SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3369-97T2
MICHAEL OSLACKY and
PATRICIA OSLACKY,
Plaintiffs-Appellants,
v.
BOROUGH OF RIVER EDGE,
Defendant-Respondent.
Argued January 20, 1999 - Decided March 9,
1999
Before Judges Brochin and Kleiner.
On appeal from the Superior Court of
New Jersey, Law Division, Bergen County.
Barry S. Kantrowitz argued the cause for
appellants (Kantrowitz, Goldhamer & Graifman,
attorneys; Reginald H. Rutishauser, on the
brief).
Ian C. Doris argued the cause for respondent
(Harwood Lloyd, attorneys; Thomas A. Keenan,
of counsel; Christine M. Vanek, on the
brief).
The opinion of the court was delivered by
KLEINER, J.A.D.
This appeal raises two separate issues. First, we must
determine when and under what circumstances an injured plaintiff
may recover damages for "permanent disfigurement" under the New
Jersey Tort Claims Act ("the Act"), N.J.S.A. 59:9-2(d). Second,
we must determine whether the Law Division properly granted
summary judgment to defendant Borough of River Edge on plaintiff
Michael Oslacky's complaintSee footnote 1 alleging "permanent loss of a
bodily function" under the Act. Ibid.
On November 8, 1994, plaintiff, a thirty-six-year-old Oradell police officer, was engaged in a night-time handgun qualification exercise required by his employer. Plaintiff and other police officers seeking handgun qualifications were using the firing range of defendant Borough of River Edge. One of the other police officers fired a handgun. The discharged bullet apparently struck a target backdrop and a bullet fragment ricocheted, striking plaintiff in the head severing his left temporal artery. Plaintiff underwent emergency trauma surgery during which the temporal artery was tied. X-rays and CAT scans confirmed that the bullet fragment had lodged in and remained embedded in plaintiff's head within the connective muscle tissue of plaintiff's left temporomandibular joint ("TMJ").
Two weeks thereafter, on November 21, 1994, plaintiff, who complained of persistent headaches and jaw pain, consulted Dr. Michael B. Sisti, a neurosurgeon. Because of dangers inherent in the operative procedure to remove the bullet fragment, Dr. Sisti recommended that the bullet fragment remain, but suggested that plaintiff be observed to guard against bullet fragment migration, infection, or toxic lead side effects.
On November 20, 1995, plaintiff returned to Dr. Sisti. A report of that examination noted, in part:
[The] shrapnel fragment is lodged above the left temporal bone within the temporalis muscle itself. Over the year that the patient has had the bullet fragment within his skull, he has had 3 to 4 episodes per week of tenderness and headache at the site of the shrapnel injury. He had to go up a hat size as even pressure from his police officer cap would irritate this area. He has also noticed exercise headaches in the left temporal area and he is no longer able to sleep on the left side of his head.
. . . .
Undoubtedly, the headaches, tenderness and
discomfort the patient has is related to the
bullet fragment in the left temporalis
muscle. As this appears to be getting
progressively worse over time, and is
altering the patient's lifestyle and physical
activities, and due to the low risk of
surgical removal of this fragment, I would
recommend that if the patient wishes, the
fragment be removed . . . .
Based on Dr. Sisti's advice, plaintiff, on April 17, 1996,
underwent a stereotactically guided left temporal minicraniotomy.
Despite this surgery, plaintiff alleges that he continues to have
the same symptoms he had prior to surgery, i.e., persistent
headaches, persistent pain in his left jaw, an inability to wear
a correct hat size, and an inability to sleep on the left side of
his head. On a further evaluation conducted September 18, 1997,
Dr. Sisti opined that plaintiff's "main symptoms pain and
discomfort in the left temporal area are undoubtedly due to the
trauma of the gunshot wound and the surgical procedure to remove
it." (emphasis added).
Defendant's motion for summary judgment was predicated upon
its contention that plaintiff was barred from recovering damages
for pain and suffering due to the limitation embodied in N.J.S.A.
59:9-2(d).See footnote 2 In response, plaintiff's counsel filed a
certification contending, in part, that plaintiff has the
following permanent injuries, loss of bodily function, and
permanent disfigurement:
(a) his temporal artery struck by a
bullet was tied off during
emergency surgery so that bodily
function has been lost permanently;
(b) numbness on the left side of the
head . . . ;
(c) a permanent scar on his head
measuring from one to two inches in
length, located between the left
jawbone and ear, which are due to
the injury and vertical incisions
of two operations;
(d) a lump or bump of scar tissue
directly under the skin in the area
where the surgical incisions were
made, which can always be felt, and
is very sensitive and painful to
anything that may touch or rub it;
(e) severe, throbbing pain about two to
three times each week, always
beginning with a throbbing and
burning feeling localized in the
left side of his head at the area
of the injury and incision, and
accompanied by shooting pains from
the area down the cheek bone into
what feels like his inner left ear;
after about ten or fifteen minutes,
the throbbing pain increases to
include the entire left half of his
head; and these headaches almost
always last from four to six hours
or longer . . . .
(f) head pain [that] sometimes occurs
without warning, sometimes without
apparent cause, and also triggered
by touch, contact or rubbing of
anything against the left side of
the head; when he sleeps he will
awake in excruciating shooting
pains down his left cheek bone
toward the ear; upon rolling or
touching that side of his head;
also triggered on occasion by [his]
police cap; a winter hat; any
incidental contact with the area in
playing with [his] son; invariably
upon use of a motorcycle helmet;
by cold or cold and damp weather;
occasionally by biting or chewing
and invariably upon opening [his]
mouth very wide.
Prior to the return date of defendant's motion for summary
judgment, plaintiff was initially evaluated on January 2, 1998,
by Dr. Mark H. Friedman, a Clinical Associate Professor and
Director of the TMJ Clinic, Department of Dentistry at
Westchester County Medical Center, Valhalla, New York. In a
report dated January 5, 1998, Dr. Friedman noted:
Examination/observation
Claimant presents as a 36 year-old white
male, who works as a police officer. The
head and neck examination included jaw range
of motion observation, application of
resistance to the jaw opening and closing,
palpation of all accessible jaw, face, and
neck muscles, observation of cervical range
of motion, and an intra-oral examination.
The following abnormal signs were noted:
jaw opening of 44m elicited left TMJ pain at
wide opening, jaw protrusion and lateral
movement to the right elicited left temporal
pain, application of resistance to the jaw
closing muscles elicited left temporal
soreness, and tenderness of the following
areas were noted: lateral aspect of left TMJ
- extremely tender, the anterior left
temporalis muscles were tender, and the
enlargement over the surgical site was very
tender.
Impression
Acute left TMJ inflammation, and muscle
spasm of the left anterior temporalis muscle.
Based on tenderness to palpation, some
pathology related to the surgical area
exists. It does not appear - based on
extreme tenderness - to be just scar tissue.
Causal Relationship
The claimant's pain and dysfunction is
causally related to the 11/8/94 trauma.
Treatment Recommendation and Prognosis
Claimant requires TMJ treatment: a
removable appliance to reduce TMJ loading
forces, antiinflamatory treatment
medication, ice massage, direct TMJ steroid
instillation. A surgical consultation
regarding the surgical site is also
recommended. It appears, based on a
reasonable degree of medical certainty, that
this area may not be correctable. In this
case, claimant's discomfort would be
permanent, and might also prevent a full TMJ
recovery.
Immediately upon receipt of this report and prior to the return
date of defendant's summary judgment motion, plaintiff's counsel
amended answers to interrogatories and filed a copy of Dr.
Friedman's report with the motion judge as a further response to
defendant's motion and to supplement the certification previously
filed on plaintiff's behalf pursuant to R. 4:46-2(b). See Housel
v. Theodoradis,
314 N.J. Super. 597, 611 (App. Div. 1998).
The motion judge had the benefit of all of plaintiff's
medical records, including the emergency surgical records and the
surgical records of the procedure which removed the bullet
fragment. He also received plaintiff's original and supplemental
answers to interrogatories, plaintiff's complete deposition
testimony, and the medical reports received from both Dr. Sisti
and Dr. Friedman.
In granting summary judgment, the motion judge opined:
In the opinion of the Court, the
plaintiff failed to satisfy the Court that he
suffers from substantial and personal
injuries as defined under the cases, most
notably under Brooks v. Odom,
150 N.J. 395
(1997). He must prove that he has sustained
a substantial loss of bodily function that is
permanent in nature and although the injuries
sustained by the plaintiff are arguably
objective due to the doctor's report and
surgery, they do not, however, cause a
substantial loss of a bodily function to the
plaintiff, nor are they permanent in nature.
The plaintiff does complain of
occasional headaches, however, as the
defendant quite properly points out in his
reply brief, no doctor has diagnosed the
plaintiff with any neurological injury.
Furthermore, the plaintiff was able to fully
return to work and his daily activities.
As for the T.M.J., the plaintiff in his
certified answers to interrogatory [sic],
failed to include any such complaints.
Nevertheless, the plaintiff has complained
about the pain and has seen oral surgeons who
stated that the pain is from the accident.
Even if the injuries to the jaw and the
T.M.J. are permanent as a result of the
accident, the plaintiff still failed to prove
that the injuries have a substantial impact
on his life.
We conclude that the motion judge did not fully consider the
statutory criteria which are a prerequisite to a claim under the
Act. Additionally, any conclusion reached by the motion judge as
to plaintiff's TMJ condition was clearly premature and had the
effect of depriving plaintiff of a complete opportunity to
present proof of a prima facie case sufficient to withstand
defendant's motion. We reverse and remand for further
proceedings.
Since the matter was presented to the Law Division on defendant's motion for summary judgment, 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).
N.J.S.A. 59:9-2 imposes an obligation on one seeking recovery under the Act to prove either "a permanent loss of a bodily function" or "permanent disfigurement" or "dismemberment" and that "medical treatment expenses are in excess of $1,000." Defendant concedes plaintiff's medical treatment expenses are in excess of $1,000.
Plaintiff's certification in response to defendant's motion stated, in pertinent part:
There is a permanent scar on my head from the injury and vertical incisions of my two operations. The scar is about an inch or two long, located between the left jawbone and ear.
In considering defendant's motion, the judge failed to consider whether plaintiff's scar "between the left jawbone and ear" would constitute "permanent disfigurement" as required by N.J.S.A. 59:9-2(d). The failure to address plaintiff's claim of "permanent disfigurement" violated R. 1:7-4 requiring that "on every motion decided by written orders that are appealable as of right, the court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon."
In Brooks v. Odom, 150 N.J. 395 (1997), the seminal decision discussing the right of an injured plaintiff to recover for pain and suffering under the Act, the Supreme Court limited its discussion to an interpretation of the threshold requirement that a plaintiff must prove a "permanent loss of bodily function" and concluded, "To recover under the Act for pain and suffering, plaintiff must prove by objective medical evidence that the injury is permanent. Temporary injuries, no matter how painful and debilitating, are not recoverable." Id. at 402-03. Additionally, it noted, "[A] plaintiff must sustain a permanent loss of the use of a bodily function that is substantial." Id. at 406. The Court was not required to discuss the legislative intent as to the words "permanent disfigurement" and that phrase was not interpreted in Brooks, as the plaintiff there did not assert any claim for permanent disfigurement.
On appeal, neither party has specifically addressed this component of plaintiff's claim. However, subsequent to oral argument, this court fully addressed this issue. See Hammer v. Township of Livingston, N.J. Super. , (App. Div. 1999) (slip op. at 11) ("disfigurement" must be "permanent" and "substantial"). In Hammer, we also concluded that a motion judge must consider in addressing a motion for summary judgment where a plaintiff claims disfigurement resulting from a scar, the principles enunciated in Falcone v. Branker, 135 N.J. Super. 137 (Law Div. 1975), as expanded in Puso v. Kenyon, 272 N.J. Super. 280 (App. Div. 1994), to determine if a scar suffered by a tort claimant pierces the threshold of N.J.S.A. 59:9-2(d). Id. (slip op. at 11-15).
We also conclude that the dismissal of plaintiff's claim for "permanent loss of a bodily function," N.J.S.A. 59:9-2(d), was improvidently granted. The numerous cases interpreting summary judgment motion practice, R. 4:46, adhere to the principle that summary judgment should not be granted when discovery is incomplete. See Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988), (reaffirming the principle that "[g]enerally, we seek to afford `every litigant who has a bona fide cause of action or defense the opportunity for full exposure of his case'" (citations omitted)); Salomon v. Eli Lilly and Co., 98 N.J. 58, 61 (1984) (holding that on the facts presented, "[w]ithout deciding whether or when this matter will be ripe for summary judgment, it is clear that the case is not in a suitable posture for summary adjudication at this time"); see also Pressler, Current N.J. Court Rules, comment on R. 4:46-2 (1999).
As we have noted in detail, plaintiff was first examined by Dr. Friedman, a specialist in TMJ, on January 2, 1998. The motion for summary judgment was orally argued on February 6, 1998. The extensive treatment recommended by Dr. Friedman had not commenced as of the date of oral argument. Dr. Friedman opined, in part, "It appears, based on a reasonable degree of medical certainty, that this area, [plaintiff's left anterior temporalis muscle], may not be correctable. In this case, claimant's discomfort would be permanent, and might also prevent a full TMJ recovery." Brooks clarified the standard necessary to meet the threshold under N.J.S.A. 59:9-2(d). The Court held that in order to recover under the Act a claimant must sustain "a permanent loss of the use of a bodily function that is substantial." Brooks, supra, 150 N.J. at 406 (emphasis added). Brooks also imposed a requirement that a plaintiff prove a claim by "objective medical evidence." Id. at 402-03. Until such time as plaintiff is given a reasonable opportunity to receive the recommended treatment suggested by Dr. Friedman, the issue of permanency as legislatively defined, N.J.S.A. 59:9-2(d), and as interpreted in Brooks, cannot be determined and the grant of summary judgment was thus prematurely entered by the motion judge.
We also note that it is unquestioned, as noted by Dr. Sisti, that the entry of the bullet fragment into plaintiff's head severed plaintiff's left superficial temporal artery and that "branches of the left superficial temporal artery were tied off to stop the bleeding at this site" during emergency surgery immediately following the injury. It seems abundantly clear that a severed artery in itself might result in a "permanent loss of a bodily function." N.J.S.A. 59:9-2(d). The medical reports submitted by plaintiff fail to specifically address that possible claim, and the motion judge did not sua sponte reference same when he granted summary judgment. Since defendant's motion for summary judgment should have been denied without prejudice pending the completion of plaintiff's treatment under the care of Dr. Friedman, the parties may fully address that issue should defendant refile its motion for summary judgment.
Lastly, should plaintiff withstand defendant's motion for summary judgment on either his claim of "a permanent loss of a bodily function" or "permanent disfigurement," the motion judge must consider whether proof of a prima facie case of either claim will entitle plaintiff to submit evidence relating to both claims to the jury. See Puso, supra, 272 N.J. Super. at 293; see also Hammer, supra, N.J. Super. at (slip. op. at 5) (refraining to specifically address that issue due to a concession of counsel).
Reversed and remanded for further proceedings consistent with this opinion on plaintiff's disfigurement claim under the Act and without prejudice to defendant's right to refile its motion for summary judgment as to plaintiff's claim of "permanent loss of a bodily function."
Footnote: 1 Plaintiff Patricia Oslacky filed a per quod claim.
Footnote: 2 N.J.S.A. 59:9-2(d) provides, in pertinent part:
No damages shall be awarded against a public entity . . . 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 expenses are in excess of $1,000.00.