Claims being made against any public entity in New Jersey
THE COURT MUST REVIEW THE TORT CLAIMS ACT MANDATORY LANGUAGE REGARDING INJURIES AND THE CASE LAW INTERPRETING THE STATUTE.
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
“[I]n order to vault the pain and suffering threshold under the [TCA], a plaintiff must satisfy a two-pronged standard by proving (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) (citing Brooks v. Odom, 150 N.J. 395, 402-03 (1997)). “Temporary injuries, no matter how painful and debilitating, are not recoverable.” Brooks, 150 N.J. at 403. In addition, plaintiff’s medical expenses must exceed $3600. N.J.S.A. 59:9-2(d).
A REVIEW OF THE RECORD AND THE PLAINTIFF’S DOCTORS IN THIS CASE CLEARLY REVEALS A PERMANENT INJURY TO THE PLAINTIFF. THIS APPELLATE PANEL RULED THAT THE TRIAL JUDGE IN FACT—WEIGHED THE EVIDENCE— AND DID NOT GIVE THE NON MOVING PARTY THE BENEFIT OF ANY DOUBT AND DISMISSED THE CLAIM. THIS APPELLATE PANEL RULED THATT HE TIRAL JUDGE SHOULD NOT HAVE DISMISSED THIS CLAIM AND SHOULD HAVE ALLOWED THE CASE TO PROCEED TO A JURY TRIAL SO THE JURY COULD MAKE THE DETERMINATION AND NOT HTE JUDGE ON SUMMARY JUDGEMENT.
Based on his physical examination of plaintiff and his review of the medical records, plaintiff’s expert opined plaintiff suffered permanent shoulder injuries as a result of the motor vehicle accident. Defendants do not dispute plaintiff has presented objective medical evidence of a permanent injury. Instead, they argue plaintiff is able to function, albeit with limitations. As noted by the Court in Gilhooley, “that every objective permanent injury results in substantial loss of a bodily function does not follow.” 164 N.J. at 541. “Each case is fact sensitive.” Ibid.
“[W]hen a plaintiff suffers 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,’ that injury meets the threshold.” Knowles v. Mantua Twp. Soccer Ass’n, 176 N.J. 324, 332 (2003) (quoting Gilhooley, 164 N.J. at 542). In Gilhooley, the plaintiff injured her knee so severely that open reduction and internal fixation with surgically implanted pins were required to make it functional again. 164 N.J. at 536-37. The plaintiff returned to work in her full capacity but continued to experience stiffness and pain in her knee. Id. at 537. In reversing our affirmance of the trial court’s grant of summary judgment, the Court said:
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. Plaintiff’s situation is similar. Plaintiff is employed as a truck driver and can perform some routine tasks without significant limitation. However, “a plaintiff’s ability to resume some of his or her normal activities is [not] dispositive of whether he or she is entitled to pain and suffering damages under the TCA.” Knowles, 176 N.J. at 332 (citing Kahrar v. Borough of Wallington, 171 N.J. 3, 15-16 (2002)).
Viewing the evidence in the light most favorable to plaintiff, the grant of summary judgment was improper. Like the plaintiff in Gilhooley, only the insertion of anchors in plaintiff’s right shoulder during two surgeries permits the joint to “mimic [its] natural function.” Id. at 542. Plaintiff’s medical proofs support a claim of permanent injury that is based on objective evidence, not mere subjective complaints. “[S]uch evidence raises an issue for the jury,
