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Hammer v. Township of Livingston2/18/1999
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 8, 1998
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
In this New Jersey Tort Claims Act case, N.J.S.A. 59:1-1 to -12-3 (the Tort Claims Act), plaintiffs Susan Hammer and Alan Hammer appeal from a dismissal of their complaint following a successful motion for summary judgment by defendants Township of Livingston and Craig D. Dufford, the Chief of the Livingston Fire Department. The motion Judge concluded that plaintiff had not demonstrated she sustained a "permanent loss of a bodily function" or a "permanent disfigurement" that is substantial under N.J.S.A. 59:9-2(d). We reverse.
The underlying relevant facts are not in dispute. On October 27, 1994, at approximately 8:00 a.m., plaintiff, then age sixty-four, was crossing West Northfield Road in Livingston on foot when she was struck by a red fire chief station wagon operated by Fire Chief Dufford. The vehicle hit plaintiff on the left side of her body, and she was thrown, landing on her right side. The collision was of sufficient force to cause substantial damage to the station wagon.
Plaintiff was taken to Morristown Memorial Hospital where she underwent immediate surgeries to repair a severe laceration of her left knee that had penetrated into the knee joint; a soft tissue laceration of the left elbow involving the olecranon bursa; a laceration of the iliotibial band, vastus lateralis muscle and suprapatellar bursa; and numerous facial lacerations, including a one-centimeter laceration near the tear duct of plaintiff's right eye, a 0.5-centimeter laceration over the bridge of her nose, and a laceration of the lower lip approximately three centimeters long. In addition, plaintiff sustained fractures of both nasal bones, a non-displaced fracture at the top of her left fibula, and an avulsion fracture of her left olecranon bone (i.e., elbow) requiring removal of the displaced bone fragment. Following the surgeries, plaintiff was hospitalized for eight days and discharged on November 4, 1994.
Dr. Robert J. D'Agostini, plaintiff's treating orthopedic surgeon, noted as early as three months after the accident that plaintiff had "regained full knee motion and ... had excellent lateral stability." On May 15, 1995, he opined in his final report that " should have excellent elbow and knee function." On April 26, 1997, Dr. Alan Tillis, a second treating orthopedist, concurred in part, observing that "[plaintiff] probably has healed the lacerations to the left side of her body fairly well." Plaintiff's deposition, taken September 27, 1996, also reflects that she had no discomfort in her left elbow or left leg and that her left fibula had healed.
Nevertheless, plaintiff complains of pain on the right side of her body. Specifically, she says she has pain in her right shoulder, elbow and ankle. Plaintiff maintains that since the accident she cannot walk with or lift her grandchildren, she cannot swim anymore except for the breaststroke, and she can no longer dance or play tennis. Plaintiff also alleges that, as a result of the accident, she no longer has sexual relations with her husband and that she suffers from permanent post-traumatic stress disorder.
On January 5, 1995, Dr. D'Agostini examined plaintiff's right elbow and reported "no swelling, no tenderness" and "a full and painless range of motion and good strength," concluding that from his perspective, "nothing wrong." In April 1996, Dr. Tillis diagnosed post-traumatic tendinitis in plaintiff's right shoulder and ankle. Both doctors noted full range of motion in plaintiff's right shoulder. In Novem
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