Ponte v. Overeem

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the con-venience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the inter-ests of brevity, portions of any opinion may not have been summarized).

Robert Ponte and Priscilla Ponte v. Richard Overeem and New Jersey Transit, Inc (A-99-00)

Argued November 27, 2002 — Decided February 27, 2002

PER CURIAM

The issue in this appeal, like that in Kahrar v. Borough of Wallington, ____ N.J. ____ (2002), also decided on this date, is whether the plaintiff, Robert Ponte, has satisfied the threshold for awarding pain and suffering damages under the Tort Claims Act, N.J.S.A. 59:9-2d, based on an injury to his knee (torn medial meniscus) requiring arthroscopic surgery. Plaintiff, Robert Ponte, was injured on March 8, 1995, when his stalled car was struck by a New Jersey Transit bus. The impact of the bus caused the back of Ponte's driver's seat to break and his right knee to strike the dash-board. Following the accident, Ponte was admitted to the St. Clare Riverside Medical Center complaining primarily of pain in his neck and in his right lower leg. He was treated and released the same evening. Shortly thereafter, Ponte began treatment with Dr. David J. Feldman, an orthopedic surgeon. Dr. Feldman initially recommended physical therapy. However, when Ponte's complaints of knee pain persisted, he ordered an MRI. The MRI revealed a small joint effusion and a small tear in the posterior horn of the medial meniscus. Following the MRI, Ponte continued to complain of ongoing pain in the right knee and of increasing symptoms with activities. Based on the those increased complaints and symptoms, Dr. Feldman recommended arthroscopic surgery on the right knee, which was performed in late June 1995. In his post-operative report, Dr. Feldman noted that Ponte had "tolerated the procedure well." Approximately one week post surgery, Dr. Feldman noted that Ponte was "doing well" and that his knee motion was "almost full with minimal pain. Although Ponte complained of pain and ten-derness during subsequent post-operative evaluations, Dr. Feldman determined that there was no instability in the knee or tenderness. He prescribed local injection and anti-inflammatory medication.

During a visit on July 29, 1996, Dr. Feldman noted that Ponte's knee had "good motion . . . with occasional pain in the medial side . . . associated with flexion." He then discharged Ponte to be seen only on "as needed" basis. He next saw Ponte over a year later in October 1997, at which time Ponte complained of neck and buttock pain. Following that visit, Ponte did not return for almost two years until his last visit on September 22, 1999. Dr. Feldman's notes relative to that visit state that since the surgery, Ponte had one or two episodes of the right knee "giving way." Although the examination showed some tenderness and Ponte had positive responses to pain tests, Dr. Feldman observed that there was good range of motion and good stability. In his final assessment concerning Ponte's knee, Dr. Feldman stated that Ponte had sustained a probable derangement of the right knee and that Ponte had ongoing symptoms relating to the knee. He determined that the accident had left Ponte with a "permanent loss of bodily function."

In January 1997, Ponte and his wife filed suit in the Law Division against the bus driver and against New Jersey Transit. During the course of discovery and in his answers to interrogatories, Ponte complained of certain limitations in respect of his knee for a period of time following the accident while Ponte attempted to exercise or to perform housework. He was not deposed and there was no other evidence in the record indicating that Ponte's range of motion was limited, that his gait was impaired, or that his ability to ambulate was restricted.

In May 1998, almost three years after surgery, Ponte submitted to a medical defense exam by Dr. Ralph E. Ricciardi. At that time, Ponte denied any complaints regarding his knee. Dr. Ricciardi's report indicated that Ponte's range of motion in his right knee (the injured knee) was the same as that in his left knee. He further noted that Ponte's gait was normal, that there was no evidence of any internal derangement in the right knee, and that Ponte was able to ambulate and squat without difficulty.

At some point following Ponte's filing of suit, the defendants filed a motion for summary judgment, which the trial court granted. The Appellate Division reversed the trial court's determination that Ponte had not presented a factual legal issue concerning the threshold requirement under the Tort Claims Act. Specifically, the Appellate Division found that Ponte had presented a triable issue of fact concerning whether his knee injury constituted a permanent loss of a bodily function that was substantial.

The Supreme Court granted New Jersey Transit's and Overeem's petition for certification.

HELD: Plaintiff, who was injured when his stalled automobile was struck by a New Jersey Transit bus, has not satisfied the Tort Claims Act's threshold for awarding pain and suffering damages based on a torn medial meniscus that required arthroscopic surgery, but that did not result in any limitation in range of motion or other function.


 * 1) The nature or degree of an alleged ongoing impairment determines whether a specific injury meets the threshold requirement under the Tort Claims Act, and there is no per se rule that would preclude finding a permanent and substantial loss of a bodily function merely because a claimant still is able to function reasonably well at work and at home, regardless of the nature and degree of the impairment. (pp. 10-12)
 * 2) Ponte's allegations concerning the injury to his knee do not establish a loss of normal bodily function that is both permanent and substantial, and merely iterates a claim for pain and suffering. Thus, he has not satisfied the threshold for recovering pain and suffering damages under the Tort Claims Act.

Judgment of the Appellate Division is REVERSED and summary judgment in favor of the defendants granted by the Law Division is REINSTATED.

JUSTICES VERNIERO and LaVECCHIA filed a separate opinion concurring in the disposition of the Court solely on the basis that it complies with the standard articulated in Brooks v. Odom, 150 N.J. 395, 696 A.2d 619 (1997), which they believe is the appropriate standard to be applied in evaluating claims for non-economic damages against a public entity under the Tort Claims Act. CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, and ZAZZALI join in this PER CURIAM opinion. JUSTICES VERNIERO and LaVECCHIA filed a separate concurring opinion.