Plaintiff Berta Abreu Flores was injured as a result of a collision by the defendant North Hudson Regional Fire & Rescue Department’s fire engine. During a training exercise, the fire engine crossed the road and struck the front of her residence opposite the fire house where plaintiff was working on the first floor. She claimed an injury from the accident, including a hearing loss, shoulder injury, and a loss of balance. The issue in Flores v. North Hudson Regional Fire & Rescue, 2023 N.J. Super. Unpub. LEXIS 1928 (App. Div. Oct. 27, 2023) was whether the plaintiff’s injuries satisfied the substantiality and permanency of the Tort Claims Act verbal threshold under N.J.S.A. 59:9-2(d).
At the time of the accident, plaintiff was operating a tax preparation business out of the first floor of the residence. While she was working, the defendant fire company was conducting a training exercise at a fire station. The fire engine crossed the road, struck the front of the residence where she was working, and the impact damaged the building’s support columns. While plaintiff was speaking with one of her employees, the employee saw the wall coming down. She yanked plaintiff from her chair by her right arm.
After plaintiff was pulled from her desk, she immediately began to have pain on the left side of her head. She noted fragments of glass that were in her hair and a lump in her head. She was taken to a local emergency room where she reported pain in her left side, head, and shoulder and dizziness.
She continued to experience pain in the weeks following the accident but did continue to work until the end of the tax season. She has not worked since that time.
About four months after the accident, plaintiff went to an audiologist with complaints of “hearing loss, dizziness, nasal congestion, and difficulty maintaining her balance.” The audiologist tested her and found that plaintiff had decreased hearing in both ears and injury to her brain stem. He further diagnosed her with a loss of balance. He attributed the hearing deficits and loss of balance to the incident. Plaintiff tried to take Lasix for the dizziness but the drug’s side effects caused kidney damage and it had to be discontinued. After that drug was discontinued, plaintiff’s loss of balance worsened. Although her hearing problems persisted to some extent, she did not obtain hearing aids.
She also sustained injury to her right shoulder and treated with an orthopedist who diagnosed her with a tear of the supraspinatus tendon. After physical therapy failed to resolve her shoulder symptoms, she underwent an arthroscopic rotator cuff repair. She continued to have post-surgery about a 10% loss of full function in her right shoulder.
Plaintiff filed a lawsuit against the fire department and two of its employees as a result of the accident. She claims that the defendants were negligent in causing the accident.
Following the completion of discovery, defendants filed for a summary judgment to dismiss the plaintiff’s claims of pain and suffering. Defendants argued that her post-accident medical problems were not substantial and permanent, as required under the Tort Claims Act, N.J.S.A. 59:9-2(d), to pursue a claim for pain and suffering. In the opposition to the motion, the plaintiff attested to her balance and hearing problems. In particular, she noted that she was losing her balance at least twice each day on average and had fallen recently.
Nevertheless, the trial court judge granted summary judgment to the defendants. He found that the plaintiff’s medical experts did not show that the damage to her hearing loss was substantial. He found that she did not require a hearing aid and she was still able to return to work. She was also able to finish the tax season. As for her right shoulder, the trial court judge found that plaintiff had not shown by objective medical evidence that the injuries resulted in a loss of bodily function that was substantial. However, he did not comment on her imbalance problems.
This summary judgment dismissal was appealed to the Appellate Division. The Court noted that under the Tort Claims Act verbal threshold provision, for the plaintiff to obtain a monetary award, plaintiff must prove a “permanent loss of a bodily function, permanent disfigurement or dismemberment.” Under New Jersey case law, the courts have construed this provision to require that the claimant suffer an “objective” permanent injury or disfigurement that is “substantial.”
Thus, the courts have set up a 2-prong standard in evaluating whether the plaintiff’s injuries constitute a permanent loss of bodily function. First, the plaintiff must prove that there is an objective medical evidence of a permanent injury and then, second, plaintiff must prove that there is a permanent loss of a bodily function that is substantial.
In reviewing the record, the Appellate Division agreed that the plaintiff’s shoulder injury and hearing loss claim did not vault the verbal threshold. The trial court judge found from the medical evidence that plaintiff’s shoulder injury had been effectively resolved through surgery. The 10% estimated residual limitation on her shoulder functions was not sufficiently “substantial” to qualify to the statute. Further, she had not prevented sufficient evidence that her post-surgery shoulder condition had substantially restricted her daily life activities.
The Appellate Division found that a closer question was whether the plaintiff’s hearing loss claims vaulted the threshold. Again, however, the Appellate Division agreed with the trial court that it was not sufficient. It noted that none of the plaintiff’s expert had expressed a numerical value as to the plaintiff’s diminution of hearing. Further, it did not rise to the level to be a substantial limitation on her daily life activities. It was not severe enough for plaintiff to obtain the aid of a hearing device. Further, plaintiff admitted that, with attentiveness, she was able to engage in normal conversation with others.
However, the Appellate Division reached a different conclusion with respect to the plaintiff’s ongoing deficits of balance. Her medical documentation did establish that she has suffered significant problems with her balance, as often as twice per day. The Court concluded that plaintiff’s frequent and persistent loss of balance post-Lasix presented a genuine issue of material fact under the Tort Claims Act. Thus, it reversed the summary judgment.
When the case is tried, the Court noted that the jury verdict’s form should contain a specific inquiry concerning the loss of balance. If that loss is found by the jury to surmount the threshold, then plaintiff’s other injuries caused by the accident could also be compensated.
Hence, the Appellate Division reversed the trial court’s decision and remanded it back for further proceedings.
