By: Betsy G. Ramos, Esq.

To maintain a claim for a pain and suffering against a public entity for a personal injury, a plaintiff must be able to prove that he or she has sustained a “permanent loss of bodily function,” as required by the Tort Claims Act, N.J.S.A. 59:9-2(d). The plaintiff must show (1) an objective permanent injury and (2) a permanent loss of a bodily function that is substantial. In Moore v. Frucci, 2017 N.J. Super. Unpub. LEXIS 1 (App. Div. Jan. 3, 2017), the plaintiff, who suffered a knee injury, which was treated with arthroscopic surgery, was unable to meet the second prong of this test.

Plaintiff John Moore suffered an injury to his right leg, when allegedly a Camden City Detective, Christopher Frucci, drove an unmarked police vehicle onto the sidewalk, and the vehicle struck him in the rear of his right leg. Plaintiff was initially treated at Cooper Hospital, where his right leg was x-rayed. The x-ray showed no fractures, dislocation, or swelling.

Thereafter, the plaintiff sought treatment at South Jersey Health & Wellness Center for severe lower back pain, knee pain, and ankle pain. His right knee showed a 50% decrease in range of motion. He began a treatment of physical therapy and chiropractic treatment.

About 6 months later, the plaintiff obtained a right knee MRI, which showed a chronic appearing partial tear of the proximal ACL and small joint effusion. The plaintiff began treatment with an orthopedist, Dr. Lawrence Barr, who recommended that the plaintiff continue physical therapy, chiropractic care, and fitted him for a knee brace.

Eventually, when the plaintiff’s knee started giving out, Dr. Barr recommended diagnostic arthroscopy and anterior cruciate ligament reconstruction. The plaintiff underwent the surgery and he continued to treat with Dr. Barr who injected his knee twice. Upon discharge, the plaintiff had a full range of motion on extension, limited in flexion, no medial or lateral joint line pain, but some discomfort on the posteromedial corner of the knee. However, a year later, in a permanency exam, Dr. Barr opined that his injuries are permanent. Further, Dr. Barr reported that he might need future surgery.

The plaintiff testified in his deposition that he had some difficulty climbing onto roofs to perform his job as a public adjustor. He had a “little” bit of pain when he climbed stairs. He had to pay more attention to what he was doing because of his knee. He would ice his knee 3-4 times per week due to soreness and swelling. It would also be painful and swell when he hunts and rides his dirt bike and motorcycle.

Based upon the facts before the Court, the Appellate Davison found that the plaintiff failed to establish through objective evidence that he sustained a permanent and substantial injury to his knee. After his surgery, he was able to fully perform in his employment and none of his avocational pursuits were impaired. His knee discomfort was insufficient to meet the TCA threshold. Further, Dr. Barr’s suggestion of further surgery was insufficient to establish a permanent loss of bodily function that was substantial. Thus, the Appellate Division upheld the trial court’s decision, granting summary judgment.

This case demonstrates the potential of winning on a permanency defense in a Tort Claims Act case. Even with surgery, if the plaintiff recovers sufficiently, this defense may be viable. The key to proving that plaintiff has not met the second prong of the permanency test is to be able to establish the lack of impairment in the plaintiff’s job duties (if her or she is employed), as well as the lack of impact, or minor impact on the plaintiff’s recreational, household, and social activities.

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