NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5007-16T4
DENISE SPENTZ,
Plaintiff-Appellant,
v.
NEWARK HOUSING AUTHORITY,
Defendant-Respondent. _____________________________
Submitted January 24, 2019 – Decided February 11, 2019
Before Judges Ostrer and Mayer.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0483-15.
Nathaniel M. Davis, attorney for appellant.
Biancamano & Di Stefano, PC, attorneys for respondent (James G. Serritella, on the brief).
PER CURIAM
Plaintiff Denise Spentz appeals from a June 23, 2017 order granting
summary judgment in favor of defendant Newark Housing Authority, dismissing her personal injury claims for failure to satisfy the Tort Claims Act (TCA),
N.J.S.A. 59:1-1 to -12-3. We affirm.
In December 2013, plaintiff, who lived in a building owned and
maintained by defendant, fell through a hole in the floor of her apartment. She
was taken to the hospital, complaining of knee and back pain. She was
discharged from the hospital after being treated for a leg abrasion. No x-rays or
other radiological images were taken while plaintiff was at the hospital.
Plaintiff followed up with her primary care physician who prescribed
medication and physical therapy. Because her knee and back complaints did not
improve with physical therapy, plaintiff sought treatment at a chiropractic
center. Plaintiff received twenty-nine chiropractic treatments between February
and June 2014.
About two and one-half months after her fall, plaintiff underwent
magnetic resonance imaging (MRI) of her lumbar spine and right knee. The
MRI of the lumbar spine noted moderate disc bulges in plaintiff's lower back.
The MRI of the right knee revealed a lateral meniscal tear and sprain of the
anterior cruciate ligament.
A-5007-16T4 2 After her MRI, plaintiff saw an orthopedic surgeon who recommended
right knee arthroscopy. Because she was afraid to undergo surgery, plaintiff
elected to continue chiropractic treatment.
Plaintiff also had an electromyography (EMG) study of her lower
extremities. Based on the EMG results, plaintiff had no lumbar radiculopathy.
Upon discharge from chiropractic treatment, in June 2014, plaintiff was
diagnosed with cervical and lumbar sprains and strains and a tear of the lateral
meniscus of the right knee.
Plaintiff filed a complaint for her injuries. Defendant filed an answer,
denying the allegations and asserting affirmative defenses under the TCA.
Thereafter, plaintiff was deposed. At her deposition, plaintiff described
pain in her lower back and knee, requiring daily pain medication. Plaintiff also
claimed she was unable to sit or stand for long periods of time. Plaintiff
expressed difficulty walking, climbing stairs, and dancing.1 Plaintiff admitted
1 Plaintiff's brief states she uses a cane. However, there is no evidence or testimony in the record explaining why plaintiff uses a cane, when she started using a cane, or whether her doctors recommended she use a cane after her fall. The documents submitted by plaintiff in opposition to defendant's summary judgment motion reveal plaintiff is five feet tall and weighs 206 pounds, placing her in the obese category. The records also indicate plaintiff is diabetic. Individuals who are significantly overweight and suffer from diabetes often experience difficulty walking. W. Jack Rejeski et al., Lifestyle Change and
A-5007-16T4 3 she was able to walk around her apartment, use public transportation, shop for
groceries, and perform household tasks such as cleaning and laundry.
After completing discovery, defendant moved for summary judgment,
arguing plaintiff failed to meet the TCA's threshold requirements. Specifically,
defendant asserted plaintiff failed to present evidence she suffered a permanent
and substantial loss of a bodily function.
The judge granted the motion, stating plaintiff's injuries did not meet the
TCA threshold for damages in accordance with N.J.S.A. 59:9-2(d). The TCA
provides:
No damages shall be awarded against a public entity . . . 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 . . . .
[N.J.S.A. 59:9-2(d).]
In rendering his decision, the judge relied on Ponte v. Overeem, 171 N.J.
46 (2002). In Ponte, a case similar to this matter, the Court held a knee injury
requiring arthroscopic surgery did not constitute a permanent loss of bodily
function to recover pain and suffering damages under the TCA.
Mobility in Obese Adults with Type 2 Diabetes, 366 New Eng. J. Med. 1209, 1209 (2012). A-5007-16T4 4 Here, plaintiff elected not to undergo surgery to repair a meniscal tear in
her knee and was not restricted in the performance of her normal daily activities,
including household tasks. Thus, the judge concluded plaintiff failed to
demonstrate a physical manifestation of an injury to her knee, establishing loss
of a normal bodily function that is both permanent and substantial.
On appeal, plaintiff argues the motion judge erred in granting summary
judgment because she suffered permanent injuries and a substantial loss of a
bodily function, satisfying N.J.S.A. 59:9-2(d).
We review a grant of summary judgment de novo, applying the same
standard as the trial court. Templo Fuente De Vida Corp. v. Nat'l Union Fire
Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Summary judgment may be
granted when "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." R. 4:46–2(c).
In determining whether there is a genuine issue of material fact, courts
"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-
A-5007-16T4 5 moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
If the evidence presented "show[s] that there is no real material issue, then
summary judgment should be granted." Walker v. Atl. Chrysler Plymouth, Inc.,
216 N.J. Super. 255, 258 (App. Div. 1987).
To recover for pain and suffering under the TCA, a plaintiff must show
"(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)
(citing Brooks v. Odom, 150 N.J. 395, 402-403 (1997)). Considering the
evidence in the light most favorable to plaintiff, we must determine whether
plaintiff's injuries satisfy both prongs of the test established in Brooks and
Gilhooley (Brooks/Gilhooley test).
In this case, plaintiff had no treatment to her lower back or right knee
since June 2014. While plaintiff's medical experts opined plaintiff's injury was
Free access — add to your briefcase to read the full text and ask questions with AI
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-5007-16T4
DENISE SPENTZ,
Plaintiff-Appellant,
v.
NEWARK HOUSING AUTHORITY,
Defendant-Respondent. _____________________________
Submitted January 24, 2019 – Decided February 11, 2019
Before Judges Ostrer and Mayer.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0483-15.
Nathaniel M. Davis, attorney for appellant.
Biancamano & Di Stefano, PC, attorneys for respondent (James G. Serritella, on the brief).
PER CURIAM
Plaintiff Denise Spentz appeals from a June 23, 2017 order granting
summary judgment in favor of defendant Newark Housing Authority, dismissing her personal injury claims for failure to satisfy the Tort Claims Act (TCA),
N.J.S.A. 59:1-1 to -12-3. We affirm.
In December 2013, plaintiff, who lived in a building owned and
maintained by defendant, fell through a hole in the floor of her apartment. She
was taken to the hospital, complaining of knee and back pain. She was
discharged from the hospital after being treated for a leg abrasion. No x-rays or
other radiological images were taken while plaintiff was at the hospital.
Plaintiff followed up with her primary care physician who prescribed
medication and physical therapy. Because her knee and back complaints did not
improve with physical therapy, plaintiff sought treatment at a chiropractic
center. Plaintiff received twenty-nine chiropractic treatments between February
and June 2014.
About two and one-half months after her fall, plaintiff underwent
magnetic resonance imaging (MRI) of her lumbar spine and right knee. The
MRI of the lumbar spine noted moderate disc bulges in plaintiff's lower back.
The MRI of the right knee revealed a lateral meniscal tear and sprain of the
anterior cruciate ligament.
A-5007-16T4 2 After her MRI, plaintiff saw an orthopedic surgeon who recommended
right knee arthroscopy. Because she was afraid to undergo surgery, plaintiff
elected to continue chiropractic treatment.
Plaintiff also had an electromyography (EMG) study of her lower
extremities. Based on the EMG results, plaintiff had no lumbar radiculopathy.
Upon discharge from chiropractic treatment, in June 2014, plaintiff was
diagnosed with cervical and lumbar sprains and strains and a tear of the lateral
meniscus of the right knee.
Plaintiff filed a complaint for her injuries. Defendant filed an answer,
denying the allegations and asserting affirmative defenses under the TCA.
Thereafter, plaintiff was deposed. At her deposition, plaintiff described
pain in her lower back and knee, requiring daily pain medication. Plaintiff also
claimed she was unable to sit or stand for long periods of time. Plaintiff
expressed difficulty walking, climbing stairs, and dancing.1 Plaintiff admitted
1 Plaintiff's brief states she uses a cane. However, there is no evidence or testimony in the record explaining why plaintiff uses a cane, when she started using a cane, or whether her doctors recommended she use a cane after her fall. The documents submitted by plaintiff in opposition to defendant's summary judgment motion reveal plaintiff is five feet tall and weighs 206 pounds, placing her in the obese category. The records also indicate plaintiff is diabetic. Individuals who are significantly overweight and suffer from diabetes often experience difficulty walking. W. Jack Rejeski et al., Lifestyle Change and
A-5007-16T4 3 she was able to walk around her apartment, use public transportation, shop for
groceries, and perform household tasks such as cleaning and laundry.
After completing discovery, defendant moved for summary judgment,
arguing plaintiff failed to meet the TCA's threshold requirements. Specifically,
defendant asserted plaintiff failed to present evidence she suffered a permanent
and substantial loss of a bodily function.
The judge granted the motion, stating plaintiff's injuries did not meet the
TCA threshold for damages in accordance with N.J.S.A. 59:9-2(d). The TCA
provides:
No damages shall be awarded against a public entity . . . 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 . . . .
[N.J.S.A. 59:9-2(d).]
In rendering his decision, the judge relied on Ponte v. Overeem, 171 N.J.
46 (2002). In Ponte, a case similar to this matter, the Court held a knee injury
requiring arthroscopic surgery did not constitute a permanent loss of bodily
function to recover pain and suffering damages under the TCA.
Mobility in Obese Adults with Type 2 Diabetes, 366 New Eng. J. Med. 1209, 1209 (2012). A-5007-16T4 4 Here, plaintiff elected not to undergo surgery to repair a meniscal tear in
her knee and was not restricted in the performance of her normal daily activities,
including household tasks. Thus, the judge concluded plaintiff failed to
demonstrate a physical manifestation of an injury to her knee, establishing loss
of a normal bodily function that is both permanent and substantial.
On appeal, plaintiff argues the motion judge erred in granting summary
judgment because she suffered permanent injuries and a substantial loss of a
bodily function, satisfying N.J.S.A. 59:9-2(d).
We review a grant of summary judgment de novo, applying the same
standard as the trial court. Templo Fuente De Vida Corp. v. Nat'l Union Fire
Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Summary judgment may be
granted when "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." R. 4:46–2(c).
In determining whether there is a genuine issue of material fact, courts
"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-
A-5007-16T4 5 moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
If the evidence presented "show[s] that there is no real material issue, then
summary judgment should be granted." Walker v. Atl. Chrysler Plymouth, Inc.,
216 N.J. Super. 255, 258 (App. Div. 1987).
To recover for pain and suffering under the TCA, a plaintiff must show
"(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)
(citing Brooks v. Odom, 150 N.J. 395, 402-403 (1997)). Considering the
evidence in the light most favorable to plaintiff, we must determine whether
plaintiff's injuries satisfy both prongs of the test established in Brooks and
Gilhooley (Brooks/Gilhooley test).
In this case, plaintiff had no treatment to her lower back or right knee
since June 2014. While plaintiff's medical experts opined plaintiff's injury was
permanent and causally connected to her fall, none of the medical experts stated
she suffered a substantial loss of a bodily function under the Brooks/Gilhooley
test.
There is no bright line test to determine whether an injury presents both a
permanent and substantial loss of a bodily function. Knowles v. Mantua Twp.
A-5007-16T4 6 Soccer Ass'n, 176 N.J. 324, 331 (2003). The analysis is fact-sensitive and differs
depending on the facts set forth in each case. Ibid.
In Knowles, the Court required the following to recover damages under
the TCA:
there must be a "physical manifestation of [a] claim that [an] injury . . . is permanent and substantial." An injury causing lingering pain, resulting in a lessened ability to perform certain tasks because of the pain, will not suffice because "[a] plaintiff may not recover under the Tort Claims Act for mere 'subjective feelings of discomfort.'"
[Knowles, 176 N.J. at 332 (alterations in original) (quoting Gilhooley, 164 N.J. at 540).]
Applying this standard to the facts in this case, we are satisfied plaintiff's
injuries are not "objectively permanent and implicate the substantial loss of a
bodily function . . . ." Ibid. (quoting Gilhooley, 164 N.J. at 541). Nor did
plaintiff demonstrate she suffered an injury that "permanently . . . render[ed] a
bodily organ or limb substantially useless but for the ability of 'modern medicine
[to] supply replacement parts to mimic the natural function.'" Ibid. (quoting
Gilhooley, 164 N.J. at 542-43). Cases that present sufficient evidence of a
permanent and substantial loss of a bodily function include: Gilhooley, 164 N.J.
at 542 (finding a patella fracture was an objective permanent injury causing the
plaintiff "to lose forever the normal use of her knee . . . without permanent pins
A-5007-16T4 7 and wires to re-establish its integrity"); Kahar v. Borough of Wallington, 171
N.J. 3, 16 (2002) (finding reattachment of a torn rotator cuff tendon resulted in
the shortened length of the tendon and impaired the plaintiff's ability to use her
arm to complete normal tasks); and Knowles, 176 N.J. at 333 (finding "objective
medical evidence of a permanent injury," including the lack of feeling in the
plaintiff's leg).
Plaintiff failed to present objective evidence that her injury satisfies the
TCA's requirement of a "permanent loss of a bodily function." Plaintiff has no
medical restrictions imposed on her daily activities. Plaintiff can cook, shop,
clean, and do laundry.
Plaintiff argues she suffered a permanent loss of bodily function that is
substantial based on her own subjective complaints and described limits on her
activities. According plaintiff every reasonable inference from the evidence,
her proofs lack objective evidence of a reduction in normal bodily function that
is permanent and substantial under the TCA.
Affirmed.
A-5007-16T4 8