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

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).

NOT FOR PUBLICATION WITHOUT THE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.

December 26, 2018
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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 
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the long head of the biceps tendon, and a SLAP tear1 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. 
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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-
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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
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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 
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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 
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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 
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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.