TOBY WELLINGTON VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (L-0274-18, CUMBERLAND COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2781-19
TOBY WELLINGTON,
Plaintiff-Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Defendant-Respondent,
and
OFFICER MARSHALL,
Defendant.
___________________________
Submitted February 1, 2021 – Decided March 12, 2021
Before Judges Rothstadt and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Docket No. L-0274-18.
Franzblau Dratch, PC, attorneys for appellant (Brian M.
Dratch, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Patricia Nigro, Deputy Attorney
General, on the brief).
PER CURIAM
Plaintiff Toby Wellington appeals from the trial court's April 13, 2018
order granting defendant the New Jersey Department of Corrections (DOC)
motion to transfer venue, its May 25, 2018 order denying plaintiff's motion for
reconsideration of that order, and from the March 11, 2020 order granting
defendants' motion for summary judgment and dismissing plaintiff's complaint
seeking damages for injuries he allegedly sustained in two incidents while a
prisoner at one of the DOC's facilities. In granting summary judgment, the trial
court determined that plaintiff had not vaulted the statutory threshold
requirements under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to
12-3, for bringing claims against the State to recover for pain and suffering. On
appeal, plaintiff argues the trial court erred by changing venue and in granting
defendants' motion for summary judgment after finding "that there were no
material issues of fact with respect to plaintiff's injury."
We affirm the award of summary judgment substantially for the reasons
expressed by the trial court. Because we conclude that summary judgment was
properly granted, we do not address in detail the balance of plaintiff's arguments.
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The facts when viewed in the light most favorable to plaintiff are
summarized from the record as follows. On June 22, 2016, while incarcerated
at Northern State Prison in Essex County, plaintiff injured his back in a slip-
and-fall accident. Almost a year later, plaintiff sustained further injuries to his
back that caused him to suffer nerve damage when a DOC vehicle in which
plaintiff was a passenger that was being driven by defendant Officer Marshall
collided with another vehicle at the prison.
Thereafter, plaintiff served the DOC with timely tort claims notices as
required by the TCA. On January 8, 2018, plaintiff filed his complaint that laid
venue in Essex County. Defendants filed a timely answer and simultaneously
filed a motion to transfer venue from Essex County to Cumberland County
because at that time, plaintiff was incarcerated at another DOC facility located
in Cumberland County. However, on February 23, 2018, defendants withdrew
their motion to transfer venue, replacing it with a second motion to transfer
venue with an amended brief in support of the motion. The trial court issued an
order "deleting" defendants' first motion to transfer venue. As to the second
one, plaintiff did not file any opposition. On April 13, 2018, the trial court
granted defendants' unopposed second motion and transferred the case to
Cumberland County.
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On April 27, 2018, plaintiff filed a motion for reconsideration, arguing
that he was "not sure how the motion was relisted, but it should not have been
as venue [wa]s correct in Essex County." Plaintiff did not address defendants'
second motion. On May 25, 2018, noting that plaintiff had "not met [the] burden
for reconsideration," the trial court denied plaintiff's motion.
Turning to plaintiff's injuries, his complaint alleged that as a result of the
first incident, he suffered a back injury and nerve damage radiating down both
legs. Prior to his deposition, on May 10, 2018, plaintiff had surgery on his back.
Specifically, he underwent hemilaminectomies with medial facetectomies,
foraminotomies, and nerve root decompressions along his spine at the L4-5 and
L5-S1 disc sites.
At his deposition, plaintiff was asked to describe how his injury impacted
his daily routine. According to plaintiff, since July 2018, he had been living at
a halfway house. On a typical day he would get up at around 7:30 a.m., do his
daily stretching, go to the gym to do some light exercises, leave the gym to call
his family, go to school at 11:30 a.m., eat lunch, study for about two hours, and
then work as a welder for three hours before returning to his room to shower,
talk on the phone, lay down and start his day again. Plaintiff explained that
performing certain tasks such as bending too far was painful.
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Plaintiff stated that he suffered from back pain, including sharp shooting
pain down his leg. He also claimed that he had difficulty sitting for long periods,
and while his back pain was tolerable, he avoided moving in any manner that
caused him to feel pain. However, plaintiff confirmed that despite his pain,
there was not "anything that [he] used to be able to do before the[] accidents that
[he could not] do now." According to plaintiff, he was "not handicapped."
Plaintiff also confirmed that his doctor never told him to stop doing any type of
task.
Plaintiff's expert, Dr. Joshua Landa, examined plaintiff on December 20,
2019, and observed that plaintiff had suffered damage to his lumbar spine
including "disc bulges at L4/5 and L5/S1" and concluded that "within a
reasonable degree of medical probability," these injuries "occurred as a di rect
result of the [first] accident that [plaintiff] sustained . . . and [were] aggravated
by the [second] accident." He also observed that plaintiff had "pain in his back
and left lower extremity"; "pain and difficulty with bending, lifting and
twisting"; pain that "interfere[d] with his normal activities of daily living"; and
"pain with prolonged sitting and standing."
According to the doctor, while plaintiff's surgery "relieved the pressure
on his nerves, he unfortunately remain[ed] with ongoing back and left lower
extremity pain[, which] is likely due to permanent nerve damage that could not
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be undone with the decompression surgery." Dr. Landa concluded that
plaintiff's injuries were permanent and unlikely to improve with medical or
surgical treatment.
On October 10, 2019, defendants filed their motion for summary
judgment, arguing that plaintiff, who had at that time not yet secured an expert's
report, failed to establish that he vaulted the injury threshold under the TCA.
Plaintiff did not file any opposition, and the trial court entered an order granting
the motion on December 20, 2019.
On January 10, 2020, plaintiff filed a motion for reconsideration,
explaining that the failure to file opposition was the result of his counsel's
mistaken belief that the motion had been adjourned because a December 2019
order had extended discovery through January 15, 2020. He also explained that
on the day defendants' motion for summary judgment had been granted, plaintiff
was being examined by Dr. Landa to facilitate the doctor's preparation of his
expert report, which was ultimately completed on January 5, 2020, and which
plaintiff intended to file in opposition to defendants' motion.
On February 28, 2020, the trial court granted plaintiff's motion for
reconsideration and considered plaintiff's expert report and the parties' oral
arguments before granting defendants' motion. In an oral decision placed on the
record that day, the trial court noted that the TCA "requires that no damages
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shall be awarded against a public entity for pain and suffering resulting from
any injury . . . [except] in cases of permanent loss of a bodily function where the
[expenses for] medical treatment" exceed the minimum statutory threshold
provided under N.J.S.A. 59:9-2(d). The court found that although plaintiff had
established that he had sustained a permanent injury, he had failed to show that
he suffered "a permanent loss of a bodily function" that was "substantial," even
when the facts were considered in the light most favorable to him. As the court
explained, under the controlling case law, plaintiff was required to demonstrate
"not only a permanent loss of a bodily function, but . . . an objective permanent
injury and a permanent loss of a bodily function that is substantial."
Discussing the factual materials submitted by the parties, the court noted
that although Dr. Landa's report clearly established a permanent injury, in his
deposition, plaintiff described his daily routine following his injuries and
complained of "back stiffness," "shooting pain" in his left leg, and "numbness
in his left leg," but also noted "there is nothing that he can't do now that he could
do before the accident." Considering the facts in the light most favorable to
plaintiff, the court found that plaintiff could not "meet the substantial portion of
the statute, and therefore the defense [was] entitled to judgment as a matter of
law."
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On March 11, 2020, the judge issued an order granting plaintiff's motion
to reconsider and defendants' motion for summary judgment. This appeal
followed.
We review de novo a trial court's grant of summary judgment. Branch v.
Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). Accordingly, we apply the
same standard as the trial court and determine "whether '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)). In doing so, we afford the
nonmoving party "all legitimate inferences." Steinberg v. Sahara Sam's Oasis,
LLC, 226 N.J. 344, 366 (2016) (quoting R. 4:46-2(c)). "If there is no genuine
issue of material fact," we must determine "whether the trial court correctly
interpreted the law." DepoLink Ct. Reporting & Litig. Support Servs. v.
Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting Massachi v. AHL
Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)).
On appeal, plaintiff argues that the trial court incorrectly found that he
failed to satisfy the two-pronged test that courts apply in determining whether a
plaintiff has vaulted the injury threshold under the TCA. He contends that he
has "submitted proof of objective medical evidence of an injury that resulted in
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a lumbar decompression surgery" and which resulted in "permanent nerve
damage to his lumbar spine, which causes him daily pain," "permanent
numbness to his left leg[,] . . . daily back stiffness," sometimes results in "an
inability to sleep[,] and requires daily stretching in order to . . . function."
Plaintiff argues that the materials he submitted evidencing the above are
sufficient to overcome the threshold showing, and therefore the trial court erred
in granting summary judgment. We disagree.
N.J.S.A. 59:9-2(d), commonly referred to as the "verbal threshold" of the
TCA, see Nieves v. Adolf, 241 N.J. 567, 580 (2020), 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,
permanent disfigurement or dismemberment where the
medical treatment expenses are in excess of $3,600.
[N.J.S.A. 59:9-2(d).]
The verbal threshold is not a grant of immunity; it is a limitation on
recoverable damages when the public employee or entity is not immune. See
Gilhooley v. Cnty. of Union, 164 N.J. 533, 538 (2000) ("Even where liability is
present, the [TCA] sets forth limitations on recovery. One is the limitation on
the recovery of pain and suffering damages [in N.J.S.A. 59:9-2(d)]."). To vault
the threshold, "[a] plaintiff must show '(1) an objective permanent injury, and
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(2) a permanent loss of a bodily function that is substantial.'" Knowles v.
Mantua Twp. Soccer Ass'n, 176 N.J. 324, 329 (2003) (quoting Gilhooley, 164
N.J. at 540-41). Whether a party has met this second prong requires "a fact-
sensitive analysis." Id. at 331. A trial court must consider whether the facts and
circumstances place a plaintiff's injuries on "that part of the 'continuum of cases'
in which [our] Court has determined that an injury is substantial and permanent."
Ibid. (quoting Gilhooley, 164 N.J. at 541).
A plaintiff must provide objective evidence of a substantial impairment in
order to meet the N.J.S.A. 59:9-2(d) threshold. Gilhooley, 164 N.J. at 540.
"[No]t every objective permanent injury results in substantial loss of a bodily
function." Id. at 541. A substantial loss does not mean that a plaintiff must
demonstrate a "total permanent loss of use." Brooks v. Odom, 150 N.J. 395, 406
(1997). But, "[a]n injury causing lingering pain, resulting in a lessened ability
to perform certain tasks because of the pain, will not suffice because '[a] plaintiff
may not recover under the [TCA] for mere subjective feelings of discomfort'"—
it is a plaintiff's reduced ability that makes his injury "substantial," not the
discomfort he suffers when performing certain tasks. Knowles, 176 N.J. at 332(second alteration in original) (quoting Gilhooley, 164 N.J. at 540). However,
"neither an absence of pain nor a plaintiff's ability to resume some of his or her
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normal activities is dispositive of whether he or she is entitled to pain and
suffering damages under the TCA." Ibid.Cases that present sufficient evidence of a permanent and substantial loss
of a bodily function include Gilhooley, 164 N.J. at 542 (finding a patella fracture
was an objective permanent injury causing the plaintiff "to lose forever the
normal use of her knee . . . without permanent pins and wires to re-establish its
integrity") and Kahrar v. Borough of Wallington, 171 N.J. 3, 16 (2002) (finding
reattachment of a torn rotator cuff tendon resulted in the shortened length of the
tendon, impairing the plaintiff's ability to use her arm to complete normal tasks).
Summarizing Kahrar and Gilhooley, the Court in Knowles noted that those
plaintiffs "presented objective medical evidence linking an injured body part to
the plaintiff's inability, without extensive medical intervention, to perform
certain bodily functions." Knowles, 176 N.J. at 332-33.
At the other end of the "continuum" are cases in which an injured party
was merely "unable to perform certain tasks without pain." Id. at 333. In
Brooks, the Court found the plaintiff did not show substantial loss where she
"experience[d] pain" as a result of soft tissue injuries in her neck and back but
where she could still "function both in her employment and as a homemaker."
Brooks, 150 N.J. at 399, 406. As the Knowles Court summarized, the Brooks
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defendant prevailed "because the plaintiff's daily activities, although painful,
were not substantially precluded by her injuries." Knowles, 176 N.J. at 333.
Similarly, in Ponte v. Overeem, 171 N.J. 46, 51-54 (2002), the Court
found no substantial loss where the plaintiff's knee injury, which required
surgery, temporarily hindered his ability to exercise and do housework, but
where the record did not establish he was permanently "restricted" in performing
daily activities. The Court observed the absence of "any evidence that plaintiff's
range of motion is limited, his gait impaired or his ability to ambulate restricted."
Id. at 54. The Court noted that plaintiff failed to demonstrate "any permanent
instability" and that the record did not show plaintiff's knee injury continued to
restrict him "in performing his work responsibilities, household chores, yard
work, or in his weightlifting or biking activities." Ibid.Applying these principles to the instant matter, plaintiff did not satisfy the
threshold because he did not suffer a "substantial loss" of use of any bodily
function. He testified that he was not handicapped and that he could perform all
activities, albeit with some pain. While plaintiff's injury has undoubtedly caused
him discomfort and made performing some activities more difficult, there is no
genuine dispute that he is still able to carry out his daily activities. Accordingly,
plaintiff has not suffered a "substantial loss" of use of a bodily function.
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Based on the foregoing, because plaintiff did not present material facts
demonstrating he has suffered the "loss of a bodily function that is substantial"
resulting from his injuries, he failed to satisfy the threshold requirement for
recovery against defendants under the TCA, and defendants were entitled to
judgment as a matter of law.
Because we conclude that summary judgment was properly entered in
defendants' favor, we need not address in detail plaintiff's contentions about the
trial court's transfer of venue from Essex County to Cumberland County. We
only note that we discern no abuse of the trial court's discretion to change venue
where appropriate, especially in matters involving public entities. See R. 4:3-2;
R. 4:3-3; Fine v. Rutgers, State Univ. of N.J., 163 N.J. 464, 472 (2000) ("The
right of a litigant to choose his own forum is required to yield to the venue Rule's
objective of minimizing inconveniences to public entity defendants.").
Affirmed.
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