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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0953-04T50953-04T5 JOHN J. PITARESI, Plaintiff-Appellant, and MILDRED J. PITARESI, Plaintiff, v. AMANDA L. CLARK, and WARREN E. CLARK, Defendants-Respondents, and JOHN PITARESI, Defendant. ____________________________________________________________

Submitted on September 14, 2005 - Decided Before Judges Fuentes and Graves. On appeal from Superior Court of New Jersey, Law Division, Bergen County, L-7788-02 and L-7814-02. Richard A. Dunne, attorney for appellant. Dougherty & Zirulnik, attorneys for respondents (Barbara Nabors, on the brief). PER CURIAM
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This is a verbal threshold appeal. Plaintiff John Pitaresi, alleged in his complaint that he injured his left hip in an automobile accident and that it was necessary for him to undergo a complete hip replacement approximately one month later. A jury determined that the other driver, defendant Amanda Clark, was 51% responsible for the accident, and that defendant's negligence was "a proximate cause of plaintiff's injuries." But plaintiff was not awarded any damages because the jury also found that plaintiff did not sustain an injury that seriously effected one or more activities that were a significant and important component of his way of life. In light of recent decisions by our Court, we reverse and remand for a new trial. During the jury charge, the trial judge referred to conflicting medical testimony regarding the relationship between the accident and plaintiff's hip replacement. The judge reminded the jury that plaintiff's expert, Dr. Wayne Colizza, "indicated that he found a direct connection or a causal relation between the injuries that John Pitaresi had and the requirement of having the hip replacement." The trial judge also reminded the jury that defendant's expert, Dr. Robert Goldstone, indicated "that the hip replacement was not related to the accident . . . . [H]e said that the hip replacement was . . . not a result of the accident in question." In addition, the jury was instructed as follows: [T]he Court advises you that the hip replacement which John Pitaresi went through is a permanent injury. In that regard, it is necessary for you to decide whether or not the hip replacement was required because of this particular accident or as the defendant says, it was from some other source. In addition, the plaintiff must prove that his injury . . . had a serious impact on his lifestyle. That is that the injury had seriously affected one or more activities, which was a significant and important component of John Pitaresi's way of life. This means that the plaintiff must prove that his injury has seriously affected one or more activities that was a significant and important component of the plaintiff's way of life. In other words, the plaintiff must prove that injury is such that the plaintiff is no longer able to attend to his regular routine activities, whatever they may be. The plaintiff must establish that he . . . has been and probably will be deprived of his future physical ability to engage in social or recreational activity that has previously been an important component of his way of life. As previously noted, the jury found a causal connection between defendant's negligence and plaintiff's injuries, but it also found that plaintiff's injuries failed to satisfy the serious life impact test enunciated in Oswin v. Shaw, 129 N.J. 290 (1992). On June 14, 2005, the Court decided DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005). DiProspero held that the plain language of 379 N.J. Super. 169 (App. Div. 2005), we determined that the DiProspero and Serrano decisions should be afforded pipeline retroactivity.

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In this case, the determination by the trial judge that plaintiff's hip replacement was a permanent injury and the determination by the jury that plaintiff had proven a causal relationship between his injury and the accident have not been challenged on appeal. Therefore, plaintiff has established liability and he is entitled to a new trial on damages.

The matter is remanded for further proceedings consistent with this opinion. (continued) (continued) 4 A-0953-04T5 September 28, 2005 0x01 graphic

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