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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5699-08T2

TRACEY JACKSON,

Plaintiff-Appellant,

v.

DANIEL CONTENTO and TOWNSHIP OF HAMILTON, jointly, severally and in the alternative,

Defendants-Respondents. ___________________________________________________ October 6, 2010 Submitted June 7, 2010 - Decided

Before Judges R. B. Coleman and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County,
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Docket No. L-745-08.

Kardos, Rickles, Bidlingmaier & Bidlingmaier, attorneys for appellant (Clifford D. Bidlingmaier, III, of counsel and on the brief).

Weiner Lesniak, LLP, attorneys for respondents (Alan J. Baratz, of counsel; Brad M. Weintraub, on the brief).

PER CURIAM

In this personal injury action, plaintiff Tracey Jackson appeals from a June 12, 2009 order granting summary judgment in favor of defendants Township of Hamilton police officer Daniel Contento and Township of Hamilton. The order dismissed plaintiff's complaint with prejudice for failing, as a matter of law, to meet the injury threshold of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. More specifically, the judge ruled that though the plaintiff's injuries were permanent, there was not a permanent loss of bodily function that was substantial. We affirm. On April 9, 2006, the vehicle driven by Contento rear-ended plaintiff's stationary vehicle while Contento was acting in the course of his employment as a police officer with the Township of Hamilton. After the collision, plaintiff drove herself home. The next morning, she awoke in a great deal of pain and contacted her primary care physician. On April 11, 2006, plaintiff visited her primary care physician and was instructed to take Tylenol and warm baths. Subsequently, plaintiff was treated by Dr. Barry D. Fass for complaints that included headaches, neck pain, mid-back pain, lower back pain, dizziness, disorientation and right shoulder and right arm paresthesias. After multiple visits with Dr. Fass and several other specialists, Dr. Fass opined as of April 28, 2008, two years after plaintiff's motor vehicle accident, that plaintiff suffered from the following conditions: (1) cervical strain; (2) disc bulges C2-3, C3-4, C4-5, C5-6, C6-7; (3) improved thoracic strain; (4) lumbar strain; (5) disc herniation L4-5; (6) tendonitis right shoulder; and, (7) right C6 and C7 radiculopathies. Dr. Fass concluded in his narrative report that plaintiff "ha[d] sustained permanent injury to her cervical spine, lumbar spine and right upper extremity as a direct consequence of the motor vehicle accident that occurred on April 9, 2006."
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In addition to Dr. Fass, plaintiff was evaluated by Dr. Pendino, a board certified neurologist. On September 26, 2006, Dr. Pendino opined that plaintiff suffered from (1) posttraumatic migraine headaches; (2) multilevel cervical disc bulges; and, (3) cervical sprain and strain/cervical radiculopathy. Plaintiff was also seen by Dr. Jeffrey Abrams, a board certified orthopedic surgeon, and Dr. Mahoney, board certified in pain management and anesthesiology. Dr. Abram's impression was that plaintiff suffered from cervical radiculopathy and mild rotator cuff tendonitis and bursitis. Dr. Mahoney recommended cervical epidural injections for the treatment of cervical disc displacement and cervical radiculopathy, however, those interventions remained pending as of the date of Dr. Fass's narrative report. Throughout 2007, plaintiff was evaluated by several other physicians, including two psychologists, diagnosing plaintiff with various physiological symptoms. Plaintiff has asserted that all treatments for her injuries have been ineffective. Six months to a year of physical therapy provided only temporary relief. In her deposition taken on February 10, 2009, plaintiff testified she would feel better for twenty-four to forty-eight hours after each session, "and then I would need it again, I would be in pain began [sic] or I would be stiff again." Plaintiff has not engaged in physical therapy since 2007. She testified that she continues to be afflicted by headaches two to three days a week, sometimes more. As of the date of her deposition, plaintiff was not on any kind of medication for the headaches or any other injury sustained in the accident. She testified that ibuprofen helps and relieves her headache pain. Plaintiff is a single parent, providing care to her two minor children. One of her daughters is afflicted by cerebral palsy and is severely disabled. That child requires plaintiff's assistance, among other things, to eat, bathe, and use stairs. Plaintiff lifts her daughter and carries her from one floor of the house to another. As a result of her injury, she can no longer carry her daughter as she once did and must sit on her rear and hold her daughter against her as they slide down the stairs. Significantly, plaintiff acknowledged during her deposition that there is nothing she could previously do that she can no longer do as a result of the accident. Plaintiff asserted, however, that she is limited in sexual activity, sitting, bending, reaching, driving, concentrating, sleeping, and focusing. Plaintiff experiences pain when bending, and sometimes becomes dizzy when she "bend[s] and tr[ies] to come back up[.]" When reaching, plaintiff experiences pain in her arms, neck and shoulder. Plaintiff testified she is
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unable to achieve restful sleep. She is limited in her ability to dance and avoids traveling as a result of the accident, an activity she once enjoyed. Plaintiff is still able to drive her car, grocery shop, clean her house, go to the mall with her able-bodied daughter, commute to Edison twice weekly, and she went to Atlantic City for a day trip with both of her children. Since the accident, plaintiff has obtained her Insurance Producer's license with the State of New Jersey and is employed full-time as a licensed New York Life insurance agent. She commutes to the Edison office from her Trenton home twice a week. Plaintiff's headaches, dizziness, or limitations have neither interfered with her daily activities as an insurance producer nor caused her to miss work. Based on the foregoing facts and opinions, which were accepted as true for purposes of defendants' motion for summary judgment, the court concluded that plaintiff's physical injuries are not sufficiently substantial to amount to a substantial loss of bodily function. The court noted that "[t]he Tort Claims Act was enacted by the Legislature to 'reestablish the general rule of immunity of public entities from liability for injuries to others,'" (citing Brooks v. Odom, 150 N.J. 395, 402 (1997)). "To recover under the Act for pain and suffering, a 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. Moreover, "a plaintiff must sustain a permanent loss of the use of a bodily function that is substantial." Id. at 406. Thus, "th[e] Court has established a two-pronged test that a plaintiff must show (1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial." Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324, 329 (2003). Recognizing the appropriate standard, the motion judge in this case observed that defendants "essentially concede[d] that there is objective medical evidence of a permanent injury and that the medical expenses exceeded the statutory minimum." Thus, the court focused on the substantiality of the plaintiff's loss of bodily function. After discussing cases in which courts had considered what impairment would suffice to meet the Tort Claims Act standard, the court concluded that plaintiff's physical injuries are not sufficiently substantial to amount to a substantial loss of bodily function. The court reasoned: In the instant matter, plaintiff's injuries have not prevented her from obtaining or maintaining gainful employment. She is able to go grocery shopping, sweep, and mop. She's still able to carry and bath her disabled daughter and has taken her other daughter to shopping mall on several occasions. While some of these activities cause her pain, plaintiff acknowledges that there are no activities that she is physically unable to perform due to her injuries. She is able to maintain a
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job and a household as the plaintiff in Brooks. Plaintiff's injuries do not amount to a substantial loss of bodily function.

Turning to plaintiff's claim of psychological injury, the court finds that plaintiff's alleged psychological injuries are not substantial enough to satisfy the requirements of the statute. She argues that the psychological injuries suffered are sufficient to permit the case to go to a jury under Willis [v. Ashley, 353 N.J. Super. 104 (App. Div. 2002)]. However, plaintiff has . . . has failed in its duty to show that the psychological injury is permanent and substantial.

Dr. Peltzman and Dr. Mates (phonetic) concluded that plaintiff suffered from moderate anxiety and depression associated with the subject accident. Dr. Mates also suggested that the pain, dizziness, and emotional upset resulting from the accident could've contributed to some observed cognitive difficulties. Plaintiff testified that these psychological problems manifested themselves through headaches and dizziness. However, plaintiff admits that she had headaches before the accident as a result of the stress surrounding the care of her disabled child and her financial situation.

A trial court is authorized to render summary judgment forthwith to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). On appeal, "[a] [motion judge's] interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Here, we are in agreement with the motion judge's interpretation of the law, and we affirm for substantially the reasons articulated by Judge Sumners in his thorough opinion delivered from the bench on June 12, 2009. The trial court properly granted summary judgment. Our review of the record shows that plaintiff's limitations are insufficient for recovery under the Act because she complains only of "lingering pain,

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resulting in a lessened ability to perform certain tasks because of the pain[,]" Knowles, supra, 176 N.J. at 332, constituting "mere 'subjective feelings of discomfort.'" Gilhooley v. County of Union, 164 N.J. 533, 540 (2000) (quoting Brooks, supra, 150 N.J. at 403). Moreover, this court has previously found that the limitations described by plaintiff do not rise to the level of a substantial loss of bodily function). Newsham v. Cumberland Reg. High Sch., 351 N.J. Super. 186, 195-96 (App. Div. 2002) (where plaintiff complained that she was unable to sit for longer than forty-five minutes, could not lift more than minimal weight, could not exercise as strenuously as she once could, and "required 'medicine and frequent breaks to complete her eight-hour work shift'" as a result of permanent injury, the court found no substantial loss of a bodily function); Heenan v. Green, 355 N.J. Super. 162, 167 (App. Div. 2002) (where plaintiff suffered permanent injury reducing the range of motion in her neck, her resulting limitations did not constitute a substantial loss of bodily function because she continued to play sports, interval train, perform household chores "to some extent[,]" and was able to continue working as a teacher despite no longer being able to work with emotionally disturbed children). Compare Knowles, supra, 176 N.J. at 333-34 (permanent injury resulted in substantial loss of bodily function where plaintiff experienced: "lack of feeling in his left leg and inability to stand, sit or walk comfortably for a substantial amount of time, engage in athletics, and complete household chores" even though he was able to work). P

laintiff remains able to perform all of the activities she engaged in prior to the 2006 accident. Though plaintiff's injuries have caused her subjective pain while performing tasks, and occasionally have required her to modify the way she performs those tasks, we agree with the trial judge that such limitations do not meet the threshold required for recovery under N.J.S.A. 59:9-2(d). Affirmed.

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