ADRIANNE BRUCE VS. BOROUGH OF COLLINGSWOOD (L-1361-15, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4531-16T1
ADRIANNE BRUCE,
Plaintiff-Appellant,
v.
BOROUGH OF COLLINGSWOOD,
Defendant-Respondent,
and
HADDON TOWNSHIP, COUNTY
OF CAMDEN, STATE OF NEW
JERSEY, CHARLES STOREY,
and ARMAND DEL ROCINI, JR.,
Defendants.
_________________________________
Argued September 17, 2018 – Decided October 18, 2018
Before Judges Messano and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Camden County, Docket No. L-1361-15.
Jordan R. Irwin argued the cause for appellant
(Begelman & Orlow, PC, attorneys; Jordan R. Irwin, on
the brief).
John M. Palm argued the cause for respondent.
PER CURIAM
Plaintiff Adrianne Bruce slipped and fell on a patch of ice in an alley
allegedly owned and maintained by defendant, Borough of Collingswood.
Defendant moved for summary judgment, arguing plaintiff's injuries failed to
meet the requirements of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the
TCA), specifically N.J.S.A. 59:9-2(d), which provides: "No damages shall be
awarded against a public entity . . . for pain and suffering resulting from any
injury; provided, however, that this limitation . . . shall not apply in cases of
permanent loss of a bodily function, [or] permanent disfigurement . . . ."
Following oral argument, the judge agreed and entered an order dismissing
plaintiff's complaint for non-economic damages. 1 Plaintiff timely moved for
reconsideration, which the judge denied. 2
Before us, plaintiff argues her injuries were "permanent and substantial,"
thereby meeting the standard first announced by the Court in Brooks v. Odom,
1
The judge entered a separate order granting summary judgment to co-
defendants Charles Storey and Armand Del Rocini, Jr. Plaintiff does not appeal
from that order.
2
The parties subsequently agreed to dismiss with prejudice plaintiff's claim for
economic damages.
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150 N.J. 395, 406 (1997). Additionally, plaintiff argues she suffered "permanent
disfigurement," an issue fully briefed before the motion judge, but which he
never addressed.
We agree that for purposes of summary judgment, plaintiff raised a
genuine issue of material fact as to whether her injuries were permanent and
substantial. Therefore, summary judgment was inappropriate and we reverse.
Moreover, because the appellate record is unclear regarding plaintiff's claim of
permanent disfigurement, and because the judge never addressed the issue, we
remand to the trial court to determine whether that specific allegation should
survive summary judgment.
Lastly, although defendant argued it was immune from any claim pursuant
to N.J.S.A. 59:4-7, the TCA's so-called "weather immunity," the judge
admittedly "punted" on the issue and never decided it. Inexplicably, defendant
has not reasserted this argument before us. See, e.g., Smith-Bozarth v. Coal.
Against Rape & Abuse, Inc., 329 N.J. Super. 238, 244 n.1 (App. Div. 2000)
("[W]ithout filing a cross appeal, a respondent may seek an affirmance of the
judgment on any ground raised in the trial court."). Nevertheless, we do not
deem the argument to be waived, and, therefore, on remand, defendant is free to
raise this defense anew before the trial judge.
A-4531-16T1
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We review the grant of summary judgment de novo, applying the same
standard used by the trial court, which
mandates that summary judgment be granted "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."
[Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.
Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R.
4:46-2(c)).]
We also determine "whether the competent evidential materials presented,
when viewed in the light most favorable to the non-moving party, are sufficient
to permit a rational factfinder to resolve the alleged disputed issue in favor of
the non-moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395,
406 (2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995)). We owe no deference to the trial court's legal analysis or interpretation
of a statute. The Palisades at Fort Lee Condo. Ass'n, Inc. v. 100 Old Palisade,
LLC, 230 N.J. 427, 442 (2017) (citing Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995)).
Viewed in a light most favorable to plaintiff, the motion record revealed
that in the early evening of January 29, 2014, while walking her dogs, she
slipped and fell on ice and fractured her left wrist; plaintiff is left-hand
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dominant. She underwent surgery, requiring the internal placement of pins and
the attachment of an external fixator device, which remained in place for
approximately two months. By May, plaintiff completed physical therapy and
her surgeon opined that plaintiff's fracture was clinically and radiographically
healed. At that time, the range of motion in her left wrist was five degrees less
than that of her right. Plaintiff missed only three days of work as a legal
secretary and by May was able to type using both hands.
Plaintiff's treating surgeon reevaluated her wrist in January 2016, and
found that although her surgical incisions had healed properly, plaintiff still
lacked five-to-seven degrees range of motion in her left wrist. Additionally,
plaintiff made complaints of pain and stiffness with increased physical activity
and changes in weather. The surgeon opined with a reasonable degree of
medical certainty that plaintiff's injury was permanent, i.e., her wrist will never
function normally, and plaintiff will be unable to perform some life activities
such as repetitive pushing, pulling or lifting heavy objects.
In her certification opposing the motion, plaintiff complained of varying
degrees of pain and limited range of motion in her wrist. She cannot lift heavy
items, sometimes loses her grasp and drops things. Plaintiff also claimed her
injured wrist forced her to limit her exercise routines. However, plaintiff
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admitted that she was able to paint some of the rooms in her home after the
accident.
Since Brooks, the Court has again clarified that to survive summary
judgment, a plaintiff must establish "(1) an objective permanent injury, and (2)
a permanent loss of a bodily function that is substantial." Gilhooley v. Cty. of
Union, 164 N.J. 533, 540-41 (2000). Here, defendant concedes plaintiff suffered
a permanent injury to her left wrist but argues any loss of function was not
substantial.
The motion judge observed, and we agree, that each case is fact-sensitive,
and it is virtually impossible to find, as he put it, "[a] line in the sand" that
demarcates what is or is not a substantial loss of function. However, plaintiff's
ability to return quickly to work and perform her functions as a legal secretary
is not dispositive. See, e.g., Kahrar v. Borough of Wallington, 171 N.J. 3, 15
(2002) (noting that "dicta in Brooks should not be understood to suggest that
plaintiffs with permanent and substantial impairments who, nevertheless, can
manage to perform adequately routine tasks at work and at home are barred from
recovery").
In Kahrar, the plaintiff suffered a massive tear of her rotator cuff that
required surgery to "remove[] a portion of the bone in her shoulder and reattach[]
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the severed tendon to the shoulder." Id. at 7. Although the plaintiff's incision
healed properly, she "had approximately forty percent loss of full motion in her
left shoulder." Id. at 8. The Court held that "[i]f the loss of bodily function is
permanent and substantial, . . . a plaintiff's eligibility to recover pain and
suffering damages will not be defeated merely because she can perform some
routine functions almost as well as she could prior to her injury." Id. at 15. The
Court considered several objective factors such as the seriousness of the injury,
the invasiveness of the surgery, and the extent of reduction in normal range of
motion. Id. at 16.
In Gilhooley, the plaintiff suffered a fractured patella as the result of a fall.
She underwent open reduction surgery with internal fixation, by which wires
and pins were permanently inserted into her patella. 164 N.J. at 536, 542.
Although she returned to work in her full capacity shortly after the fall, she
experienced continued stiffness and pain in her knee. Id. at 537.
In reversing our affirmance of the trial court's grant of summary judgment,
the Court held that the plaintiff sustained a permanent loss of a bodily function
that was substantial. Id. at 541. Justice Long writing for the Court explained:
We are satisfied that the Legislature intended to
include within the notion of aggravated cases those
involving permanent injury resulting in a permanent
loss of normal bodily function even if modern medicine
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can supply replacement parts to mimic the natural
function. As is the case with dismemberment and
disfigurement, when pins, wires, mechanisms and
devices are required to make the plaintiff normal, the
statutory standard is met. The fact that a physician has
jury-rigged the knee to function with pins and wires in
no way inhibits the characterization of that injury as the
permanent loss of a bodily function. The same would
be true of a plaintiff whose vision is restored with a
lens, one whose hearing is restored with a hearing aid,
and one whose heart is operating efficiently with a
pacemaker or implanted valve. We conclude that those
are all aggravated cases within the contemplation of the
Legislature when it enacted the “permanent loss of
bodily function” language and that they fall squarely
within the “substantial” requirement of Brooks.
[Id. at 542-43.]
See also Leopardi v. Twp. of Maple Shade, 363 N.J. Super. 313, 333-34 (App.
Div. 2003) (holding the plaintiff's spinal fusion surgery, which did not include
installation of hardware, that left some decreased mobility and increased
potential for more damage to his spine, satisfied the TCA's requirement of a
permanent injury that was substantial), certif. granted, 179 N.J. 370 (2004),
appeal dismissed, 187 N.J. 486 (2005).
Surgical intervention alone is not dispositive because, as defendant notes,
the Court has held in other circumstances that the plaintiffs failed to demonstrate
a "substantial" loss of a bodily function under the TCA despite having
undergone surgical procedures. For example, in Ponte v. Overeem, 171 N.J. 46A-4531-16T1
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(2002), decided the same day as Kahrar, the Court concluded that although the
plaintiff underwent arthroscopic knee surgery, there was no evidence his "range
of motion [was] limited, his gait impaired or his ability to ambulate restricted."
Id. at 54.
Similarly, in Hammer v. Township of Livingston, the plaintiff underwent
surgery on her knee and elbow because of injuries suffered in a motor vehicle
accident. 318 N.J. Super. 298, 301 (App. Div. 1999). We held that the plaintiff's
subjective complaints of residual pain were insufficient, particularly in light of
objective medical evidence indicating she suffered no restrictions on range of
motion or limits on the functioning of her joints. Id. at 301-02.
In Knowles v. Mantua Township Soccer Association, the Court explained
the types of injuries that satisfy the threshold. 176 N.J. 324 (2003). These
include "an injury that permanently would render a bodily organ or limb
substantially useless but for the ability of 'modern medicine [to] supply
replacement parts to mimic the natural function,'" id. at 332 (quoting Gilhooley,
164 N.J. at 542-43), if there is "a 'physical manifestation of [a] claim that [an]
injury … is permanent and substantial.'" Ibid. (quoting Ponte, 171 N.J. at 54).
"[N]either an absence of pain nor a plaintiff's ability to resume some of his or
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her normal activities is dispositive of whether he or she is entitled to pain and
suffering damages under the TCA." Ibid. (citing Kahrar, 171 N.J. at 15-16).
Admittedly, this is a close case. Plaintiff can perform most of her routine
tasks without significant limitation. However, like the plaintiff in Gilhooley,
only the insertion of pins in plaintiff's wrist permits the joint to " mimic [its]
natural function." 164 N.J. at 542. Moreover, the objective medical evidence
demonstrates permanent limitations on the range of motion in her dominant
wrist, albeit much less than was the case of the plaintiff in Kahrar.
We conclude that for purposes of summary judgment, plaintiff has
demonstrated a material factual dispute as to whether her wrist injury meets the
requirements of the TCA. We therefore reverse summary judgment and remand
the matter to the trial court for further proceedings consistent with this opinion.
We do not retain jurisdiction.
Reversed and remanded.
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