(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued April 28, 1997 -- Decided July 15, 1997
POLLOCK, J., writing for a unanimous Court.
There are two issues raised in this appeal; 1) what constitutes a "permanent loss of bodily function"
under the New Jersey Tort Claims Act (the Act); and 2) whether Bertha Brooks may recover from Willie
Mae Odom and New Jersey Transit Corporation (NJT) her co-payments and deductible amounts under her
health insurance policy.
On November 18, 1991, as Bertha Brooks (plaintiff) was entering her parked car, an NJT bus driven
by Willie Mae Odom struck the car door, knocking plaintiff into the car. Plaintiff was taken to the
emergency room at Newark Beth Israel Hospital, where she complained of pain in her neck, back, and head.
The hospital took x-rays, prescribed medication, fitted plaintiff with a cervical collar, and released her.
Plaintiff then saw Dr. Jack Siegel. After Dr. Siegel administered twelve heat treatments to plaintiff's
back, she stopped seeing him because the treatments were not effective. In August 1992, plaintiff started
treatment with Sall/Myers Associates. She complained of headaches, dizziness, blurred vision, pain and
stiffness in her neck, upper and lower back, pain radiating in her left shoulder, and increased discomfort on a
change of weather. She was diagnosed with residual post-traumatic myositis and fibromyositis of the
cervicodorsal and lumbosacral region and post-traumatic headache syndrome. Myositis is the inflammation
of muscle tissue. Fibromyositis is characterized by pain, tenderness, and stiffness of joints, capsules, and
adjacent structures.
Dr. Myers treated plaintiff with physical therapy and a transcutaneous electrical nerve stimulation
(TENS) unit, which applies mild electrical stimulation to an affected area. X-rays revealed marginal spurs in
the upper lumbar vertebra area and disc space narrowing at C5-C6 and C6-C7, with reversal of curvature of
the spine. Dr. Peter Crain, a neurologist and psychiatrist also diagnosed plaintiff as suffering from post-traumatic headaches.
Notwithstanding several months of therapy, plaintiff's neck and back pain continued. Dr. Myers
discharge diagnosis was residuals of post-traumatic headaches, residuals of flexion/extension injury of the
cervical, dorsal and lumbar spine with post-traumatic myositis and fibromyositis. He concluded that there
was a direct causal relationship between plaintiff's condition and the accident. His objective findings were
hardness, spasm, and tenderness with secondary scar formation. Dr. Myers concluded that plaintiff had
sustained significant and permanent loss of function with chronic pain that was exacerbated by the usual
activities of daily living. He further concluded that plaintiff's overall prognosis for significant improvement
was poor.
After the accident, plaintiff missed eight days of work and stayed home for two weeks. She has
since returned to work as a teachers' aide, but claims she cannot sit or stand for long without experiencing
pain. She still suffers from headaches, dizziness, and severe lower back pain that radiates into her left leg.
She also has difficulty performing household chores.
Plaintiff filed suit, seeking recovery for her pain and suffering. Her husband, John, asserts a claim
for loss of his wife's services. On a motion for summary judgment filed by NJT and Odom (hereinafter
defendants), the trial court dismissed plaintiff's complaint, holding that her injuries did not constitute a
permanent loss of bodily function as required under the Act and that plaintiff could not recover her out-of-pocket medical expenses. The court reasoned that the Act imposes a stricter threshold than the verbal
threshold in the No-fault Law and, therefore, plaintiff could not recover.
On appeal, the Appellate Division reversed, finding that evidence of muscle spasm, loss of spinal
curvature, and marginal spurs constituted objective evidence of plaintiff's injury and that that objective
evidence established that her injuries were permanent. The Appellate Division concluded that plaintiff could
recover her deductible and co-payment amounts.
The Supreme Court granted defendants' petition for certification.
HELD: In order to recover for pain and suffering under the Tort Claims Act, a plaintiff must sustain a
permanent loss of a bodily function that is substantial. Furthermore, Bertha Brooks cannot recover
from Willie Mae Odom and New Jersey Transit Corporation her co-payments and deductible
amounts under her health insurance policy.
1. When construing a statute, a court must give effect to the legislative intent. When the statutory language
is ambiguous, a court must look to the legislative history, statutory purpose, and related legislation. In this
case, the Court must ascertain the legislative intent of N.J.S.A. 59:9-2(d), which precludes recovery for pain
and suffering, except in cases of permanent loss of a bodily function. (pp. 6-7)
2. The purpose of the Act was to reestablish the general rule of immunity of public entities from liability for
injuries to others. Both the history and purpose of the Act suggest that the Legislature intended a strict
interpretation of a public entity's exposure to liability. (pp. 7-9)
3. To recover under the Act for pain and suffering, a plaintiff must prove by objective medical evidence that
the injury is permanent. Temporary injuries, no matter how problematic, are not recoverable. Furthermore,
a plaintiff may not recover under the Act for mere subjective feelings of discomfort. (pp. 9-10)
4. In concluding that plaintiff suffered a permanent loss of bodily function under the Act, the Appellate
Division relied on decisions interpreting the No-Fault Act. However, substantive standards in the two
statutes differ. The No-fault Act manifests a legislative recognition that something less than "permanent loss
of a use of a body organ, member, function or system" (category six) would satisfy the verbal threshold.
Under the Tort Claims Act, however, the Legislature intended that a plaintiff sustain a permanent loss of the
use of a bodily function that is substantial. (pp. 10-14)
5. Plaintiff experiences pain and the limitation of motion in her neck and back is permanent. Nonetheless,
she can function in her work and as a homemaker. Therefore, because her loss is not substantial, plaintiff
has not sustained a permanent loss of a bodily function within the meaning of the Act. (p. 14)
6. Under the No-Fault Act, a plaintiff may not recover from the defendant his or her out-of-pocket expenses
for co-payments and deductibles under his or her Personal Injury Protection (PIP) coverage. The underlying
policy of that limitation is to prevent the clogging of the court system with minor claims for reimbursement.
That same consideration applies to suits against public entities under the Act. Given the general legislative
intent to immunize public entities from liability, it would be contradictory to allow a plaintiff to recover
against a public entity when he or she could not recover against a private party. (pp. 14-15)
Judgment of the Appellate Division is REVERSED and the judgment of the Law Division dismissing
the complaint is REINSTATED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN and
COLEMAN join in JUSTICE POLLOCK'S opinion.
SUPREME COURT OF NEW JERSEY
A-
132 September Term 1996
BERTHA BROOKS and JOHN L. BROOKS,
her husband,
Plaintiffs-Respondents,
v.
WILLIE MAE ODOM and NEW JERSEY
TRANSIT BUS OPERATIONS, INC.,
Defendants-Appellants,
and
PORT AUTHORITY OF NEW YORK and NEW
JERSEY,
Defendant.
Argued April 28, 1997 -- Decided July 15, 1997
On certification to the Superior Court,
Appellate Division.
Jeffrey A. Miller, Assistant Attorney General
argued the cause for appellants (Peter
Verniero, Attorney General of New Jersey,
attorney; Mary C. Jacobson, Deputy Attorney
General, of counsel; Valerie L. Egar, Deputy
Attorney General, on the brief).
Eric G. Kahn argued the cause for respondents
(Javerbaum Wurgaft & Hicks, attorneys).
The opinion of the Court was delivered by
POLLOCK, J.
This appeal presents two issues. The first issue is what constitutes a "permanent loss of a bodily function" under the New
Jersey Tort Claims Act ("The Act" or "The Tort Claims Act"),
N.J.S.A. 59:9-2(d). Second, we must decide whether plaintiff,
Bertha Brooks ("plaintiff"), may recover from defendants Willie
Mae Odom and New Jersey Transit Corporation ("New Jersey
Transit") (jointly described as "defendants") her co-payments and
deductible amounts under her health insurance policy.
The Law Division granted summary judgment for defendants.
It held that plaintiff's injuries did not constitute a permanent
loss of a bodily function and that plaintiff could not recover
her out-of-pocket medical expenses. In an unreported opinion,
the Appellate Division reversed. We granted defendants' petition
for certification,
147 N.J. 260 (1996). We reverse the judgment
of the Appellate Division, and reinstate that of the Law
Division.
This matter arises on defendants' motion for summary judgment. Consequently, we assume the truth of plaintiff's version of the facts, giving plaintiff the benefit of all favorable inferences that version supports. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 523 (1995); Dairy Stores, Inc. v. Sentinel Publishing Co., 104 N.J. 125, 135 (1986). On November 18, 1991, plaintiff's car was parked on Clinton Place, Newark. As plaintiff entered her car, a New Jersey Transit bus driven by Odom struck the car door, knocking plaintiff into the car. An ambulance drove plaintiff to the emergency room at
Newark Beth Israel Hospital, where she complained of pain in her
neck, back, and head. The hospital took X-rays (all of which
were normal except for "degenerative changes at C5-C6"),
prescribed medication, fitted plaintiff with a cervical collar,
and released her.
Plaintiff next consulted Dr. Jack Siegel. After Dr. Siegel
administered twelve heat treatments to plaintiff's back, she
stopped seeing him because the treatments were ineffective. On
July 8, she consulted Dr. Anthony Keiser.
In August 1992, plaintiff started treatment with Sall/Myers
Associates at their Irvington office. She complained of
headaches, dizziness, blurred vision, pain and stiffness in her
neck, upper and lower back, pain radiating in her left shoulder,
and increased discomfort on a change in the weather. Dr. Myers's
examination of her neck and back revealed mild flattening of the
curve, tenderness and hardness, and decreased motion. He
diagnosed plaintiff's condition as "residual of post-traumatic
myositis and fibromyositis of the cervicodorsal and lumbosacral
region and post-traumatic headache syndrome." Myositis is the
"inflammation of muscle tissue." Clayton L. Thomas, ed., Taber's
Cyclopedic Medical Dictionary 1091 (15th ed. 1985).
Fibromyositis is "characterized by pain, tenderness, and
stiffness of joints, capsules, and adjacent structures." Id. at
618.
Dr. Myers treated plaintiff with physical therapy and a TENS
(transcutaneous electrical nerve stimulation) unit, which applies
mild electrical stimulation to an affected area. X-rays revealed
small marginal spurs in the upper lumbar vertebra and disc space
narrowing at C5-C6 and C6-C7, with reversal of curvature of the
spine.
Dr. Peter M. Crain, a neurologist and psychiatrist,
diagnosed plaintiff as suffering from post-traumatic headaches.
An electromyogram ("EMG") reflected elevations in activity in the
muscles on both sides of the face and neck with significant
elevations at the T1 (thoracic) paraspinal sites.
Notwithstanding several months of therapy, plaintiff's neck
and back pain continued. On December 10, 1992, Dr. Myers
performed thermograms on her neck and back. The lumbar
thermogram revealed L4 and L5 fiber irritation and pelvic lean.
The cervical and thoracic thermogram was "[a]bnormal with
thermographic diagnoses of bilateral cervical and thoracic
trapezius myositis with trigger point formation, myositis of the
sternal muscles, costochondritis and trigger point formation in
the right anterior deltoid and right pectoralis." A CAT scan was
normal.
In his final report, dated February 2, 1993, Dr. Myers noted
residual complaints of recurring discomfort in plaintiff's neck,
upper, mid and lower back, as well occasional headaches. Her
physical examination revealed straightening of the cervical
curve; diffuse tenderness in the posterior cervical area
evidenced by muscle spasms; spasm of the posterior and lateral
cervical musculature; and a decreased range of motion on flexion
and rotation. The examination of her dorsal spine revealed
paravertebral spasms with tenderness in the trapezoid muscles,
and a decreased range of motion of flexion. In plaintiff's lower
lumbar area, Dr. Myers detected a palpable muscle spasm and a
decreased range of motion.
Dr. Myers's discharge diagnosis was residuals of post-traumatic headaches, residuals of flexion/extension injury of the
cervical dorsal and lumbar spine with post traumatic myositis and
fibromyositis. He concluded that there was a direct causal
relationship between plaintiff's condition and the accident. His
objective findings were hardness, spasm, and tenderness with
secondary scar tissue formation. Dr. Myers concluded that
plaintiff had sustained a significant and permanent loss of
function with chronic pain that was exacerbated by the usual
activities of daily living. He further concluded that
plaintiff's overall prognosis for significant improvement was
poor.
After the accident, plaintiff missed eight days of work and
stayed at home for two weeks. She has since returned to work as
a teacher's aide, but claims she cannot sit or stand for long
without experiencing pain. She still suffers from headaches,
dizziness, and severe lower back pain that radiates into her left
leg. Finally, she has difficulty in performing household chores,
including vacuuming, carrying groceries, or other activities that
require lifting or bending. Plaintiff seeks recovery for her
pain and suffering. Her husband, John Brooks, asserts a
derivative claim for loss of her services.
The initial issue is whether plaintiff has suffered a "permanent loss of a bodily function" within the meaning of N.J.S.A 59:9-2(d). That statute provides in relevant part:
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.
Although plaintiff originally joined the Port Authority of
New York and New Jersey as a defendant, she has never served it
with a summons and complaint. The Law Division granted
defendants' motion for summary judgment, concluding that the Act
imposes a stricter threshold than the verbal threshold in the No-Fault Law, N.J.S.A. 39:6A-1 to -35. The court reasoned that even
under the No-Fault Act, plaintiffs could not recover. Finally,
the court ruled that plaintiff could not recover her deductible
or co-payment expenses.
The Appellate Division reversed. It found that evidence of
muscle spasm, loss of spinal curvature, and marginal spurs
constituted objective evidence of plaintiff's injury.
Significantly, the court further found that the evidence
established that plaintiff's injuries were permanent. The court
noted that plaintiff was "unable to sit or stand for long periods
of time without experiencing pain," and that she encountered
continuing difficulty in "performing [her] daily household
chores, including vacuuming, carrying groceries and anything
which requires lifting or bending." It also ruled that plaintiff
could recover her deductible and co-payment amounts.
This appeal raises an issue of statutory interpretation.
When construing a statute, the judicial role is to give effect to
the legislative intent. State v. Madden,
61 N.J. 377, 389
(1972). Sometimes, a court need look no further than the
statutory language. Munoz v. New Jersey Automobile Full Ins.
Underwriting Ass'n,
145 N.J. 377, 384 (1996). When, however, the
statutory language is ambiguous, a court generally turns to the
legislative history, statutory purpose, and related legislation.
MCG Assocs. v. DEP,
278 N.J. Super. 108, 119-20 (App. Div. 1994)
(citations omitted). Even with the help of canons of statutory
construction, legislative intent can be elusive.
On this appeal, our task is to ascertain the legislative
intent in the provision in N.J.S.A. 59:9-2(d) against recovery
for pain and suffering except "in cases of permanent loss of a
bodily function." We read the provision in the light of the
general legislative intent in the Act to establish immunity as
the general rule and to subject a public entity for liability
only as the Act provides. N.J.S.A. 59:2-1.
The Act does not define the terms "permanent," "loss,"
"bodily," or "function." In the absence of statutory
definitions, dictionaries can shed light on the presumed intent
of the legislature. "Function" means "[t]he action performed by
any structure. In a living organism this may pertain to a cell
or part of a cell, tissue, organ or system of organs." Taber's,
supra, at 651. "Loss" means "the act of losing possession" and
the "decrease in amount, magnitude or degree." Webster's New
Collegiate Dictionary 675 (1987). Finally, "bodily" is defined
as "pertaining to or concerning the body; of or belonging to the
physical constitution." Black's Law Dictionary, 159 (5th ed.
1991). Those definitions, although helpful, are not dispositive.
Hence, we turn to the Act's history and purpose. The
purpose of the Act was to reestablish the general rule of the
immunity of public entities from liability for injuries to
others. Pane, New Jersey Practice, Local Government Law § 589 at
17 (stating Act's purpose was to stabilize constant erosion of
sovereign immunity by judicial decisions). Underlying the
reenactment of immunity was the Legislature's concern about that
liability on the public coffers. Report of the Attorney
General's Task Force on Sovereign Immunity 10 (1972) ("Task
Force").
As the Task Force stated:
The limitation on the recovery of damages in
subparagraph (d) reflects the policy judgment
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 aggravated circumstances.
Both the history and purpose of the Act suggest that the
Legislature intended a chary interpretation of a public entity's
exposure to liability.
To recover under the Act for pain and suffering, a plaintiff
must prove by objective medical evidence that the injury is
permanent. Temporary injuries, no matter how painful and
debilitating, are not recoverable. Further, a plaintiff may not
recover under the Tort Claims Act for mere "subjective feelings
of discomfort." Ayers v. Township of Jackson,
106 N.J. 557, 571
(1987). Judicial and secondary authority interpreting the phrase
"permanent loss of a bodily function" is scant. One recognized
text states "[t]o be considered permanent within the meaning of
the subsection, an injury must constitute an `objective'
impairment, such as a fracture." Harry A. Margolis & Robert
Novack, Claims Against Public Entities 159 (1996). Absent such
an objective abnormality, a claim for permanent injury consisting
of "impairment of plaintiff's health and ability to participate
in activities" merely iterates a claim for pain and suffering.
Ibid.
According to the Appellate Division, a claim for emotional
distress is recoverable if it results "in permanent physical
sequelae such as disabling tremors, paralysis or loss of
eyesight." Srebnik v. State,
245 N.J. Super. 344, 351 (App. Div.
1991). Consistent with Srebnik, one part of the Appellate
Division found that a chronic lumbo-sacral sprain with a fifteen
percent permanent disability did not constitute sufficient
objective evidence to survive the defendants' motion for summary
judgment. Thorpe v. Cohen,
258 N.J. Super. 523 (App. Div. 1992).
By comparison, another part has ruled that a plaintiff could
survive a motion for summary judgment when her complaints
included total loss of taste and smell, as well as constant
headaches, daily dizziness, acute pain in her skull, facial
twitching, an inability to eat hard foods, ringing in her ears,
and the inability to bend or walk for longer than twenty minutes.
Mack v. Passaic Valley Water Comn'r,
294 N.J. Super. 592 (App.
Div. 1996). As those cases indicate, permanent loss of eyesight,
taste and smell satisfy the statutory standard.
In concluding plaintiff has sustained a permanent loss of a
bodily function under the Tort Claims Act, the Appellate Division
in the present case relied on decisions interpreting the No-Fault
Act. In some respects the threshold issue in actions against
public entities is similar to the verbal-threshold issue in no-fault cases. Thorpe, supra, 258 N.J. Super. at 526. Under both
statutes, a plaintiff must adduce objective evidence of claimed
injuries. Oswin v. Shaw,
129 N.J. 290, 314 (1992) (stating under
No-Fault Act plaintiff must show "material disputed fact by
credible objective medical evidence"); Mack, supra, 294 N.J.
Super. at 598 (stating in Tort Claims Act case "the critical
question is whether plaintiff has presented objective and
credible medical evidence if believed by a factfinder, of a
permanent loss of bodily function").
The substantive standards in the two statutes, however,
differ. The Tort Claims Act limits recovery for pain and
suffering to incidents in which the plaintiff has sustained
either "[(1)] permanent loss of a bodily function; [(2)]
permanent disfigurement; or [(3)] dismemberment." N.J.S.A. 59:9-2(d).
By comparison, the No-Fault Act permits recovery in cases
involving:
[(1)] death;
[(2)] dismemberment;
[(3)] significant disfigurement;
[(4)] a fracture;
[(5)] loss of a fetus;
[(6)] permanent loss of the use of a body
organ, member, function or system;
[(7)] permanent consequential limitation of
use of a body organ or member;
[(8)] significant limitation or use of a body
function or system; or
[(9)] a medically determined injury or
impairment of a non-permanent nature which
prevents the injured person from performing
substantially all of the material acts which
constitute that person's usual and customary
daily activities for not less than 90 days
during the 180 days immediately following the
occurrence of the injury or impairment.
Thus, the No-Fault Act contains nine categories or standards under which a plaintiff may seek recovery. Generally speaking, the categories start with more serious injuries and proceed to
less serious ones. Under the relevant section of the Tort Claims
Act, in contrast, a plaintiff may recover only if he or she
suffers a "permanent loss of a bodily function." The most
comparable standard in the No-Fault Act is "permanent loss of the
use of a body organ, member, function or system" (category six),
a standard that requires more serious injuries than do categories
seven, eight and nine.
Under the No-Fault Act, moreover, a plaintiff may merge the
requirements of one category into another. See e.g., Jefferson
v. Freeman,
296 N.J. Super. 54, 60-61 (App. Div. 1996) (examining
whether plaintiff's injuries fit into verbal threshold categories
seven, eight or nine); Pickett v. Bevaqua,
273 N.J. Super 1, 3
(App. Div. 1994) (examining whether plaintiff's injuries fit into
verbal threshold categories eight or nine); Polk v. Daconceicao,
268 N.J. Super. 568, 570 (App. Div. 1993) (examining whether
plaintiff's injuries fit into verbal threshold categories six,
seven or eight); Phillips v. Phillips,
267 N.J. Super. 305, 308
(App. Div. 1993) (examining whether plaintiff's injuries fit into
verbal threshold categories six, seven or eight); Dabal v.
Sodora,
260 N.J. Super. 397, 400 (App. Div. 1992) (examining
whether plaintiff's injuries fit into verbal threshold categories
six, seven or eight; Levine v. Miller,
272 N.J. Super. 512, 515,
517 (Law. Div. 1993) (examining whether plaintiff's injuries fit
into verbal threshold categories four or six).
We cannot find any reported case, and counsel has not cited
any, considering recovery under category six alone. Apparently,
plaintiffs seeking to recover under category six also seek
recovery under other categories. See Siriotis v. Gramuglia,
254 N.J. Super. 223, 231 (Law Div. 1991) (referring in case asserting
claims under categories six, seven and eight to "the lack of case
law interpreting a Type 6 injury in New Jersey"). In effect, a
plaintiff seeking to recover under the No-Fault Act may recover
not only for "a permanent loss of the use of a body organ,
member, function or system" (category six), but also for the
"permanent consequential limitation of use" of any such organ or
member (category seven), or the "significant limitation or use of
a body function or system" (category eight). Under the No-Fault
Act, therefore, a claimant may recover for a permanent injury
that merely imposes a limitation on the use of his or her back.
The No-Fault Act manifests legislative recognition that something
less than a "permanent loss of the use of a body organ, member,
function or system" would satisfy the verbal threshold.
In the Tort Claims Act, however, the Legislature did not
modify the requirement of a "permanent loss of a bodily function"
by stating that a mere limitation on a bodily function would
suffice. Although the legislative intent in the Tort Claims Act
is not completely clear, we believe that the Legislature intended
that a plaintiff must sustain a permanent loss of the use of a
bodily function that is substantial. A total permanent loss of
use would qualify. We doubt, however, that the Legislature
intended that a claimant could recover only for losses that were
total. As the Workers' Compensation Act demonstrates, the
Legislature is aware of the distinction between permanent
injuries that are total and those that are partial. N.J.S.A.
34:15-12(b) & (c). In the Tort Claims Act, however, the
Legislature did not specify that the right to recover was limited
to injuries that were total. We conclude that under that Act
plaintiffs may recover if they sustain a loss that is
substantial.
In reviewing the sufficiency of plaintiff's case, we accept
that she experiences pain and that the limitation of motion in
her neck and back is permanent. Still, she can function both in
her employment and as a homemaker. In brief, she has not
sustained "a permanent loss of a bodily function" within the
meaning of N.J.S.A. 59:9-2(d).
The remaining issue is whether plaintiff may recover from defendants her out-of-pocket expenses for co-payments and deductibles under her Personal Injury Protection ("PIP") coverage. The Law Division denied recovery, but the Appellate Division reversed. Under the No-Fault statute, a plaintiff may not recover such out-of-pocket expenses. Roig v. Kelsey, 135 N.J. 500 (1994). The underlying policy consideration is that allowing recovery for such claims would clog the court system with minor claims for reimbursement. Id. at 514. The same consideration applies to suits against public entities under the Act. We reach this conclusion notwithstanding the comment in the
Task Force Report favoring reimbursement of claimants for full
net economic losses. Task Force, supra, at 16. Given the
general legislative intent in the Act to immunize public entities
from liability, it would be contradictory to allow a plaintiff to
recover against a public entity when he or she could not recover
against a private party. We do not reach the question whether
uninsured claimants who may not recover for pain and suffering
under N.J.S.A. 59:9-2(d) may nonetheless recover the cost of
their medical expenses.
The judgment of the Appellate Division is reversed, and the
judgment of the Law Division dismissing the complaint is
reinstated.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN and COLEMAN join in JUSTICE POLLOCK'S opinion.
NO. A-132 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
BERTHA BROOKS and JOHN L.
BROOKS, her husband,
Plaintiffs-Respondents,
v.
WILLIE MAE ODOM and NEW JERSEY
TRANSIT BUS OPERATIONS, INC.,
Defendants-Appellants,
and
PORT AUTHORITY OF NEW YORK and
NEW JERSEY,
Defendant.
DECIDED July 15, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice Pollock
CONCURRING OPINION BY
DISSENTING OPINION BY