(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 November 27, 2002 -- Decided February 27, 2002
PER CURIAM
The issue in this appeal, like that in Kahrar v. Borough of Wallington, ____ N.J. ____ (2002), also decided
on this date, is whether the plaintiff, Robert Ponte, has satisfied the threshold for awarding pain and suffering
damages under the Tort Claims Act, N.J.S.A. 59:9-2d, based on an injury to his knee (torn medial meniscus)
requiring arthroscopic surgery.
Plaintiff, Robert Ponte, was injured on March 8, 1995, when his stalled car was struck by a New Jersey
Transit bus. The impact of the bus caused the back of Ponte's driver's seat to break and his right knee to strike the
dashboard. Following the accident, Ponte was admitted to the St. Clare Riverside Medical Center complaining
primarily of pain in his neck and in his right lower leg. He was treated and released the same evening. Shortly
thereafter, Ponte began treatment with Dr. David J. Feldman, an orthopedic surgeon. Dr. Feldman initially
recommended physical therapy. However, when Ponte's complaints of knee pain persisted, he ordered an MRI.
The MRI revealed a small joint effusion and a small tear in the posterior horn of the medial meniscus.
Following the MRI, Ponte continued to complain of ongoing pain in the right knee and of increasing
symptoms with activities. Based on the those increased complaints and symptoms, Dr. Feldman recommended
arthroscopic surgery on the right knee, which was performed in late June 1995. In his post-operative report, Dr.
Feldman noted that Ponte had “tolerated the procedure well.” Approximately one week post surgery, Dr. Feldman
noted that Ponte was “doing well” and that his knee motion was “almost full with minimal pain. Although Ponte
complained of pain and tenderness during subsequent post-operative evaluations, Dr. Feldman determined that there
was no instability in the knee or tenderness. He prescribed local injection and anti-inflammatory medication.
During a visit on July 29, 1996, Dr. Feldman noted that Ponte's knee had “good motion . . . with occasional
pain in the medial side . . . associated with flexion.” He then discharged Ponte to be seen only on “as needed” basis.
He next saw Ponte over a year later in October 1997, at which time Ponte complained of neck and buttock pain.
Following that visit, Ponte did not return for almost two years until his last visit on September 22, 1999. Dr.
Feldman's notes relative to that visit state that since the surgery, Ponte had one or two episodes of the right knee
“giving way.” Although the examination showed some tenderness and Ponte had positive responses to pain tests,
Dr. Feldman observed that there was good range of motion and good stability. In his final assessment concerning
Ponte's knee, Dr. Feldman stated that Ponte had sustained a probable derangement of the right knee and that Ponte
had ongoing symptoms relating to the knee. He determined that the accident had left Ponte with a “permanent loss
of bodily function.”
In January 1997, Ponte and his wife filed suit in the Law Division against the bus driver and against New
Jersey Transit. During the course of discovery and in his answers to interrogatories, Ponte complained of certain
limitations in respect of his knee for a period of time following the accident while Ponte attempted to exercise or to
perform housework. He was not deposed and there was no other evidence in the record indicating that Ponte's
range of motion was limited, that his gait was impaired, or that his ability to ambulate was restricted.
In May 1998, almost three years after surgery, Ponte submitted to a medical defense exam by Dr. Ralph E.
Ricciardi. At that time, Ponte denied any complaints regarding his knee. Dr. Ricciardi's report indicated that
Ponte's range of motion in his right knee (the injured knee) was the same as that in his left knee. He further noted
that Ponte's gait was normal, that there was no evidence of any internal derangement in the right knee, and that
Ponte was able to ambulate and squat without difficulty.
At some point following Ponte's filing of suit, the defendants filed a motion for summary judgment, which
the trial court granted. The Appellate Division reversed the trial court's determination that Ponte had not presented
a factual legal issue concerning the threshold requirement under the Tort Claims Act. Specifically, the Appellate
Division found that Ponte had presented a triable issue of fact concerning whether his knee injury constituted a
permanent loss of a bodily function that was substantial.
The Supreme Court granted New Jersey Transit's and Overeem's petition for certification.
HELD: Plaintiff, who was injured when his stalled automobile was struck by a New Jersey Transit bus, has not
satisfied the Tort Claims Act's threshold for awarding pain and suffering damages based on a torn medial meniscus
that required arthroscopic surgery, but that did not result in any limitation in range of motion or other function.
1. The nature or degree of an alleged ongoing impairment determines whether a specific injury meets the threshold
requirement under the Tort Claims Act, and there is no per se rule that would preclude finding a permanent and
substantial loss of a bodily function merely because a claimant still is able to function reasonably well at work and
at home, regardless of the nature and degree of the impairment. (pp. 10-12)
2. Ponte's allegations concerning the injury to his knee do not establish a loss of normal bodily function that is both
permanent and substantial, and merely iterates a claim for pain and suffering. Thus, he has not satisfied the
threshold for recovering pain and suffering damages under the Tort Claims Act.
Judgment of the Appellate Division is REVERSED and summary judgment in favor of the defendants
granted by the Law Division is REINSTATED.
JUSTICES VERNIERO and LaVECCHIA filed a separate opinion concurring in the disposition of the
Court solely on the basis that it complies with the standard articulated in Brooks v. Odom,
150 N.J. 395 (1997),
which they believe is the appropriate standard to be applied in evaluating claims for non-economic damages against
a public entity under the Tort Claims Act.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, and ZAZZALI join in this PER
CURIAM opinion. JUSTICES VERNIERO and LaVECCHIA filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A-
99 September Term 2000
ROBERT PONTE and PRISCILLA
PONTE,
Plaintiffs-Respondents,
v.
RICHARD OVEREEM and NEW
JERSEY TRANSIT, INC.,
Defendants-Appellants.
Argued November 27, 2001 -- Decided February 27, 2002
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
337 N.J. Super. 425 (2001).
Jeffrey J. Miller, Assistant Attorney
General, argued the cause for appellants
(John J. Farmer, Jr., Attorney General of
New Jersey, attorney; Michael J. Haas,
Assistant Attorney General, of counsel;
Karen L. Jordan, Deputy Attorney General, on
the brief).
James J. Mahoney argued the cause for
respondents.
PER CURIAM
In this appeal we consider whether plaintiff, Robert Ponte,
may recover for pain and suffering damages under the Tort Claims
Act, N.J.S.A. 59:1-1 to 59:12-3. At issue is whether an injury
to plaintiff's right knee requiring arthroscopic surgery
satisfies the threshold requirement under that Act. N.J.S.A.
59:9-2d. The Appellate Division reversed an order granting
summary judgment for defendants, holding that plaintiff had
raised a factual issue concerning whether his knee injury
constituted a “permanent loss of a bodily function that is
substantial.” Gilhooley v. County of Union,
164 N.J. 533, 541
(2000). We now reverse.
On March 8, 1995 while driving westbound on the helix leading from the Lincoln Tunnel, plaintiff's car stalled because of an electrical malfunction. There was no shoulder where plaintiff could pull over safely, so his car remained where it stalled in the far right traveling lane. Shortly thereafter, a New Jersey Transit bus traveling in the far right lane rear-ended his car. The impact caused the back of plaintiff's driver's seat to break and his right knee to strike the dashboard.
Following the accident, plaintiff was admitted to the St. Clare Riverside Medical Center complaining primarily of pains in his neck and in his right lower leg. The treating physician diagnosed a cervical sprain and a contusion on his right leg. Plaintiff was discharged from St. Clare on the same night.
On March 9, 1995, the day following the accident, plaintiff came under the care of Dr. David J. Feldman, an orthopedic surgeon. Dr. Feldman's initial examination of plaintiff revealed “marked decreased motion of the cervical spine” and “abrasions and resolving contusions over the right tibia.” Knee, hip and ankle examinations were negative, indicating no neurological deficits. Dr. Feldman recommended a soft collar, medication and limited physical therapy.
When Dr. Feldman saw plaintiff on April 13, 1995, plaintiff complained primarily of stiffness in his neck and pain in his back. However, plaintiff also complained of some locking and clicking in his right knee and pain in the medial area, the side of the knee closest to the other knee. He also had positive responses to pain tests. Dr. Feldman determined that the “right knee had signs of internal derangement” and there was probably a tear of the meniscus.See footnote 11 He recommended continuation of the exercise program and medication.
On April 19, 1995, plaintiff had an MRI that revealed a small joint effusion and a small tear in the posterior horn of the medial meniscus. The MRI additionally revealed that the medial and lateral collateral ligaments were intact, as were the quadriceps tendon and the patellar ligament. The posterior and cruciate ligaments also were intact.
Plaintiff was again reevaluated on April 27, 1995 when he complained of ongoing pain in the right knee. At that time, Dr. Feldman indicated that plaintiff had “increasing symptoms with activities.” Based on those increased symptoms and lack of improvement, Dr. Feldman recommended arthroscopic surgery on the right knee.
On June 25, 1995, plaintiff again was admitted to St. Clare after he fell over his handlebars while riding his mountain bike. During that admission to St. Clare, plaintiff complained of back and groin pain.
On June 30, 1995, less than one week after his biking accident, plaintiff underwent arthroscopic partial medial menisectomy, partial synovectomy and chondroplasty of the patella in the right knee. The purpose of the surgery was to repair the small tear of the medial meniscus and treat the synovitis of the plica band and the Grade 2 chondromalacia of the patella. In his post-operative report, Dr. Feldman noted that plaintiff had “tolerated the procedure well.” Plaintiff saw Dr. Feldman for a post-operative visit on July 5, 1995. Dr. Feldman noted that plaintiff was “doing well” and that the “[k]nee motion was almost full with minimal pain.”
Dr. Feldman reevaluated plaintiff on August 17, 1995 and indicated that the knee had only “slight tenderness.” He also noted that plaintiff again was exercising and had returned to work. Plaintiff saw Dr. Feldman on September 13, 1995 after he experienced some pain in the medial side of the knee while squatting and putting on a bicycle tire. Dr. Feldman determined that there was still some tenderness but that there was no instability or swelling. Plaintiff also had negative responses to pain tests. Dr. Feldman diagnosed medial collateral ligament strain and mild hamstring tendonitis, and prescribed local injection and anti-inflammatory medication.
Plaintiff next saw Dr. Feldman on December 11, 1995, complaining of ongoing pain in his right knee. Dr. Feldman prescribed local injections, stretching, ice, and anti- inflammatory medication. Dr. Feldman saw plaintiff again on January 29, 1996 and noted that plaintiff had improved. Specifically, Dr. Feldman noted that the “knee had done well with minimal tenderness noted [and] slight medial joint line pain.” Plaintiff's primary and ongoing complaint on that date concerned his neck.
On July 29, 1996, Dr. Feldman noted that plaintiff's “knee had good motion . . . with occasional pain in the medial side . . . associated with flexion.” Dr. Feldman then discharged plaintiff to be seen only on an “as needed” basis. He next saw plaintiff on October 20, 1997, at which time plaintiff complained of neck and buttock pain. Dr. Feldman also indicated that “[d]eep tendon reflexes and motor sensory examination[s]” were negative.
Dr. Feldman's notes indicate that following the visit on October 20, 1997, plaintiff did not return for almost two years until his last visit on September 22, 1999. Dr. Feldman's notes relating to that visit state that since the surgery in 1997 plaintiff “had had one or two episodes of the right knee giving way.” An examination of the knee showed some tenderness in the medial compartment. Plaintiff also had positive responses to pain tests. Dr. Feldman observed that there was good range of motion and good stability. Plaintiff continued to complain of back and neck pain and also complained of a tingling sensation in the lateral thigh. X-rays of the knee showed that there was no specific bony lesion. Standing films showed maintenance of the joint space without any obvious significant arthritis. Dr. Feldman's final assessment concerning plaintiff's knee stated that plaintiff had sustained
probable internal derangement of the knee, despite arthroscopic surgery [and] there can be recurring episodes of chondromalacia patella[,] which may be permanent in nature.
. . . The knee has had ongoing symptoms and further evaluation can be considered in the future to see if there is any potential [chance] of additional surgeries giving him improvement over time. However, the patient had chondromalacia of the patella and this may progress despite surgical intervention as well. In my opinion, the residuals of the motor vehicle accident have left a permanent loss of bodily function.
On May 5, 1998, almost three years after his surgery, plaintiff visited Dr. Ralph E. Ricciardi, defendants' orthopedic expert. At that time, plaintiff told Dr. Ricciardi that his primary complaint was his neck and back and that he had no complaints regarding his right knee. Dr. Ricciardi indicated that the “[r]ange of motion of the right knee was 0 [degrees] of extension to 135 [degrees] of flexion.” He noted further that the range of motion of the left knee was the same as the right knee. He also stated that “[t]here was no muscular spasticity or bony deformity present in the right knee.” Dr. Ricciardi further observed that plaintiff's gait was normal, there was no evidence of any internal derangement in the right knee, and plaintiff was able to ambulate and squat without difficulty. Answers to interrogatories submitted by plaintiff indicate that before the accident he was an avid biker and often biked three to four times per week. Following the accident, plaintiff was unable to bike at all for approximately six months and then only infrequently for approximately one year after the accident. Plaintiff also lifted weights two to three times per week prior to the accident. After the accident, he was unable to lift weights at all for approximately six months and then only sporadically for approximately one year after the accident. Plaintiff also contended that he was unable to do household chores and yard work for several months after the accident and was restricted in performing those activities for sometime thereafter. Plaintiff further indicated that he was unable to sit for more than ten minutes without pain and that his sleep was disturbed each night by pain. Those complaints of pain, however, appear to be related to his neck and back only.
In January 1997, plaintiff and his wife, Priscilla, instituted a suit in the Law Division against defendants. After summary judgment was granted in favor of defendants, plaintiff and his wife appealed.
The Appellate Division reversed the trial court's determination that plaintiff had not presented a factual issue concerning the threshold requirement under the Tort Claims Act. Ponte v. Overeem, 327 N.J. Super. 425, 435 (App. Div. 2001). The court reviewed our decisions in Brooks v. Odom, 150 N.J. 395, 402-04 (1997), and Gilhooley, supra, 164 N.J. at 541, where we stated that in order to recover for pain and suffering damages under the Tort Claims Act a plaintiff must show an objective permanent injury and a “permanent loss of a bodily function that is substantial.” The court observed that on a motion for summary judgment “the evidence could weigh in favor of the motion's proponent to a compelling degree, to the extent that there would be no genuine issue of fact, so that the proponent of the motion would be entitled to judgment as a matter of law.” Ponte, supra, 327 N.J. Super. at 431. On the other hand, “the motion's proponent might not be entitled to judgment, and might even be susceptible to the loss of a cross-motion for summary judgment, because the proofs are overwhelming against him.” Ibid.
The court further noted that in some instances, “there also could be a grey area between these two extremes, where the evidence is conflicting and neither party is entitled to judgment as a matter of law.” Ibid. It concluded that when a case falls into this grey area, summary judgment should be denied because the “proponent of the motion has not carried his burden of showing there is no genuine issue of fact.” Ibid. In construing the evidence most favorably to plaintiff, the court concluded that plaintiff's case fell into that grey area. Id. at 434. Hence, the court reversed the order granting summary judgment to defendants, finding that plaintiff had presented a triable issue of fact concerning whether his knee injury constituted a permanent loss of a bodily function that was substantial. Id. at 435. This Court granted defendants' petition for certification. 168 N.J. 293.
In Kahrar v. Borough of Wallington, __ N.J. __ (2002), also decided today, we considered whether the plaintiff, who had torn her rotator cuff, could recover pain and suffering damages under the Tort Claims Act. There, the plaintiff had tripped on an improperly sealed water valve box located in the street. The plaintiff suffered a massive tear to her rotator cuff requiring invasive surgery that resulted in the shortening of the length of the reattached tendon. After surgery, the plaintiff continued to complain of pain in the injured shoulder. Her doctor also noted a significant decrease in the range of motion in her left shoulder and arm. Notably, the doctor observed that the plaintiff's forward flexion measured 120 degrees compared with 170 degrees for the right arm, and that the plaintiff's ability to externally rotate the left arm while abducted measured forty five-degrees compared with eighty degrees for the right arm. In addition, the plaintiff's “ability to extend her arm behind her back was compromised because she was able to reach only the second of the five lumbar vertebra (lower back) with her left hand, but could extend her right arm higher to reach the eighth of the twelve thoracic vertebra (mid back).” Kahrar, supra, __ N.J. at ___ (slip op at 6). We noted also that the defendant's own doctor had concluded that the plaintiff sustained a forty percent loss of full motion in her left shoulder.
We considered the plaintiff's substantial medical bills of approximately $25,000, her lost wages and the fact that she missed approximately one hundred days of work. In addition, we acknowledged that the plaintiff's injury affected her ability to complete her normal work responsibilities and to perform all of her regular household tasks. We also considered the difficulty that the plaintiff experiences while driving, sleeping through the night, reaching certain areas of her body and continuing her hobbies. Id. at __ (slip op at 7-8).
The Court observed in Kahrar that it is the nature or degree of the ongoing impairment that determines whether a specific injury meets the threshold requirement under the Tort Claims Act. Thus, there is no per se rule that would preclude finding a permanent and substantial loss of a bodily function merely because a claimant still is able to function reasonably well at work and at home, irrespective of the nature or degree of the impairment. Based on that standard, we held that the “plaintiff has adequately demonstrated a permanent and substantial loss of a bodily function.” Kahrar, supra, __ N.J. at __ (slip op at 20).
In applying that standard, we find that this plaintiff has not satisfied the threshold for recovering pain and suffering damages under the Tort Claims Act. For reasons not entirely clear from the record, plaintiff was never deposed. Thus, the plaintiff's evidence consists only of answers to interrogatories and numerous medical reports. Noticeably absent from the record, however, is any evidence that plaintiff's range of motion is limited, his gait impaired or his ability to ambulate restricted. Plaintiff also has not demonstrated that there is any permanent instability in the knee, citing only the one or two instances of his knee “giving way” since his surgery in 1995. The record also does not support that plaintiff currently is restricted because of his knee in performing his work responsibilities, household chores, yard work, or in his weightlifting or biking activities. Unlike the plaintiff in Kahrar whose reattached tendon was shortened by the surgical repair of her rotator cuff and who sustained a forty-percent restriction in motion, plaintiff has not demonstrated any physical manifestation of his claim that the injury to his knee is permanent and substantial. In sum, plaintiff's allegations concerning the injury to his knee do not establish a loss of normal bodily function that is both permanent and substantial, but merely “iterates a claim for pain and suffering.” Brooks, supra, 150 N.J. at 403 (citations omitted). In our view, this record does not present a material issue of fact about whether plaintiff's knee injury constitutes a permanent loss of a bodily function that is substantial.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, and ZAZZALI join in this per curiam opinion. JUSTICES VERNIERO and LaVECCHIA filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A- 99 September Term 2000
ROBERT PONTE and PRISCILLA
PONTE,
Plaintiffs-Respondents,
v.
RICHARD OVEREEM and NEW
JERSEY TRANSIT, INC.,
Defendants-Appellants.
VERNIERO, LaVECCHIA, JJ., concurring.
We concur in the disposition of the Court solely on the basis
that it complies with the standard articulated in Brooks v. Odom,
150 N.J. 395 (1997). For the reasons expressed in the dissenting
opinion in Kahrar v. Borough of Wallington, ___ N.J. ___, ___
(2002) (Verniero, J., dissenting), we believe that the Brooks
standard is the appropriate one to be used when evaluating claims
for non-economic damages against a public entity under the Tort
Claims Act.
NO. A-99 SEPTEMBER TERM 2000
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
ROBERT PONTE and PRISCILLA
PONTE,
Plaintiffs-Respondents,
v.
RICHARD OVEREEM and NEW
JERSEY TRANSIT, INC.,
Defendants-Appellants.
DECIDED February 27, 2002
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY Justices Verniero and LaVecchia
DISSENTING OPINION BY
Footnote: 11 The meniscus is a “firm, rubbery type of cartilage” between the thigh and shin bone in the knee. It acts as a shock absorber and “provides some stability to the knee.” Meniscal Tears, <http://www.med.virginia.edu/medicine/clinical/orthopaedics/ menisc.html.> (visited January 24, 2002).