Emotional Distress Claim Against Public Entity Must Satisfy Tort Claims Act

By: Betsy G. Ramos, Esq.

In the recent unpublished Appellate Division decision, Mann v. Walder, Docket No. A-0863-11T1, decided October 31, 2013, the Court ruled that the plaintiff’s claim for negligent infliction of emotional distress against three New Jersey State Park police officers and the State of New Jersey was governed by the New Jersey Tort Claims Act (“TCA”) N.J.S.A. 59:1-1 et seq. and that the plaintiff failed to satisfy the requirements of the Act. Thus, the Court upheld the dismissal of this suit.

This matter arose from the fatal shooting of Emil Mann, which was witnessed by his nephew, Carl Mann, the plaintiff in this case. As a result, he claimed emotional damages and sued the three officers involved in the shooting and the State Police.

The plaintiff, however, suffered no physical injuries. His medical expenses incurred only totaled $187. In support of his claim, he submitted an expert report from a physician, opining that he suffered from uncomplicated bereavement and maladaptive health behavior (overeating), affecting his general medical condition, which was secondary to his bereavement. However, the plaintiff was able to graduate from high school, sleep adequately at night without nightmares, was able to perform his job at T.J.Maxx, and, although he continued to distrust police officers, his fear of them had receded.

The issue in this case was whether he had suffered a permanent injury and had incurred related medical expenses that exceeded $3,600, both threshold requirements to maintain an action under N.J.S.A. 59:9-2(d). While the Court had previously ruled that emotional distress could constitute “pain and suffering” under the TCA, an emotional distress claim is barred unless the plaintiff suffered a permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses exceeded $3,600.

The Court noted that case law permits recovery of damages from emotional distress if subjective symptoms are accompanied by “the requisite indicia of permanent physical infirmity.” Here, the plaintiff contended that his weight gain from 250 to 350 pounds was a physical manifestation of permanent injury. However, the Appellate Division ruled that this weight gain did not rise to the level of a permanent loss of a bodily function.

Further, the plaintiff failed to meet the monetary threshold of $3,600. The plaintiff argued that the value of the services he received and will need in the future exceeds that amount. Because his expenses were reduced due to payment by Medicaid, he argued that his claim on this ground discriminates against him because he is poor. The Appellate Division seemed skeptical of this argument and, regardless, noted that there was no evidence submitted as to the value of the services received.

This case is illustrative of both the permanency and monetary threshold requirements for all personal injury claims submitted under the Act. Especially if there is no physical injury, an emotional distress claim must be scrutinized closely to determine if it satisfies the TCA’s permanency requirement. Additionally, all claims should be examined to determine if they satisfy the monetary threshold. Usually, the monetary threshold is not an issue but for an emotional distress claim or other claims such as a simple fracture with no physical therapy or a laceration with a scar but no future scar revision, the plaintiff may not satisfy this threshold.

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