In order to recover damages in most in a car Personal Injury case, the plaintiff must prove by a preponderance of the evidence that he/she sustained injuries which fit into one or more of the following categories: 1. Death; 2. Dismemberment; 3. Significant disfigurement or significant scarring; 4. Displaced fracture; 5. Loss of a fetus; 6. A permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.

At the trial, the Judge will read the "formal instructions" to the Jury. They are called Request to Charge. The Request to Charge in an accident case was revised recently.

CHARGE 5.42 LIMITATION ON LAWSUIT OPTION

5.42 LIMITATION ON LAWSUIT OPTION 1 (Revised 4/06) A. Introduction In order to recover damages in this case, plaintiff must prove by a preponderance of the evidence that [he] [she] sustained injuries which fit into one or more of the following categories: 1. Death; 2. Dismemberment; 3. Significant disfigurement or significant scarring; 4. Displaced fracture; 5. Loss of a fetus; 6. A permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.

1 See N.J.S.A. 39:6A-8a. Though not numbered in the statute, the Limitation on Lawsuit Option within the Automobile Insurance Cost Reduction Act of 1998 (L.1998, c. 21 and c. 22) (�AICRA�), the categories are: (1) death; (2) dismemberment; (3) significant disfigurement or significant scarring; (4) displaced fractures; (5) loss of a fetus; (6) a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. The effective date of this provision of AICRA is March 22, 1999.

Therefore, the Limitation on Lawsuit Option shall apply to individuals who, at the time of the accident, were insured under automobile liability insurance policies issued after March 22, 1999. By way of example, if an individual was involved in a motor vehicle collision on March 23, 1999, but was still covered under a policy issued before the effective date of the statute (March 22, 1999), he or she will be subject to the verbal threshold charge applicable to L.1988, c.119 effective January 1, 1989.

CHARGE 5.42

If you find the injuries caused by the accident do not come within one of these categories, your verdict must be for the defendant. If you find the injuries caused by the accident do come within one of these categories, your verdict must be for the plaintiff.

B. Permanent Injury (Type 6) In this case, the plaintiff alleges that [he] [she] suffered a permanent injury as a result of the motor vehicle accident. An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment. 2 Plaintiff must prove this claim through objective, credible medical evidence. Objective proof means the injury must be verified by physical examination or medical testing and cannot be based solely upon the plaintiff�s subjective complaints. Credible evidence is evidence you find to be believable. 2 This definition of �permanent injury� is taken directly from the Automobile Insurance Cost Reduction Act of 1998 (�AICRA�), N.J.S.A. 39:6A-8. In DiProspero v. Penn, 183 N.J. 477 (2005), the New Jersey Supreme Court held that the Legislature did not intend to require a plaintiff with a Type 6 injury to prove a �serious or substantial impact� on his or her life in order to pierce the verbal threshold. Therefore, a plaintiff need only prove a permanent injury, as defined in the statute, to recover for non-economic damages.

? CHARGE 5.42

C. Sample Interrogatories (Limitation on Lawsuit Option) (Category 1) Has the plaintiff proven by a preponderance of the credible evidence that the decedent [insert name] died as a proximate result of the accident? _____ Yes _____ No _____ Vote (Category 2) Has the plaintiff proven by a preponderance of the credible evidence that [he] [she] sustained a dismemberment that was proximately caused by the accident? _____ Yes _____ No _____ Vote (Category 3) Has the plaintiff proven by a preponderance of the credible evidence that [he] [she] sustained a significant disfigurement or significant scarring that was proximately caused by the accident? _____ Yes _____ No _____ Vote (Category 4) Has the plaintiff proven by a preponderance of the credible evidence that [he] [she] sustained a displaced fracture that was proximately caused by the accident? _____ Yes _____ No _____ Vote (Category 5) Has the plaintiff proven by a preponderance of the credible evidence that she lost a fetus as a proximate result of the accident? _____ Yes _____ No _____ Vote

? CHARGE 5.42

(Category 6) Has the plaintiff proven by a preponderance of the credible evidence that [he] [she] sustained a permanent injury that was proximately caused by the accident? _____ Yes _____ No _____ Vote (Damages) What amount of money will fairly and reasonably compensate the plaintiff for all injuries that were proximately caused by the accident? $______________________ _____ Vote

5.50 TORT CLAIMS ACT THRESHOLD FOR RECOVERY OF DAMAGES FOR PAIN AND SUFFERING (Approved 1/02)

INTRODUCTORY NOTE 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 be strictly construed to permit lawsuits only where specifically delineated. Subsection (d) of N.J.S.A. 59:9-2 sets forth a threshold for non-economic damages that a plaintiff must surmount to sustain a claim for pain and suffering. Note: The failure to reach the objective 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 component. The section of the Act, in pertinent part and with added emphasis, reads as follows (as amended P.L. 2000, c. 126, � 32, effective September 21, 2000): 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. (Prior to September 21, 2000, any cause of action that arose involving the threshold required medical treatment expenses in excess of $1,000.) The courts have held that the plaintiff could prove future expenses to meet the monetary threshold. It must also be noted that, if the plaintiff has not met the monetary threshold, but the plaintiff sustained permanent injury or disfigurement, he or she may still recover economic damages for his/her 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 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 of the evidence that he/she 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 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. The amount is $1,000, if it arose before that date.) B. Permanent Loss of Body Function With respect to a permanent injury the plaintiff must prove: 1) A permanent loss of body function [here insert an appropriate description of body 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 and credible. Objective means that the evidence must be verified by physical examination, diagnostic testing and/or observation. Credible mean that the evidence is believable. 3) The plaintiff may not recover for mere subjective feelings of discomfort. C. Disfigurement 1) The scaring, indentation and/or blemishes [here 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.

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 he/she sustained . . . (choose appropriate category) 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 his/her 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 [here identify the public entity or public employee]. ,  Reale v. Tp. of Wayne, 132 N.J. Super. 100 (Law Div. 1975). See, Hammer v. Tp. of Livingston, 318 N.J. Super. 298 (App. Div. 1999). 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).