While the Title 59 permanency threshold, N.J.S.A 59:9-2, is a well known defense against bodily injury claims asserted against public entities, less publicized is the monetary threshold in that statutory section. No pain and suffering award can be asserted against a public entity unless the medical expenses incurred are in excess of $3,600. In Jung v. Village of Ridgewood, 2015 N.J. Super. Unpub. LEXIS 53 (App. Div. Jan. 8, 2015), this requirement resulted in a dismissal of the parents’ emotional distress claim filed due to the death of their son.
The plaintiffs’ son Soo died while swimming in the municipal swimming area operated by the Village of Ridgewood. The plaintiffs, as Soo’s parents, brought a negligence claim on his behalf but also filed a separate claim for their own severe emotional distress.
The family were visiting friends and they all went swimming at Graydon Pool in Ridgewood. Shortly after entering the pool, Soo and his friends began to swim from the shallow end to the dock at the deep end. Soo never reached the dock and drowned in the pool.
The case was tried and the jury awarded a total of $10 million – $4 million for Soo’s pain and suffering; $5 million for his family’s claims for emotional distress ($2 million for each parent and $1 million for his sister); and $1 million on his wrongful death claim.
Accepting Ridgewood’s argument that the plaintiffs were not entitled to damages for their pain and suffering because they did not meet the Tort Claims Act’s “verbal threshold” (the permanency requirement), the trial judge modified the verdict to dismiss the family’s emotional distress claim.
It was undisputed that the plaintiffs neither individually, nor collectively, incurred $3600 for their emotional distress claim. Because plaintiffs did not prove they met this threshold, the Appellate Division upheld the dismissal of their emotional distress claim.
Ridgewood had also appealed other evidentiary rulings, as well as the dismissal by summary judgment of its claims for contribution and indemnification against Soo’s parents. Ridgewood had argued that Soo’s parents were negligent because they failed to obey posted warnings and instructions which required all children to take a deep water test prior to entering the deep area. Also, they argued that Soo’s parents were negligent because they failed to monitor their son. The Appellate Division agreed that these claims were not barred by the doctrine of parental immunity and were viable claims that should have been presented to the jury.
Fortunately for Ridgewood, the end result is that it was granted a new trial on liability and none of the verdict could be preserved. The Appellate Division held that Ridgewood was entitled to a new trial on liability and damages. The court found a new trial on issues was merited because the facts of negligence against Ridgewood and the parents were intertwined and also because the proofs plaintiffs presented on their emotional distress – which should not have been presented to the jury and which will not be presented when retried – may have affected the other damage awards.