Defense Digest

Pushing The Tort Claims Act Threshold

The New Jersey Tort Claims Act, N.J.S.A. 59:9-1, et. seq., protects public entities in several different ways. The Tort Claims Act (TCA or The Act) establishes a stringent pre-suit notice requirement. It creates a heightened standard of care for premises liability cases. The Act also provides various immunities to public officials and law enforcement officers.

One of the most important protections of the Tort Claims Act is contained in the Tort Claims Act threshold, N.J.S.A. 59:9-2. The TCA threshold requires plaintiffs to pierce a monetary and qualitative injury threshold in order to recover damages for pain and suffering. If a plaintiff fails to reach this injury threshold, New Jersey courts will often dismiss all non-economic claims against a public entity or employee.

The Tort Claims Act threshold fulfills the express aims of the Legislature to limit public entity liability. The 1972 Task Force Comment to the Tort Claims Act stated:

New Jersey courts have regularly tackled the TCA threshold issue and have offered generally instructive and interpretive opinions to guide practitioners. A particular issue that seems ripe for a challenge arises when a plaintiff presents both claims of a loss of bodily function (e.g. herniated disc, etc.) as well as claims of permanent disfigurement (e.g. scarring). Specifically, does a plaintiff have to pierce the threshold twice, for both the orthopedic injury and the scar injury, in order to recover for both injuries? Or does the Tort Claims Act require a plaintiff only to pierce the threshold for one of the injuries, allowing the other, less significant, injury to follow in the wake of the more serious injury?

For example, consider this hypothetical situation. Selma Bouvier tripped and fell on a public sidewalk on Main Street in Springfield. She landed on her right arm and sprained her wrist. Unfortunately, Selma also fell forward and her face struck the concrete sidewalk. Selma wound up with a four-inch scar on her forehead. Selma ultimately recovered from her wrist injury after wearing a cast and sling for several weeks and completing a three-month course of physical therapy. Selma ultimately returned to work full time and full duty at the DMV about six months after the fall. Dr. Hibbert concluded that Selma had no permanent restrictions regarding her right arm. At her deposition, Lionel Hutz, Esquire asked her if she still experienced any problems with her right wrist, and she replied, unequivocally, "No." However, every time she looked in the mirror, Selma saw the four-inch scar. Every time she walked down the street, Nelson, the schoolyard bully, laughed at her.

In this situation, Selma's facial scar would pierce the Tort Claims Act threshold for permanent disfigurement. However, Selma's wrist injury would not pierce the Tort Claims Act threshold for orthopedic injury. Under present New Jersey law, Selma would be able to recover pain and suffering for all of her injuries, including the wrist injury, simply because she pierced the threshold for her scar.

Six years ago, the New Jersey Appellate Division seemed to call out for an opportunity to correct this apparent loophole. In Hammer v. Township of Livingston, 318 N.J.Super. 298 (App. Div. 1999), a fire vehicle struck the plaintiff while she was walking. Following the accident, she complained of psychological problems, as well as scarring and disfigurements. Both the trial court and the Appellate Division found that her psychological problems did not constitute a permanent loss of a bodily function and determined that the psychological complaints did not pierce the threshold. However, the plaintiff suffered a 15-cm scar running the length of her knee, which was "discolored and mottled." She also had a facial scar from her right lower lip to her chin and from the corner of her right eye to her nose. The trial judge had found these scars to be insignificant; however, the trial judge did not articulate reasons for these findings. After reviewing photos of the scarring, the Appellate Division could not conclude that the scars were so insubstantial. The Appellate Division reversed the trial court's decision, believing that these scars pierced the threshold.

Surprisingly, the Township of Livingston conceded that piercing the threshold for scarring opened the door and allowed the plaintiff to recover for all of her injuries, including the psychological injuries. Because the Township did not challenge this interpretation of the Act, the Appellate Division could not directly address this issue in its holding. However, in rather direct dicta, the Appellate Division stated, "In light of this concession, while we take no position on its correctness, on remand plaintiff may present proof of the nature and extent of all of her injuries to the trier of fact." Hammer at 311. The Appellate Division seemed to express displeasure that the defendants had conceded this position and also seemed to suggest that the correctness of this position was certainly questionable.

There are compelling arguments to challenge this interpretation of the Tort Claims Act threshold. In our hypothetical, if Selma had only injured her wrist, she would not be able to recover pain and suffering damages from the Town of Springfield. Recognizing the tremendous "economic burdens presently facing public entities," 1972 Task Force Comment, the Tort Claims Act threshold acts as a doorman, to assure that the public entity's economic resources are only reached in situations where the injury is significant and permanent.

However, since Selma injured not only her wrist, but also received facial scars that pierced the threshold, the scars act as an artificial doorstop, holding the door open for the less significant wrist injury. The wrist injury would not and should not make it past the velvet ropes on its own. The Tort Claims Act threshold would act as a bouncer denying entry to the public entity coffers.

The Tort Claims Act threshold should be allowed to work independently when possible. Where the plaintiff's injuries are separate and distinct, such as in our hypothetical, the Tort Claims Act threshold should be able to let the serious injuries go through but still have the power to deny the insignificant, non-permanent injuries. Each of the plaintiff's separate and distinct injuries would have to make its own way through the velvet ropes and pierce the threshold on its own. Interpreting the threshold to work this way would advance the express aim and public policy of the Tort Claims Act to protect public entities as intended. Moreover, the Appellate Division seems to be begging to reach this conclusion.

*Paul, a shareholder in our Cherry Hill, NJ office, can be reached at (856) 414-6008 or pjohnson@mdwcg.com.