# Kahrar v. Borough of Wallington/Dissent Verniero

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Verniero
VERNIERO, J., dissenting.
Without expressly saying so, the Court has altered the analysis used to evaluate claims for non-economic damages against a public entity under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the Act). Because the approach employed in Brooks v. Odom, 150 N.J. 395, 696 A.2d 619 (1997), is more in keeping with the Act than the one used here, I respect-fully dissent.

## I.

A description of the Act's history is helpful in putting this case in context. Prior to 1970, the doctrine of sovereign immunity protected New Jersey from liability both in contract and in tort. [p17] Report of the Attorney General's Task Force on Sovereign Immunity 21 (1972) (Report). In 1970, this Court abolished that immunity in P, T & L Con-struction Co. v. Commissioner, Department of Transportation, 55 N.J. 341, 262 A.2d 195 (1970) (abrogating contract immunity), and Willis v. Department of Conservation & Economic Development, 55 N.J. 534, 264 A.2d 34 (1970) (abrogating immunity in tort). Recognizing that its elimination of tort immunity would have a profound im-pact on the State, the Willis Court delayed the effect of its decision until January 1, 1971, to enable the Legislature to respond. Willis, supra, 55 N.J. at 541, 264 A.2d. 34. The Legislature twice extended that deadline. Report at 21. During that moratorium, the Attorney General commissioned a four-member task force (Task Force) to review the system then in place, to evaluate the systems in other jurisdictions, and to respond to Willis. Report at 1-2.
The Task Force noted that the theory of sovereign immunity was based on a fear that a multitude of suits by citizens could bankrupt the public treasury. Id. at 30. At the time of the Task Force's review, sovereign immunity already had been abrogated for local government entities and for certain categories of actions against the State. Id. at 31. The Task Force observed that the Legislature also had waived sovereign immunity for certain executive agencies, declaring that those agencies could "sue or be sued" by the public. Ibid. That piecemeal approach to sovereign immunity led the Task Force to conclude that the waiver of sovereign immunity had been "haphazard and arbitrary." Id. at 34.
Further, the Task Force found that the abrogation of sovereign immunity had been costly, particularly in respect of local entities. In that regard, the Task Force surveyed the State's counties and municipalities, noting that those entities that had responded to the survey had spent over one million dollars in insurance premiums and had incurred losses of over $ 500,000 under those policies. Id. at 72. Those numbers were incomplete, due to the fact that very few municipalities had responded to the Task Force's questionnaire. Ibid. Thus, the actual cost to taxpayers was probably [p18] higher. The Task Force suggested that before making further changes to sovereign immunity, the Legislature should consider the fiscal impact of any such legislation on the public coffers. Id. at 74-75.
The Task Force then considered the experiences of other states, particularly California. Id. at 77. In 1961, the Su-preme Court of that state had abrogated sovereign immunity. Muskopf v. Corning Hosp. Dist., 55 Cal. 2d 211, 11 Cal. Rptr. 89, 359 P.2d 457, (1961). The California legislature responded by enacting the California Tort Claims Act of 1963, Cal. Gov't Code §§ 810 to 996, a uniform and comprehensive statute that addressed the adjudication of liability of all public entities. Report at 82-83. The California statute provides that a public entity is not liable for an injury arising from an act or omission of a public entity or employee, except as specified by its provisions. Cal. Gov't Code § 815(a). The statute defines the specific grounds and procedures by which a plaintiff may recover against the state. Cal. Gov't Code §§ 810-996.
Advocates for the California approach believed that it would achieve numerous policy goals. Distilled to their es-sence, those goals were fourfold. First, the statute would give governing bodies a basis on which to budget for the payment of damages, thereby avoiding surprising and costly judgments. Second, it would discourage actions brought on theories yet untested in the courts. Third, it would protect generally against an increase in litigation and its costs to pub-lic entities. Fourth, it would ensure the stability of insurance premiums by providing insurers with a description of the types of circumstances that could result in a public entity's liability. Report at 101 (citing California Law Revision Commission, Recommendation Relating to Sovereign Immunity 811 (1963)). The California statute thus at-tempted to harmonize the sentiment against sovereign immunity with the legitimate need to protect taxpayers from a flood of costly and potentially speculative litigation.
[p19] With the California experience in mind, the Task Force recommended that
   the Legislature enact a uniform and comprehensive tort claims act providing the statutory framework for adjudicating the liability of all public entities throughout the State of New Jersey. This recommendation follows the basic statutory approach contained in the California Tort Claims Act of 1963. The proposed Act would reestablish the immunity of all public entities in the State of New Jersey subject to liabilities set out in reasonable detail in the statute. [Report at 10 (emphasis in original).]
In making that recommendation, the Task Force cited the same basic policy goals used to advance the California statute. Id. at 10-11. In short, the Task Force advocated that the Legislature enact a "selective and intelligent waiver of immunity." Id. at 8. Our Legislature responded by adopting the Act and declaring:
   The Legislature recognizes the inherently unfair and inequitable results which occur in the strict ap-plication of the traditional doctrine of sovereign immunity. On the other hand the Legislature recognizes that while a private entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done. Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein. All of the provisions of this act should be construed with a view to carry out the above legislative declaration. [[[N.J.S.A. 59]]:1-2.]
The Act reestablishes sovereign immunity by providing that, "[e]xcept as otherwise provided by this [A]ct, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." N.J.S.A. 59:2-1a. In structuring the Act in that fashion, the Legislature explicitly adopted the same policy rationales undergirding the California statute. See Comment, N.J.S.A. 59:2-1. Reflecting that rationale and the Act's approach in limiting liability, the Act in its official comment states: "It is hoped that in utilizing this approach the courts will exercise restraint in the acceptance of novel causes of action against public entities." Comment, N.J.S.A. 59:2-1.
[p20] Like the California statute, the Act delineates the specific conditions under which plaintiffs can sue public entities. The Act, however, parts company with its California counterpart (and the statutes of other states) by adding a threshold requirement that plaintiffs must satisfy before they are permitted to seek damages for pain and suffering. See LaBarrie v. Hous. Auth. of Jersey City, 143 N.J. Super. 61, 64 n. 4, 362 A.2d 624 (Law Div.1976) (noting that Act's pain-and-suffering threshold "is not found in other tort claims acts"). In that regard, the Act provides:
   No damages shall be awarded against a public entity or public employee for pain and suffering result-ing 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 $ 3,600.00. [[[N.J.S.A. 59]]:9-2d (emphasis added).]
That limitation
   reflects the policy judgment that in view of the economic burdens presently facing public entities a claimant should not be reimbursed for non-objective types of damages, such as pain and suffering, ex-cept in aggravated circumstances--cases involving permanent loss of a bodily function, permanent dis-figurement or dismemberment where the medical treatment expenses are in excess of [$ 3,600]. The li-mitation that pain and suffering may only be awarded when medical expenses exceed [$ 3,600] insures that such damages will not be awarded unless the loss is substantial. [Comment, N.J.S.A. 59:9-2 (emphasis added).]
The inclusion of the pain-and-suffering threshold was an essential tenet of the Task Force's recommendations. Re-port at 16. It reflects the policy determination that, although claimants should be compensated for their full economic loss, they "should not be permitted in a suit against a public entity to collect for damages above and beyond those which are necessary to effectively restore [them] to the economic position occupied prior to [their] injur[ies]." Ibid. In furtherance of that policy, the Act not only prohibits recovery for pain and suffering except in aggravated circumstances, N.J.S.A. 59:9-2d; it also specifically bars awards for punitive damages, N.J.S.A. 59:9-2c, and damages funded through collateral sources such as insurance policies, N.J.S.A. 59:9-2e.
[p21]

## II.

Against that backdrop, the pertinent language in Brooks provides that to recover non-economic damages (i.e., amounts for pain and suffering), "a plaintiff must sustain a permanent loss of the use of a bodily function that is substantial." Brooks, supra, 150 N.J. at 406, 696 A.2d 619. In formulating that standard, the Court explained:
   To recover under the Act for pain and suffering, a plaintiff must prove by objective medical evidence that the injury is permanent. Temporary injuries, no matter how painful and debilitating, are not reco-verable. Further, a plaintiff may not recover under the Tort Claims Act for mere "subjective feelings of discomfort." . . . [A] claim for permanent injury consisting of "impairment of plaintiff's health and ability to participate in activities" merely iterates a claim for pain and suffering. [150 N.J. at 402-03, 696 A.2d 619 (internal citations omitted).]
The Court also compared the Tort Claim Act's pain-and-suffering threshold to the verbal threshold in the No-Fault Act, N.J.S.A. 39:6A-1 to -35, observing:
   In effect, a plaintiff seeking to recover under the No-Fault Act may recover not only for "a permanent loss of the use of a body organ, member or system[,]" . . . but also for the "permanent consequential limitation of use" of any such organ or member . . ., or the "significant limitation or use of a body function or system[.]" . . . Under the No-Fault Act, therefore, a claimant may recover for a permanent injury that merely imposes a limitation on the use of his or her [body organ]. The No-Fault Act manifests legislative recognition that something less than a "permanent loss of the use of a body organ, member, function or system" would satisfy the verbal threshold.
   In the Tort Claims Act, however, the Legislature did not modify the requirement of a "permanent loss of a bodily function" by stating that a mere limitation on a bodily function would suffice. Although the legislative intent in the Tort Claims Act is not completely clear, we believe that the Legislature in-tended that a plaintiff must sustain a permanent loss of the use of a bodily function that is substantial.
   [Id. at 405-06, 696 A.2d 619 (internal citations omitted).]
The plaintiff in Brooks suffered from stiffness, muscle spasms, back pain, loss of motion in her neck, and post-trauma headaches. Id. at 400, 696 A.2d 619. Moreover, as a result of her injury, the plaintiff experienced "severe lower back pain that radiate[d] into her left leg" and had "difficulty in performing household chores, including vacuum-ing, carrying groceries, or other activities that requir[ed] lifting or bending." Ibid. Notwithstanding those conditions, [p22] the Court affirmed the grant of summary judgment in favor of the public entity, concluding:
   In reviewing the sufficiency of plaintiff's case, we accept that she experiences pain and that the limitation of motion in her neck and back is permanent. Still, she can function both in her employment and as a homemaker. In brief, she has not sustained "a permanent loss of a bodily function" within the meaning of N.J.S.A. 59:9-2(d). [Id. at 406, 696 A.2d 619.]
Another decision relevant to the analysis is Dellisanti v. Harrison Housing Authority, 163 N.J. 61, 747 A.2d 275 (2000). In that case, this Court affirmed the disposition of the Appellate Division, which concluded that the plaintiff (who had suffered a fractured wrist accompanied by a loss of range of motion) had failed to present sufficient evidence to satisfy the Act's pain-and-suffering threshold. Dellisanti, supra, Id., at 61, 747 A.2d 275 (affirming Appel-late Division's decision that "plaintiff had failed to present objective credible medical evidence to establish her claims of a permanent loss of bodily function that is substantial").
Notably, the Court's ordered disposition in Dellisanti did not focus on the fact that the plaintiff had worn a cast, and then a brace, for about four months. Nor did we cite the fact that the plaintiff had experienced numbness in her fingers and had difficulty holding and carrying items of significant weight. Instead, the Court's order focused solely on whether objective credible evidence had established the loss of a bodily function and the linkage of that loss to the plaintiff's claims. Ibid.
Two decisions from the Appellate Division also illustrate the Act's high bar to recovery. In Thorpe v. Cohen, 258 N.J. Super. 523, 531, 610 A.2d 878 (App.Div.1992), the court upheld the dismissal of the plaintiff's claim for pain and suffering because it did not satisfy the Act's threshold requirement. In that case, the plaintiff had suffered a chronic lumbosacral sprain after allegedly being assaulted by a police officer. Id. at 525-26, 610 A.2d 878. The injury caused the plaintiff a fifteen percent permanent disability, forcing him to wear a molded corset on his lower back for some period. Id. at 525, 610 A.2d 878. The plaintiff reported [p23] difficulty in performing basic tasks such as skiing and lifting children, but a clinical examination revealed no sensory deficits, disc herniation, or other severe problems. Id. at 526, 610 A.2d 878. Although the plaintiff's doctor acknowledged the fifteen percent disability, he saw no reason to continue treatment and deemed the plaintiff's prognosis to be satisfactory. Ibid.
On those facts, the Appellate Division found no basis for an award of pain and suffering. Noting that the threshold provision precludes damages for pain and suffering only, the court held that the plaintiff's injuries did not constitute an objective impairment. Id. at 528, 531, 610 A.2d 875. As a result, the plaintiff could not satisfy the threshold, thus prec-luding his claim for non-economic damages. Id. at 531, 610 A.2d 878.
The Appellate Division concluded similarly in Hammer v. Township of Livingston, 318 N.J. Super. 298, 723 A.2d 988 (1999). In that case, the plaintiff was injured after being struck by a township fire truck while crossing the street. Id. at 301, 723 A.2d 988. The plaintiff suffered severe lacerations to her knee, left elbow, eye, nose, and lip, as well as fractures of her nose, knee, and elbow. Ibid. After several surgeries and therapy, the plaintiff's doctor reported that she was healing well and experiencing a "painless range of motion" in her elbow and had regained the full use of the knee. Id. at 301-02, 723 A.2d 988. The plaintiff, however, was left with scarring on her knee, elbow and face, as well as posttraumatic stress disorder. Id. at 302-03, 723 A.2d 988. The plaintiff sued for pain and suffering under the Act. Id. at 303, 723 A.2d 988.
The Appellate Division found that the plaintiff's injuries were not substantial because they had healed properly and resulted in no loss of motion or bodily function. Id. at 305, 723 A.2d 988. The court found that, although the plaintiff's gait was somewhat affected by the injury, it was not "substantial" within the meaning of the statute. Id. at 306, 723 A.2d 988. However, the Appellate Division allowed the plaintiff's case to proceed, holding that there was a factual dispute in respect of whether the plaintiff's scars [p24] from those injuries constituted permanent disfigurements under the Act. Id. at 310, 723 A.2d 988. That aspect of the statute is not before us for review.

## III.

In Gilhooley v. County of Union, 164 N.J. 533, 753 A.2d 1137 (2000), the Court focused not only on the loss of the bodily function (the Gilhooley plaintiff had injured her knee), but also on the method by which the plaintiff's injury was treated. Id. at 542, 753 A.2d 1137. Within that framework, the Court reasoned that the surgical insertion of a pin in the plaintiff's knee satisfied the Act's pain-and-suffering threshold, notwithstanding that the use of the knee had been restored fully. Id. at 543, 753 A.2d 1137.
Citing Gilhooley, the majority here places great emphasis on the fact that plaintiff required surgery to repair her shoulder. It concludes that "her ability to . . . complete normal tasks has been significantly impaired" because of the loss of some range of motion in her left arm. Ante at 16, 791 A.2d at 205. The Court further observes that "[t]hat reduction in normal function appears to be both permanent and substantial." Ibid. The majority thus centers the analysis on the surgical procedure employed in repairing plaintiff's shoulder and the extent to which she may complete normal tasks. In keeping with that analysis, the Court focuses on the nature of plaintiff's injury and the method by which it was repaired, and places insufficient emphasis on whether the loss of the bodily function objectively satisfies the Act's high bar to recovery. Respectfully, the Court's approach runs the risk of lowering the Act's threshold to the point where it may no longer ensure, as the Legislature intended, that taxpayers are liable for non-economic damages only in aggravated circumstances, when a claimant's loss of a bodily function is permanent and substantial.
Perhaps as important, the facts in this case are distinguishable from those found in Gilhooley. As noted, the Gilhooley plaintiff required the insertion of a pin in her knee, prompting the Court to conclude, "when pins, wires, and devices are required to make [p25] 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 perma-nent loss of a bodily function." Gilhooley, supra, 164 N.J. at 542-43, 753 A.2d 1137. Here, there were no pins or similar devices used to restore the integrity of plaintiff's shoulder. Thus, by its explicit terms, Gilhooley does not require the majority's disposition.
I also differ in my interpretation of the medical proofs. Although Dr. Livingston did diagnose a forty per-cent loss of motion in plaintiff's shoulder, that condition was described in his July 13, 1998, letter to Bergen Risk Man-agers Inc. as "some" loss of motion, not as a "substantial" loss. He also stated that plaintiff's incision was "well healed[.]"
The post-operative notes of Dr. Savatsky contain an even more promising description of plaintiff's condition. After examining plaintiff three weeks after her surgery, Dr. Savatsky indicated that she was "out of her sling on her own voli-tion" and "improving." He noted also that plaintiff was about to travel to Europe. Three months after the surgery, Dr. Savatsky stated: "[Plaintiff] is doing well." Five months after the surgery, the doctor reported: "She has done beautiful-ly. Her pain is gone." Two months after that, the doctor confirmed: "[Plaintiff] is doing very well. She is working, has no significant shoulder discomfort, nor night pain."
The Court should not move beyond those proofs to consider the nature of plaintiff's rotator cuff surgery. I would agree that a series of extraordinary surgical procedures performed on a patient, in concert with other proofs, might support a finding that a permanent and substantial loss of a bodily function has occurred. The procedure performed here, however, was not extraordinary. See University of Iowa Health Care, Virtual Hospital, Iowa Health Book: Orthopaedics, at http://www.vh.org/Patients/IHB/Ortho/Shoulder/Shoulder.html (last visited Dec. 27, 2001) (noting that rotator cuff repair is one of four common [p26] surgical procedures performed on shoulders). Thus, plaintiff's surgery cannot substitute for the fact that the medical proofs do not demonstrate that she has experienced the degree of aggravated, permanent, and substantial loss required to sustain a claim for non-economic damages under the Act.
Instead, plaintiff's conditions are similar in kind to those experienced by the Brooks claimant. Plaintiff has suffered a loss of range of motion in her shoulder, has difficulty doing certain household tasks, and experiences some pain on a daily or weekly basis (although that fact appears disputed in the medical records). Plaintiff has returned to work without restrictions. As noted by the Appellate Division, plaintiff is able to perform all of her job responsibilities, "but just in a longer amount of time than before the accident."
I do not minimize plaintiff's condition or the costs of her surgery. Assuming that she satisfies other elements of the Act, plaintiff would be entitled to full reimbursement of her medical expenses. (The Appellate Division concluded that a trial is necessary to determine whether the recessed valve box was a dangerous condition and whether plaintiff should otherwise be entitled to economic damages. Those aspects of the panel's decision are not before us for review.) For purposes of non-economic damages, however, plaintiff cannot satisfy the rigorous standard embodied in the Act.
In essence, the Act distinguishes between economic and non-economic damages, making claims for the latter more difficult to sustain. It does so to protect "the public coffers," Brooks, supra, 150 N.J. at 402, 696 A.2d 619, and because non-economic damages, by their nature, are more subjective and less certain than economic damages. See Comment, N.J.S.A. 59:9-2; Ayers v. Jackson Township, 106 N.J. 557, 571, 525 A.2d 287 (1987) (explaining that "Act's ban against recovery of damages for 'pain and suffering resulting from any injury' is intended to apply to the intangible, subjective feelings of discomfort that are associated with personal injuries"). That the Legislature would choose to treat the two [p27] types of damages differently for purposes of recovery against a public entity is both reasonable and fair. We should not gainsay that choice, especially when public resources are scarce and the policy in favor of protecting the public fisc is so strong. See Jeff Whelan, A Fiscal Crisis for the Books in Jersey, Star-Ledger, Dec. 27, 2001, at A1 (reporting that "state officials now are confronting the biggest financial crisis in New Jersey's history").
In sum, I am not persuaded that plaintiff's proofs have satisfied the Act's high threshold for recovery of non-economic damages. This case falls squarely within the purview of Brooks. The central teaching of Brooks is that the loss of range of motion in plaintiff's shoulder, unfortunate as that may be, is insufficient as a matter of law to sur-mount the pain-and-suffering threshold. On that basis, I would affirm that part of the trial court's grant of summary judgment in favor of the public entity.
The Court holds otherwise. In so doing, it lowers the Act's bar to recovery by centering its analysis on the extent to which plaintiff may complete normal tasks and on the nature of her surgery, rather than solely on whether there has been a permanent loss of a bodily function that is substantial. That departure from Brooks may introduce in future cases an element of subjectivity never intended by the Act's drafters, and may further blur the distinction between economic and non-economic damages.

## IV.

Exercising restraint as urged in the Act's official comment, I would affirm the Appellate Division judgment in all respects.
Justice LaVecchia joins in this opinion.