LEAH ANDJUAR, ETC. v. TOWN OF WEST NEW YORK BOARD OF EDUCATION (L-0997-18, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-2414-19

LEAH ANDJUAR, a minor by her

G/A/L, YOLANDA NUNEZ,

Plaintiff-Appellant,

v.

TOWN OF WEST NEW YORK

BOARD OF EDUCATION, TOWN

OF WEST NEW YORK, and

COUNTY OF HUDSON,

Defendants-Respondents,

______________________________

Argued June 7, 2021 – Decided January 25, 2022

Before Judges Messano and Smith.

On appeal from the Superior Court of New Jersey, Law

Division, Hudson County, Docket No. L-0997-18.

Kristofer Petrie argued the cause for appellant (Brach

Eichler, LLC, attorneys; Kristofer Petrie, on the briefs).

Courtney M. Knight argued the cause for respondent

Town of West New York Board of Education (Florio

Perrucci Steinhardt Cappelli Tipton & Taylor, LLC,

attorneys; Courtney M. Knight, on the brief).

The opinion of the court was delivered by

SMITH, J.A.D.

Plaintiff, Leah Andujar, by her guardian ad litem, Yolanda Nunez, appeals

from a decision by the motion court granting summary judgment, dismissing her

Tort Claims Act (TCA) complaint against the West New York Board of

Education (Board) for injuries she sustained in a fall in the school playground.

On appeal, plaintiff argues that she presented sufficient proofs to show she

sustained a permanent loss of bodily function and/or disfigurement to create a

genuine issue of material fact and defeat the Board's motion. For the reasons

set forth below we affirm.

I.

We summarize the record. On May 24, 2017, plaintiff was a first-grade

student at P.S. #5 in West New York, New Jersey. Her gym teacher, Keith

Visconti, decided to take the students outside to the school playground. Visconti

was the only teacher on hand in the playground to supervise plaintiff's class.1

1

We note that the plaintiff pursued a negligent supervision theory; however,

liability is not before us on appeal. We provide this brief summary of the events

leading up to plaintiff's injuries for context.

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At the end of the class period, Visconti signaled to the students to stop

their activities and line up to go inside. Plaintiff testified that she saw the other

students lining up, which meant to her that it was the end of class. She quickly

went to the monkey bars and climbed onto them. When she was about three to

four ladder rungs deep, another student allegedly kicked her from behind,

causing her to fall.

Plaintiff was taken to the hospital, where x-rays revealed she had suffered

a type-two supracondylar fracture of the right humerus with anterior

interosseous nerve palsy. That same day, plaintiff underwent an open reduction

internal fixation surgery of the right supracondylar humerus fracture, with the

insertion of three K-wires to hold the bones in her right arm together. Plaintiff

spent a week in the hospital, remained in a cast for the next month, and was on

home-school instruction for the rest of the school year. On June 29, 2017,

doctors removed the cast and pins from plaintiff's arm. A subsequent x-ray

demonstrated the fracture was "healing properly." Plaintiff now has scars

around her right elbow.

On or about March 5, 2018, plaintiff filed her complaint against the Board,

as well as the Town of West New York (West New York), and Hudson County,

alleging that she suffered injuries caused by their negligence. After West New

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York and Hudson County were dismissed from the case, the Board filed its

motion for summary judgment on November 8, 2019. Judge Vincent J. Militello

heard oral argument on December 9, and he conducted a hearing on December

11 to observe the scarring on the plaintiff's right elbow. On January 7, 2020,

the judge granted summary judgment for the Board after analyzing plaintiff's

damages claim under N.J.S.A 59:9-2(d). In his thoughtful and comprehensive

oral decision, Judge Militello made detailed findings, concluding that plaintiff's

proofs did not create a genuine issue of material fact on the issues of permanent

loss of bodily function or permanent disfigurement under N.J.S.A. 59:9 -2(d).

Plaintiff appealed.

II.

We review the trial court's grant or denial of summary judgment de novo.

Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224

N.J. 189, 199 (2016). We decide first whether there is a genuine issue of fact.

Hocutt v. Minda Supply Co., 464 N.J. Super. 361, 369 (App. Div. 2020). If not,

we must decide "whether the moving party is entitled to summary judgment as

a matter of law." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014); see also DepoLink

Ct. Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333

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(App. Div. 2013) (we must "decide whether the motion court correctly

interpreted the law.") (citation omitted).

Next, the court must "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-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 540 (1995); see also R. 4:46-2(c). We then decide "whether the motion

judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside

Bottling Co., 387 N.J. Super. 224, 231 (App. Div. 2006). In doing so, we owe

no deference to the motion judge's conclusions on issues of law, and review

those de novo. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995)).

N.J.S.A. 59:9-2(d), the relevant section of the TCA, reads in pertinent

part:

No damages shall be awarded against a public entity or

public employee 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,

permanent disfigurement or dismemberment . . . .

"[I]n order to vault the pain and suffering threshold under the [TCA], a

plaintiff must satisfy a two-pronged standard by proving (1) an objective

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permanent injury, and (2) a permanent loss of a bodily function that is

substantial." Gilhooley v. Cnty. of Union, 164 N.J. 533, 540-41 (2000)

(citing Brooks v. Odom, 150 N.J. 395, 402-03 (1997)). "Temporary injuries, no

matter how painful and debilitating, are not recoverable." Brooks, 150 N.J. at

403. In addition, plaintiff's medical expenses must exceed $3600. N.J.S.A.

59:9-2(d).

"[I]n order to be considered a permanent disfigurement, a scar must impair or

injure the beauty, symmetry, or appearance of a person, rendering the bearer

unsightly, misshapen or imperfect, deforming her in some manner." Soto v.

Scaringelli, 189 N.J. 558, 573-74 (2007) (quoting Gilhooley, 164 N.J. at 544).

"[A] number of factors should be considered, including appearance, coloration,

existence and size of the scar, as well as, shape, characteristics of the

surrounding skin, remnants of the healing process, and any other cosmetically

important matters." Ibid. (citation omitted).

III.

Plaintiff argues the motion court erred in finding she failed to satisfy the

Brooks two-prong test. Plaintiff argues that her loss of feeling in her right index

finger and right thumb and the scarring around her elbow were permanent and

substantial, meeting the Brooks standard. We disagree.

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The record shows Dr. Yufit diagnosed plaintiff with a "slight residual

sensory deficit," describing it as a "slight decreased sensation of the tip of the

right index finger and thumb." He considered the deficit "mild" and "not

[requiring] further operative intervention," but also found it "likely" to be

permanent. Judge Militello found plaintiff had reported "slight decreased

sensation upon light tough on the tip of her index finger and thumb." The judge

noted that plaintiff's pins had been removed and that her treating physician

concluded she had "full motion, full motor strength and function in the right

hand and upper extremity" at the time she was discharged. Noting that

"subjective complaints alone are not enough to establish permanent loss of

bodily function," the judge found that plaintiff's proofs "failed to meet the . . .

threshold."

Next, the judge found that even if plaintiff showed permanency, viewing

the evidence in the light most favorable to plaintiff, she failed to satisfy the

second prong by showing a significant permanent loss of a bodily function. The

judge reasoned that plaintiff's evidence presented nothing more than subjective

feelings of discomfort. See Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J.

324, 332 (2003) (citations omitted). We agree, and we find that plaintiff's proof

of a slight sensory deficit is not a permanent loss of bodily function that is

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substantial. "[T]he Legislature intended that a plaintiff must sustain a

permanent loss of the use of a bodily function that is substantial." Brooks, 150

N.J. at 406. In Brooks, the Supreme Court reinstated the trial court's dismissal

of the plaintiff's claims under N.J.S.A. 59:9-2(d) because the plaintiff could still

function in both her employment and as a "homemaker."2 Ibid. The Court

reached that conclusion even though the plaintiff was still experiencing post-

accident pain and had permanent restrictions of her motion in her neck and back.

Ibid.

Judge Militello next considered plaintiff's scars. The judge undertook a

direct examination of plaintiff, inquiring about her injuries. He observed her

elbow scars, measuring the length of each scar and describing for the record its

coloration in comparison to the surrounding skin. Judge Militello found three

scars, the first, one-quarter inch long, with the second two scars being one-half

inch each. The judge concluded the scars did not meet the standard established

in Falcone v. Branker, 135 N.J. Super. 137, 144-46 (Law Div. 1975), and its

2

We do not endorse the use of this term, and merely employ it in our opinion

because it was an adjective the Court used to describe the plaintiff in Brooks.

We note that "homemaker" is defined as "one who manages a household,

especially as a spouse or a parent." See Homemaker, Merriam-Webster,

https://www.merriam-webster.com/dictionary/homemaker (last visited Jan. 17,

2022).

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progeny. Our review of the record leads us to the same conclusion. Plaintiff's

scars, given their small size and inconspicuous location, do not rise to the level

of disfigurement required by law.

Given all favorable inferences, plaintiff failed to establish a permanent

and substantial loss of a bodily function or permanent disfigurement under

N.J.S.A. 59:9-2(d). In her chief merits brief, plaintiff attempts to distinguish

our well-settled case and prevent its application to law to this record. We are

not persuaded. Any arguments not addressed here lack sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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