

1 A photograph taken on the date of the accident shows tape as a warning device at the location on the elevated sidewalk where Banar fell and where the railing would later be installed. There is a dispute in the summary judgment record as to whether the photograph was taken before or after the accident, but that dispute does not affect our analysis of the coverage issues.

2 Although not a basis for our decision, we acknowledge GNY's argument that Regent could have paid an additional premium and purchased a insurance to cover liability during ongoing construction.