Surgery Not Necessarily A Permanent Injury Under Tort Claims Act (NJ)

In a claim against a New Jersey public entity, a plaintiff must prove a permanent and substantial injury to permit recovery.  Under the Torts Claims Act, public entities are immune from suits unless there is permanent loss of a body function, permanent disfigurement or dismemberment.

In Paz v. State of New Jersey, the plaintiff suffered injuries to her neck, back and shoulders after a trip and fall accident on a sidewalk at the Motor Vehicle Commission. She was diagnosed with cervical disc herniation, chronic neck pain, cervical neck pain, cervical radiculopathy, lumbar disc herniation, lumbar radiculopathy, chronic back pain, status post lumbar microdiskectomy and failed back syndrome.

By all accounts, plaintiff enjoyed a good surgical outcome,  and reported her pain was largely resolved just two weeks after surgery. Plaintiffs treating doctor stated that she had reached maximum medical benefit. She returned to work and remained employed for two years following the  accident.  Although she complained of debilitating pain, plaintiff  had no medical restrictions on her, and she relied upon over-the-counter medications for pain relief.

Plaintiff’s medical expert  found a decreased range of motion in all directions in her neck, but he did not identify the degree to which her range of motion was decreased,  or how that resulted in the substantial loss of any bodily function.

The court found that the plaintiff did not sustain a permanent loss of an bodily function under the language of the Torts Claims Act. Although it is not necessary for a plaintiff to prove a total permanent loss of use of a bodily function, “a mere limitation on a bodily function” will not suffice. Similarly, “an injury causing lingering pain, resulting in a lessened ability to perform certain tasks because of the pain,” is insufficient.

The court dismissed the plaintiff’s claim, finding that she failed to demonstrate any reduction in normal function that was both permanent and substantial. Although unreported and not precedential, this case is an example of the threshold of injury required under the Tort Claims Act.  Even surgery may vault the requirement of a substantial and permanent injury.  The court will examine how a plaintiff has recovered from injuries and to what extent residual impact there has been on life a person’s function.

Thanks to Heather Aquino Obregon for her contribution.

For more information, contact Denise Fontana Ricci at


Note of Issue Received Unless Proven Otherwise (NY)

A note of issue date is one of the most important dates for defendants to monitor in litigation in New York.  In Meisels v Raptis, the Supreme Court, Kings County, denied medical malpractice defendants’ motion to strike plaintiff’s note of issue and extend time for filing summary judgment despite their claim that they had never received it.

The plaintiffs alleged that the defendants failed to timely diagnose a two year old child’s Herpes Encephalitis that caused developmental delays.  Although the court extended the date for filing a note of issue to February 3, 2017, the plaintiff filed on August 22, 2016, along with a certificate of trial readiness.

The defendants disputed receipt of the note of issue and sought to strike it well beyond the twenty days allowed for such a motion.  Significantly, the failure to timely move to strike prohibited the defendants from filing for summary judgment.  Curiously, the defendants did not question the affidavit of service that had been filed with the note.  Instead, they argued that fact discovery had continued and was outstanding even after the filing of the note of issue.  This, they said, proved that there was an incorrect material fact in the certificate of readiness.

The court ruled that the defendants’ motion to strike the note of issue was untimely and found defendants failed to show “unusual or unanticipated circumstances.”  This ruling effectively ended defendants’ right to receive outstanding discovery, placed the matter on the trial calendar, and precluded defendants from moving for summary judgment.

The court set precedent that, if defendants truly believe they did not receive the note of issue, they must attack the affidavit of service.

Thanks to Christopher Gioia for his contribution.

For more information, contact Denise Fontana Ricci at


Beware: Basketball Is A Contact Sport (NY)

A high school student who opted to play basketball in gym class voluntarily engaged in an activity with awareness of the risks inherent to playing, including the possibility of collision or contact with another participant.  This voluntary assumption of the risk barred a suit for negligence against his high school.

In Hanson v Sewanhaka Central High School District, the plaintiff alleged that he was injured during a basketball game in gym class after he was kicked in the leg by a fellow student. The defendant school district and defendant student both moved for summary judgment, arguing the doctrine of primary assumption of risk, and both motions were granted by the lower court. The plaintiff appealed.

Under the doctrine of primary assumption of risk, by engaging in a sport or recreational activity, a participant “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”. By freely assuming these risks, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from them, if the risks are fully comprehended or perfectly obvious. However, a plaintiff cannot assume the risks of reckless or intentional conduct, or concealed or unreasonably increased risks.

The Appellate Division, Second Department, found that the plaintiff opted to play basketball from a number of options. He was aware of the risks inherent to playing, including potential physical contact with other students. Although the plaintiff testified at a hearing on the motion that the other student purposely kicked him, this was neither pled in his complaint nor mentioned in his bill of particulars.  The court disregarded this testimony as a plaintiff cannot raise a new or materially different theory of recovery for the first time in opposition to a motion for summary judgment.

The plaintiff also sought to defeat summary judgment by application of the inherent compulsion doctrine.  However, this doctrine precludes an assumption of the risk defense where the plaintiff’s conduct is not voluntary due to the compulsion of a superior. In essence, plaintiff alleged that the School forced him to participate in basketball. However, plaintiff’s own testimony demonstrated that he elected to play basketball over a variety of other gym activities. The Court therefore affirmed the lower court’s dismissal of plaintiff’s complaint against the moving defendants.

Thanks to Lauren Tarangelo for her contribution.

For more information, contact Denise Fontana Ricci at


Worker Entitled to Compensation If Pre-Existing Condition Aggravated at Work (PA)

A work related injury is compensable under Pennsylvania workers compensation laws even if it is an aggravation of a pre-existing condition such as osteoarthritis.  In Brand Energy Services, LLC v. Worker’s Compensation Appeal Board , an employer appealed an award by a workers compensation judge arguing that causation had not been established for aggravation of bi-lateral carpal tunnel syndrome, osteoarthritis and other conditions.

The employee, a union carpenter, was employed to build, modify and dismantle scaffolding for the employer’s clients.  His employer was paid by the foot for the scaffolding erected.  The employee had been working days.  When he was transferred to a night shift, his work assignment increased from eight hour shifts to ten to twelve hour shifts.  He worked thirteen days in a row and had only one day off.  Not only was he expected to work longer hours, but to meet the needs of the plant where he was working, they had to erect more scaffolding per shift.  He testified that in an eight hour shift, the workers would assemble 300 leg feet of scaffolding.  In the night shift, he was building between 1000 and 1200 leg feet.

The worker’s hands became swollen under this new work regimen.  He sought treatment for his hands, as they continued to be numb, swollen, and tingly.  His doctor diagnosed work-related bilateral carpal tunnel syndrome, osteoarthritis, and left scapholunate advanced collapse (SLAC) wrist.   When the worker submitted a note from his family practice to his supervisor outlining his diagnoses, he was laid off.

On appeal from the workers compensation tribunal, the Court faced two issues: (1) whether the doctor’s testimony was equivocal as to the causal connection between the work and the work-related aggravation of underlying conditions; and (2) whether the doctor had a sufficient understanding of the work, and consequently, a proper factual foundation for a medical opinion such that his opinion was competent.

In terms of the former question, the court held the causal connection was a question of law and worker’s burden to present unequivocal medical testimony.  At issue was whether the doctor’s use of “probable” with respect to causation of one of three diagnoses rendered the entire opinion insufficient to support any award.  The court disagreed with the employer’s argument in this regard.  It found that the doctor’s testimony as to the aggravation of carpal tunnel syndrome and osteoarthritis was sufficiently supported.  However, because the doctor testified that there was a “probable SLAC wrist,” that diagnosis was insufficiently proven.

In terms of the latter question, the Court considered Pennsylvania case law that held proffered medical opinion can be rendered incompetent if the medical professional does not have a complete grasp of the patient’s work, such as if the medical profession demonstrates a lack of knowledge as to his or her patient’s tasks.  While the Employer argued the doctor did not have a complete grasp of the job duties, the Court rejected its argument because the doctor reviewed his patient’s testimony and took a history from him.  Given this testimony, the Court considered the doctor competent to render an opinion.

Thanks to Lauren Berenbaum for her contribution.

For more information, contact Denise Fontana Ricci at

First to Strike? First to File? Court Allows Counterclaim After Statute Runs (NJ)

When a plaintiff files litigation on the last day of the statute of limitations, can a defendant file a counterclaim arising out of the same incident?

In Veronica Barley v. Arnell Barley, step sisters sought damages from one another for personal injuries after an altercation. The plaintiff sister, Veronica, alleged that her sister, Arnell, scratched her and tried to run her over with a car. She filed suit on the last day of the statute of limitations.

Along with Arnell’s answer, she counterclaimed that Veronica was the aggressor who had actually injured her. The problem was that her counterclaim was filed after the statute had run. She argued that her claim should be considered as related back to the time of the filing of the complaint.

Although the trial judge was unpersuaded, the appellate division found that since the case was pending and the counterclaim was promptly filed, it related back to the original complaint filing date. The court noted that the plaintiff had delayed filing until the last day of the statute (implying this was tactically done) leaving her sister no time to counterclaim. Under these circumstances, the court felt that justice could only be served by allowing the defendant’s counterclaim to be heard.

For more information, contact Denise Fontana Ricci at

When Wrongful Death, Survival, and Sovereign Immunity Acts Collide (PA)

When a claim arises from the death of an individual, wrongful death and survival actions provide complementary damages.  The wrongful death action compensates for losses sustained by living individuals as a result of the decedent’s death.  A survival action allows for compensation as if the decedent had survived.  Wrongful death damages include compensation for the amounts the decedent’s earnings would have contributed to his spouse, parents or child who are entitled to bring suit.   A survival action allows the estate to recover the decedent’s loss of earnings during his life-span less the decedent’s personal expenses.  In addition to these pecuniary losses, survival actions allow for pain and suffering, while wrongful death damages include loss of consortium  such as loss of counseling and household services.

These claims become more complex when the claim is against a public entity.  Pennsylvania has legislation, the Sovereign Immunity Act, that defines when a public body may be sued. Although the sovereign may be sued for wrongful death and survival benefits, the type of recovery that is allowed is limited.  In particular, the statute bars a parent or child of a decedent from recovering damages in a wrongful death action for the loss of the decedent’s future services and financial support.

In Ewing v. Commonwealth of Pennsylvania Department of Transportation, the decedent was killed after an automobile accident in which another vehicle lost control on an icy road and collided with decedent’s automobile.  The decedent’s estate brought wrongful death and survival actions against the Department of Transportation, alleging that the death was caused by the Department’s negligence in allowing water to accumulate and freeze on the road.

The Court noted that the Sovereign Immunity Act applied to the wrongful death and survival actions against the Department of Transportation.  Specifically, the Court stated that the damages sought must be authorized by both the Wrongful Death Act and by Section 8528(c) of the Sovereign Immunity Act.  The same holds true for damages sought based upon the Survival Act.  Significantly, the Sovereign Immunity Act more narrowly defines recoverable damages, in particular loss of consortium damages are not allowed.

In analyzing whether the loss of services and support could be recovered from the sovereign , the Court looked to the Pennsylvania Supreme Court’s decision in Department of Public Welfare v. Schultz for guidance.  In Schultz, the Pennsylvania Supreme Court held that loss of consortium damages could not be recovered by a parent or child of the decedent.  The issue presented in Ewing, however, was whether the loss of a decedent’s services and financial contributions can be recovered as another “type of damages recoverable” under Section 8528(c) of the Sovereign Immunity Act.  The analysis turned on the definition of “past and future earnings and earning capacity” as authorized by Section 8528(c) of the Sovereign Immunity Act.

In agreeing with the Department of Transportation, the Court held that the services and financial support a decedent provided a child or parent did not constitute as “earnings” or “earning capacity” of the recipient.  More appropriately, that loss would be characterized as a “loss of support,” which was not listed as one of the types of damages recoverable from a commonwealth agency.  The Court emphasized that the Legislature could have listed “loss of support” as one of the types of damages recoverable from a commonwealth agency, but intentionally omitted such a recovery.  Therefore, the Sovereign Immunity Act bars a parent or child of a decedent from recovering damages in a wrongful death action for the loss of the decedent’s future services and financial support.

Thanks to Zhanna Dubinsky for this contribution.

For more information, contact Denise Fontana Ricci at


Unlisted Driver on Policy is an Uninsured Driver (PA)

An auto insured has responsibility to disclose the identities of resident, non-family members who have access to the insured’s vehicle. If the insured fails to do so, it is at his own risk.

The question of whether a co-habitating  girlfriend was covered by her boyfriend’s insurer arose in the case of Safe Auto Insurance Company v. Rene Oriental-Guillermo.  The girlfriend, Rachel Dixon, and another driver were involved in a two-car accident in Allentown, Pennsylvania. A passenger in Dixon’s car, Priscilla Jimenez, filed a personal injury lawsuit against Dixon, Dixon’s boyfriend( the owner of the car that Dixon was driving), and the driver of the other car involved in the accident.

The car that Dixon was driving was insured by Safe Auto Insurance Company (“Safe Auto”). The Safe Auto policy had an Unlisted Resident Driver Exclusion, which specifically excluded from coverage those individuals who lived with the Policyholder, but were not related to the Policyholder and whom the Policyholder did not specifically list on the Policy. Although Dixon and the owner lived together, the policy did not list Dixon as a driver. Safe Auto denied coverage to Dixon for the accident.

Jimenez challenged the Unlisted Resident Driver Exclusion’s applicability on a few grounds, but most notably, on the grounds that the exclusion itself violates the public policy of the Commonwealth of Pennsylvania set forth in the Motor Vehicle Financial Responsibility Law (“MVFRL”). Jimenez argued that the Unlisted Resident Driver Exclusion contravenes the MVFRL’s mandate that an owner of a motor vehicle ensure that all drivers of his vehicle are covered by insurance; for this reason, Safe Auto should cover the accident.

The Pennsylvania Superior Court rejected this argument, instead, ruling that the Unlisted Resident Driver Exclusion places the obligation solely on the owner of a vehicle, and not the insurance company, to ensure that anyone who drives the owner’s car has insurance.

While the MVFRL does aim to ensure that all drivers are covered, the court concluded that there was no indication in the MVFRL that the burden of ensuring coverage must fall on the insurance company. In fact, the insured is in the best position to monitor whether members of his household who intend to drive are listed on his policy. Summarily, the court stated that “there is no provision in the MVFRL that indicates that the Legislature, when it enacted the MVFRL, intended to shift the risk to insurance companies to insure individuals who live with the insured, but are not related to the insured.” It’s simply not the insurance company’s burden.

Thanks to Sathima Jones for her contribution.

For more information, contact Denise Fontana Ricci at

NY Venue Statute For Personal Injury Actions Amended

The New York Assembly proposed Assembly Bill A8032 (an adoption of Senate Bill S6031) which amends the State venue statute for personal injury actions. The Bill was passed in both the Assembly and Senate in June, and signed into law by Governor Cuomo on October 23, 2017.  The law is effective immediately.

The law amends CPLR Section 503 which designates venue as the county in which any one of the parties resides when the action is commenced, or in the county of plaintiff’s designation if none of the parties lives within the State.  The new law adds the following key section “the county in which a substantial part of the events or omissions giving rise to the claim occurred”.

For example, in a case involving a motor vehicle accident which occurred in Kings County between residents of Nassau and Westchester Counties, plaintiff was previously allowed to file the action in Nassau or Westchester County. Now, plaintiff can choose between Nassau, Westchester, OR Kings County.  This amendment expands upon plaintiff’s already unilateral right to choose the venue in personal injury and property damage actions.

The justification of the bi-partisan supported bill was to give the Courts and jurors of communities with the most interest in setting community standards the ability to hear such controversies. In addition, witnesses are more likely to be located in the county where the events that are the subject of the action occurred.  It will be interesting to see how case law develops, and to see if the Courts constrain the provision in circumstances where none of the justifications are met and the selection of venue appears to be merely a facet of venue shopping.

Thanks to Christopher Gioia for his contribution.

For more information, contact Denise Fontana Ricci at


Biomechanics Opinion Of Low Speed Crash Sufficiently Scientific? (NY)

The biomechanics of vehicle occupants involved in low-speed collisions is a potential defense to personal injury claims.  However, any proffer of expert biomechanical testimony should be prepared to meet the test for admissibility, i.e. proof that the opinion is based upon generally accepted principles and methodologies.

In Dovberg v. Laubachthe plaintiff was involved in a low speed chain reaction motor vehicle accident.  After securing summary judgment against the defendants on the issue of liability, the parties proceeded to a damages-only trial.  Prior to trial, defendants served an expert disclosure notice advising that they were going to call a biomechanical engineer/board-certified surgeon to opine that the force generated by the accident could not have caused the plaintiff’s knee injuries.  The disclosure notice indicated that the proposed testimony was based on deposition testimony and on the plaintiff’s medical records.  It also noted that the doctor’s opinion was based on scholarly works that had gained general acceptance in the field.  Plaintiff’s counsel filed a motion in limine to preclude the testimony because it made no reference to any empirical data or peer-reviewed journals, studies, treatises, or texts.  The lower court denied the motion, the doctor testified at trial, and the jury concluded that the accident was not a substantial factor in causing the alleged injuries.

 On appeal, the Second Department reversed the lower court’s decision and found that the defendant’s expert failed to pass the Frye test.  Specifically, the defendants failed to establish that their expert’s opinion was based on generally accepted principles and methodologies.  They noted that the rule does not require the majority of the scientific community to agree with the expert’s conclusion but, rather, the scientific community must accept the principles and methods used in evaluating the clinical data used to come to his conclusions.  The court concluded that the defendants failed to describe the methods used by their expert in drawing his conclusions and failed to provide specifics for the publications relied on including the authors, years of publication, and contents of the works.  The court also faulted the proffer for failing to provide a description of the methodology used to determine the force of the accident and the biomechanical engineering principles applied in formulating his opinion that her knees could not have contacted the dashboard.

 Thanks to Georgia Coats for her contribution.

For more information, contact Denise Fontana Ricci at



Construction Defect Claim Accrues When Any Property Owner Knows of Potential Claim (NJ)

Condominium construction defect cases present thorny issues for contractors caught up in litigation years after the work is completed.  Statute of limitations defenses are often raised with a key issue being whether the trigger is substantial completion of work or whether the statute has been tolled for discovery.

In the recent case of The Palisades at Fort Lee Condominium Association, Inc. v. 100 Old Palisades, LLC, the New Jersey Supreme Court ruled that a construction defect cause of action accrues at the time the building’s original or subsequent owners first knew or, through the exercise of reasonable diligence, should have known of the basis for a claim.

In Palisades, the plaintiff condominium association filed several suits against contractors in 2009 and 2010 after it assumed control of the Board and had its own engineer investigate conditions on the property.  However, the history of the building began years earlier.  The building was constructed beginning in 1999 with substantial completion in 2002.  Initially built as a residential apartment building, the original owner had an engineering evaluation performed in 2004 that found some issues with the construction but generally reported it to be in good condition.  That same year, the property was sold and converted to condominiums.

The public offering for the condominiums included the 2004 engineering report.  By July 2006, 75% of the units had been sold and control of the association turned over to the unit owners.  The association commissioned an engineering inspection by Falcon that found a number of defects identified in a 2007 report.

The defendants moved for summary judgment, arguing that the claim was barred due to the six-year statute of limitations using the 2002 substantial completion date as the trigger for the statute. The trial court agreed with the defendants.  The Appellate Court rejected this and found that the  action had not accrued until the 2007 Falcon report when the unit-owned association learned of the defects.  In doing so, the Appellate Court rejected potential notice of the original owner.

Ultimately,  the New Jersey Supreme Court struck a middle position.  It eschewed a substantial completion of work trigger, but found that the statute of limitations begins to run when either an original or subsequent owner first has a reasonable basis to believe that a cause of action exists.    The Court remanded the case for further findings on when an owner (original or subsequent) knew or should have known of a cause of action.  This case highlights the importance of obtaining specific and targeted discovery concerning the date that a plaintiff became aware of, or should have known of, a construction defect on their property.

Thanks to Heather Aquino Obregon for her contribution.

For more information, contact Denise Fontana Ricci at