Opinion
DOCKET NO. A-3332-13T2
11-05-2015
TYSHAWN BARLOW, Plaintiff-Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, SOUTHERN STATE CORRECTIONAL FACILITY, C. RAY HUGHES, ADMINISTRATOR, Defendant-Respondent.
Del Vacchio O'Hara, attorneys for appellant (Patrick C. O'Hara, Jr., of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Kevin J. Fleming, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-94-12. Del Vacchio O'Hara, attorneys for appellant (Patrick C. O'Hara, Jr., of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Kevin J. Fleming, Deputy Attorney General, on the brief). The opinion of the court was delivered by SUMNERS, JR., J.A.D.
Plaintiff Tyshawn Barlow appeals from an order granting defendants New Jersey Department of Corrections, Southern State Correctional Facility, and Administrator C. Ray Hughes' motion for partial summary judgment, dismissing his pain and suffering claim pursuant to N.J.S.A. 59:9-2(d). After reviewing the record in light of the contentions advanced on appeal, we affirm.
On November 4, 2011, plaintiff was an inmate at Southern State pulling a food cart down a concrete walkway when the wheels of the cart became lodged in loose gravel. The cart tipped over, knocking plaintiff to the ground, and pinning him underneath. Plaintiff was taken to the hospital, where a CT scan revealed a fractured pelvis without significant displacement.
A follow-up x-ray on January 26, 2012, revealed that the fracture was healing. Approximately five months later, plaintiff underwent an MRI that showed no evidence of fracture. On July 20, 2012, plaintiff underwent an EMG nerve conduction study on his right leg, revealing a normal result.
While still an inmate, plaintiff sent a tort claim notice to defendants. Upon his release and after obtaining counsel, plaintiff filed a complaint seeking recovery for medical expenses and pain and suffering damages under N.J.S.A. 59:9-2(d).
In his deposition, plaintiff testified that he continues to have right leg and hip pain, which limits his walking and standing, but can be relieved with medication. He also stated that his injury has limited his recreational activities, playing with his daughter, and restricted him to driving a zero-turn lawnmower on his job as a landscaper.
Plaintiff's medical expert, Patrick M. Collalto, M.D., issued a report stating that plaintiff's back exam was normal, but that his "hip exam showed [a] decreased rang[e] of motion and pain to the groin area" consistent with a prior fracture. The report, however, acknowledged that an MRI "did not show any pathology of the hip joint" and an EMG nerve test was normal. Dr. Collalto opined that, within a reasonable degree of medical probability, plaintiff's hip "injury is permanent and there is a probability of future arthritis in the hip."
Upon the close of discovery, defendants filed a motion for partial summary judgment to dismiss the pain and suffering claim. On September 27, 2013, following oral argument on the motion, the judge issued a bench decision granting the motion and dismissing plaintiff's pain and suffering claim with prejudice. Applying the two-prong test set forth in Brooks v. Odom, 150 N.J. 395, 402-03 (1997), as restated in Gilhooley v. County of Union, 164 N.J. 533, 540-541 (2000), the judge determined that plaintiff had not shown: (1) that his injuries were permanent by objective medical evidence; and (2) that he had a substantial permanent loss of bodily function.
On January 17, 2014, the judge denied plaintiff's motion for reconsideration as being out of time; the reasons for which are not included in the record before us. Less than a month later, the parties entered into a consent order dismissing with prejudice all remaining claims. This appeal followed.
We review a trial court's decision to grant or deny summary judgment de novo, Heyert v. Taddese, 431 N.J. Super. 388, 411 (App. Div. 2013), utilizing "'the same standard [of review] that governs the trial court.'" Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012) (quoting Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)). Because our review is de novo, we "accord no deference to the trial judge's conclusions on issues of law." Depolink Court Reporting & Litig. Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013).
We first determine whether the moving party has demonstrated that there were no genuine disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). If there are materially disputed facts, the motion for summary judgment should be denied. Parks v. Rogers, 176 N.J. 491, 502 (2003).
Next, the court must "consider 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." Brill, supra, 142 N.J. at 540; see also R. 4:46-2(c).
We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. In doing so, we owe no deference to the motion judge's conclusions on issues of law, and review those de novo. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995)).
Before us, plaintiff argues that the motion judge erred in finding that the Brooks two-prong test was not satisfied. Plaintiff contends that the first prong was established by his medical expert's opinion that objective evidence of the permanent injury is demonstrated in CT scan and MRI results. Plaintiff contends that the second prong was satisfied through his deposition testimony that ongoing pain limits his ability to walk and stand, hampers his ability to work and disrupts his recreational activities, sufficiently evinces a substantial permanent loss of a bodily function. We are not persuaded.
The motion judge found that the only evidence of permanent injury presented was a conclusory remark of plaintiff's medical expert, and that the objective medical evidence on record did not support a claim of permanent injury. We agree. Dr. Collalto's opinion that plaintiff has a permanent injury is not supported by objective medical evidence. Dr. Collalto's reliance upon the diagnosis of a fractured hip based on the CT scan performed right after the incident is insufficient. The objective medical tests administered thereafter do not show an injury. Five months after the incident, an MRI revealed a healed fracture, and a subsequent EMG nerve study showed normal results. Plaintiff does not have any fixation devices necessary to establish the integrity of his hip or any body part. See Gilhooey, supra, 164 N.J. at 536 (permanent injury where knee fracture caused loss of quadriceps power and insertion of fixation devices to re-establish the integrity of the knee); see also, Brooks, supra, 150 N.J. at 406 (injuries causing blindness, disabling tremors, paralysis and loss of taste and smell are objectively permanent). Thus, plaintiff has failed to present proof of "an objective permanent injury." N.J.S.A. 59:9-2(d).
Next, the motion judge found that even if plaintiff showed his injury was permanent, viewing the evidence in the light most favorable to plaintiff, plaintiff failed to satisfy the second prong by showing a significant permanent loss of a bodily function. Relying upon Knowles v. Mantua Township Soccer Ass'n, 176 N.J. 324, 332 (2003) (citations omitted), the judge reasoned that plaintiff's evidence presented nothing more than subjective feelings of discomfort.
"[T]he Legislature intended that a plaintiff must sustain a permanent loss of the use of a bodily function that is substantial." Brooks, 150 N.J. at 406. In Brooks, the Supreme Court reinstated the trial court's dismissal of the plaintiff's claims under N.J.S.A. 59:9-2(d) because the plaintiff could still function in both her employment and as a homemaker. Id. at 406, 407. The Court reached that conclusion even though the plaintiff was still experiencing post-accident pain and had permanent restrictions of her motion in her neck and back. Id. at 406. The plaintiff's daily activities, although painful, were not substantially precluded by her injuries. Id. In Ponte v. Overeem, 171 N.J. 46, 49, 54 (2002), the Court held that the plaintiff's surgically repaired knee, did not meet the permanent loss threshold, in part because the record was lacking as to the extent and permanency of his impairments. Despite a permanent internal derangement of the knee, the plaintiff was able to return to his former athletic activities and yardwork, albeit with some restrictions. Id. at 50-51. Furthermore, in Heenan v. Greene, 355 N.J. Super. 162 (App. Div. 2002), we held that the plaintiff's cervical disc herniation, which led to a less strenuous teaching job and more breaks in household chores, did not meet the permanent loss threshold.
Applying the criteria set forth in Brooks, Ponte, and Heenan, we conclude here that plaintiff did not prove a permanent loss of substantial bodily function. At worst, plaintiff's injury has caused him some pain and limitations, but it does not prevent him from working, walking, standing, or playing with his daughter. Accordingly, we agree with the motion judge that plaintiff has failed to establish a permanent and substantial loss of a bodily function pursuant to N.J.S.A. 59:9-2(d).
We recognize that although plaintiff is able to work, the ability to work is not a litmus test for recovery of pain and suffering damages against public bodies and employees. Kahrar v. Borough of Wallington, 171 N.J. 3, 14-15 (2002). --------
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION