Gilhooley v. County of Union/Dissent Verniero

VERNIERO, J., dissenting.

This dispute centers on the standard to be used in sustaining non-economic damages (i.e., amounts for pain and suffering) against a public entity. The case does not pertain to an award for medical expenses. The critical language in Brooks v. Odom, 150 N.J. 395, 406, 696 A.2d 619 (1997), requires that to recover non-economic damages under the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3 (the Act), "a plaintiff must sustain a permanent loss of the use of a bodily function that is substantial." The Court takes that once-integrated standard and divides it in two: one part focusing on plaintiff's injury, the other part focusing on the loss of the bodily function. In so doing, the Court, in my view, places insufficient emphasis on the loss of the bodily function and thereby alters the focus of the analysis in a manner inconsistent with the Act.

I find the proper focus under both the statute and Brooks to be on the loss of the bodily function, not on the injury. Viewed from that perspective, plaintiff's claim is insufficient because her bodily function (the use of her knee) has been fully restored. As the Court in Brooks emphasized, "[t]emporary injuries, no matter how painful and debilitating, are not recoverable." Id. at 403, 696 A.2d 619. Thus, I agree with the Appellate Division's conclusion that summary judgment was the appropriate disposition. [p547] The Court arrives at a contrary conclusion by reasoning that the existence of the pin in plaintiff's knee is itself sufficient to show, as a threshold matter, that a permanent loss of a bodily function has occurred. The Court reaches its conclusion notwithstanding that the knee is functioning completely and well. Moreover, the record reveals that plaintiff was fully capable of returning to work, sought no further treatment for her injuries and requires no medication for her condition. Unlike the majority, I cannot conclude with confidence that the Legislature intended tax-payers to be exposed to liability for an award for pain and suffering on these facts.

Indeed, the purpose of the Tort Claims Act "was to reestablish the general rule of the immunity of public entities from liability for injuries to others. Underlying the reenactment of immunity was the Legislature's concern about that liability on the public coffers." Id. at 402, 696 A.2d 619 (citation omitted). In my view, it is the role of the Legislature, not the judiciary, to lower the bar of the Tort Claims Act. Until the Legislature so acts, we must enforce the statute's high threshold, as we did in Brooks.

My concern is that the Court's holding may lead to incongruous results in future cases. In Brooks, the plaintiff experienced pain and the limitation of motion in her neck and back was permanent, id. at 406, 696 A.2d 619; however, that was not enough to satisfy the Act's pain-and-suffering threshold. Here, plaintiff suffers no loss of movement and her knee is functioning properly; yet, she is found to have satisfied the Brooks standard. Viewing the two injuries solely from the perspective of loss of movement or loss of the respective bodily functions, the Brooks plaintiff arguably suffered more of a permanent loss than did plaintiff in this case. I do not believe that the doctor's insertion of a pin in plaintiff's knee, without more, is sufficient to distinguish this case from a case like Brooks in which recovery was denied.

In respect of the scar issue, I do not believe that we should reverse the trial court without first remanding the matter to obtain the benefit of photographs or some other evidence on which [p548] to base our disposition. In granting summary judgment in favor of defendants, the trial court observed the injury; we have not. Nor have we been provided with any photographic evidence. Under those circumstances, I do not believe that we should substitute our judgment for that of the trial court. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484, 323 A.2d 495 (1974). If there is a question concerning the validity of the lower court [determination, I would remand for purposes of supplementing the record to enable us to better perform our appellate function.

For the above reasons, I respectfully dissent.