Kahrar v. Borough of Wallington

STEIN, J., writing for a majority of the Court.

The issue in this appeal is whether the plaintiff, Sharon Kahrar, has satisfied the threshold for awarding pain and suffering damages under the Tort Claims Act, N.J.S.A. 59:9-2d, based on a torn rotator cuff that was surgically repaired. Plaintiff, Sharon Kahrar, was injured on June 28, 1997, when she fell on an alleged hole in a road owned and/or maintained by the Borough of Wallington, adjacent to a market she had intended to visit. Following her fall, Kahrar noticed that she had sustained cuts and bruises to various parts of her body. Nevertheless, she did not seek medical treatment until the following day, when she went to the emergency room and learned that she had broken her right elbow and knee. After several weeks of treatment and physical therapy, Kahrar still was in pain and thus was rec-ommended to an orthopedist.

Kahrar was seen by Dr. Gary Savatsky, an orthopedist, in July 1997. Dr. Savatsky ordered an MRI, which revealed a massive tear of Kahrar's rotator cuff. He performed surgery the following month to repair the tear. Within three weeks of surgery, the doctor noted an improvement. However, two months after surgery, Kahrar was still experiencing pain and achiness. In addition, three months after surgery, Dr. Savatsky observed that he could rotate Kahrar's shoulder only twenty-five degrees, and subsequent post-operative reports described significant limitation in movement of her left arm. Dr. Savatsky's last report (rendered 227 days after surgery) describes Kahrar's range of motion in several respects in her left arm as measuring less than that in her right arm. A subsequent exam by a defense medical expert, approximately one year post surgery, confirmed that Kahrar had sustained substantial motion loss in her left arm as a result of the rotator cuff tear.

After surgery, Kahrar began a course of physical therapy that continued for about nine months. She returned to work as a secretary approximately two months after her surgery and was noted to be performing her full duties without restrictions. However, Kahrar indicated that it took her longer to perform her normal job responsibilities and that she often required the assistance of others to complete some of her duties. In addition, Kahrar indicated that she experienced difficulty when performing normal household tasks, requiring her husband's or her children's assistance, and that she had difficulty driving, sleeping through the night without pain, reaching certain areas of her body, and continuing her hobbies.

Kahrar and her husband filed suit under the Tort Claims Act against the Borough for the injuries and other damages she sustained. The Borough subsequently filed a motion for summary judgment, claiming that Kahrar's injuries did not satisfy the threshold requirement of "permanent loss of a bodily function" set forth in N.J.S.A. 59:9-2d. The trial court granted summary judgment for the Borough, observing that the Supreme Court's decision in Brooks v. Odom, 150 N.J. 395, 696 A.2d 619 (1997), required, as a predicate to recovery for pain and suffering, an injury that prevents a plaintiff from performing any or most of the tasks performed at work and at home prior to the injury. The Appellate Division affirmed the trial court's determination that Kahrar's injury was not permanent.

The Supreme Court granted Kahrar's petition for certification to consider whether her shoulder injury constituted a "permanent loss of a bodily function" that satisfied the Tort Claims Act's threshold requirement.

HELD: Plaintiff, who fell and was injured on property owned and/or controlled by the Borough of Wallington, has satisfied the Tort Claims Act's threshold for awarding pain and suffering damages based on a torn rotator cuff that required surgical repair and that resulted in a significant limitation in range of motion.


 * 1) The Tort Claims Act limits recovery for pain and suffering damages to cases involving "permanent loss of a bo-dily function, permanent disfigurement, or dismemberment where the medical treatment expenses are in excess of $ 3,600. That limitation is intended to ensure that such damages will not be awarded unless the loss is substantial. (pp. 9-10)
 * 2) To recover under the Tort Claims Act, a plaintiff must prove an objective permanent injury and a permanent loss of bodily function that is substantial. (pp. 10-13)
 * 3) The Legislature intended to include within the notion of aggravated cases for which one can seek damages for pain and suffering those cases involving permanent injury resulting in a permanent loss of normal bodily function even if modern medicine can supply replacement parts to mimic the natural function. (pp. 13-16)
 * 4) The appropriate focus in applying the Tort Claims Act standard is on the degree of injury and impairment, and if the loss of bodily function is permanent and substantial, a plaintiff's eligibility to recover pain and suffering damages will not be defeated merely because he or she can perform some routine functions almost as well as he or she could prior to his or her injury. (pp. 16-17)
 * 5) A determination of whether a claimant has sustained injuries sufficient to satisfy the threshold under the Tort Claims Act is fact sensitive and not conducive to per se rules, and based on the facts in this record, Kahrar has adequately demonstrated a permanent and substantial loss of a bodily function. (pp. 18-19)

Judgment of the Appellate Division is REVERSED and the matter is REMANDED for trial to the Law Division.

JUSTICE VERNIERO has filed a separate dissenting opinion in which JUSTICE LaVECCHIA joins. Justice Verniero did not believe that Kahrar's proofs satisfied the Tort Claims Act's high threshold for recovery of non-economic damages under Brooks. He further believed that the Court had altered the analysis used to evaluate claims for non-economic damages against a public entity under the Tort Claims Act and that the approach employed in Brooks was more in keeping with the Act. Thus, he would have affirmed the Appellate Division's judgment.

CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, and ZAZZALI join in JUSTICE STEIN's opinion. JUSTICE VERNIERO has filed a separate dissenting opinion in which JUSTICE LaVECCHIA joins.