Tort Claims

The New Jersey Tort Claims Act (“TCA”), N.J.S.A. 59:1-1 to 59:13-10, requires that a Plaintiff seeking to recover damages from a public entity must prove as a threshold requirement that he or she sustained a “permanent loss of body function.”  N.J.S.A. 59:9-2(d). The Appellate Division of the Superior Court of New Jersey on January 3, 2017 issued an opinion, not yet approved for publication, which addresses this requirement in the matter of Moore v. Frucci, 2017 N.J. Super. Unpub. LEXIS 1 (App. Div. Jan. 3, 2017).

The fact pattern is fairly unusual in that, on December 1, 2013, Plaintiff John Moore was standing on a Camden sidewalk observing police activity at a crime scene. Plaintiff alleged that Defendant Detective Christopher Frucci drove an unmarked Camden City Police vehicle onto the sidewalk, and the vehicle struck Plaintiff in the rear of the right leg, causing Plaintiff to lose his balance, but not fall to the ground. Defendant Frucci denied that the vehicle struck Plaintiff, but liability was not an issue raised in Defendants’ Motion for Summary Judgment.  Rather, Defendants claimed that Plaintiff failed to meet the threshold to recover under the TCA.

Plaintiff sought treatment at an emergency department approximately 40 minutes after the incident.  X-rays of the right lower extremity were essentially negative. Plaintiff was also noted to be ambulating without difficulty. However, four days later, on December 5, 2011, Plaintiff commenced a course of physical therapy and chiropractic treatment, alleging injuries to his knee and ankle, as well as severe lower back pain. He continued this treatment for approximately six months.

On February 1, 2012, Plaintiff underwent an MRI of the right knee. The MRI report noted no fracture or contusions, but a “chronic appearing partial tear of the proximal ACL” and “small joint effusion.”

Plaintiff also came under the care of a board certified orthopedic surgeon on February 29, 2012. This doctor indicated that Plaintiff had suffered “aggravation of chronic lumbosacral sprain and strain” and a “right knee contusion with high-grade partial versus full thickness tear of the ACL.” Plaintiff was recommended to continue chiropractic treatment and physical therapy, and was fitted for a knee brace.

After periodic follow-ups with the surgeon and Plaintiff’s claims of persistent tenderness in the right knee, arthroscopic surgery was performed on August 30, 2012. The operative report describes the procedure as “diagnostic arthroscopy of right knee, partial synovectomy medial joint, lateral joint, notch, and suprapatellar pouch, and chondroplasty of patella.”  Plaintiff thereafter attended several post-surgical follow-up visits with the surgeon, as part of what the surgeon described as continuing “aggressive therapy,” which included two injections of the knee with Depo-Medrol and the lidocaine.

The surgeon also ultimately provided a permanency evaluation in which he stated that Plaintiff “has had an insult to his anterior cruciate ligament. There was a partial tear. He did have posttraumatic changes with chondromalacia patella and synovitis of the right knee.” The doctor also opined that Plaintiff might require knee replacement surgery in the future.

In his deposition, Plaintiff, who was employed as a public adjuster, claimed that he had difficulty climbing onto roofs, and when climbing stairs he experienced a “little bit” of pain in the knee. Plaintiff also testified that, given his condition, he paid more attention to his activities due to his knee.  He also claimed that given the right knee soreness and swelling, he was required to ice the knee three to four times per week. He claimed the problems with his knee limited his ability to participate in other activities of daily living, including hunting, riding dirt bikes and a motorcycle which he owned, and caused him pain and difficulty when he remained in the same position for an extended period of time.

The trial court ruled that the proofs set forth above were insufficient to create a triable issue as to whether Plaintiff had met the threshold of the TCA.  Accordingly, Defendants’ Motion for Summary Judgment was granted.

On appeal, the Appellate Division set forth the specific language of N.J.S.A. 59:9-2(d), which indicates that:

“No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.  For purposes of this section medical treatment expenses are defined as the reasonable value of services rendered for necessary surgical, medical and dental treatment of the claimant for such injury, sickness or disease, including prosthetic devices and ambulance, hospital or professional nursing service.”

Therefore, in circumstances where a Plaintiff has incurred in excess of $3,600.00 in medical expenses, the Appellate Division noted that “to recover pain-and-suffering damages against a public entity the plaintiff must also prove: (1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial.”  Toto v. Ensuar, 196 N.J. 134, 145 (2008).”  Further, Plaintiffs “may not recover under the TCA for mere subjective feelings of discomfort.  Brooks v. Odom, 150 N.J. 395, 403 (1997).”  In Brooks, although Plaintiff Brooks had ongoing pain and permanent restrictions of motion in the neck and back, her claims were still dismissed due to the fact that she could function in her employment and as a homemaker.  Id. at 406-407.  The Appellate Division also referenced the opinion in Ponte v. Overeem, 171 N.J. 46 (2002), in which even though Plaintiff in that matter sustained a knee injury which required surgery, the same still was determined not to meet the threshold.

Given all of the foregoing, in Moore the Appellate Division held that Plaintiff did not meet his burden of proof to establish the objective evidence that he had as a result of the incident sustained a permanent substantial injury to his knee. The Court relied heavily upon the fact that following the surgery, plaintiff remained “fully capable of performing in his employment and none of his avocational pursuits were significantly impaired. The discomfort he experienced while performing such activities was insufficient to meet the TCA threshold. Further, (the surgeon’s) suggestion of the possibility of future surgery was insufficient to establish a permanent loss of bodily function that was substantial.”

Thus, this recent Appellate Division opinion stands for the proposition that Plaintiff’s burden to meet the threshold of the TCA is a significant one, as even surgery may not be found sufficient to meet the same. This case shows that, even with objection evidence of a permanent injury, if a plaintiff is unable to show that the loss is substantial with respect to a limitation of his ability to work or his recreational or daily activities, it may be subject to dismissal based upon the TCA’s permanency defense.