NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2663-23
DOMINGA SANCHEZ,
Plaintiff-Appellant,
v.
JORGE INOA-TEJADA and CITY OF PERTH AMBOY,
Defendants-Respondents. __________________________
Argued February 25, 2025 – Decided May 21, 2025
Before Judges Perez Friscia and Bergman.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4727-22.
Paul F. O'Reilly argued the cause for appellant (Law Offices of James Vasquez, PC, attorneys; James Vasquez and Paul F. O'Reilly, on the brief).
Tyler Newman argued the cause for respondents (Murphy Orlando, LLC, attorneys; Jason F. Orlando, John W. Bartlett and Tyler Newman, on the brief).
PER CURIAM Plaintiff Dominga Sanchez appeals from a summary judgment order
granted to defendants Jorge Inoa-Tejada and City of Perth Amboy dismissing
her complaint. The court determined plaintiff failed to meet the injury threshold
pursuant to N.J.S.A. 59:9-2(d) of the Tort Claims Act, N.J.S.A. 59:1-1 to -59:12-
3 (TCA). After our review of the record and application of the relevant legal
principles, we conclude genuine issues of material fact exist that plaintiff's
injuries satisfied the threshold requirements of the TCA which precluded
summary judgment and, therefore, we reverse.
I.
In November 2020, plaintiff was a passenger in an automobile travelling
in Perth Amboy. At the same time, defendant Jorge Inoa-Tejada was operating
a vehicle in his capacity as a police officer for Perth Amboy. Inoa-Tejada
allegedly ran a stop sign and collided with plaintiff's vehicle resulting in her
sustaining injuries. Immediately after the accident, plaintiff was taken to a
hospital by ambulance where she received treatment and was released.
Plaintiff started treating with a chiropractor for neck, back and left
shoulder injuries the week after the accident which continued until March 1,
2021. Plaintiff also had magnetic resonance imaging (MRI) testing performed.
The MRI's revealed a left shoulder rotator cuff tear, six disc herniations and a
A-2663-23 2 disc bulge. On March 5, plaintiff started treating with Hudson Premiere Health
Partners as well as Spine and Rehabilitation Centers of New Jersey for her
injuries. Her treatments consisted of chiropractic manipulations, physical
therapy, and ultrasound stimulation. In addition to receiving conservative
treatments for twenty months, plaintiff also underwent six "trigger point" and
"nerve block" injections to her spinal discs, two injections to her left shoulder
and two arthroscopic shoulder surgeries. Her treatment concluded on or about
August 8, 2022.
On September 20, 2022, plaintiff filed a complaint against defendants
claiming she sustained injuries caused by the accident. After the close of
discovery, defendants moved for summary judgment contending plaintiff's
injuries did not meet the requirements of the TCA pursuant to N.J.S.A. 59:9-
2(d). Defendants admitted liability for purposes of the motion. In its decision,
the trial court found plaintiff met the first prong of Gilhooley1 stating "[t]here is
no debate here . . . [that] there may be or certainly would be a disputed issue as
to whether there is an objective permanent injury." The court's analysis
primarily focused on the second prong of Gilhooley—whether there was a
permanent loss of a bodily function that was substantial. The trial court
1 Gilhooley v. County of Union, 164 N.J. 533 (2000). A-2663-23 3 ultimately concluded under the heightened standard of the TCA that there was
"no evidence that [,] as plaintiff's counsel candidly admitted, [] demonstrate that
there's a permanent loss of bodily function that would require this motion to be
[] denied." This appeal followed.
Plaintiff contends her MRI testing revealed a left shoulder rotator cuff
tear, six disc herniations, and a disc bulge. Plaintiff contends the MRI films
coupled with her permanent physical limitations found by her medical experts
constitute objective permanent injuries and a permanent loss of a bodily function
that is substantial, satisfying the TCA's injury threshold.
Plaintiff asserts in her motion opposition before the trial court that she
provided several examples of substantial and permanent losses of functionality
to her left shoulder, neck and back including permanent losses of range of
motion use of those body parts. She contends the MRI findings and narrative
reports from her medical experts created genuine factual issues that her injuries
satisfied the TCA's injury threshold in order to recover for her pain and
suffering. Plaintiff points to the narrative report of her medical experts Robert
Albano, D.C. and Joannie Connor-Charles, D.C. which found she suffered a
permanent loss of the use of her cervical and lumbar spine. Their dual report
found:
A-2663-23 4 She has been advised that there is a significant permanent limitation of the use of the spine due to damage to the spinal musculature/ligaments and as further set forth in this report. The continuous episodes of pain, spasm and reduced range of motion in the injured areas are secondary to the bleeding and scarring within the injured tissues themselves.
In my experience with similar cases, it is my impression that the patient has suffered permanent residuals of disability as a result of the automobile accident, which will significantly limit the function as well as the use of her body and will also restrict her customary and social activities in a permanent fashion It is my professional opinion that this patient has suffered partial permanent loss of the use of the cervical and lumbar spine, which leaves her with great difficulty performing to a great extent her usual and customary activities without pain.
[(Emphasis added).]
Plaintiff contends the report demonstrates serious permanent deficits in
the range of motion to her cervical and lumbar spine. Plaintiff emphasizes that
in ten out of twelve tests, her range of motion was fifty percent or less than the
normal range. Further, in her final range of motion tests conducted several
months post-accident, five of six tests revealed a range of motion that was only
thirty-three to forty-three percent of a normal range of motion in her neck and
back.
Plaintiff also contends that the spinal range of motion test results reported
in the defense doctor's medical exam showing zero deficits in her range of
A-2663-23 5 motion were starkly different from her own medical experts' opinion, which she
contends reveals a "disputed genuine material issue of fact" precluding summary
judgment. Plaintiff further argues the testing performed on her shoulder showed
motion deficits and impingement. Plaintiff also notes the testing performed on
her showed her muscle strength was three out of five in her left shoulder.
Plaintiff certified she was experiencing pain and discomfort when
standing or driving for long periods of time. Plaintiff stated that the pain and
discomfort also interfere with her daily activities. Specifically, she claimed she
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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-2663-23
DOMINGA SANCHEZ,
Plaintiff-Appellant,
v.
JORGE INOA-TEJADA and CITY OF PERTH AMBOY,
Defendants-Respondents. __________________________
Argued February 25, 2025 – Decided May 21, 2025
Before Judges Perez Friscia and Bergman.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4727-22.
Paul F. O'Reilly argued the cause for appellant (Law Offices of James Vasquez, PC, attorneys; James Vasquez and Paul F. O'Reilly, on the brief).
Tyler Newman argued the cause for respondents (Murphy Orlando, LLC, attorneys; Jason F. Orlando, John W. Bartlett and Tyler Newman, on the brief).
PER CURIAM Plaintiff Dominga Sanchez appeals from a summary judgment order
granted to defendants Jorge Inoa-Tejada and City of Perth Amboy dismissing
her complaint. The court determined plaintiff failed to meet the injury threshold
pursuant to N.J.S.A. 59:9-2(d) of the Tort Claims Act, N.J.S.A. 59:1-1 to -59:12-
3 (TCA). After our review of the record and application of the relevant legal
principles, we conclude genuine issues of material fact exist that plaintiff's
injuries satisfied the threshold requirements of the TCA which precluded
summary judgment and, therefore, we reverse.
I.
In November 2020, plaintiff was a passenger in an automobile travelling
in Perth Amboy. At the same time, defendant Jorge Inoa-Tejada was operating
a vehicle in his capacity as a police officer for Perth Amboy. Inoa-Tejada
allegedly ran a stop sign and collided with plaintiff's vehicle resulting in her
sustaining injuries. Immediately after the accident, plaintiff was taken to a
hospital by ambulance where she received treatment and was released.
Plaintiff started treating with a chiropractor for neck, back and left
shoulder injuries the week after the accident which continued until March 1,
2021. Plaintiff also had magnetic resonance imaging (MRI) testing performed.
The MRI's revealed a left shoulder rotator cuff tear, six disc herniations and a
A-2663-23 2 disc bulge. On March 5, plaintiff started treating with Hudson Premiere Health
Partners as well as Spine and Rehabilitation Centers of New Jersey for her
injuries. Her treatments consisted of chiropractic manipulations, physical
therapy, and ultrasound stimulation. In addition to receiving conservative
treatments for twenty months, plaintiff also underwent six "trigger point" and
"nerve block" injections to her spinal discs, two injections to her left shoulder
and two arthroscopic shoulder surgeries. Her treatment concluded on or about
August 8, 2022.
On September 20, 2022, plaintiff filed a complaint against defendants
claiming she sustained injuries caused by the accident. After the close of
discovery, defendants moved for summary judgment contending plaintiff's
injuries did not meet the requirements of the TCA pursuant to N.J.S.A. 59:9-
2(d). Defendants admitted liability for purposes of the motion. In its decision,
the trial court found plaintiff met the first prong of Gilhooley1 stating "[t]here is
no debate here . . . [that] there may be or certainly would be a disputed issue as
to whether there is an objective permanent injury." The court's analysis
primarily focused on the second prong of Gilhooley—whether there was a
permanent loss of a bodily function that was substantial. The trial court
1 Gilhooley v. County of Union, 164 N.J. 533 (2000). A-2663-23 3 ultimately concluded under the heightened standard of the TCA that there was
"no evidence that [,] as plaintiff's counsel candidly admitted, [] demonstrate that
there's a permanent loss of bodily function that would require this motion to be
[] denied." This appeal followed.
Plaintiff contends her MRI testing revealed a left shoulder rotator cuff
tear, six disc herniations, and a disc bulge. Plaintiff contends the MRI films
coupled with her permanent physical limitations found by her medical experts
constitute objective permanent injuries and a permanent loss of a bodily function
that is substantial, satisfying the TCA's injury threshold.
Plaintiff asserts in her motion opposition before the trial court that she
provided several examples of substantial and permanent losses of functionality
to her left shoulder, neck and back including permanent losses of range of
motion use of those body parts. She contends the MRI findings and narrative
reports from her medical experts created genuine factual issues that her injuries
satisfied the TCA's injury threshold in order to recover for her pain and
suffering. Plaintiff points to the narrative report of her medical experts Robert
Albano, D.C. and Joannie Connor-Charles, D.C. which found she suffered a
permanent loss of the use of her cervical and lumbar spine. Their dual report
found:
A-2663-23 4 She has been advised that there is a significant permanent limitation of the use of the spine due to damage to the spinal musculature/ligaments and as further set forth in this report. The continuous episodes of pain, spasm and reduced range of motion in the injured areas are secondary to the bleeding and scarring within the injured tissues themselves.
In my experience with similar cases, it is my impression that the patient has suffered permanent residuals of disability as a result of the automobile accident, which will significantly limit the function as well as the use of her body and will also restrict her customary and social activities in a permanent fashion It is my professional opinion that this patient has suffered partial permanent loss of the use of the cervical and lumbar spine, which leaves her with great difficulty performing to a great extent her usual and customary activities without pain.
[(Emphasis added).]
Plaintiff contends the report demonstrates serious permanent deficits in
the range of motion to her cervical and lumbar spine. Plaintiff emphasizes that
in ten out of twelve tests, her range of motion was fifty percent or less than the
normal range. Further, in her final range of motion tests conducted several
months post-accident, five of six tests revealed a range of motion that was only
thirty-three to forty-three percent of a normal range of motion in her neck and
back.
Plaintiff also contends that the spinal range of motion test results reported
in the defense doctor's medical exam showing zero deficits in her range of
A-2663-23 5 motion were starkly different from her own medical experts' opinion, which she
contends reveals a "disputed genuine material issue of fact" precluding summary
judgment. Plaintiff further argues the testing performed on her shoulder showed
motion deficits and impingement. Plaintiff also notes the testing performed on
her showed her muscle strength was three out of five in her left shoulder.
Plaintiff certified she was experiencing pain and discomfort when
standing or driving for long periods of time. Plaintiff stated that the pain and
discomfort also interfere with her daily activities. Specifically, she claimed she
was unable to carry heavy objects such as grocery bags. Plaintiff also certified
she was unable to perform household chores such as vacuuming and laundry.
Plaintiff expressed that she had difficulty making her bed, putting on her shoes
and clothes, preparing meals, and taking out the trash. Plaintiff also certified
that she was experiencing interrupted sleep due to pain and morning stiffness in
her left shoulder, neck, and back. Plaintiff stated she was unable to run and
exercise as she did prior to the accident, due to pain and weakness in the left
shoulder, neck, and back. Finally, she certified she was unable to perform her
daily activities at work and in her personal life in the same way as she did prior
to the accident.
A-2663-23 6 At her deposition, plaintiff testified that her physical limitations due to the
injuries made her unable to work. Specifically, she testified she was hired at a
car wash but could not perform the tasks required due to her shoulder injury as
she was unable to lift her left arm. Plaintiff stated she and her son live with her
lifelong friend who is financially supporting them. Plaintiff stated her son helps
her with lifting heavy items and she has trouble folding clothes because of her
neck pain. Plaintiff further testified her back hurts when she attempts to mop
requiring her son to finish this chore. Plaintiff also testified that she was
experiencing back pain because of the disc impingement. Plaintiff admitted that
her job opportunities are limited due to her immigration status—a point
defendants asserted was the true cause for her losing her job at the car wash.
Plaintiff argues her injuries are similar to those of plaintiff's in Kahrar v.
Borough of Wallington, which found that a forty percent range of motion deficit
suffered by the plaintiff vaulted the TCA injury threshold. 171 N.J. 3, 16 (2002).
Plaintiff specifically contends that she has experienced a significant loss of
motion and weakness in both her spine and shoulder and that her spine showed
fifty percent or less range of motion in several tests. Plaintiff further contends
her injuries were analogous to the plaintiff's in Kahrar because her shoulder was
unable to function at all before undergoing surgery. Plaintiff also notes her two
A-2663-23 7 surgeries significantly altered the structure of her shoulder by removing bones,
ligaments, cartilage, and soft tissue. Plaintiff also notes the similarity between
her injuries and the plaintiff's injuries in Knowles v. Mantua Township Soccer
Association where the Court determined plaintiff had satisfied the TCA
threshold by the production of objective medical evidence of a permanent injury
which forced him to give up his job. 176 N.J. 324, 332 (2003).
Plaintiff contends the allegations in her complaint, answers to
interrogatories, deposition testimony, medical records, medical expert narrative
reports and certification provided proofs of an objective permanent injury which
caused a permanent loss of a bodily function that was substantial. She argues
this evidence created issues of material fact precluding summary judgment.
II.
We review the grant of summary judgment de novo, applying the same
legal standards as the trial court. Green v. Monmouth Univ., 237 N.J. 516, 529
(2019). Thus, we 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 v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 540 (1995); see R. 4:6-2.
A-2663-23 8 The TCA declares that the public policy of New Jersey is that public
entities shall only be liable for their negligence within the limitations of the
TCA. Within the sphere of the TCA, public entities and public employees—
unlike private companies and their employees—have the benefit of multiple
immunities that shield them from liability. N.J.S.A. 59:2-1(a). With those
immunities and other exceptions in mind, the TCA provides that a public entity
is liable for an injury proximately caused by an act or omission of a public
employee within the scope of his employment in the same manner and to the
same extent as a private individual under like circumstances. N.J.S.A. 59:2-
2(a), 59:3-1(a).
The TCA limits the circumstances in which a public entity may be liable
for noneconomic damages in the form of pain and suffering. The relevant
section states:
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[.]
[N.J.S.A. 59:9-2(d).]
To recover for noneconomic damages, a plaintiff must produce "objective
medical evidence that the injury is permanent." Brooks v. Odom, 150 N.J. 395,
A-2663-23 9 402-03 (1997). A plaintiff may not recover for temporary injuries or "subjective
feelings of discomfort." Id. at 403 (quoting Ayers v. Township of Jackson, 106
N.J. 557, 571 (1987)). A plaintiff must "satisfy a two-pronged standard by
proving (1) an objective permanent injury, and (2) a permanent loss of a bodily
function that is substantial." Gilhooley, 164 N.J. at 540-41. There is no bright
line test to determine whether an injury presents both a permanent and
substantial loss of a bodily function. See Knowles, 176 N.J. at 331. The analysis
is fact-sensitive and differs depending on the facts set forth in each case. Ibid.
In Knowles, the Court explained that to recover pain and suffering
damages under the Act:
[t]here 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 [TCA] for mere 'subjective feelings of discomfort.'
[Id. at 332 (alterations and omission in original) (citations omitted) (quoting Ponte v. Overeem, 171 N.J. 46, 54 (2002) and Gilhooley, 164 N.J. at 540).]
III.
Based on our review of the record, we concur with the trial court's finding
that plaintiff demonstrated objective evidence of a permanent injury primarily
based on the results of the MRIs showing cervical and lumbar herniations as
A-2663-23 10 well as a torn rotator cuff in her left shoulder under the first prong of Gilhooley.
In evaluating the seminal issue in this appeal, which concerns whether plaintiff
has satisfied the second prong of Gilhooley by showing a permanent loss of a
bodily function that is substantial, we are required to view the evidence in the
summary judgment record in a light most favorable to her. Guided by this
standard, the medical evidence in the record shows plaintiff's injuries consisted
of:
left shoulder rotator cuff tear, specifically, a partial tear of the distal supraspinatus tendon, and mild joint effusion; C3-C4 subligamentous central disc herniation with impression on thecal sac; C4-C5 2 mm broad- based central disc herniation with impression on thecal sac; C5-C6 2 mm broad-based central disc herniation with impression on thecal sac; C6-C7 a subligamentous central disc herniation and annular disc bulge with impression on the thecal sac; L3-4 disc herniation with compression of the anterior thecal sac and bilateral neural foramina and bilateral exiting nerve root; L4-5 disc bulge with impingement on the neural foramina; and left lateral L5-S1 disc herniation with compression of the anterior thecal sac and impingement of descending intraspinal nerve roots.
Plaintiff's medical experts concluded that the injuries to plaintiff's cervical
spine, lumbar spine, and left shoulder were permanent. This is evidenced
through the narrative report of plaintiff's medical expert Richard Pearl, M.D.,
which stated as a result of the accident, plaintiff has "suffered a permanent injury
A-2663-23 11 to the neck, lower back[,] and left shoulder within a reasonable degree of
medical probability." Further, Dr. Pearl found the injuries to be "permanent in
character" and "require[] further treatment to include injection and/or surgery."
Plaintiff's other medical experts, Dr. Albano and Dr. Connor-Charles, both
found plaintiff suffered "permanent residuals of disability as well as the use of
her body . . ."
We further note plaintiff underwent two arthroscopic left shoulder
surgeries. Concerning the first surgery, Dr. Pearl's July 30, 2021 post surgery
report indicates that plaintiff underwent a left shoulder arthroscopic surgery
involving: (1) diagnostic arthroscopy (use of camera); (2) anterosuperior
complete synovectomy of the glenohumeral joint (surgical removal of the
synovium membrane lining the shoulder joint); (3) extensive debridement of the
labrum, bursa, and rotator cuff (surgical removal of damaged portions of the
labrum, bursa, and rotator cuff); (4) bursectomy (surgical removal of the bursa,
a small fluid-filled sac within the shoulder joint); (5) subacromial
decompression and acromioplasty (shaving away part of the shoulder bone
called the acromion) with coracoacromial ligament release (cutting the coracoid
ligament in the shoulder).
A-2663-23 12 The post-operative report after the second surgery indicated: (1)
synovectomy (surgical removal of the synovium membrane lining the shoulder
joint); (2) loose body removal; (3) distal claviculectomy (also known as a
"Mumford procedure" where the outer portion of the collarbone is surgically
removed); (4) partial acromioplasty (shaving away part of the shoulder bone
called the acromion); (5) manipulation under anesthesia (physically moving arm
and shoulder around with force through a range of motion causing the capsule
and scar tissue to stretch and tear); and (6) platelet rich plasma injections.
The post operative diagnosis after the second surgery revealed: (1)
adhesive capsulitis (also known as "frozen shoulder," a significant loss of
passive range of motion); (2) impingement; (3) partial rotator cuff tear; (4) labral
tear; and (5) glenoid chondral defect (damage articular cartilage).
At her deposition, plaintiff testified she was unable to lift her left arm
causing her to lose her job at a car wash where she was employed. She also
testified because of her neck pain she was unable to perform chores at home.
The record further demonstrates that plaintiff was set to undergo an anterior
cervical discectomy and spinal fusion surgery due to the disabilities caused by
the herniations. However, because her blood sugar was too high, the surgery
had to be cancelled.
A-2663-23 13 After considering the foregoing evidence in a light most favorable to
plaintiff, we conclude plaintiff made a sufficient prima facie showing that her
injuries satisfy the second prong of Gilhooley based on her medical experts'
opinions that she has a permanent loss of the functions of her left shoulder,
lumbar spine, and cervical spine that are substantial. We conclude plaintiff
satisfied this prong based on the evidence she provided in her opposition
including: (1) medical proofs showing anatomical changes to her shoulder from
her surgeries which removed part of her shoulder membrane, shoulder bone, and
collarbone; (2) her experts' opinions that plaintiff will experience permanent
limitations in her range of movement and function of her left shoulder, neck,
and back; and (3) plaintiff's certification and deposition testimony stating (a)
she lost her job at the carwash due the permanent loss of function of her left arm
caused by her left shoulder injury; and (b) she was unable to perform
maintenance of her home because of the limitations in her neck and back caused
by the symptomatic cervical and lumbar herniations well after the date of
accident. We further conclude there is a logical nexus between the objective
MRI findings and the permanent functional disabilities to her left shoulder, neck,
and back as found by her medical experts.
A-2663-23 14 Because we conclude genuine issues of material fact exist in the record
demonstrating plaintiff's injuries to her left shoulder, neck and back are
permanent losses of bodily functions that are substantial, we conclude a jury
determination is required, and summary judgment was inappropriate.
Reversed and remanded. We do not retain jurisdiction.
A-2663-23 15