Plaintiff T.R.C. through his guardian ad litem Ada Cardenas filed a personal injury complaint against defendants, Harrison Board of Education, Harrison In District Day School, and the Town of Harrison due to an injury in the preschool program at the Harrison In District Day School. The minor plaintiff, while playing on the playground equipment, fell and fractured his left elbow. The issue in Child T.R.C. v. Harrison In District Day School, 2023 N.J. Super. Unpub. LEXIS 1797 (App. Div. Oct. 18, 2023) was whether the minor’s injury qualified as a “permanent loss of bodily injury function,” as required by the Tort Claims Act to be able to sue for pain and suffering.
The injury happened while the minor and his classmates were at a playground near the school during recess. The minor fell from a platform, landed on his left arm and suffered a left elbow injury. He underwent surgery to repair a displaced lateral condyle fracture in his left elbow which required the placement of two pins. After the surgery, his arm was in a long arm cast for five weeks, after which the pins were removed. He then underwent a year of physical therapy.
At the conclusion of discovery, the defendants filed a motion for summary judgment, arguing that the minor had not suffered a permanent loss of bodily function. The trial court agreed with the argument and dismissed the complaint. This appeal ensued.
The Appellate Division noted that under New Jersey law, to recover for pain and suffering under the Tort Claims Act, “a plaintiff must show (1) an objective permanent injury and (2) a permanent loss of a bodily function that is substantial.” For purposes of the summary judgment motion, the trial court had assumed that the minor plaintiff had presented objective medical evidence of a permanent bodily injury under the first prong. The issue was the second prong and whether the plaintiff’s injuries were considered “substantial.”
Here, the testimony was that the minor plaintiff could no longer participate in gym class because of this injury. He could no longer write using his left arm. He was unable to partake in his favorite pastimes such as playing sports, playing with his friends and playing at the playground. He is unable to dress himself. Further, the minor’s father testified that he was embarrassed about his scars and that he now eats with his right hand instead of his left.
The plaintiff provided expert testimony that concluded more likely than not that the minor had sustained a permanent injury that will have a permanent residual sequelae. The minor also presented a plastic surgery expert, reporting that the minor’s left elbow had several scars, including the larger one which was 5 cm. by 1 cm. He also had three smaller scars that were all hypopigmented. The plaintiff’s plastic surgeon expert opined that the scars were permanent in nature.
The defendants presented an orthopedic defense expert who opined that the plaintiff did have some permanent losses, including scars about the lateral elbow with a loss of range of motion of about 10% and a loss of grip strength.
Based upon these facts, the Appellate Division found that the plaintiff had raised a genuine issue of material fact as to whether he sustained a permanent loss of bodily function that is substantial. It was undisputed by the defendant’s orthopedic expert that the plaintiff still had a 10 degree decreased range of motion in his elbow, along with reduced grip strength in his left hand. This limitation along with his alleged inability to dress himself, participate in gym class, participate in sports and write with his left hand created a legitimate fact issue as to whether the plaintiff had met the permanency threshold. Given the plaintiff’s young age, his significant life expectancy, and the genuine prospect that he may face a lifetime of limitations for these permanent residuals, the Court held that “a jury could find plaintiff demonstrated a permanent loss of bodily function that is substantial.”
Further, the Appellate Division noted that the trial court had not sufficiently addressed the plaintiff’s scarring. The plaintiff had argued that the scars constituted a permanent disfigurement. However, there was no indication as to whether plaintiff provided the court with photos of the scar or have plaintiff appear before the court so as to give the judge an opportunity to observe the scars.
The Appellate Division noted that a permanent disfigurement could qualify as a permanent injury under the Tort Claims Act but the scar “must impair or injure the beauty, symmetry, or appearance of a person, rendering the bearer unsightly, misshapen or imperfect, or deforming them in some manner.” Thus, the Court held that, upon remand, the plaintiff shall brief the issue and provide the trial court with photos or an opportunity to view the scars in person so the record may be properly developed. The trial court would then be in a position to perform the requisite analysis under the applicable case law to determine whether the minor plaintiff’s scars constituted a permanent disfigurement.
Based upon all the facts, the Appellate Division reversed the trial court decision and remanded it back to the trial court. The Court found that, for purposes of summary judgment, plaintiff had demonstrated a material factual dispute as to whether his elbow injuries met the requirements of the Tort Claims Act so as to permit him to pursue a pain and suffering claim.
