EDWARD GRIMES VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (L-0532-15, MERCER COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2107-16T1
EDWARD GRIMES,
Plaintiff-Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Defendant-Respondent.
______________________________
Submitted May 16, 2019 – Decided June 27, 2019
Before Judges Simonelli and Whipple.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0532-15.
Edward Grimes, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Tasha M. Bradt, Deputy
Attorney General, on the brief).
PER CURIAM
Plaintiff Edward Grimes, an inmate at New Jersey State Prison, appeals
from an August 19, 2016 order granting defendant New Jersey Department of
Corrections' (DOC) motion for summary judgment and dismissing all claims
against them. We affirm.
On May 2, 2014, plaintiff became acutely ill while in prison and was
transported to the hospital for emergency treatment. Plaintiff was restrained
with plastic handcuffs during transport. When plaintiff arrived at the hospital,
the plastic handcuffs needed to be removed in order to provide plaintiff with
necessary treatment. However, Senior Corrections Officer Boykin did not have
the authorized cutters, so he used a pair of scissors instead. While attempting
to remove the plastic handcuffs, Boykin cut plaintiff's palm. The injury required
four stitches to close and allegedly left a bubble scar on plaintiff's left hand.
On May 23, 2014, plaintiff filed a notice of tort claim, and on July 9, 2015,
filed a complaint in the Law Division against the DOC. The DOC moved for
summary judgment arguing plaintiff's claims were barred because his injuries
were not considered permanent under the New Jersey Tort Claims Act (TCA).
N.J.S.A. 59:9-2(d). In his opposition to the motion, plaintiff admitted he did not
suffer permanent bodily injury. Based on plaintiff's admission, the motion judge
granted summary judgment and dismissed plaintiff's complaint with prejudice
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because he did not establish the verbal threshold requirements of N.J.S.A. 59:9-
2(d). This appeal followed.
On appeal, plaintiff makes the following arguments:
POINT I
THE LAW DIVISION JUDGE ERRED WHEN HE
DISMISSED PLAINTIFF[']S CLAIM WITH
PREJUDICE WITHOUT GIVING PLAINTIFF THE
OPPORTUNITY TO AMEND HIS COMPLAINT.
POINT II
THE LAW DIVISION'S JUDGMENT SHOULD BE
REVERSED WHERE DEFENDANT ENGAGED IN
FRAUDULENT CONCEALMENT OF EVIDENCE
MATERIAL TO THE ACTION (not raised below).
When reviewing a grant of summary judgment, we use the same standard
as the trial court. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016). A
court should grant summary judgment, "if the pleadings, depositions, answers
to interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact challenged and that
the moving party is entitled to a judgment or order as a matter of law." Ibid.(quoting R. 4:46-2(c)). The evidence must be viewed "in the light most
favorable to the non-moving party[.]" Mem'l Props., LLC v. Zurich Am. Ins.
Co., 210 N.J. 512, 524 (2012).
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We reject both of plaintiff's arguments that the judge erred when he
dismissed plaintiff's claim with prejudice without giving plaintiff the
opportunity to amend his complaint. First, the record does not reflect plaintiff
ever moved to amend the complaint, either before or after the entry of the order
on appeal; thus, there is no evident error on the part of the motion judge.
Plaintiff further argues that because he was not successful in obtaining Boykin's
incident report from the DOC, he was precluded from amending his complaint.
Plaintiff contends the DOC's failure to include this important piece of discovery
deprived him of the opportunity to amend his complaint to include Boykin's
negligence. We disagree.
We note plaintiff did not raise the discovery issue with the trial judge, and
we are not required to consider questions or issues not properly presented to the
trial judge. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). The judge
dismissed plaintiff's claim because of his failure to claim permanent injury, and
the Boykin report does not alter that analysis.
N.J.S.A. 59:9-2(d) provides:
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,
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permanent disfigurement or dismemberment where the
medical treatment expenses are in excess of $3,600.
"In order to recover such damages, the claimant must suffer a permanent injury
or disfigurement[.]" Margolis & Novack, Claims Against Public Entities, cmt.
on N.J.S.A. 59:9-2(d) (2019).
"[T]he verbal threshold of [N.J.S.A] 59:9-2[(d)] does
not apply if a public employee engages in willful
misconduct under [N.J.S.A.] 59:3-14, since the
intended purpose of that section is to prevent public
employees guilty of outrageous conduct from availing
themselves of the limitations on liability and damages
found in the Act."
[Ibid.]
Nothing in the record suggests, and plaintiff does not allege, Boykin acted
intentionally in causing plaintiff's injury. Moreover, plaintiff conceded in his
opposition to summary judgment that he did not claim permanent bodily injury.
Concessions made before the trial court foreclose a contrary argument on appeal.
Misani v. Ortho Pharm. Corp., 44 N.J. 552, 555-56 (1965); Ji v. Palmer, 333
N.J. Super. 451, 459 (App. Div. 2000).
Affirmed.
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