(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 February 18, 1997 -- Decided July 15, 1997
COLEMAN, J., writing for a unanimous Court.
The issue raised in this appeal is whether the verbal threshold provision of the Tort Claims Act
(Act), N.J.S.A. 59:9-2(d), bars a claim of permanent psychological harm in the form of post-traumatic stress
disorder caused by the rape of a prison inmate by a corrections officer.
On August 5, 1991, Jesse Collins, an inmate in the Union County Jail, was raped by Gayland
Robinson, a corrections officer at the jail. In April 1992, Collins sued Robinson, Union County, and other
governmental entities and employees seeking compensatory damages. Collins also sought punitive damages
from Robinson, who eventually pled guilty to the criminal charge of official misconduct in office. Collins
maintains that as a result of the rape, he suffers from a permanent post-traumatic stress disorder, as
diagnosed by a his treating psychologist. Collins does not contend that he suffered any physical injury.
In September 1995, the trial court granted Union County's motion to dismiss all claims for
compensatory damages and medical expenses against the governmental entities and employees. The court
found that, absent residual physical injury, Collins' complaints of post-traumatic stress disorder constituted
mere pain and suffering, and thus failed to meet the threshold requirement of N.J.S.A. 59:9-2(d). The
Appellate Division affirmed substantially for the reasons expressed by the trial court.
The Supreme Court granted Collins' petition for certification.
HELD: A claim of alleged permanent psychological harm in the form of post-traumatic stress disorder
resulting form a rape by a correction officer constitutes a "permanent loss of a bodily function"
within the meaning of N.J.S.A. 59:9-2(d) of the Tort Claims Act.
1. N.J.S.A. 59:9-2(d) establishes a rule of absolute immunity when the threshold requirement is not met for
certain categories of injuries. Because the Act does not define the phrase "permanent loss of a bodily
function," the Court must look at legislative history and contemporaneous enactments to ascertain the intent
of the Legislature. (pp. 5-6)
2. The Legislature intended that N.J.S.A. 59:9-2(d) preclude recovery for pain and suffering based on
subjective evidence or minor incidents. Where, however, there are aggravating circumstances such as
permanent loss of a bodily function, a permanent disfigurement, or dismemberment, and medical expenses
exceed $1,000 recovery for pain and suffering may not be prohibited. Thus, the Court must determine
whether the rape of an inmate is a sufficiently aggravating circumstance to qualify a permanent post-traumatic stress disorder, with no residual physical injury, as a "permanent loss of a bodily function." (pp. 6-8)
3. In Ayers v. Township of Jackson, the Court interpreted the threshold requirements of N.J.S.A. 59:9-2(d)
to find that the Legislature had expressly determined that the pain and suffering brought about by plaintiffs'
emotional distress was not compensable under the Act. However, Ayers is distinguishable. In Ayers,
plaintiffs were not physically violated and the actual claim of injury was different. The missing factor in all
but one of the reported cases, interpreting N.J.S.A. 59:9-2(d) is an aggravating and intrusive assault that
allegedly caused plaintiff to sustain a permanent psychological injury. Such an aggravating circumstance
occurred in this case. (pp. 8-18)
4. Given the legislative history of the threshold provision of the Act and other pertinent legislative
enactments, it is highly unlikely that the Legislature intended that only the physical injuries resulting from
rape are to be compensated under the Act. Because the Court is persuaded that the Legislature
contemplated that emotional trauma can be as disabling as a visible physical wound, psychological and
emotional injuries should be treated the same as physical injuries under the Act's threshold provision when
they arise in a context similar to the one in this case. (pp. 18-21)
5. N.J.S.A. 59:9-2(d) does not immunize Union County from liability for the post-traumatic stress disorder
from which Collins allegedly permanently suffers as a result of the rape by a corrections officer. That
alleged debilitating psychological disorder constitutes a "permanent loss of a bodily function" pursuant to
N.J.S.A. 59:9-2(d) of the Act. On remand, the trial court must determine whether the severity of Collins'
injuries can be characterized as "substantial," the threshold standard articulated in Brooks v. Odom.
(pp. 21-22)
Judgment of the Appellate Division is REVERSED and the complaint against the public entities and
public employees is REINSTATED and the matter is REMANDED to the Law Division for disposition of the
reinstated complaint.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
STEIN join in JUSTICE COLEMAN'S opinion.
SUPREME COURT OF NEW JERSEY
A-
102 September Term 1996
JESSIE COLLINS,
Plaintiff-Appellant,
v.
UNION COUNTY JAIL, UNION COUNTY
BOARD OF CHOSEN FREEHOLDERS, JAIL
DIRECTOR WARREN MACCARELLI,
CORRECTIONS OFFICER GAYLAND
ROBINSON, SUPERVISING LIEUTENANT
JOHN DOE 1, SUPERVISION SERGEANT
JOHN DOE 2, CORRECTION OFFICERS
JOHN DOE 3 through 5, JOSEPH SALEY,
OFFICER OF INTERNAL AFFAIRS, HAROLD
GIBSON, DEPUTY COUNTY MANAGER and
DIRECTOR OF DEPARTMENT OF PUBLIC
SAFETY,
Defendants-Respondents.
Argued February 18, 1997 -- Decided July 15, 1997
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
291 N.J. Super. 169 (1996).
Edwin J. McCreedy argued the cause for
appellant (McCreedy and Cox, attorneys).
Robert C. Doherty, Assistant County Counsel,
argued the cause for respondents (James F.
Keefe, County Counsel, attorney).
Nadine H. Taub and George W. Conk submitted a
brief on behalf of amicus curiae, National
Organization for Women of New Jersey (Ms.
Taub and Tulipan & Conk, attorneys; Michelle
J. Munsat, of counsel).
The opinion of the Court was delivered by
COLEMAN, J.
The issue raised in this appeal is whether the verbal
threshold provision of the Tort Claims Act ("Act"), N.J.S.A.
59:9-2(d), bars a claim of permanent psychological harm in the
form of post-traumatic stress disorder caused by the rape of a
prison inmate by a corrections officer. The trial court and the
Appellate Division both held that absent residual physical
injury, the inmate's complaints of post-traumatic stress disorder
constituted mere pain and suffering, and thus failed to meet the
threshold requirement of N.J.S.A. 59:9-2(d). We hold that a
post-traumatic stress disorder caused by a rape may constitute a
"permanent loss of a bodily function" within the meaning of the
Act.
In August 1991, plaintiff, Jessie Collins, was an inmate at
the Union County Jail in Elizabeth. He was confined to a "pod,"
which is a living area of the jail, located on the fourth floor.
Inmates were restricted to their living areas except when
required to attend a consultation, medical examination, or court
appearance. An inmate scheduled for a consultation would be
"called out" by a pod officer. The pod officer would escort the
prisoner to a locked sliding door to exit the living area. At
that point, the inmate would be turned over to a movement officer
or a "rover." The movement officer would escort the inmate to a
consultation area that was located one floor above the living
area. When the consultation was completed, the procedure would
be reversed. All such movements were required to be recorded.
Under no circumstance was a pod officer to take an inmate out of
a living area and into a consultation room.
On August 4, 1991, pod officer Gayland Robinson "called out"
plaintiff for a consultation. Robinson escorted plaintiff from
his living pod to the floor above and placed him in a holding
area leading to the consultation rooms. No movement officer was
utilized. Robinson then attempted to fondle plaintiff, but he
was interrupted by the sound of another officer in the area.
Robinson immediately returned plaintiff to his living area. The
logs of plaintiff's pod reflect that this movement was not
recorded.
On August 5, 1991, Robinson again called out plaintiff, this
time, for a medical examination. Once again, Robinson escorted
plaintiff out of the living area without utilizing a movement
officer. When plaintiff began to walk to the elevator area that
leads to the medical facility, Robinson directed him to walk up
the stairs to the consultation area where he had taken plaintiff
the previous day. Once there, Robinson began to fondle plaintiff
and kiss him. Eventually, Robinson pulled down plaintiff's pants
and forcibly sodomized him. Thereafter, Robinson directed
plaintiff to return to his living pod. Similarly, the second
inmate movement was not logged.
In April 1992, plaintiff instituted suit against Robinson,
Union County, and other governmental entities and employees
seeking compensatory damages. He also sought punitive damages
from Robinson. Plaintiff maintains that as a result of the
aggravated sexual assault he suffers from a permanent post-traumatic stress disorder, as diagnosed by a psychologist who
treated plaintiff. Plaintiff does not contend, however, that he
suffered any physical injury.
Robinson eventually pled guilty to criminal charges of
official misconduct in office. He was sentenced to a custodial
term of four years. He was also discharged from his job.
In September 1995, the trial court granted Union County's
motion to dismiss all claims for compensatory damages and medical
expenses against the governmental entities and employees,
concluding that plaintiff's injuries did not meet the threshold
requirement of the Act. A jury trial on the claims against
Robinson resulted in a verdict of $100,000 for compensatory
damages, $150,000 for punitive damages, and $3,220 for medical
expenses. The judgment against Robinson has been uncollectible
to date.
In October 1995, the trial court issued a reported opinion
to elaborate on its reasons for dismissing plaintiff's claims
against the governmental entities and employees.
291 N.J. Super. 318 (Law Div. 1995). The trial court concluded that a claim for
damages based on a chronic and permanent post-traumatic stress
disorder, unaccompanied by any residual physical injury, is
barred by N.J.S.A. 59:9-2(d). 291 N.J. Super. at 321. The trial
court held that such a claim is to be treated as pain and
suffering, recovery for which is precluded by statute. Ibid.
In a published opinion, the Appellate Division affirmed
essentially for the reasons stated in the trial court's opinion.
291 N.J. Super. 169, 170 (1996). We granted plaintiff's petition
for certification,
146 N.J. 565 (1996), and now reverse.
Plaintiff contends that by barring his claims based on
N.J.S.A. 59:9-2(d), the trial court and the Appellate Division
misconstrued the legislative intent of the statute. Plaintiff
asserts that the statute intends to preclude recovery for non-objective injuries resulting from minor incidents. Plaintiff
maintains, therefore, that to conclude that a victim of such a
heinous and direct assault as an aggravated sexual assault could
recover damages only if the rape were accompanied by significant
"physical" injury, requires an overly literal reading of the
statute.
Plaintiff's argument requires an analysis of N.J.S.A. 59:9-2(d). That statute establishes a rule of absolute immunity when
the threshold requirement is not met for certain categories of
injuries. It provides:
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,
permanent disfigurement or dismemberment
where the medical treatment expenses are in
excess of $1,000.00.
[N.J.S.A. 59:9-2(d).]
We have consistently held that when interpreting a statute,
"courts must seek to fulfill the statutory objective `so far as
the terms of the legislation and proper consideration of the
interests of those subject to it will fairly permit.'" State v.
Haliski,
140 N.J. 1, 9 (1995) (quoting State v. Gill,
47 N.J. 441, 444 (1966)); Merin v. Maglaki,
126 N.J. 430, 435 (1992). A
court should interpret a statute in a way that advances "the
sense and meaning fairly deducible from the context." Lesniak v.
Budzash,
133 N.J. 1, 14 (1993).
The focus in this appeal is on the phrase "permanent loss of
a bodily function." N.J.S.A. 59:9-2(d). That language was
incorporated into the Act when it was enacted in 1972. Although
the Act does not define the meaning of the pertinent phrase,
extrinsic aids, such as legislative history and contemporaneous
construction, are useful in ascertaining the intent of the
Legislature.
The Act was enacted after the submission to the Legislature
of a report by the Attorney General's Task Force on Governmental
Immunity in May 1972. When it was enacted, effective July 1,
1972, comments from the Task Force Report were appended to some
of the sections of the Act.
The Task Force comment to N.J.S.A. 59:9-2(d) explains that
[t]he 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--cases involving permanent loss
of a bodily function, permanent disfigurement
or dismemberment where the medical treatment
expenses are in excess of $1,000. The
limitation that pain and suffering may only
be awarded when medical expenses exceed
$1,000 insures that such damages will not be
awarded unless the loss is substantial.
[N.J.S.A. 59:9-2(d) cmt.]
In addition to the Task Force comments, the Legislature's
overriding philosophy is that immunity for public entities is the
general rule and liability is the exception. See N.J.S.A. 59:2-1(a); Kemp v. State,
147 N.J. 294, 299-300 (1997); Canico v.
Hurtado,
144 N.J. 361, 364 (1996); Fielder v. Stonack,
141 N.J. 101, 117 (1995); Tice v. Cramer,
133 N.J. 347, 355 (1993).
N.J.S.A. 59:9-2(d) is consistent with that legislative policy.
What emerges from the Task Force comments and the
legislative expressions is an intent that N.J.S.A. 59:9-2(d)
should preclude recovery for pain and suffering based on
subjective evidence or minor incidents. Where, however, there
are aggravating circumstances such as the permanent loss of a
bodily function, a permanent disfigurement, or dismemberment, and
the medical expenses exceed $1,000, recovery for pain and
suffering may not be prohibited. Stated another way, the
question becomes whether the rape of an inmate by a corrections
officer is a sufficiently aggravating circumstance to qualify a
permanent post-traumatic stress disorder, without residual
physical injury, as a "permanent loss of a bodily function." The
first step toward answering that question is an examination of
our case law.
This Court has had only one prior occasion in which to
interpret the threshold requirements of N.J.S.A. 59:9-2(d). In
Ayers v. Township of Jackson,
106 N.J. 557 (1987), the residents
of a municipality sued the town for damages sustained when their
well water was contaminated by toxic pollutants. Id. at 565.
The jury returned a verdict in favor of the residents that
provided compensation for three distinct claims of injury:
emotional distress caused by the knowledge that the residents had
consumed contaminated water for up to six years; deterioration of
quality of life during the twenty months when the plaintiffs were
deprived of running water; and the future cost of annual medical
surveillance that would be necessary to monitor the plaintiffs'
increased susceptibility to cancer and other diseases. Id. at
565-66.
The Court held that the residents' emotional distress claims
based on possible exposure to carcinogens were not recoverable
against the municipality. Id. at 576-77. The Court determined
that the subjective symptoms of depression, stress, health
concerns, and anxiety described by the plaintiffs "constitute[d]
`pain and suffering resulting from any injury' as that phrase is
used in N.J.S.A. 59:9-2(d)." Ayers, supra, 106 N.J. at 576. The
Court concluded, therefore, that although many of the plaintiffs
understandably experienced substantial emotional distress as a
result of the contamination, "the legislature ha[d] expressly
determined that the pain and suffering occasioned by their
emotional distress is not compensable by damages" from the
municipality pursuant to the Act. Id. at 577.
We find that Ayers is clearly distinguishable from the
present case. First, the plaintiffs in Ayers were not physically
violated in any manner. Here, plaintiff was brutally sodomized.
The residents' emotional distress in Ayers was triggered by fears
that they may have consumed contaminated drinking water, not by
any direct, violent, and invasive physical assault as occurred in
the present case.
Second, the actual claim of injury in Ayers differed
significantly from the injury alleged in the present case. In
Ayers, the Court explained that "[m]ost of the plaintiffs'
testimony on the issue of emotional distress was relatively brief
and general. Typically, their testimony did not indicate that
the emotional distress resulted in physical symptoms or required
medical treatment. No treating physicians testified regarding
plaintiffs' emotional distress claims." Id. at 572 (emphasis
added). In contrast, the testimony of plaintiff and his treating
psychologist in the present case provide strong evidence that
plaintiff suffered permanent psychological injury as a result of
the sexual assault. Plaintiff testified that since the sexual
assault, he suffers from frequent nightmares, flashbacks,
difficulty in sleeping, sudden outbursts of crying, screaming in
his sleep, a severe loss of self-esteem, and an inability to
trust others. Plaintiff's psychologist, who treated him for over
a year after the rape, testified that plaintiff suffers from a
post-traumatic stress disorder and that there is a very high
probability that the injury is permanent.
There are also several lower court decisions construing the
statute. The Appellate Division first confronted the issue in
Marion v. Borough of Manasquan,
231 N.J. Super. 320 (App. Div.
1989). In Marion, the plaintiffs were walking along a beach when
they were stopped by the beach patrol. Id. at 323. The
plaintiffs were stopped because they had allegedly violated a
local ordinance by walking on the beach in bathing attire without
a requisite permit. Id. at 324. The plaintiffs were taken to
the police headquarters for questioning and ultimately released.
Id. at 323-24.
The plaintiffs subsequently filed suit against the
municipality, alleging false arrest and harassment in violation
of the Act. Id. at 324. The Appellate Division held that even
if the arrest was unlawful, the municipality was immune from
liability by virtue of N.J.S.A. 59:9-2(d), because the plaintiffs
had failed to claim any identifiable harm. Marion, supra, 231
N.J. Super. at 331. The court stated: "Neither plaintiff
consulted a health care professional in connection with any
personal injury sustained as a result of his detention." Ibid.
In fact, one plaintiff described the impact of the incident as
follows:
It was a very traumatic experience. It was
threatening. I felt like I was totally raped
of all my rights that day. That's the last
thing I would expect to happen to me and I
would hope it would never happen again. . . .
I think about it from time to time. . . .
[T]he same situation could cause me to leave
the beach or decide not even to go to the
beach.
[Ibid.]
The court concluded that the plaintiffs' claims for damages
against the municipality were barred by the Act. Id. at 332.
There simply were no aggravating circumstances in that case.
In Srebnik v. State,
245 N.J. Super. 344 (App. Div. 1991),
the Appellate Division held that N.J.S.A. 59:9-2(d) barred a
motorist's claim for emotional distress resulting from her
witnessing the death of her injured husband. Srebnik, supra, 245
N.J. Super. at 352. In Srebnik, the plaintiff and her late
husband were involved in a car accident. Id. at 346. The police
were contacted by an eyewitness, but they were unable to locate
the car until the next morning. Id. at 347. The plaintiff's
complaint against the State alleged that the police officers had
failed to respond reasonably and promptly to reports of the
accident and to make a thorough search of the accident scene.
Ibid. The plaintiff argued that as a result of the officers'
inadequate efforts, her husband's chance of survival was lost and
that she suffered permanent emotional and psychological pain from
watching him die. Ibid.
The court held that
[i]n light of the Ayers holding that
emotional distress constitutes "pain and
suffering," plaintiff's claim here is barred
unless she suffered "permanent loss of a bodily
function, permanent disfigurement or dismemberment
where the medical treatment expenses are in excess
of $1,000.00." In this regard, it is not disputed
that plaintiff's physical injuries resulted from
the initial accident, the cause of which was not
attributable to either defendant. . . . Plaintiff
nevertheless argues that her depression and stress
disorder, independent of physical injuries,
constitute a "permanent loss of a bodily function"
because the condition has "permanently" prevented
her from carrying out her ordinary day-to-day
functions.
[Id. at 349-50 (footnote omitted).]
The court rejected the plaintiff's claim, stating that
"[n]either the Act nor Ayers equates `permanent' emotional injury
with `permanent loss of a bodily function.'" Ibid. The court
stated:
As we read Ayers, it interprets the Act as barring
claims involving intangible "subjective symptoms"
associated with personal injuries, irrespective of
the severity or duration of the symptoms, absent
the aggravating circumstances enumerated in the
Act. . . . Therefore, under the Ayers rationale,
symptoms of depression and stress are "subjective"
and "non-objective types of damages," whether
temporary or permanent in nature.
Moreover, the term "permanent loss of a
bodily function" must be read in conjunction
with its associated words "permanent
disfigurement or dismemberment." These later
words unquestionably pertain to injury to the
physical components of the body, not the
injured party's psyche.
[Id. at 350-51 (citations omitted).]
The court dismissed the plaintiff's suit because her distress had
not resulted in any physically disabling infirmity: "[T]he
residua of the unfortunate emotional trauma constitute the
intangible subjective symptoms of depression, stress and anxiety
barred by N.J.S.A. 59:9-2d." Srebnik, supra, 245 N.J. Super. at
352.
We find that both Marion and Srebnik are distinguishable
because the plaintiffs in those cases were not subject to any
direct physical violation. Additionally, Srebnik's reliance on
Ayers for the proposition that N.J.S.A. 59:9-2(d) does not equate
permanent emotional injury with "permanent loss of a bodily
function" is misplaced. Srebnik, supra, 245 N.J. Super. at 350.
As we have already noted, the emotional injury alleged in Ayers
was not caused by a physical assault. Rather, the claims in
Ayers were purely subjective, and were based on the plaintiffs'
belief that they may have been exposed to toxins. Here,
plaintiff's post-traumatic stress disorder, according to his
psychologist, is directly attributable to the sexual assault.
Randall v. State,
277 N.J. Super. 192 (App. Div. 1994), and
Thorpe v. Cohen,
258 N.J. Super. 523 (App. Div. 1992), are two
other lower court decisions that have addressed N.J.S.A. 59:9-2(d). In Randall, a prison visitor who was subjected to an
intrusive strip search prior to a visit with an inmate, filed an
action against prison officials under the Act. Randall, supra,
277 N.J. Super. at 194-95. The plaintiff alleged that as a
result of the strip search, she suffered from acute post-traumatic stress disorder. Ibid. The Appellate Division
dismissed the action, stating that "not only must there be
verifiable objective manifestations of emotional distress, but
those manifestations must be verified `by physical examination
and observation' of a physician" in order to meet the threshold
requirement of the statute. Id. at 197. The testifying doctor
never claimed in his reports that he had verified the plaintiff's
complaints by examination or observation. Ibid.
In Thorpe, a motorist brought an action for damages against
a police officer, police chief, police department, and
municipality, after sustaining injuries from excessive force used
during a motor vehicle stop. Thorpe, supra, 258 N.J. Super. at
525, 526. The motorist suffered a chronic lumbosacral sprain as
a result of the injury. Id. at 525. The court concluded that
the plaintiff's "claim for pain and suffering is barred in the
absence of an objective injury beyond the type involved" in that
case. Id. at 529. The court simply determined that the
plaintiff's injuries were not sufficiently aggravated to warrant
recovery.
Both Randall and Thorpe are distinguishable from the present
case. The injuries that plaintiff alleges to have sustained as a
result of the sexual assault are far more serious than the
sprained back muscle suffered in Thorpe. Furthermore, unlike the
doctor in Randall, plaintiff's psychologist verified his
diagnosis of plaintiff's injuries through a year-long course of
evaluation and treatment.
Two lower court cases, C.P. v. Township of Piscataway Board
of Education,
293 N.J. Super. 421 (App. Div. 1996), and A.C.R. v.
Vara,
264 N.J. Super. 565 (Law Div. 1992), have addressed the
applicability of the threshold requirement of N.J.S.A. 59:9-2(d)
to instances of sexual assault.
In C.P., an infant plaintiff brought a negligence action
against a state entity, alleging that a sexual touching by a
swimming instructor had resulted in psychological injury. C.P.,
supra, 293 N.J. Super. at 425, 427. As in the present case, no
apparent permanent physical injury had resulted from the
molestation. Id. at 427-28. The Appellate Division held that
the plaintiff's claim for emotional distress was barred by
N.J.S.A. 59:9-2(d) because the medical testimony failed to allege
that the child's trauma was of a long-term or permanent nature.
C.P., supra, 293 N.J. Super. at 429. That conclusion was based
on evidence from the psychologist who had treated the plaintiff
and testified that the problems of the child were transitory and
quickly resolved. Ibid. The psychologist expected no permanent
psychological or physical sequelae from the incident. Ibid.
In A.C.R., the infant plaintiffs were sexually assaulted by
a teacher and, thereafter, brought suit alleging that the public
entities had breached their duty to exercise reasonable
supervisory care for the children's safety. A.C.R., supra, 264
N.J. Super. at 566. As a result of the alleged breach of duty,
the plaintiffs claimed that they had sustained serious and
permanent injuries that were both physical and psychological.
Id. at 566-67.
The trial court concluded that the sexual molestation of a
child is presumed to result in serious physical and mental injury
for which damages are recoverable under the Act. Id. at 571-72.
The court first distinguished Ayers and Srebnik. It reasoned
that
the plaintiffs in Ayers were never physically
violated in any way. There was no tort or
assault perpetrated upon any of the
plaintiffs. The Ayers case was based in
nuisance which is derived from the laws of
property. Second, the Ayers Court was faced
with applying the different types of damages
available under the Tort Claims Act. It did
not specifically interpret the different
types of physical injuries that are
compensable under the Act.
The Srebnik case, supra, is not on point
with the facts of this case. In this matter
the court has dismissed those claims that are
factually similar to Srebnik, that is, the
claims of the parents for emotional distress
from observing the suffering of their
children arising from the child's injury. In
both Srebnik and Ayers the claims being made
were by a party who did not sustain the
injury upon which their claim was brought.
In Ayers it was the contamination of the
water, and in Srebnik it was the injury to
her husband. In this matter the infant
plaintiffs have been the victims of sexual
assault. They sustained an assault to their
body and person. The emotional distress for
which they seek damages flow from the injury
and assault they sustained.
[A.C.R., supra, 264 N.J. Super. at 569.]
The court also held that, for purposes of the motion to dismiss,
the children had sustained a medically recognized emotional
injury. Id. at 569-70. Therefore, the relevant question was
whether the "emotional injury" should qualify as a permanent
physical injury that is compensable under the Act. Id. at 570.
The court found that although there was no precedent
directly on point, Atlantic Employers Insurance Co. v. Tots and
Toddlers Pre-School Day Care Center, Inc.,
239 N.J. Super. 276
(App. Div.), certif. denied,
122 N.J. 147 (1990), offered some
guidance: "In Tots and Toddlers, the issue before the Appellate
Court was whether the defendant who was charged with sexually
molesting several children in his care had intended to injure the
victims thereby excluding such conduct from insurance coverage.
The court held that intent to cause injury can be inferred when
one commits an act of sexual abuse." A.C.R., supra, 264 N.J.
Super. at 570.
Specifically, the Tots and Toddlers court stated: "`A
subjective test suggests that it is possible to molest a child
and not cause some kind of injury, an unacceptable conclusion.
Certainly, one would and should expect some physical or
psychological injury or both, to result from such acts.'" Ibid.
(quoting Tots and Toddlers, supra, 239 N.J. Super. at 283).
The A.C.R. court concluded from that presumption of injury,
"that the requirements of N.J.S.A. 59:9-2(d) have been met as
there is permanent loss of a bodily function and or permanent
disfigurement when a child is sexually molested. This is true
even when the injury only manifests itself in psychological
symptoms." Id. at 571-72 (emphasis added). Therefore, the
A.C.R. court concluded that the sexual molestation of a child
creates a presumption that satisfies the threshold requirement of
the statute.
The missing link in all of the reported decisions, excepting
A.C.R., is an aggravating and intrusive assault that allegedly
caused the plaintiff to sustain a permanent psychological injury.
That combination of aggravating factors is present in the instant
case.
We hold that plaintiff's claim of alleged permanent
psychological harm in the form of post-traumatic stress disorder
resulting from the rape by the corrections officer, constitutes a
"permanent loss of a bodily function" within the meaning of
N.J.S.A. 59:9-2(d). As a result of the rape, plaintiff allegedly
lost the ability to function in a normal mental state. Plaintiff
and his psychologist testified that plaintiff suffers from
frequent nightmares, flashbacks, difficulty in sleeping, sudden
outbursts of crying, screaming in his sleep, a severe loss of
self-esteem, and an inability to trust others. Plaintiff's
psychologist testified that those psychological problems are a
direct result of the rape and will in all probability afflict
plaintiff for the rest of his life.
Our research discloses that Pennsylvania is the only other
jurisdiction that has a threshold provision in its Tort Claims
Act that is similar to New Jersey's, and counsel has cited no
other such jurisdictions. Its statute provides:
Damages shall be recoverable only for:
(2) Pain and suffering in the following
instances:
(i) death; or
(ii) only in cases of permanent
loss of a bodily function,
permanent disfigurement or
permanent dismemberment where the
medical and dental expenses
referred to in paragraph (3) are in
excess of $1,500.
[42 Pa. Cons. Stat. Ann. § 8553(c)(2)(i),
-(ii) (West 1982).]
No case, however, has interpreted that statute in the context of
the issues presented in the present case.
Nonetheless, post-traumatic stress disorder and its
accompanying symptoms have been recognized by other jurisdictions
as objective, physical injuries. See, e.g., Bloom v.
Consolidated Rail Corp.,
41 F.3d 911, 915 n.5 (3d Cir. 1994)
(asserting that plaintiff demonstrated physical manifestation of
injury under Federal Employers' Liability Act through weight
loss, loss of sleep, nightmares, vomiting, and diagnosed post-traumatic stress disorder); Towns v. Anderson,
579 P.2d 1163,
1164 (Colo. 1978) (en banc) (stating that nightmares,
sleepwalking, nervousness, and irritability showed sufficient
physical manifestation of injuries); Daley v. LaCroix,
179 N.W.2d 390, 396 (Mich. 1970) (recognizing that weight loss, inability to
perform household duties, extreme nervousness, and irritability
are facts from which jury could find physical injury). The
symptoms recognized as physical injuries in other jurisdictions
are the very symptoms that plaintiff allegedly experiences.
Similarly, in Saunderlin v. E.I. DuPont Co.,
102 N.J. 402 (1986),
this Court held that the term "function of the body" under the
Workers' Compensation Act, N.J.S.A. 34:15-36, that defines
permanent partial disability, includes psychiatric harm as a
compensable injury. Saunderlin, supra, 102 N.J. at 410.
We are satisfied that the Legislature could not have
intended that the verbal threshold provision of the Act would bar
all psychological claims caused by a rape simply because there
was no residual physical injury. To uphold the decision below,
would ascribe to the Legislature an indifference to the
devastating consequences of rape. Clearly such an indifference
does not exist, as evidenced by legislation defining personal
injury so as to include psychological harm. Under the New Jersey
Code of Criminal Justice, severe personal injury includes
"incapacitating mental anguish." N.J.S.A. 2C:14-1(f). Thus,
severe mental anguish can satisfy the serious bodily harm element
for first-degree rape. State v. Walter, 216 N.J. Super. 39, 43-44 (App. Div.), certif. denied,
108 N.J. 179 (1987). The
Criminal Injuries Compensation Act permits the payment of
compensation to victims of violent crimes who suffered any
"actual bodily harm . . . includ[ing] . . . mental or nervous
shock." N.J.S.A. 52:4B-2. In addition, the Crime Victim's Bill
of Rights defines a victim as "a person who suffers personal,
physical or psychological injury." N.J.S.A. 52:4B-37.
Given the legislative history of the threshold provision of
the Act and other pertinent legislative enactments, it is highly
unlikely that the Legislature intended that only the physical
injuries resulting from rape are to be compensated under the Act.
It is widely known that for the majority of rape victims, the
lasting harms are principally psychological rather than physical.
The Legislature explicitly recognized that fact when it enacted
the Victim/Counselor Privilege Act which provides that the
psychological and emotional injuries of rape "are often more
serious than the physical injuries suffered." N.J.S.A. 2A:84A-22.13(a); N.J.R.E. 517. A psychological injury involves the mind
which is as much a part of the body as the back, a leg, a hand,
or a finger. Because we are persuaded that the Legislature
contemplated that "emotional trauma can be as disabling as a
visible physical wound," State v. J.G.,
261 N.J. Super. 409, 418
(App. Div.), certif. denied,
133 N.J. 436 (1993), psychological
and emotional injuries should be treated the same as physical
injuries under the Act's threshold provision when they arise in a
context similar to that which precipitated plaintiff's injuries.
We hold that N.J.S.A. 59:9-2(d) does not immunize Union
County from liability for the post-traumatic stress disorder from
which plaintiff allegedly suffers, and will allegedly suffer
permanently, as a result of the rape by the corrections officer.
We find that that the alleged debilitating psychological disorder
constitutes a "permanent loss of a bodily function" pursuant to
N.J.S.A. 59:9-2(d). We leave to the trial court on remand to
determine whether the severity of plaintiff's injuries can be
characterized as "substantial," the threshold standard
articulated today in Brooks v. Odom, ___ N.J. ___, ___ (1997)
(slip op. at 13-14).
The judgment of the Appellate Division is reversed. The
complaint against the governmental entities and public employees
is reinstated. The matter is remanded to the Law Division for
disposition of the reinstated complaint.
Reversed and remanded.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI and STEIN join in JUSTICE COLEMAN'S opinion.
NO. A-102 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
JESSIE COLLINS,
Plaintiff-Appellant,
v.
UNION COUNTY JAIL, et al.,
Defendants-Respondents.
DECIDED July 15, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY
DISSENTING OPINION BY