SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1760- 22

ELIZABETH R. SCHREIBER and JUSTIN SCHREIBER, her husband, Plaintiffs-Respondents ,

v. NEW JERSEY DEPARTMENT OF THE TREASURY, STATE OF NEW JERSEY, KENNETH T. KEYWORTH and NICOLAS A. VAZQUEZ, Defendants-Respondents ,

_______________________________ NICOLAS A. VAZQUEZ, Plaintiff-Appellant,

v. KENNETH T. KEYWORTH and ELIZABETH R. SCHREIBER, Defendants-Respondents.

______________________________ ERICA I. PORTAL, NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1760

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Plaintiff,

v. KENNETH T. KEYWORTH, Defendant,

and ELIZABETH R. SCHREIBER, Defendant/Third-Party Plaintiff,

v. NICOLAS A. VAZQUEZ, Third-Party Defendant.

_______________________________

Submitted March 12, 2024

– Decided May 6, 2024 Before Judges Paganelli and Whipple. On appeal from the Superior Court of New Jersey, Law Division , Bergen County, Docket Nos. L- 4764 -19, L3401

- 20 and L- 340 5- 20

. Chazen and Chazen, LLC, attorneys for appellant (David K. Chazen, on the briefs). Matthew J. Platkin, Attorney General, attorney for respondents New Jersey Department of Treasury and Kenneth T. Keyworth (Sara M. Gregory, Assistant Attorney General, of counsel; Jae K. Shim, Deputy Attorney General, on the brief).3 A- 1760

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PER CURIAM Plaintiff Nicolas A. Vazquez appeals from a Januar y 17, 2023 order granting defendants New Jersey Department of the Tr easury, State of New Jersey, and Kenneth T. Keyworth summary judgment an d dismissing plaintiff's personal injury action under the New Jersey Tort Cl aim Act (TCA), N.J.S.A.

59:1 -1 to : 12 -3

. We affirm. We glean the facts and procedural history from the motion record. Plaintiff alleges he sustained personal injuries wh en his vehicle was struck from the rear by defendants' dump truck. He claims MRIs revealed cervical and lumbar disc herniations and bulges. His pain manag ement physician opined

the se injuries "c [ould ]not be reversed and/or restored to a normal state of function and anatomy" and while "[s]ymptoms may be alleviated by another pain management intervention or surgical intervention . . . [it would] do nothing to the underlying pathology and that area will not hea l to function normally." The pain management physician further opine d plaintiff's "pain and pathology are [a] direct consequence" of the motor vehicle accident and "all injuries are direct results of the current accident ." As a result of the accident and claimed injuries, plaintiff contend ed he :4 A- 1760

- 22 c[ould] no longer, by way of example but not by way of limitation, engage in: cycling, hiking, swimming, jogging, working out at gym , housecleaning, yard work, heavy lifting, motorcycle riding. . . . [Also] as a result of these injuries [he wa]s limited, by way o f example but not by way of limitation, in engaging i n: difficulty getting out of bed, getting dressed, wal king, standing, sitting, driving, difficulty getting up f rom the floor, difficulty grocery shopping, difficulty stud ying and advancing career, constant pain and limitations affect all daily living activities, difficulty slee ping, sexual activity [wa]s less vigorous and frequent du e to pain and physical limitations. Plaintiff testified he lived with his grandmother and "t[ook] care of everything around the house for her." He explained "taking care of a [ninety]- year-old can have all of its challenges"; he helped her a lot ; and he was her "primary care[giver]" doing the best he could. He also explained they shared the cooking and cleaning duties. Plaintiff stated he was employed on the date of th e accident. He "worked different positions within the business from waiter to bartender" to "working in the kitchen." Because of the accident, he missed t wo weeks of work. When he returned to work, he "stopped [performing] the mult i-role" and "stuck to being a bartender." He explained being a bartender invol ved less movement; his coworkers helped him with tasks; and he adapted by ca rry ing plates using a very5 A- 1760

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large tray. He noted while he "performed everythin g through pain," he "needed

to work." Plaintiff filed a complaint alleging defendants' n egligence caused hi s injuries and he sought damages. After the completi on of discovery, defendants filed a motion for summary judgment seeking to dism iss plaintiff's claims under

the TCA. In a written opinion, the judge considered whether plaintiff "sustained a permanent, substantial loss of bodily function pursuant to the" TCA. The judge reviewed plaintiff's: moving papers; expert's repo rt; testimony; and answers to interrogatories. Moreover, the judge gave plaintif f all reasonable inferences but could "not find that [p]laintiff ha[d] demonstrated an objective permanent injury and a permanent loss of bodily function." Instead, the judge noted plaintiff's assertion that he was unable to perform certain tasks and/or engage in ce rtain activities without experiencing some level of pain.

. . . such as running, hiking, swimming, exercising, and the like because of complaints of pain. Plaintiff's impairments appear[ed] to be limited to participati ng in activities or performing tasks such as cleaning his home. The judge found:

[p]laintiff's reduced ability or function when enga ging in those activities d[id] no t rise to the level of6 A- 1760

- 22 permanent and substantial injury as [wa]s required by the TCA. Plaintiff's subjective complaints of experiencing a sensation of pain when he engages in certain activities or performs certain tasks d[id] not rise to the level of a permanent loss of a bodily functi on. Th [e] [c]ourt note[d] that the record [wa]s clear wit h respect to what [p]laintiff ha[d] stated he can and cannot do, but there ha[d] been no demonstration of anything other than pain that [p]laintiff experienc es when he engages in certain activities. Ultimately, the judge found "[p]laintiff[']s impair ments [we]re limited to an ability to participate in activities rather than a permanent loss of a bodily

function." On appeal, plaintiff argues the judge "erred in fi nding that [he] did not sustain a permanent, substantial loss of bodily fun ction pursuant to the [TCA]." We disagree.

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. If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law."7 A- 1760

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DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). Nicholas v. Mynster, 213 N.J. 463, 478 (2013). "The factual findings of a trial court are reviewed with

substantial deference on appeal, and are not overturned if they are supported by 'adequate, substantial and credible evidence.'" Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014) (quoting Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 293 (2001) ).

In adopting the TCA, the Legislature declared "the public policy of this

State that public entities shall only be liable for their negligence within the

limitations of

[the TCA] ." N.J.S.A. 59:1 -2. Therefore, "[a]pplication of the summary judgment standard . . . must . . . account for the fact that under the TCA, 'immunity [of public entities] from tort liability is the general rule and liability is the exception.'" Stewart v. N.J. Tpk. Auth ./Garden State Parkway,

249 N.J. 642, 655

- 56 (2022) (second alteration in original) (quoting Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998) ). N.J.S.A. 59:9-2(d) provides "[n]o damages shall be awarded against a public entity or public employee for pain and suffe ring resulting from any injury; . . . [except] in cases of permanent loss o f a bodily function, permanent disfigurement or dismemberment ." To satisfy N.J.S.A. 59:9-2(d) a plaintiff8 A- 1760

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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 , 402-03 ( 1997 ) ). The analysis is fact sensitive. Id. at 541 . There is " no per se rule that would be

decisive in all cases." Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324, 331 (2003) (citation omitted). "[I]t is the nature or degree of the ongoing impairment that determines whether a specific injury meets the threshold requirement under

the [TCA] ." Ibid. Under the second prong of Gilhooley /Brooks 1 "there must be a 'physical manifestation of [a] claim that [ an ] injury . . . is permanent and substantial.'" Id. at 332 (alterations in original) (quoting Ponte v. Overeem,171 N.J. 46, 54 ( 2002) ). In Knowles, the Court illustrated two cases , Brooks and Ponte , where plaintiffs failed to establish a permanent, substan tial loss of a bodily function. Id. at 333. Brooks and Ponte are substantially sim ilar to the matter here. The Court explained " the plaintiffs in Brooks and Ponte complained that their

1 The judge's opinion did not address the first pro ng of the Gilhool ey/Brooks test

— an objective permanent injury. The Department cont ends the judge "properly determined that [plaintiff] failed to mee t the second prong of the Brooks test." Therefore, we offer no opinion on th e first prong and focus our attention, as the judge did, on the second prong.9 A- 1760

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injuries left them unable to perform certain tasks without pain, but the injuries

were not severe enough or verifiable enough to constitute a 'permanent loss of a bodily function.'" Ibid. (citing Brooks, 150 N.J. at 406; Ponte, 171 N.J. at 54 ).

"Brooks was decided in favor of the defendant because the plaintiff's daily activities, although painful, were not substantially precluded by her injuries." Ibid. (citing Brooks, 150 N.J. at 406 ). In "Ponte[,] plaintiff . . . was able to

return to his former athletic activities and yardwork, albeit with some restrictions." Ibid. (citing Ponte, 171 N.J. at 50

- 51 ). Brooks and Ponte stand for the proposition that "[a]n injury causing linge ring pain, resulting in a lessened ability to perform certain tasks because o f the pain, will not suffice because '[a] plaintiff may not recover under the [T CA] for mere 'subjective feelings of discomfort.'" Id. at 332 (second alter ation in original) (quoting Brooks, 150 N.J. at 403). Applying these principles , we are satisfied the judge correctly found there

wa s no objective evidence that plaintiff's injuries we re permanent and substantial. As the judge concluded, plaintiff exp erienced a "limited ability to participate in activities, rather than a permanent loss of function"; " reduced ability or function"; and "sensation of pain [that] d[id] not rise to the level of permanent loss." In his appellate brief, plaintiff acknowledges "his capacity to10 A- 1760

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perform the activity is limited and leaves [him] in pain" and "activities requiring exertion are extremely limited and result in pain a nd discomfort." Under the controlling TCA caselaw, these limitations are not a "permanent loss of

function" and are insufficient to maintain a cause of action under N.J.S.A. 59:9- 2(d). To the extent we have not addressed any of plaintif fs' remaining arguments, we conclude they lack sufficient merit t o warrant discussion in a written opinion. R. 2:11 -3(e)(1)(E).

Affirmed.