N.J. Model Civil Jury Charge 8.70

8.70 TORT CLAIMS ACT THRESHOLD FOR RECOVERY OF

DAMAGES FOR PAIN AND SUFFERING (Approved 03/2010;

Revised 11/2023)

NOTE TO JUDGE

When the plaintiff’s negligence claim arises against a government entity,

the Torts Claims Act, N.J.S.A. 59:1-1 to 12-3, governs the claim. The

Act provides specific exceptions to the doctrine of sovereign immunity.

Except when the Act specifically imposes liability, public entities remain

immune from negligence suits. N.J.S.A. 59:1-2. Accordingly, the Tort

Claims Act must b e strictly co nstrued to permit lawsuits only where

specifically delineated.

N.J.S.A. 59:9-2(d) sets forth a threshold for non-economic damages that

a plaintiff must surmount to sustain a claim for pain and suffering. Note:

Failure to reach the obje ctive monetary and descriptive threshold set

forth in N.J.S.A. 59:9-2 does not bar all causes of action, but merely bars

recovery for pain and suffering.

The section of the Act (as amended by P.L. 2000, c. 126, § 32, effective

September 21, 2000), in pertinent part and with emphasis added, reads as

follows:

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 where the medical

treatment expenses are in excess of $3,600.

1 (Prior to

September 21, 2000, any cause of action that arose

involving the threshol d required medical treatment

expenses in excess of $1,000.)

1 The monetary threshold also applies to child victims. C.W. v. Roselle Bd. of Educ., 474 N.J.

Super. 644, 653 (2023).

The courts have held that the plaintiff could prove future expenses to

meet the monetary threshold.

2

Note that if the plaintiff has not met the monetary threshold but sustained

permanent injury or disfigurement, the plaintiff may still recover

economic damages for the plaintiff’s permanent injury. See Peterson v.

Edison Tp. Bd. of Ed., 137 N.J. Super. 566 (App. Div. 1975); Rocco v. NJ

Transit Rail Operations, 330 N.J. Super. 320 (App. Div. 2000).

GENERAL INSTRUCTION

A. Introduction

To recover damages for pain and suffering [as I have previously defined that

measure of damages] in this case, the plaintiff must prove by a preponderance

[greater weight] of the evidence that plaintiff sustained injury that fits into one of the

following categories:

NOTE TO JUDGE

Charge the appropriate category or both, depending upon the proofs

introduced in each case.

1) Permanent loss of bodily function, and/or

2) Permanent disfigurement or dismemberment.

2 Reale v. Tp. of Wayne, 132 N.J. Super. 100 (Law Div. 1975).

For either category, the plaintiff must prove that the medical treatment expenses

incurred as a proximate cause of this condition exceeded $3,600 [if the cause of action

arose after September 21, 2000; or $1,000 if it arose before that date].

B. Permanent Loss of Bodily Function

With respect to a permanent injury, the plaintiff must prove:

1) A permanent loss of bodily function [insert an appropriate description

of bodily function claimed lost].

2) The loss need not be total, but must be substantial. Mere limitation is

insufficient; by that I mean the plaintiff must prove this loss by a

demonstration of objective credible medical evidence of permanent

injury, because damages for temporary injury are not recoverable. The

proof must be both objective a nd credible. Objective means that the

evidence must be verified by physical examination, diagnostic testing

and/or observation. Credible means that the evidence is believable.

3) The plaintiff may not recover for mere subjective feelings of discomfort.

C. Disfigurement

1) The scar ring, indentation and/or blemishes [insert an appropriate

description of the scar, indentation or blemish] must be an objectively

significant disfigurement.

2) It must be more than a trifling mark discoverable on close inspection and

must detract from the appearance of the person.

3) The disfigurement must be visible and not insubstantial.

To summarize, to recover for pain and suffering, the plaintiff must prove by a

preponderance of the evidence that plaintiff sustained [a permanent loss of a bodily

function OR a permanent disfigurement that is substantial OR a dismemberment] and

has met the monetary threshold.

If you so find, then you may consider all of the evidence presented by the

plaintiff relating to all of plaintiff’s pain and suffering from permanent injuries, even

those injuries that do not meet the threshold, that you find were proximately caused by

the negligence of the [public entity or public employee]. 3 4 5

3 See Hammer v. Twp. of Livingston, 318 N.J. Super. 298 (App. Div. 1999).

4 In a case where the public entity or employee is alleged to be a joint tortfeasor with a non-public

defendant, then the non- public defendant will remain exposed to liability for pain and suffering

where the threshold is not met by the plaintiff against the public tortfeasor. See Rivera v. Gerner, 89

N.J. 566 (1982).

5 When a plaintiff sues both private and public entity defendants, the jury should answer two

specific interrogatories as to each defendant: (1) was this defendant negligent; (2) if so, did the

negligence proximately cause plaintiff’s injuries? If more than one defendant was negligent and

their negligence proximately caused plaintiff’s injuries, the jury must find the percentage of the total

negligence or fault that is attributable to each defendant. Once the jury answers those questions, it

should then determ ine whether plaintiff established that a substantial permanent injury was

proximately caused by a public entity defendant. Then the jury should affix damages. Bolz v. Bolz,

400 N.J. Super. 154 (App. Div. 2008).