NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2169-17T3
TYRONE BEATTY,
Plaintiff-Appellant,
v.
MICHAEL BRESCHARD and NEW JERSEY TRANSIT CORPORATION,
Defendants-Respondents. ____________________________
Submitted November 27, 2018 – Decided December 26, 2018
Before Judges Hoffman and Geiger.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1405-16.
Spear, Greenfield, Richman, Weitz & Taggart, PC, attorneys for appellant (Marc F. Greenfield and Jeremy M. Weitz, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondents (Melissa H. Raksa, Assistant Attorney General, of counsel; Andrew C. Munger, Deputy Attorney General, on the brief). PER CURIAM
Plaintiff appeals an order that granted summary judgment to defendants
Michael Breschard and New Jersey Transit Corporation (NJ Transit), dismissing
his claims for economic and non-economic damages with prejudice. The motion
judge concluded plaintiff failed to present a prima facie case of liability under
the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, finding plaintiff failed to
demonstrate he suffered the permanent loss of a bodily function that was
substantial. We reverse.
We summarize the following facts from the summary judgment record,
viewing "the facts in the light most favorable to [plaintiff,] the non -moving
party." Globe Motor Co.v. Igdalev, 225 N.J. 469, 479 (2016) (citing R. 4:46-
2(c)). On September 19, 2014, plaintiff was the operator of a motor bus that
was stopped in traffic in the right lane when a NJ Transit bus, operated by
Breschard, struck the bus operated by plaintiff on the driver's side, forcing it up
onto the raised pavement on the side of the road.
Plaintiff struck the interior side of the bus and felt a "pop" in both of his
shoulders while he held onto the steering wheel to attempt to keep the bus from
being further forced off the roadway. Plaintiff suffered a small superior labral
tear at the acromioclavicular joint in his left shoulder, a partial thickness tear of
A-2169-17T3 2 the long head of the biceps tendon, and a SLAP tear 1 of the glenoid labrum in
his right shoulder. Plaintiff underwent two arthroscopic procedures for his right
shoulder and one arthroscopic procedure for his left shoulder.
Four months after the accident, Dr. Todd Chertow performed a right
shoulder arthroscopic debridement of the SLAP tear, as well as arthroscopic
rotator cuff repair. Anchors were implanted as part of the procedure. In
November 2015, Dr. Joseph M. Sewards performed a second right shoulder
arthroscopy with open subpectorial biceps tenodesis. A seven millimeter by ten
millimeter BioComposite screw was implanted. In July 2016, Dr. Sewards
performed a left shoulder arthroscopy and debridement of a partial-thickness
supraspinatus tear, with an open subpectorial biceps tenodesis.
In May 2017, Dr. Mark D. T. Allen, a Board Certified Orthopedic
Surgeon, conducted a medical evaluation of plaintiff. Dr. Allen found plaintiff
has forward flexion in both shoulders to 160 degrees and abduction to 160
degrees. Plaintiff's left shoulder exhibited a positive apprehension sign,
particularly with downward pressure. His right shoulder exhibited a positive
impingement sign. Dr. Allen's diagnosis was "[s]tatus post arthroscopic surgery
1 SLAP is an acronym for "superior labral tear from anterior to posterior," and refers to an injury to the labrum of the shoulder, which is the ring of cartilage surrounding the socket of the shoulder joint. A-2169-17T3 3 of the left shoulder with evidence of a superior labral tear" and "[s]tatus post
arthroscopic surgery of the right shoulder x2 for residual symptoms after a
debridement procedure for a superior, anterior, and posterior labral tear and
indications of residual rotator cuff dysfunction." Dr. Allen opined "within a
reasonable degree of medical certainty" that these:
diagnoses are a direct result of the incident that occurred while on duty as a bus driver on September 19, 2014. Mr. Beatty remains symptomatic despite the arthroscopic procedures. It is clear that these injuries have become chronic and will continue to limit the use of both upper extremities on an ongoing basis. . . . Overall, this patient warrants a guarded prognosis.
Plaintiff was deposed and testified he was unable to perform household
chores and other activities, which require him to either "stretch out" his
shoulders by reaching high above his head or down low, such as carrying
groceries, stirring while cooking, or performing yardwork. He cannot play with
his daughter for too long, play basketball for more than one shot, or throw a
football. Plaintiff also testified he is unable to "carry as much" as he used to be
able to and that he often has trouble washing his back on his own. Plaintiff
stated he was employed as a trash truck driver.
At the conclusion of discovery, defendants moved for summary judgment,
arguing plaintiff did not meet the TCA’s verbal threshold for recovery of non -
A-2169-17T3 4 economic damages, N.J.S.A. 59:9-2(d). During oral argument on defendants'
motion, plaintiff conceded he had no uncompensated economic damages
because all of his economic damages had been covered by workers'
compensation benefits. The motion judge concluded plaintiff's injuries were not
significant enough to meet the threshold requirements of N.J.S.A. 59:9-2(d), and
granted defendants' motion. This appeal followed.
Plaintiff argues the trial court erred in granting summary judgment to
defendants because he demonstrated by objective medical evidence that his
injuries vault the threshold imposed by N.J.S.A. 59:9-2(d). Plaintiff asserts he
has provided objective medical evidence of permanent shoulder injuries through
MRIs, operative reports detailing his shoulder surgeries, and an expert report
opining his injuries are permanent. Plaintiff contends he has suffered a
permanent loss of a bodily function that is substantial because of the adverse
impact his injuries have had on his ability to perform household chores and other
activities and because his injuries required surgical intervention and the
implantation of metal screws and other hardware in his right shoulder to mimic
its natural function.
We review the grant of summary judgment de novo, applying the same
standard used by the trial court, which
A-2169-17T3 5 mandates that summary judgment be granted "if 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."
[Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)).]
We also determine "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." Davis v.
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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-2169-17T3
TYRONE BEATTY,
Plaintiff-Appellant,
v.
MICHAEL BRESCHARD and NEW JERSEY TRANSIT CORPORATION,
Defendants-Respondents. ____________________________
Submitted November 27, 2018 – Decided December 26, 2018
Before Judges Hoffman and Geiger.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1405-16.
Spear, Greenfield, Richman, Weitz & Taggart, PC, attorneys for appellant (Marc F. Greenfield and Jeremy M. Weitz, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondents (Melissa H. Raksa, Assistant Attorney General, of counsel; Andrew C. Munger, Deputy Attorney General, on the brief). PER CURIAM
Plaintiff appeals an order that granted summary judgment to defendants
Michael Breschard and New Jersey Transit Corporation (NJ Transit), dismissing
his claims for economic and non-economic damages with prejudice. The motion
judge concluded plaintiff failed to present a prima facie case of liability under
the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, finding plaintiff failed to
demonstrate he suffered the permanent loss of a bodily function that was
substantial. We reverse.
We summarize the following facts from the summary judgment record,
viewing "the facts in the light most favorable to [plaintiff,] the non -moving
party." Globe Motor Co.v. Igdalev, 225 N.J. 469, 479 (2016) (citing R. 4:46-
2(c)). On September 19, 2014, plaintiff was the operator of a motor bus that
was stopped in traffic in the right lane when a NJ Transit bus, operated by
Breschard, struck the bus operated by plaintiff on the driver's side, forcing it up
onto the raised pavement on the side of the road.
Plaintiff struck the interior side of the bus and felt a "pop" in both of his
shoulders while he held onto the steering wheel to attempt to keep the bus from
being further forced off the roadway. Plaintiff suffered a small superior labral
tear at the acromioclavicular joint in his left shoulder, a partial thickness tear of
A-2169-17T3 2 the long head of the biceps tendon, and a SLAP tear 1 of the glenoid labrum in
his right shoulder. Plaintiff underwent two arthroscopic procedures for his right
shoulder and one arthroscopic procedure for his left shoulder.
Four months after the accident, Dr. Todd Chertow performed a right
shoulder arthroscopic debridement of the SLAP tear, as well as arthroscopic
rotator cuff repair. Anchors were implanted as part of the procedure. In
November 2015, Dr. Joseph M. Sewards performed a second right shoulder
arthroscopy with open subpectorial biceps tenodesis. A seven millimeter by ten
millimeter BioComposite screw was implanted. In July 2016, Dr. Sewards
performed a left shoulder arthroscopy and debridement of a partial-thickness
supraspinatus tear, with an open subpectorial biceps tenodesis.
In May 2017, Dr. Mark D. T. Allen, a Board Certified Orthopedic
Surgeon, conducted a medical evaluation of plaintiff. Dr. Allen found plaintiff
has forward flexion in both shoulders to 160 degrees and abduction to 160
degrees. Plaintiff's left shoulder exhibited a positive apprehension sign,
particularly with downward pressure. His right shoulder exhibited a positive
impingement sign. Dr. Allen's diagnosis was "[s]tatus post arthroscopic surgery
1 SLAP is an acronym for "superior labral tear from anterior to posterior," and refers to an injury to the labrum of the shoulder, which is the ring of cartilage surrounding the socket of the shoulder joint. A-2169-17T3 3 of the left shoulder with evidence of a superior labral tear" and "[s]tatus post
arthroscopic surgery of the right shoulder x2 for residual symptoms after a
debridement procedure for a superior, anterior, and posterior labral tear and
indications of residual rotator cuff dysfunction." Dr. Allen opined "within a
reasonable degree of medical certainty" that these:
diagnoses are a direct result of the incident that occurred while on duty as a bus driver on September 19, 2014. Mr. Beatty remains symptomatic despite the arthroscopic procedures. It is clear that these injuries have become chronic and will continue to limit the use of both upper extremities on an ongoing basis. . . . Overall, this patient warrants a guarded prognosis.
Plaintiff was deposed and testified he was unable to perform household
chores and other activities, which require him to either "stretch out" his
shoulders by reaching high above his head or down low, such as carrying
groceries, stirring while cooking, or performing yardwork. He cannot play with
his daughter for too long, play basketball for more than one shot, or throw a
football. Plaintiff also testified he is unable to "carry as much" as he used to be
able to and that he often has trouble washing his back on his own. Plaintiff
stated he was employed as a trash truck driver.
At the conclusion of discovery, defendants moved for summary judgment,
arguing plaintiff did not meet the TCA’s verbal threshold for recovery of non -
A-2169-17T3 4 economic damages, N.J.S.A. 59:9-2(d). During oral argument on defendants'
motion, plaintiff conceded he had no uncompensated economic damages
because all of his economic damages had been covered by workers'
compensation benefits. The motion judge concluded plaintiff's injuries were not
significant enough to meet the threshold requirements of N.J.S.A. 59:9-2(d), and
granted defendants' motion. This appeal followed.
Plaintiff argues the trial court erred in granting summary judgment to
defendants because he demonstrated by objective medical evidence that his
injuries vault the threshold imposed by N.J.S.A. 59:9-2(d). Plaintiff asserts he
has provided objective medical evidence of permanent shoulder injuries through
MRIs, operative reports detailing his shoulder surgeries, and an expert report
opining his injuries are permanent. Plaintiff contends he has suffered a
permanent loss of a bodily function that is substantial because of the adverse
impact his injuries have had on his ability to perform household chores and other
activities and because his injuries required surgical intervention and the
implantation of metal screws and other hardware in his right shoulder to mimic
its natural function.
We review the grant of summary judgment de novo, applying the same
standard used by the trial court, which
A-2169-17T3 5 mandates that summary judgment be granted "if 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."
[Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)).]
We also determine "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." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395,
406 (2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995)). We owe no deference to the trial court's legal analysis or interpretation
of a statute. The Palisades At Ft. Lee Condo. Ass'n v. 100 Old Palisade, LLC,
230 N.J. 427, 442 (2017) (citing Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)).
"[I]n order to vault the pain and suffering threshold under the [TCA], 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 v. Cty. of Union, 164 N.J. 533, 540-41 (2000) (citing
Brooks v. Odom, 150 N.J. 395, 402-03 (1997)). "Temporary injuries, no matter
A-2169-17T3 6 how painful and debilitating, are not recoverable." Brooks, 150 N.J. at 403. In
addition, plaintiff's medical expenses must exceed $3600. N.J.S.A. 59:9-2(d).
Based on his physical examination of plaintiff and his review of the
medical records, plaintiff's expert opined plaintiff suffered permanent shoulder
injuries as a result of the motor vehicle accident. Defendants do not dispute
plaintiff has presented objective medical evidence of a permanent injury.
Instead, they argue plaintiff is able to function, albeit with limitations. As noted
by the Court in Gilhooley, "that every objective permanent injury results in
substantial loss of a bodily function does not follow." 164 N.J. at 541. "Each
case is fact sensitive." Ibid.
"[W]hen a plaintiff suffers an injury that permanently would render a
bodily organ or limb substantially useless but for the ability of 'modern medicine
[to] supply replacement parts to mimic the natural function,' that injury meets
the threshold." Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324, 332 (2003)
(quoting Gilhooley, 164 N.J. at 542). In Gilhooley, the plaintiff injured her knee
so severely that open reduction and internal fixation with surgically implanted
pins were required to make it functional again. 164 N.J. at 536-37. The plaintiff
returned to work in her full capacity but continued to experience stiffness and
A-2169-17T3 7 pain in her knee. Id. at 537. In reversing our affirmance of the trial court's grant
of summary judgment, the Court said:
As is the case with dismemberment and disfigurement, when pins, wires, mechanisms and devices are required to make the plaintiff normal, the statutory standard is met. The fact that a physician has jury-rigged the knee to function with pins and wires in no way inhibits the characterization of that injury as the permanent loss of a bodily function.
[Id. at 542-43.]
Plaintiff's situation is similar. Plaintiff is employed as a truck driver and
can perform some routine tasks without significant limitation. However, " a
plaintiff's ability to resume some of his or her normal activities is [not]
dispositive of whether he or she is entitled to pain and suffering damages under
the TCA." Knowles, 176 N.J. at 332 (citing Kahrar v. Borough of Wallington,
171 N.J. 3, 15-16 (2002)).
Viewing the evidence in the light most favorable to plaintiff, the grant of
summary judgment was improper. Like the plaintiff in Gilhooley, only the
insertion of anchors in plaintiff's right shoulder during two surgeries permits the
joint to "mimic [its] natural function." Id. at 542. Plaintiff's medical proofs
support a claim of permanent injury that is based on objective evidence, not
mere subjective complaints. "[S]uch evidence raises an issue for the jury, and
A-2169-17T3 8 removes the case from the realm of summary judgment." Knowles, 176 N.J. at
335 (quoting Gerber v. Springfield Bd. of Educ., 328 N.J. Super. 24, 35 (App.
Div. 2000)). We therefore reverse summary judgment and remand the matter to
the trial court for further proceedings consistent with this opinion. We do not
retain jurisdiction.
Reversed and remanded.
A-2169-17T3 9