Imagine this unfortunate situation: you are driving on a street when you suddenly get struck by another car from behind. Picture what your reaction would be when you found out that the person who hit you was a police officer on duty driving a patrol car. Can you sue the police officer?
At Stark & Stark, we realize that automobile collisions can take place at any time and any person can cause an accident to occur, even a police officer. You may be surprised to learn that there are defenses that are available to a public entity (such as a police department) that would not apply if the accident was caused by someone not associated with a public entity. Moreover, the New Jersey Tort Claims Act applies not only to police officers while they are on duty, but also to other public entity workers while those persons are doing work for the public entity.
The controlling principle running through the Tort Claims Act is that “immunity from tort liability is the general rule and liability is the exception.” Coyne v. State Dep’t of Transp. 182 N.J. 481, 488 (2005). To establish that injuries meet the tort claims threshold under the law, a person suing must:
- Prove by objective medical evidence that the injury is permanent; and
- Demonstrate that there is a permanent loss of use of a bodily function that is substantial. Gilhooley v. County of Union, 164 N.J. 533, 540-41 (2000).
To be considered permanent within the meaning of the tort claims statute, N.J.S.A. 59:9-2d, the injury must constitute an objective impairment. A person may not be able to get a recovery for subjective feelings of discomfort or for temporary injuries, no matter how painful and debilitating. The loss, however, does not have to be a total loss, but it has to be more than a mere limitation of a bodily function. In other words, while an injury only causing lingering pain that diminishes a person’s ability to perform certain tasks is considered a subjective feeling of discomfort and is not compensable, if an injury significantly impairs a person’s ability to use the injured body part to complete normal tasks then a person could receive compensation for that injury.
