Opinion
DOCKET NO. A-2565-14T2
09-21-2016
TIMOTHY ROEHRICH, Plaintiff-Appellant, v. JAMES M. MULLIN, COUNTY OF MIDDLESEX, and OFFICE OF THE MIDDLESEX COUNTY PROSECUTOR, Defendants-Respondents.
Bruce O. Matthews argued the cause for appellant (Gregory V. Sharkey, P.C., attorneys; David P. Corvasce and Mr. Matthews, on the briefs). Gregory P. Matarrese argued the cause for respondents (Dvorak & Associates, LLC, attorneys; Lori A. Dvorak, of counsel; Patrick J. Nemes, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2269-12. Bruce O. Matthews argued the cause for appellant (Gregory V. Sharkey, P.C., attorneys; David P. Corvasce and Mr. Matthews, on the briefs). Gregory P. Matarrese argued the cause for respondents (Dvorak & Associates, LLC, attorneys; Lori A. Dvorak, of counsel; Patrick J. Nemes, on the brief). The opinion of the court was delivered by OSTRER, J.A.D.
This appeal involves application of the Tort Claims Act (TCA) verbal threshold. N.J.S.A. 59:9-2(d). On January 7, 2012, defendant James M. Mullin, an officer with the Middlesex County Prosecutor's Office, fell asleep at the wheel of his county automobile, entered the oncoming lane of traffic in which plaintiff Timothy Roehrich was traveling, and collided with Roehrich's vehicle. The trial court found that Roehrich's injuries did not vault the verbal threshold and granted summary judgment dismissal to Mullin, as well as the County and the County Prosecutor's Office.
We will refer to the County and the Prosecutor's Office as the County Defendants.
Roehrich appeals, renewing his arguments that he suffered a permanent and substantial loss of a bodily function. He also contends that Mullin acted outside the scope of his employment. We affirm.
The collision occurred shortly after 2:30 a.m. on East Veterans Highway in Jackson Township, where Mullin resides. Mullin's vehicle, a 1997 Honda, crashed into the driver's side of Roehrich's vehicle. The County Defendants admitted ownership and agency but not operation or control of the vehicle.
After the accident, Roehrich complained of pain to his neck, back and hands. But Roehrich had already suffered similar injuries in three previous automobile accidents, two in the mid-1990s and one in 2008. His disability from these injuries was significant. After the first two accidents, he had arthroscopic surgery of his left shoulder to repair a rotator cuff tear. After complaining of "extreme left shoulder pain," he had an MRI performed in April 2010. It found "severe rotator cuff tendinopathy." The report noted "[a]bnormal increased T2 signal . . . in the midportion of supraspinatus tendon . . . consistent with a full-thickness tear," but "no tear of the infraspinatus" tendon. In 2011, Robert Dennis, M.D., found he had a limited range of motion in his left shoulder and was unable "to get his hand well over his head." Dr. Dennis opined that plaintiff had a "current rotator cuff tear" that "probably" pre-existed the 2008 accident.
Roehrich sought medical treatment after the 2012 collision. He ultimately saw orthopedic surgeon Theodore G. Zaleski, M.D., in May 2012. Roehrich chiefly complained about pain in his left wrist and thumb, which limited his ability to play guitar in a band and to handle instruments like a hammer or steering wheel. Plaintiff also complained of pain in his left shoulder. Dr. Zaleski recommended an MRI of the shoulder "to rule out recurrent rotator cuff tear or SLAP lesion."
After plaintiff obtained the MRI several months later, Dr. Zaleski concluded, consistent with the 2010 MRI report, that Roehrich had a "full thickness tear of the supraspinatus tendon with retraction of the tendon." He also now showed a "full thickness tear of the conjoined tendon and infraspinatus tendon." In addition, there were "degenerative changes" of the acromioclavicular joint and glenohumeral joint. Dr. Zaleski's diagnosis was: "Rotator cuff tear (RC) left shoulder, RC arthropathy left shoulder." Dr. Zaleski reviewed surgical options, but Roehrich did not want to consider surgery. Roehrich saw Dr. Zaleski four more times in 2013, continuing to complain of pain but resisting surgery.
In July 2014, Dr. Zaleski summarized that plaintiff "suffers from CMC arthritis of the left thumb and a left rotator cuff tear with secondary degenerative arthritis of the glenohumeral joint." Although Roehrich attributed his injuries to the 2012 collision, Dr. Zaleski was uncertain: "Whether or not these tears [of the supraspinatus and infraspinatus tendons] represent re-injury secondary to supervening trauma, or whether they are the result of the failure to effect a repair in the index procedure, the patient was more symptomatic following the instant trauma."
Roehrich was also examined by an expert he retained, Cary Skolnick, M.D., and by a defense expert, Samuel E. Epstein, D.O. Dr. Skolnick stated in his 2014 report that he anticipated plaintiff would "suffer from chronic intermittent pain and discomfort upon routine activities." Roehrich would have to "avoid reaching overhead and putting dishes on high shelves, bringing laundry up and down the stairs and even climbing stairs, which are all problematic for" him. According to Dr. Skolnick, Roehrich needed a "left total shoulder arthroplasty."
Regarding causation, Dr. Skolnick stated:
This patient had a previous problem with both his cervical and lumbar spine, as well as his left shoulder even prior to this motor vehicle accident of 2008. In addition, he had a reinjury to his left shoulder in the 2012 motor vehicle accident. The apportionment with regard to his left shoulder is 20% of a pre-existing nature, 50% related to the motor vehicle accident in 2008 and 30% related to the motor vehicle accident in 2012.Dr. Skolnick concluded plaintiff "has suffered a permanent injury to his left shoulder, cervical and lumbar spine," which "cannot be cured" even with continued treatment. Regarding the left elbow and left hand, Dr. Skolnick simply wrote, "they are 100% related to the motor vehicle accident of 2012."
Dr. Epstein acknowledged that Roehrich could not play musical instruments and had difficulty performing certain household chores. But he concluded the cause was not the 2012 accident. Instead, Dr. Epstein stated the "natural history of cuff tear arthropathy . . . is not related to injuries [plaintiff] sustained" in 2012. Dr. Epstein noted the "cuff tear arthropathy . . . is a long-standing condition in which there has been a chronic rotator cuff tear." Dr. Epstein opined that surgery would provide "significant overall improvement."
Roehrich testified at his deposition that the 2012 accident primarily limited his ability to play musical instruments for extended periods of time. He played music since he was a small boy, and was in a band in 2012, but he had to "stop playing":
Q: Are there any activities that you can't do now that you could do prior to the January 2012 accident?
A: I finally got back into music, and I enjoy it. Now I can't do that.
Q: You said you finally got back into it. When did you get back into it?
A: I mean playing with actual people, you know.
Q: Well, you just said--
A: I don't play the guitar anymore because of my shoulder and my thumb.
Q: You don't play the guitar at all?
A: Yeah, I tried some, and there's no way I could sit through a whole practice or anything.
Q: So you can play the guitar. You just don't play it as often?
A: Right, yeah, because I can't. I have to put it down because it hurts me.
. . . .
Q: [I]s there anything besides music that you can't do now that you did before the January 2012 accident?Plaintiff testified that he does some household chores for his mother. These include watering plants and doing dishes and laundry. He is able to drive a car, and frequently makes two-hour-long drives.
A: No. Everything is the same.
Roehrich did not take Mullin's deposition or obtain any supplemental written discovery regarding whether Mullin was on duty when the collision occurred.
After the discovery end date, defendants filed a joint motion for summary judgment. They contended they were immune from liability under the TCA, N.J.S.A. 59:1-1 to 12-3. Invoking the verbal threshold, they argued Roehrich was barred from recovering non-economic damages because he had not suffered a "permanent loss of a bodily function." N.J.S.A. 59:9-2(d). Defendants contended Roehrich failed to establish his injuries resulted from the 2012 collision and not his prior accidents. Also, his injury did not constitute a "permanent loss of a bodily function" because his only limitation affected his ability to play music.
Roehrich argued the 2012 collision caused the infraspinatus tendon tear, which did not appear on pre-2012 MRIs. Roehrich also asserted he met the "permanent loss of bodily function" requirement because he lost range of motion in his left shoulder and could no longer play guitar.
For the first time at oral argument, plaintiff's counsel also contended that Mullin had not established he was acting within the scope of his employment. Defense counsel objected that the point was not raised in Roehrich's opposition papers. Judge Mark A. Troncone agreed that the issue was not properly raised; declined to consider argument on the matter; but invited plaintiff to raise it in a motion for reconsideration.
Relying on the verbal threshold, the court granted summary judgment. In a written opinion, the judge found that Roehrich failed to prove the 2012 accident caused the "injuries complained of" and that Roehrich did not suffer a "substantial loss of a bodily function." The judge did not address Roehrich's belated scope-of-employment argument.
Plaintiff did not file a motion to reconsider. On appeal, he argues the court erred in concluding that the infraspinatus tendon tear was neither a permanent injury nor a permanent loss of a bodily function that was substantial. He also argues the TCA did not apply because Mullin was not acting within the scope of his employment.
We review de novo the trial court's grant of summary judgment, applying the same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Summary judgment is proper if the record evidence shows "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." R. 4:46-2; see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Furthermore, whether a party is entitled to TCA immunity is a question of law, Malik v. Ruttenberg, 398 N.J. Super. 489, 494 (App. Div. 2008), which we review de novo.
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. County 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 (2) a permanent loss of a bodily function that is substantial." Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324, 329 (2003) (internal quotation marks and citations omitted). 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 this Court has determined that an injury is substantial and permanent." Ibid. (quoting Gilhooley, supra, 164 N.J. at 541).
We recognize that the verbal threshold does not preclude recovery for economic damages. DelaCruz v. Borough of Hillsdale, 183 N.J. 149, 164 (2005). Although the County Defendants focused solely on the protection of the verbal threshold, Roehrich has apparently abandoned any claim for non-economic damages, notwithstanding that he asserted it in his complaint. Therefore, we need not address whether defendants enjoy immunity from such a claim. --------
We need not address whether Roehrich suffered a permanent injury as a result of the 2012 collision because, even if he did, we are convinced that he failed to demonstrate a "permanent loss of a bodily function that is substantial."
Certain injuries categorically satisfy the "permanent loss" requirement — "injuries causing blindness, disabling tremors, paralysis and loss of taste and smell." Gilhooley, supra, 164 N.J. at 541. These injuries inherently "implicate the substantial loss of a bodily function (e.g., sight, smell, taste, and muscle control)." Ibid. 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). Furthermore, "neither an absence of pain nor a plaintiff's ability to resume some of his or her normal activities is dispositive of whether he or she is entitled to pain and suffering damages under the TCA." Knowles, supra, 176 N.J. at 332.
In Kahrar v. Borough of Wallington, a plaintiff suffered a "massive tear of [her] rotator cuff". 171 N.J. 3, 6 (2002). The resulting surgery left her with a permanently shortened tendon and forty-percent decreased range of motion in her shoulder. Id. at 6-8. The Court held this was a "substantial loss of a bodily function" as the reduced range of motion "significantly impaired" her "ability to use her arm to complete normal tasks." Id. at 16. In Gilhooley, the plaintiff suffered a fractured patella that required insertion of "permanent pins and wires to re-establish its integrity." Gilhooley, supra, 164 N.J. at 541-42. Although the plaintiff had returned to work, she suffered a "substantial loss" because her knee "could not function" without the pins and wires. Id. at 542. Summarizing Kahrar and Gilhooley, the Court in Knowles noted that both 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, supra, 176 N.J. at 332-33.
At the other end of the "continuum" are cases in which an injured party is merely "unable to perform certain tasks without pain." Id. at 333. In Brooks, 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 she could still "function both in her employment and as a homemaker." Brooks, supra, 150 N.J. at 399, 406. As the Knowles Court summarized, the Brooks defendant prevailed "because the plaintiff's daily activities, although painful, were not substantially precluded by her injuries." Knowles, supra, 176 N.J. at 333.
Similarly, in Ponte v. Overeem, a plaintiff did not demonstrate substantial loss where his knee injury temporarily hindered his ability to exercise and do housework, but the record did not establish he was permanently "restricted because of his knee" in performing daily activities. 171 N.J. 46, 51-54 (2002); see also Newsham v. Cumberland Reg'l High Sch., 351 N.J. Super. 186, 195 (App. Div. 2002) (concluding there was no substantial loss where a vertebra fracture caused only "minor" limitations on plaintiff's ability to perform daily activities).
Applying these principles, plaintiff cannot satisfy the second prong because he has not suffered a "substantial loss" of use of his left arm. Plaintiff testified that the only activity impaired by his shoulder injury is playing guitar; "everything [else] is the same." He testified that he plays less frequently and for shorter periods of time because of the pain, but being "unable to perform certain tasks without pain" does not suffice. Knowles, supra, 176 N.J. at 333. Given plaintiff's own testimony about his physical capabilities, statements in the physicians' reports about his shoulder function do not create a genuine issue of fact.
Plaintiff's testimony distinguishes this case from Kahrar. Although both Roehrich and Kahrar suffered rotator cuff tears that reduced their range of motion, Kahrar's tear "significantly impaired" her ability to complete normal tasks. Kahrar, supra, 171 N.J. at 16. Here, plaintiff admits his ability to carry out daily tasks is unchanged, save for the pain he experiences playing guitar for extended periods of time. Indeed, he testified that he still performs household chores and frequently takes long drives. While his rotator cuff injury has undoubtedly caused him frequent discomfort and made enjoying one of his favorite activities more difficult, there is no genuine dispute that he is mostly still able to carry out his daily activities. Accordingly, plaintiff has not suffered a "substantial loss" of use of a bodily function. He has therefore failed to meet the verbal threshold.
Roehrich also contends that Mullin was not acting within the scope of his employment when he crashed into Roehrich. If so, Mullin may not avail himself of the verbal threshold. See N.J.S.A. 59:3-14(a) ("Nothing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct."); Toto v. Ensuar, 196 N.J. 134, 145 (2008) ("By its plain, unambiguous, and specific terms, N.J.S.A. 59:3-14(a) creates an exception to the verbal threshold."); Kelly v. County of Monmouth, 380 N.J. Super. 552, 562 (App. Div. 2005) ("[I]n circumstances in which the public employee acts willfully or beyond the scope of his employment, the verbal threshold must not be applied.").
However, Roehrich's counsel raised this issue for the first time at oral argument in opposition to the motion for summary judgment. Judge Troncone properly declined to consider the issue. Although he invited plaintiff to present the issue in a motion for reconsideration, plaintiff chose not to do so for reasons that are unclear. We decline to consider an issue that was not properly presented to the trial court and that is neither jurisdictional nor of great public interest. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1977); Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2016) ("[A] mere mention of an issue in oral argument does not require an appellate court to address it.").
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION