On October 27, 2023 the New Jersey Appellate Division issued an unpublished decision which addressed the verbal threshold a plaintiff must overcome to bring a successful claim for pain and suffering against a public entity or public employee in the State of New Jersey under the Tort Claims Act (“TCA”), N.J.S.A. 59:1-1 to 14:4. In Berta Abreu Flores v. North Hudson Regional Fire and Rescue et al., the plaintiff Berta Abreu Flores was injured when a driverless fire truck slipped into gear during a training exercise and crashed into the office building she was working in. Immediately following the accident, the plaintiff complained of pain to her left side, her head, her right shoulder, and dizziness, and she was evaluated at the emergency room and released. Over the next several months she began to experience hearing loss, dizziness, nasal congestion, and difficulty breathing, and began treatment with an audiologist who diagnosed her with decreased hearing in both ears, an injury to her brain stem, and a loss of balance. She was also diagnosed with a tendon tear in her right shoulder by an orthopedic doctor, which was treated with surgery. As a result of her injuries, the plaintiff filed a lawsuit against the local fire department and two fire fighters claiming that the defendants were negligent in causing the accident.
After discovery was completed, defendants North Hudson Regional Fire and the firefighter filed a motion for summary judgment in the trial court and argued that the plaintiff’s injuries were not substantial and permanent as required by N.J.S.A. 59:9-2(d). In response to the motion, the plaintiff submitted medical reports and a Certification claiming that she recently that to forego medication that helped with her balance issues due to kidney disease, and her balance issues has since worsened. Despite plaintiff’s arguments, the trial Court held that the “medical testimony provided by plaintiff’s doctor and defendants’ medical expert does not show whether the damage to her hearing loss is “substantial” and plaintiff “had not shown by objective medical evidence that the injuries resulted in a loss of bodily function that is substantial.” The Court did not address plaintiff’s loss of balance issues, and the plaintiff appealed.
In reaching their decision to reverse summary judgment, the Appellate Division relied on N.J.S.A. 59:9-2(d) which imposes a monetary and verbal threshold or “substantial” injury threshold that must be overcome by a plaintiff when a claim is brought for pain and suffering. The verbal threshold requirement under the TCA requires the plaintiff to prove a “permanent loss of bodily function, permanent disfigurement or dismemberment,” N.J.S.A. 59:9-2(d), which case law has defined as a two-pronged standard which requires the plaintiff to prove (1) objective medical evidence of a permanent injury; and (2) a permanent loss of bodily function that is substantial. Brooks v. Odom, 150 N.J. 395, 402-403 (1997). Following this standard, the Court held that the Plaintiff’s shoulder injury, which was repaired by surgery, and her hearing loss, which had improved, did not overcome the TCA’s verbal threshold, however the plaintiff’s persistent and increased loss of balance following her discontinuation of medication, presented a genuine issue of material fact that a jury could conclude was both “objective” and “substantial” to overcome the TCA’s verbal threshold.
Legal Update by Michael Veneziani, Esq., of Petro Cohen, P.C.
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