If you practice Plaintiff’s personal injury law in New Jersey, you are no doubt painfully aware of the practical effect of the 1997 New Jersey Supreme Court ruling in Brooks v. Odom, 150 N.J. 395 (1997). At first glance, the holding with its mile high standard would appear to sound a death knell to the run-of-the-mill Title 59 case. On closer examination, however, the scope and breadth of Brooks is not all-encompassing.
In Brooks, plaintiff was entering her car when a New Jersey Transit bus struck the door injuring plaintiff. She received emergency treatment and came under the care of several doctors, including Dr. Jack Siegel and Sall/Myers Medical Associates. Her testing was essentially negative, save for thermograms of the neck and lower back which were abnormal, and an x-ray of her neck which showed narrowing of the disc space at two levels. Importantly, a CT scan presumably of the cervical area was normal. Diagnoses of soft tissue injuries and post traumatic cephalgia (headaches) were made. In an examination fifteen months post-accident, Dr. David Myers found straightening of the cervical curve, spasm and tenderness throughout the spine and decreased ranges of motion in plaintiff’s neck, mid and lower back. Plaintiff missed eight days of work as a teacher immediately after the accident. She asserted continued complaints of inability to sit and stand for long periods of time, headaches, dizziness, and severe lower back pain radiating into her leg. She had difficulty performing everyday activities such as vacuuming, lifting and bending.
Because her suit was against a public entity, the New Jersey Tort Claims Act was implicated. Specifically, the Court in Brooks examined N.J.S.A. 59:9-2 (d) which provides that:
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 $1,000.00.
In the end, the Court held that 59:9-2 (d) required the plaintiff to show that she had “sustain[ed] a permanent loss of use of a bodily function that is substantial” and that Plaintiff had not met this standard. Brooks at 406. Since the holding in Brooks raised the threshold bar substantially, a landslide of motions seeking dismissals in Title 59 cases have followed.
In numerous unreported cases, the Appellate Division has upheld dismissals in cases involving:
- “a large disc herniation at L4-5 and a smaller herniation at L5-S1 with effacement of the anterior thecal sac” Romano v. N.J. Transit, A-7396-95T2
- “distal radius fracture, with left shoulder, post traumatic adhesive capsulitis, and rotator cuff tear” Aldana v. City of Newark , A7720-95T2
- a “posterior malleolar fracture of the left ankle” Rios v. Perth Amboy, A-1392-96T2
- “cognitive dysfunction, symptoms consistent with bilateral carpal tunnel syndrome, bilateral lumbar radiculopathy and bilateral TMJ dysfunction” Maciques v. County of Union, A-4763-96T5
- “cervical herniated disc at C5-6 and lumbosacral herniated disc at L5-S1” Williams v. Newark Housing Authority, A-3057-96T2
- and “oblique spiral fracture of the right ankle with deltoid rupture” requiring open reduction and internal fixation. Lovelace v. Newark Housing Authority, A-1621-97T5.
Clearly, the enhanced threshold of Brooks v. Odom sets up a virtually insurmountable obstacle in the large majority of Title 59 cases pending before the Courts. The Appellate Division, as illustrated above, has applied the holding of Brooks in a strict and unyielding fashion. Yet, the decision of the Supreme Court in Brooks appears to require a subjective assessment of the effect of the injuries which, arguably, is within the province of a jury. Whether or not the “permanent loss of use of a bodily function” is “substantial” is a fact question for the jury, not a question of law for the Court. In other areas of the law, the Courts have held that it is for the jury to determine when and if the requirement of “substantial” has been met. Examples exist in the areas of:
- medical malpractice: Evers v. Dollinger , 95 N.J. 399 (1984)
- contract actions: Brannworth v. Borough of Verona, 94 N.J.L. 194 (E & A. 1920)
- products liability: Navarro v. George Koch & Sons, 211 N.J. Super. 558 (App. Div. 1986)
- criminal law: State v. Turner, 246 N.J. Super. 22(App. Div. 1991)
- and LAD cases under the New Jersey Law Against Discrimination.
In the first instance, the Court on motion should examine the injuries alleged giving the plaintiff the benefit of all legitimate inferences as is required in summary judgment motions. If objective medical evidence exists to find a permanent loss of use of a bodily function, the question of whether or not such loss is substantial must be put to a jury and should not be decided by the Court on a printed record and without the benefit of full trial testimony.
More importantly, practitioners must be aware that N.J.S.A. 59:9-2 (d) and, consequently, the Brooks opinion on which it was based, apply only to “pain and suffering” claims since the clear and unambiguous language of that section of the Act applies the threshold to those claims only. Claims for other aspects of non-economic damage such as disability, impairment and loss of enjoyment of life are not subject to the threshold of 59:9-2 (d) where there is prima facie evidence of objective impairment or injury.
N.J.S.A. 59:9-2 (d) was interpreted by the Appellate Division in Peterson v. Edison Township Board of Education, 137 N.J. Super. 566 (App. Div. 1975). The Court held that
It has long been recognized that pain and suffering are only one among several of the elements of damage for which an injured party may seek recovery in a negligence action. Theobold v. Angelos, 40 N.J. 295 (1963)… The quoted language [59:9-2 (d)] expresses no intention of barring or limiting recovery for permanent injuries…The statute forecloses plaintiffs only from pursuing a claim for pain and suffering as an element of damages.”
Similarly, in Reale v. Township of Wayne, 132 N.J. Super. 100 (Law Division, 1975), the Court noted that
If the legislature had intended the term ‘pain and suffering’ to encompass other elements of recovery such as permanent injury it would have been a simple matter for it to have said so. The Court is unwilling to ascribe such an intent to the lawmakers in the face of the language of the section. It is held as a matter of law that N.J.S.A. 59:9-2 (d) does not bar infant plaintiff’s potential recovery for permanent injuries…”
Both Reale and Peterson remain good law and the statute at issue has remained unchanged.
In 1976 in Labarrie v. Housing Authority of Jersey City, 143 N.J. Super. 61, 64 (Law Div 1976), the Court wrote:
Plaintiff concedes that she cannot receive damages for her pain and suffering but contends that N.J.S.A. 59:9—2(d) does not bar recovery for damages for permanent injuries–i.e., the impairment of her faculties, health and ability to participate in activities as distinguished from physical discomfort and distress. Peterson v. Edison Tp. Bd. of Ed., 137 N.J.Super. 566, 350 A.2d 82 (App.Div.1975) so holds. See also, discussion in Reale v. Wayne Tp., 132 N.J.Super. 100, 115, 332 A.2d 236 (LawDiv.1975). In Peterson the claimed item of damage was a fracture of the forearm and wrist, with a resulting deformity—an objective impairment. In the instant case, however, the claim is purely subjective—consisting entirely of plaintiff’s complaints of physical discomfort and distress. Her own doctor’s report reveals full range of motion, active and equal reflexes, adequate grasp strength and an absence of any pathology in x-ray studies. To extend Peterson so as to permit recovery for this type of nonobjective complaint would be to ignore the Legislative mandate. The result would be to allow recovery for pain and suffering by denominating it permanent injury. The Legislature did not intend such a result. The intention of the Legislature is entitled to greater recognition and implementation.
Additionally, in Thorpe v. Cohen ,258 N.J. Super. 523 (App. Div 1992) the Court held:
We do not, however, find any legislative intent to permit a claim for disability or bodily injury when the threshold is not met due to the absence of an objective injury, as opposed to the medical expense. [emphasis added].
The issue has also been addressed by the Supreme Court in the case of Rivera v. Gerner, 89 N.J. 526 (1982).
In Rivera v. Gerner, a case involving serious personal injury to a minor Plaintiff, the Court cited Peterson with approval in noting that:
Our courts have uniformly applied the act’s [Tort Claims Act] provisions in accord with its stated policy limiting recovery to cases in which the severity of injury can be objectively shown…[i]n Peterson v. Edison Township Board of Education, [citation omitted] the court held that the Legislature intended to bar recovery for pain and suffering if medical expenses do not meet the threshold requirement, but to allow recovery for the permanent injury itself.
In summary, while the Trial and Appellate Courts have applied the holding of Brooks v. Odom to a variety of cases where evidence of objective injury clearly exists, it is the claims for pain and suffering only which should be dismissed. The claims for permanent injury, disability, impairment and loss of enjoyment of life remain as viable claims for which compensation is appropriate. The practitioner must ensure that dismissals under N.J.S.A. 59:9-2 (d) and Brooks do not go farther than appropriate.