SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-1552-99
MARIE R. NATALE and GREGORY
NATALE,
Plaintiffs-Appellants,
v.
MICHELE H. KISLING and GECAL
Defendants-Respondents.
_________________________________
Argued: November 27, 2000 Decided: January 9, 2001
Before Judges Newman and Wells.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, L-1202-98.
George A. Mauro, Jr., argued the cause for
appellants (Mauro, Savo, Camerino & Grant,
attorneys; Mr. Mauro, on the brief).
John T. Bazzuro argued the cause for
respondents (Wolff, Helies, Duggan, Spaeth
& Lucas, attorneys; Mr. Bazzuro on the brief).
This opinion of the court was delivered by
WELLS, J.A.D.
Plaintiff, Marie Natale, suffered personal injury as the
result of a rear end motor vehicle collision on July 9, 1998. In
the lawsuit which followed defendant asserted that the action was
barred by N.J.S.A. 39:6A-8, the verbal threshold statute and, after
discovery was complete, filed a motion to dismiss on that ground.
The motion judge granted the motion and dismissed the complaint.
Upon careful consideration of the record and the applicable law, we
reverse.
The record, which must be considered in a light most favorable
to plaintiff, reveals the following facts. The car that rear-ended
Natale was driven by defendant Michele Kisling, and owned by
defendant GECAL. According to Natale's deposition testimony, she
was thrown forward, her knees hit the driver's side door, and her
chest hit the steering wheel. Although plaintiff told the police
officer who arrived at the accident scene that her neck and knee
were painful, she declined to go to the hospital, and instead drove
herself and her children home.
Two days later, however, Natale visited her family physician,
Dr. Anthony Frisoli, complaining of continuing pain in her neck and
right knee. Dr. Frisoli noted that Natale had swelling and marks
on her knee, for which he prescribed Naprosin. He sent her for x-
rays of her neck, shoulder and knee, which revealed that the she
had suffered no bone fractures as a result of the accident.
In February 1997, Natale was examined by Dr. Norman M. Heyman,
an orthopedic surgeon. Dr. Heyman noted that Natale, as of
February 1997, was still reporting pain in her head, neck, shoulder
and right knee. He concluded that Natale was suffering from acute
cervical strain and sprain, acute lumbosacral strain and sprain,
contusion with overload to both shoulders, contusion with overload
to both hands, contusion of the right knee, and an aggravation of
her pre-existing hand arthritis. Dr. Heyman opined that these
diagnoses were causally related to the accident of November 9,
1996, but noted that it was at that point too early to discuss
whether plaintiff's disability was permanent. After a few office
visits, Dr. Heyman did report that the physical therapy that he had
prescribed appeared to be working fairly well, reducing the
plaintiff's muscle spasm and increasing the range of motion in her
neck.
Following the initiation of this lawsuit, however, Dr. Heyman
again examined Natale. On September 26, 1999, he issued a report
in which he stated that she still complained of persistent neck and
back pain, and exhibited decreased range of motion and muscle
holding in the back, and muscle holding, decreased range of motion,
and spasm in the neck. Due to the fact that these symptoms
persisted after three years, and despite rehabilitative therapy,
the doctor concluded at that time that Natale's disability - which
he once again attributed to the accident of November 9, 1996 - was
probably permanent.
Natale's deposition testimony relates the manner in which her
accident-related disability has impacted her life. According to
her, she attended a gym three times a week as part of her
rehabilitative regimen, using a treadmill and doing sit-ups and
other exercises. Natale testified that she has pain in her neck,
back and knees, and must take several Advil every day. She also
asserted that she can no longer wash floors, vacuum, do laundry or
do other household chores, and that her husband and children have
to do these chores for her. She noted that she now is unable to go
on trips in the car with her family to Canada, or to the shore,
which she was previously able to do so. Natale also testified that
she and her husband now only have sex once a month, when prior to
the accident, they averaged once every other day. Natale also
noted that she no longer works overtime at her job as a manual
laborer. According to her testimony, prior to the accident she
would often work twenty-two hours of overtime per week, never once
turning down the opportunity to take extra hours, but has not since
the accident been physically able to do so.
The motion judge held that the proofs presented an issue of
fact with respect to the first prong of Oswin v. Shaw,
129 N.J. 290
(1992). He held, however, that they were insufficient to raise
such an issue on the second, or subjective prong. That is, there
was little evidence of a serious impact on the plaintiff's life.
Plaintiff raises for our consideration four areas which she
contends demonstrate such an impact: (1) the effect of the injury
on her sex life; (2) the loss of her ability to work overtime; (3)
the loss of her ability to do many household chores; and (4) her
inability to take long automobile vacation trips.
Our case law treats loss of sexual activity in verbal
threshold cases as being an important signifier of "serious impact"
for Oswin purposes, especially when the loss of sexual activity is
combined with loss of overtime or other economic loss. In Cineas
v. Mammone,
270 N.J. Super. 200, 211 (App. Div. 1994), we found
that an accident which decreased a plaintiff's ability to have
sexual relations, when combined with loss of overtime and inability
to perform household chores, had impacted the plaintiff's life
sufficiently to overcome summary judgment under the Oswin test.
Likewise, Cavanaugh v. Morris,
273 N.J. Super. 38, 41 (App. Div.
1994) also held that, where loss of marital relations was coupled
with a complete inability to work outside the home, summary
judgment should be denied.
In the case at hand, Natale has offered evidence of a material
decrease in marital relations, coupled with an inability to work
overtime and other limitations on her life. When ruling, the
motion judge did not give any attention to this issue. We hold
that the cases cited require serious consideration in the overall
evaluation of this case.
In Shorter v. Leach,
277 N.J. Super. 617 (Law Div. 1994), the
court held that loss of ability to work, by itself, cannot be
enough to support the contention that an accident-related injury
has created a "serious" impact on a plaintiff's life. According to
Shorter, 277 N.J. Super. at 621, "as a matter of law ... economic
loss alone cannot raise a fact issue necessary to demonstrate that
plaintiff has suffered a serious impact on her lifestyle."
However, several cases have held that, where the inability to work
is combined with some lifestyle limitation, summary judgment will
be denied. For example, in both Cineas v. Mammone,
270 N.J. Super. 200, 211 (App. Div. 1994) and Cavanaugh v. Morris, 273 N.J. Super.
38, 41 (App. Div. 1994), already discussed above, we found that
serious impact existed when loss of ability to work was combined
with loss of sexual activity. Likewise, in Owens v. Kessler,
272 N.J. Super. 225 (App. Div. 1994), a serious impact was found where
plaintiff's injury both impeded his ability to work and also
interfered with his ability to engage in competitive sports and
complete his G.E.D.
The above cases can be compared to situations such as those in
Phillips v. Phillips,
267 N.J. Super. 305 (App. Div. 1993), where
summary judgment was upheld when the plaintiff was able to return
to work after an automobile accident after an absence of only three
weeks, or Sherry v. Buonansonti,
287 N.J. Super. 518 (App. Div.
1996), where plaintiff's restrictions in lifting at his retail
management job were not deemed serious enough to deny summary
judgment.
Here Natale offered evidence that prior to the accident she
had never once turned down overtime, often taking 22 hours per
week. Since, however, she has been unable to take any overtime at
all, as a result of her injuries. This restriction on her
inability to work overtime has persisted since the accident, which
occurred in 1996. Clearly, this is not temporary, as in Phillips,
nor can it rationally be placed in a category with the Sherry
plaintiff's injuries, which only restricted the plaintiff's ability
to push and pull heavy objects, but not his total work hours.
Ibid. Instead, Natale most closely resembles the plaintiff in
Cineas v. Mammone,
270 N.J. Super. 200 (App. Div. 1994). That
plaintiff testified that, due to his injuries, he was no longer
able to work overtime, and also claimed that his marital relations
were reduced.
Several verbal threshold cases have touched upon the issue of
whether an accident which has resulted in the plaintiff's inability
to perform household chores will pass the "serious impact" prong of
Oswin. Shorter v. Leach, 277 N.J. Super. at 622 noted that "Some
examples of serious impact on a lifestyle could be the inability to
do household chores." This statement was borne out in, once again,
Cineas v. Mammone,
270 N.J. Super. 200 (App. Div. 1994), where the
plaintiff asserted inability to perform household chores
contributed to the reversal of summary judgment. However, in
Brooks v. Odom,
150 N.J. 395 (1997), the Supreme Court upheld
summary judgment for a type 6 "permanent loss of body function"
claim, when the only claimed loss was an inability to do housework
without pain. Although it is not clear which type of injury Natale
alleges here, Brooks does seem to suggest that, where a plaintiff
alleges only a difficulty in performing housework, summary judgment
would be appropriate. This, however, is not the situation at hand,
where Natale has alleged four separate types of impact upon her
life. In the instant case, we deem it appropriate to consider her
inability to perform housework as part of the totality of
circumstances, but not dispositive of the serious impact prong of
Oswin by itself. That having been said, however, Natale's
difficulty with housework only serves to bolster her contention
that this case was best left to a jury, and should not have been
decided on summary judgment.
Our case law has also found that a serious impact on lifestyle
can be found where the plaintiff is unable to perform recreational
activities that were once an integral part of their lives. For
instance, in Dabal v. Sodora,
260 N.J. Super. 397 (App. Div. 1992),
a factual issue was found regarding seriousness of impact on
plaintiff's life when the plaintiff had been rendered unable to go
dancing, as a result of her injury, when dancing had been one of
her primary recreational activities. Likewise, summary judgment
was defeated in Owens v. Kessler,
272 N.J. Super. 225 (App. Div.
1994) partially because the plaintiff, a former athlete, was no
longer able to engage in competitive sports.
Here, Natale asserts that she once enjoyed trips to Canada and
Wildwood, but can no longer take them. Although this is evidence
that her recreational activities have been somewhat curtailed, we
cannot conclude that these activities were ever as integral to her
life as the dancer in Dabal or the athlete in Owens. It appears
these trips were simply occasional excursions, and not part of the
fabric of Natale's life. Therefore, we conclude that the fact that
she can no longer take trips to Canada or Wildwood does not aid
consideration of the serious impact prong.
In summary, Natale has offered three rather important impacts
on her life; substantial loss of sex, loss of overtime, and
inability to perform housework. We hold that, under these
circumstances, it is most consistent with the prevailing law to
rule that fact questions exist on the issue of serious impact. For
this reason the motion should have been denied.
Reversed and remanded.