Injury Must Be Permanent And Substantial Under NJ Torts Claims Act

In Osman v. Watson, the plaintiff appealed from the dismissal of his claims for noneconomic damages against Eugene Watson and Watson’s employer, the Township of North Bergen, arising out of a 2007 motor vehicle accident.  Osman allegedly suffered from neck, back and leg pain as a result of the accident.  He was treated conservatively with physical therapy and chiropractic treatment and an initial MRI revealed that Osman was suffering from disc desiccation, a lumbar bulge and impingement on the nerve roots.  He was later diagnosed with two lumbar disc herniations and radiculopathy and it was recommended that he undergo a spinal fusion.

Osman’s medical expert did not testify during the trial, but Osman himself testified about the impact of the injuries on his life.  Specifically, he reported difficulties performing his work functions as a door-to-door salesman and difficulties with activities of daily living.  After the conclusion of all trial testimony, the defendants moved for a directed verdict, seeking dismissal of Osman’s claims for non-economic damages under the Torts Claims Act.  They argued that there was no proof of causation and that Osman failed to prove that he suffered a substantial loss of a bodily function.  The trial judge agreed and Osman’s claim for pain and suffering was dismissed.

Osman appealed, arguing that the trial court erred; however, the appellate court upheld the decision, noting that Osman did not provide evidence of a substantial loss of a bodily function as required under the Torts Claims Act.  The Tort Claims Act controls when and under what circumstances public entities are liable for non-economic damages such as pain and suffering and a plaintiff can only recover such damages against a municipality in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.  In order to recover, a plaintiff must establish by objective medical evidence the existence of an objective, permanent injury and that the injury is substantial.  The appellate court found Osman’s proof on both prongs to be insufficient.

Special thanks to Heather Aquino for her contributions to this post.  For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com.