Defense Digest

Moving the Goalposts?

Playing soccer with my seven and nine-year-old nephew and niece, I can encourage or discourage them by shifting the portable soccer goal either towards the approaching ball or away from the approaching shot.  While some days these shenanigans may effectively provide teachable moments, most of the time, the shifting goal simply frustrates them, and they holler at me to "Stop!"  Ah, the wisdom of children!  They realize that shifting the goal towards them does not really encourage them but simply facilitates them, and their skills do not improve.  Even their young minds understand that they have not really scored a goal.  Likewise, moving the goal away from the shot at the last minute elicits screams of frustration and claims of unfairness.  And, of course, they are correct.  For the game not to be rigged, the goalposts need to be fixed so that they both know what they are shooting for.

This spring, the New Jersey Supreme Court seemed to nudge the goalposts slightly towards the approaching ball shot by the plaintiffs in lawsuits against public entities involving the New Jersey Tort Claims Act threshold. N.J.S.A. 59:9-2(d).  As a result, applicability of the Tort Claims Act threshold in an individual case has become unclear, and the line over which the plaintiff must cross in order to pierce the threshold has become blurred.

The Statute

The New Jersey Legislature included the Tort Claims Act threshold, N.J.S.A. 59:9-2(d), as a part of the New Jersey Tort Claims Act to create an elevated threshold for recovery of non-economic damages, such as pain and suffering, to protect "the public coffers." Brooks v. Odom, 150 N.J. 395, 402 (1997).  Specifically, the Act provides that:

No damages shall be awarded against a public entity … for pain and suffering resulting from any injury; [unless plaintiff can prove] permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00. N.J.S.A. 59:9-2(d).

The Case Law:  Brooks v. Odom – Setting the Bar

The seminal case interpreting the Tort Claims Act threshold is Brooks v. Odom.  There, the plaintiff suffered from stiffness, muscle spasms, dizziness, decreased range of motion in her neck, and post-traumatic headaches.  Ms. Brooks experienced "severe low back pain that radiate[d] into her left leg" and "had difficulty in performing household chores, including vacuuming, carrying groceries, or other activities that require[d] lifting or bending." Id. at 400.  Despite these impairments and limitations, the Supreme Court determined that Ms. Brooks failed to pierce the threshold and granted the public entity's motion for summary judgment.

The Test

The Supreme Court established the two-prong test for evaluating a claim under the Tort Claims Act threshold.  In order to recover for pain and suffering under the Tort Claims Act, a plaintiff must demonstrate (1) an objective permanent injury and (2) a permanent loss of a bodily function that is substantial. The Court reaffirmed this test in Gilhooley v. County of Union, 164 N.J. 533 (2000).  The Brooks/Gilhooley test remains in effect today.  The plaintiff must satisfy both prongs of this test in order to maintain a cause of action against a public entity under the Tort Claims Act.

Lowering the Bar?

The Supreme Court interpreted the Tort Claims Act threshold anew this spring in the matter of Knowles v. Township of Mantua, 176 N.J. 324 (2003).  In Knowles, a metal gate at a public park came down on the plaintiff's car, crashed through the windshield, and struck his upper body.  The public entity moved for summary judgment on the Tort Claims Act threshold issue.  At the time of the motion, the plaintiff complained of neck and back pain that radiated into his lower back, as well as numbness and tingling in his left leg and foot.  The plaintiff missed one week of work and gave up a second job of refereeing high school soccer games.  The plaintiff claimed that he could not sit for more than 30 minutes, stand for more than 15 minutes, or walk for more than a quarter mile.  The trial court held that these injuries did not pierce the second prong of the threshold, namely that the plaintiff sustained a "permanent loss of bodily function that is substantial."  The Appellate Division affirmed this decision.  The Supreme Court, however, reversed.

The Supreme Court reiterated that the Brooks/Gilhooley standard still applied to Tort Claims Act threshold cases.  Moreover, the court characterized the threshold as a "high" threshold that must be satisfied by the plaintiff.  Knowles at 330.  The Court began its analysis by noting that applicability of the Tort Claims Act threshold depends on a "fact sensitive analysis."  According to the Court, "our task is to determine whether the facts and circumstances of plaintiff's injuries place him on that part of the 'continuum of cases' in which the Court has determined that an injury is substantial and permanent." Knowles at 331. 

Justice Coleman observed, "it is the nature or degree of the ongoing impairment that determines whether a specific injury meets the threshold requirement under the Tort Claims Act." Id. (citing Ponte v. Overeem, 171 N.J. 46 (2002)).  The Court described several categories of injuries which seem to comprise the "continuum of cases."  They are:

1.  Injuries causing blindness, disabling tremors, paralysis, and loss of taste and smell satisfy the threshold because they are inherently objectively permanent and implicate the substantial loss of a bodily function. Gilhooley, 164 N.J. at 541.

2.  Injuries that render a bodily organ or limb substantially useless but for the ability of modern medicine to supply replacement parts to mimic the natural function satisfy the threshold. Gilhooley, at 542-3.  This category includes any permanent hardware or screws inserted into fracture sites.  If the hardware is only temporary and the joint can function on its own without any "modern medicine," the threshold may not be pierced.

3.  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, (citing Ponte and Gilhooley).

4.  Finally, neither an absence of pain nor a plaintiff's ability to resume some of his or her normal activities is dispositive of whether he or she is entitled to pain and suffering damages under the TCA.  Knowles (citing Kahrar v. Borough of Wallington, 171 N.J. 3 (2002)).

Knowles, supra. at 332.

In light of this "continuum of cases," the Court determined that the plaintiff in Knowles had satisfied the threshold.  The Court believed that the plaintiff had suffered a "substantial loss of several bodily functions: the lack of feeling in his left leg and inability to sit, stand, or walk comfortably for a substantial amount of time, engage in athletics, and complete household chores." Id. at 333.

The plaintiff's injuries/limitations in Knowles appear to be similar to the injuries/limitations suffered by the plaintiff in Brooks.  Ms. Brooks, likewise, experienced severe back pain, which radiated into her left leg, and she had difficulty performing household chores, including vacuuming, carrying groceries, and other activities that required lifting and bending.  She also experienced pain and limitation of motion in her neck and back.  They may be distinguishable since Ms. Brooks did not mention loss of feeling in her leg or an inability to stand, sit, or walk for substantial periods of time.

Practical Effect

While the Knowles decision did not alter the Tort Claims Act threshold test in any way, the Court emphasized the "fact sensitive" nature of the cases and the discretion of the trial court.  Following this "fact sensitive" approach, it seems significant that the Court reversed the trial court and Appellate Division and found that the plaintiffs had pierced the threshold in the Knowles case, even though the injuries were similar to, although distinguishable, from the injuries sustained by the plaintiff in Brooks.  Trial courts will likely latch onto this decision, and its emphasis on discretion, to support a denial of a public entity's summary judgment motion. 

Public entities will need to buttress their threshold arguments to withstand the practical effect of this holding.  Threshold motions should focus on the ongoing nature of the plaintiff's limitations/complaints.  Fact discovery should include an evaluation of a plaintiff's job duties, especially when the plaintiff has returned to work.  Inquiry should be made into whether the plaintiff has received negative job evaluations or disciplinary action for an inability to perform job duties.  If the plaintiff claims an inability to stand, sit, walk, etc., those alleged limitations should be explored further and perhaps indirectly by questioning, which does not necessarily telegraph its intentions.  The use of surveillance may become more important to refute claimed limitations.  Finally, and by no means exhaustively, summary judgment arguments should focus on the public policy behind the threshold to protect public coffers.  Perhaps analogies may be made to the automobile verbal threshold, which was recently enhanced and appears to be limiting more speculative claims than in the past. 

Plaintiffs' attorneys view this decision as a widening of the goalposts.  ATLA-NJ has provided a link to the Supreme Court opinion in Knowles directly on the front page of their website at www.atlanj.org.  At this point, no appellate court has published any opinion interpreting the Tort Claims Act threshold in light of the Knowles decision.  Careful attention will need to be paid to the New Jersey courts' future application of the Tort Claims Act threshold in light of Knowles to determine whether the goalposts have, in fact, been moved or if they are still fixed in the place where the Legislature intended.

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