DENISE SPENTZ VS. NEWARK HOUSING AUTHORITY (L-0483-15, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5007-16T4

DENISE SPENTZ,

Plaintiff-Appellant,

v.

NEWARK HOUSING
AUTHORITY,

Defendant-Respondent.
_____________________________

Submitted January 24, 2019 – Decided February 11, 2019

Before Judges Ostrer and Mayer.

On appeal from Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-0483-15.

Nathaniel M. Davis, attorney for appellant.

Biancamano & Di Stefano, PC, attorneys for
respondent (James G. Serritella, on the brief).

PER CURIAM

Plaintiff Denise Spentz appeals from a June 23, 2017 order granting

summary judgment in favor of defendant Newark Housing Authority, dismissing
her personal injury claims for failure to satisfy the Tort Claims Act (TCA),

N.J.S.A. 59:1-1 to -12-3. We affirm.

In December 2013, plaintiff, who lived in a building owned and

maintained by defendant, fell through a hole in the floor of her apartment. She

was taken to the hospital, complaining of knee and back pain. She was

discharged from the hospital after being treated for a leg abrasion. No x-rays or

other radiological images were taken while plaintiff was at the hospital.

Plaintiff followed up with her primary care physician who prescribed

medication and physical therapy. Because her knee and back complaints did not

improve with physical therapy, plaintiff sought treatment at a chiropractic

center. Plaintiff received twenty-nine chiropractic treatments between February

and June 2014.

About two and one-half months after her fall, plaintiff underwent

magnetic resonance imaging (MRI) of her lumbar spine and right knee. The

MRI of the lumbar spine noted moderate disc bulges in plaintiff's lower back.

The MRI of the right knee revealed a lateral meniscal tear and sprain of the

anterior cruciate ligament.

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 After her MRI, plaintiff saw an orthopedic surgeon who recommended

right knee arthroscopy. Because she was afraid to undergo surgery, plaintiff

elected to continue chiropractic treatment.

Plaintiff also had an electromyography (EMG) study of her lower

extremities. Based on the EMG results, plaintiff had no lumbar radiculopathy.

Upon discharge from chiropractic treatment, in June 2014, plaintiff was

diagnosed with cervical and lumbar sprains and strains and a tear of the lateral

meniscus of the right knee.

Plaintiff filed a complaint for her injuries. Defendant filed an answer,

denying the allegations and asserting affirmative defenses under the TCA.

Thereafter, plaintiff was deposed. At her deposition, plaintiff described

pain in her lower back and knee, requiring daily pain medication. Plaintiff also

claimed she was unable to sit or stand for long periods of time. Plaintiff

expressed difficulty walking, climbing stairs, and dancing.1 Plaintiff admitted

1
Plaintiff's brief states she uses a cane. However, there is no evidence or
testimony in the record explaining why plaintiff uses a cane, when she started
using a cane, or whether her doctors recommended she use a cane after her fall.
The documents submitted by plaintiff in opposition to defendant's summary
judgment motion reveal plaintiff is five feet tall and weighs 206 pounds, placing
her in the obese category. The records also indicate plaintiff is diabetic.
Individuals who are significantly overweight and suffer from diabetes often
experience difficulty walking. W. Jack Rejeski et al., Lifestyle Change and

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she was able to walk around her apartment, use public transportation, shop for

groceries, and perform household tasks such as cleaning and laundry.

After completing discovery, defendant moved for summary judgment,

arguing plaintiff failed to meet the TCA's threshold requirements. Specifically,

defendant asserted plaintiff failed to present evidence she suffered a permanent

and substantial loss of a bodily function.

The judge granted the motion, stating plaintiff's injuries did not meet the

TCA threshold for damages in accordance with N.J.S.A. 59:9-2(d). The TCA

provides:

No damages shall be awarded against a public
entity . . . for pain and suffering resulting from any
injury; provided, however, that this limitation on the
recovery of damages for pain and suffering shall not
apply in cases of permanent loss of a bodily
function . . . .

[N.J.S.A. 59:9-2(d).]

In rendering his decision, the judge relied on Ponte v. Overeem, 171 N.J.

46 (2002). In Ponte, a case similar to this matter, the Court held a knee injury

requiring arthroscopic surgery did not constitute a permanent loss of bodily

function to recover pain and suffering damages under the TCA.

Mobility in Obese Adults with Type 2 Diabetes, 366 New Eng. J. Med. 1209,
1209 (2012).
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 Here, plaintiff elected not to undergo surgery to repair a meniscal tear in

her knee and was not restricted in the performance of her normal daily activities,

including household tasks. Thus, the judge concluded plaintiff failed to

demonstrate a physical manifestation of an injury to her knee, establishing loss

of a normal bodily function that is both permanent and substantial.

On appeal, plaintiff argues the motion judge erred in granting summary

judgment because she suffered permanent injuries and a substantial loss of a

bodily function, satisfying N.J.S.A. 59:9-2(d).

We review a grant of summary judgment de novo, applying the same

standard as the trial court. Templo Fuente De Vida Corp. v. Nat'l Union Fire

Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Summary judgment may be

granted when "the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact challenged and that the moving party is

entitled to a judgment or order as a matter of law." R. 4:46–2(c).

In determining whether there is a genuine issue of material fact, courts

"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-

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moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

If the evidence presented "show[s] that there is no real material issue, then

summary judgment should be granted." Walker v. Atl. Chrysler Plymouth, Inc.,

216 N.J. Super. 255, 258 (App. Div. 1987).

To recover for pain and suffering under the TCA, a plaintiff 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, 402-403 (1997)). Considering the

evidence in the light most favorable to plaintiff, we must determine whether

plaintiff's injuries satisfy both prongs of the test established in Brooks and

Gilhooley (Brooks/Gilhooley test).

In this case, plaintiff had no treatment to her lower back or right knee

since June 2014. While plaintiff's medical experts opined plaintiff's injury was

permanent and causally connected to her fall, none of the medical experts stated

she suffered a substantial loss of a bodily function under the Brooks/Gilhooley

test.

There is no bright line test to determine whether an injury presents both a

permanent and substantial loss of a bodily function. Knowles v. Mantua Twp.

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Soccer Ass'n, 176 N.J. 324, 331 (2003). The analysis is fact-sensitive and differs

depending on the facts set forth in each case. Ibid.

In Knowles, the Court required the following to recover damages under

the TCA:

there must be a "physical manifestation of [a] claim that
[an] injury . . . is permanent and substantial." An 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
Tort Claims Act for mere 'subjective feelings of
discomfort.'"

[Knowles, 176 N.J. at 332 (alterations in original)
(quoting Gilhooley, 164 N.J. at 540).]

Applying this standard to the facts in this case, we are satisfied plaintiff's

injuries are not "objectively permanent and implicate the substantial loss of a

bodily function . . . ." Ibid. (quoting Gilhooley, 164 N.J. at 541). Nor did

plaintiff demonstrate she suffered an injury that "permanently . . . render[ed] a

bodily organ or limb substantially useless but for the ability of 'modern medicine

[to] supply replacement parts to mimic the natural function.'" Ibid. (quoting

Gilhooley, 164 N.J. at 542-43). Cases that present sufficient evidence of a

permanent and substantial loss of a bodily function include: Gilhooley, 164 N.J.

at 542 (finding a patella fracture was an objective permanent injury causing the

plaintiff "to lose forever the normal use of her knee . . . without permanent pins

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and wires to re-establish its integrity"); Kahar v. Borough of Wallington, 171

N.J. 3, 16 (2002) (finding reattachment of a torn rotator cuff tendon resulted in

the shortened length of the tendon and impaired the plaintiff's ability to use her

arm to complete normal tasks); and Knowles, 176 N.J. at 333 (finding "objective

medical evidence of a permanent injury," including the lack of feeling in the

plaintiff's leg).

Plaintiff failed to present objective evidence that her injury satisfies the

TCA's requirement of a "permanent loss of a bodily function." Plaintiff has no

medical restrictions imposed on her daily activities. Plaintiff can cook, shop,

clean, and do laundry.

Plaintiff argues she suffered a permanent loss of bodily function that is

substantial based on her own subjective complaints and described limits on her

activities. According plaintiff every reasonable inference from the evidence,

her proofs lack objective evidence of a reduction in normal bodily function that

is permanent and substantial under the TCA.

Affirmed.

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