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Appellate Division Affirms Dismissal Of Personal Injury Claims For Failure To Satisfy Threshold Requirements Of Tort Claims Act

February 20, 2019

ROBERT B. SPAWN reports on a recent unpublished decision from the Superior Court of New Jersey, Appellate Division.

In a recent New Jersey case, a Plaintiff-Tenant, who lived in a building owned and maintained by a Defendant-Housing Authority, fell through a hole in the floor of her apartment.  After a hospital visit on the night of her fall (in December 2013), Plaintiff followed up with her primary care physician regarding lingering knee and back pain.  Per her physician’s recommendation, Plaintiff underwent physical therapy for several months, but, because her knee and back pain did not improve, Plaintiff subsequently sought treatment at a chiropractic center, and received twenty-nine chiropractic treatments between February and June 2014.  Notably, in the midst of her chiropractic treatment, Plaintiff saw an orthopedic surgeon, who recommended an arthroscopy on her right knee.  Plaintiff, however, was afraid to undergo surgery, and elected to continue chiropractic treatment.  Upon discharge from chiropractic treatment in June 2014, Plaintiff was diagnosed with cervical and lumbar sprains and strains, as well as a tear of the lateral meniscus of her right knee.  Plaintiff then filed a complaint for her injuries, and, in response, Defendant asserted affirmative defenses under the Tort Claims Act (“TCA”).

At her deposition, Plaintiff claimed that the lingering pain in her lower back and right knee prevented her from sitting or standing for long periods of time.  Plaintiff also expressed difficulty walking, climbing stairs, and dancing.  Nonetheless, Plaintiff admitted that she was able to walk around her apartment, use public transportation, shop for groceries, and perform household tasks, such as cleaning and doing laundry.  Defendant moved for summary judgment after the completion of discovery, arguing that, because Plaintiff presented no evidence of a “permanent and substantial loss of bodily function,” she failed to meet the TCA’s threshold requirements.

The trial judge granted Defendant’s motion and dismissed Plaintiff’s claims on June 23, 2017, noting that Plaintiff had elected not to undergo surgery to repair her knee, and that Plaintiff was not significantly restricted in the performance of her daily activities and household tasks.  Accordingly, the judge found that Plaintiff failed to demonstrate the loss of a normal bodily function that was both permanent and substantial (as required by the TCA), and Plaintiff appealed.

The Appellate Division began its analysis by stating that “[a]n injury causing lingering pain, resulting in a lessened ability to perform certain tasks because of the pain, will not suffice [under the TCA] because a plaintiff may not recover . . . for mere subjective feelings of discomfort.”  The Court further explained that, although Plaintiff’s medical experts opined that her injury was permanent and causally connected to her fall, none of the medical experts asserted that Plaintiff’s injury caused a substantial loss of a bodily function.  Indeed, there were no medical restrictions imposed on Plaintiff’s daily activities, as she could still cook, shop, clean, and do laundry.  Therefore, as Plaintiff offered no evidence of a permanent and substantial loss of bodily function beyond her own subjective complaints and self-described limitations, the Appellate Division upheld the trial court’s dismissal of Plaintiff’s claims.

Please contact Robert B. Spawn if you have any questions or need assistance in connection with this subject.