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NOT FOR PUBLICATION WITHOUT THE 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 parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-1760-22

 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-3405-20. 

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-1760-22

PER CURIAM 

 Plaintiff Nicolas A. Vazquez appeals from a January 17, 2023 order 

granting defendants New Jersey Department of the Treasury, State of New 

Jersey, and Kenneth T. Keyworth summary judgment and dismissing plaintiff's 

personal injury action under the New Jersey Tort Claim 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 when his vehicle was struck from 

the rear by defendants' dump truck. He claims MRIs revealed cervical and 

lumbar disc herniations and bulges. His pain management physician opined 

these 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 heal to function normally." 

 The pain management physician further opined 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 contended 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 of 

example but not by way of limitation, in engaging in: 

difficulty getting out of bed, getting dressed, walking, 

standing, sitting, driving, difficulty getting up from the 

floor, difficulty grocery shopping, difficulty studying 

and advancing career, constant pain and limitations

affect all daily living activities, difficulty sleeping, 

sexual activity [wa]s less vigorous and frequent due 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 the accident. He "worked 

different positions within the business from waiter to bartender" to "working in 

the kitchen." Because of the accident, he missed two weeks of work. When he 

returned to work, he "stopped [performing] the multi-role" and "stuck to being 

a bartender." He explained being a bartender involved less movement; his coworkers helped him with tasks; and he adapted by carrying plates using a very 
5 A-1760-22

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

to work." 

 Plaintiff filed a complaint alleging defendants' negligence caused his 

injuries and he sought damages. After the completion of discovery, defendants 

filed a motion for summary judgment seeking to dismiss 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 report; testimony; and answers to 

interrogatories. Moreover, the judge gave plaintiff 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 certain 

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 participating in 

activities or performing tasks such as cleaning his

home. 

 The judge found: 

[p]laintiff's reduced ability or function when engaging 

in those activities d[id] not rise to the level of 
6 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 function. 

Th[e] [c]ourt note[d] that the record [wa]s clear with 

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 experiences 

when he engages in certain activities. 

Ultimately, the judge found "[p]laintiff[']s impairments [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 finding that [he] did not 

sustain a permanent, substantial loss of bodily function 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-1760-22

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 suffering resulting from any 

injury; . . . [except] in cases of permanent loss of a bodily function, permanent 

disfigurement or dismemberment." To satisfy N.J.S.A. 59:9-2(d) a plaintiff 
8 A-1760-22

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/Brooks1 "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, substantial loss of a bodily function. 

Id. at 333. Brooks and Ponte are substantially similar 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 prong of the Gilhooley/Brooks 

test—an objective permanent injury. The Department contends the judge 

"properly determined that [plaintiff] failed to meet the second prong of the 

Brooks test." Therefore, we offer no opinion on the first prong and focus our 

attention, as the judge did, on the second prong.
9 A-1760-22

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 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 (second alteration in original) (quoting 

Brooks, 150 N.J. at 403). 

Applying these principles, we are satisfied the judge correctly found there 

was no objective evidence that plaintiff's injuries were permanent and 

substantial. As the judge concluded, plaintiff experienced 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 to 
10 A-1760-22

perform the activity is limited and leaves [him] in pain" and "activities requiring 

exertion are extremely limited and result in pain and 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 plaintiffs' remaining 

arguments, we conclude they lack sufficient merit to warrant discussion in a 

written opinion. R. 2:11-3(e)(1)(E).

Affirmed.