                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2107-16T1


EDWARD GRIMES,

          Plaintiff-Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Defendant-Respondent.
______________________________

                    Submitted May 16, 2019 – Decided June 27, 2019

                    Before Judges Simonelli and Whipple.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Mercer County, Docket No. L-0532-15.

                    Edward Grimes, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa Dutton Schaffer, Assistant
                    Attorney General, of counsel; Tasha M. Bradt, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Plaintiff Edward Grimes, an inmate at New Jersey State Prison, appeals

from an August 19, 2016 order granting defendant New Jersey Department of

Corrections' (DOC) motion for summary judgment and dismissing all claims

against them. We affirm.

      On May 2, 2014, plaintiff became acutely ill while in prison and was

transported to the hospital for emergency treatment. Plaintiff was restrained

with plastic handcuffs during transport. When plaintiff arrived at the hospital,

the plastic handcuffs needed to be removed in order to provide plaintiff with

necessary treatment. However, Senior Corrections Officer Boykin did not have

the authorized cutters, so he used a pair of scissors instead. While attempting

to remove the plastic handcuffs, Boykin cut plaintiff's palm. The injury required

four stitches to close and allegedly left a bubble scar on plaintiff's left hand.

      On May 23, 2014, plaintiff filed a notice of tort claim, and on July 9, 2015,

filed a complaint in the Law Division against the DOC. The DOC moved for

summary judgment arguing plaintiff's claims were barred because his injuries

were not considered permanent under the New Jersey Tort Claims Act (TCA).

N.J.S.A. 59:9-2(d). In his opposition to the motion, plaintiff admitted he did not

suffer permanent bodily injury. Based on plaintiff's admission, the motion judge

granted summary judgment and dismissed plaintiff's complaint with prejudice


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                                         2
because he did not establish the verbal threshold requirements of N.J.S.A. 59:9-

2(d). This appeal followed.

      On appeal, plaintiff makes the following arguments:

            POINT I

            THE LAW DIVISION JUDGE ERRED WHEN HE
            DISMISSED   PLAINTIFF[']S CLAIM   WITH
            PREJUDICE WITHOUT GIVING PLAINTIFF THE
            OPPORTUNITY TO AMEND HIS COMPLAINT.

            POINT II

            THE LAW DIVISION'S JUDGMENT SHOULD BE
            REVERSED WHERE DEFENDANT ENGAGED IN
            FRAUDULENT CONCEALMENT OF EVIDENCE
            MATERIAL TO THE ACTION (not raised below).

      When reviewing a grant of summary judgment, we use the same standard

as the trial court. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016). A

court should grant summary judgment, "if the pleadings, depositions, answers

to interrogatories and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact challenged and that

the moving party is entitled to a judgment or order as a matter of law." Ibid.

(quoting R. 4:46-2(c)).   The evidence must be viewed "in the light most

favorable to the non-moving party[.]" Mem'l Props., LLC v. Zurich Am. Ins.

Co., 210 N.J. 512, 524 (2012).


                                                                        A-2107-16T1
                                       3
      We reject both of plaintiff's arguments that the judge erred when he

dismissed plaintiff's claim with prejudice without giving plaintiff the

opportunity to amend his complaint. First, the record does not reflect plaintiff

ever moved to amend the complaint, either before or after the entry of the order

on appeal; thus, there is no evident error on the part of the motion judge.

Plaintiff further argues that because he was not successful in obtaining Boykin's

incident report from the DOC, he was precluded from amending his complaint.

Plaintiff contends the DOC's failure to include this important piece of discovery

deprived him of the opportunity to amend his complaint to include Boykin's

negligence. We disagree.

      We note plaintiff did not raise the discovery issue with the trial judge, and

we are not required to consider questions or issues not properly presented to the

trial judge. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). The judge

dismissed plaintiff's claim because of his failure to claim permanent injury, and

the Boykin report does not alter that analysis.

      N.J.S.A. 59:9-2(d) provides:

            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,


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                                        4
            permanent disfigurement or dismemberment where the
            medical treatment expenses are in excess of $3,600.

"In order to recover such damages, the claimant must suffer a permanent injury

or disfigurement[.]" Margolis & Novack, Claims Against Public Entities, cmt.

on N.J.S.A. 59:9-2(d) (2019).

            "[T]he verbal threshold of [N.J.S.A] 59:9-2[(d)] does
            not apply if a public employee engages in willful
            misconduct under [N.J.S.A.] 59:3-14, since the
            intended purpose of that section is to prevent public
            employees guilty of outrageous conduct from availing
            themselves of the limitations on liability and damages
            found in the Act."

            [Ibid.]

Nothing in the record suggests, and plaintiff does not allege, Boykin acted

intentionally in causing plaintiff's injury. Moreover, plaintiff conceded in his

opposition to summary judgment that he did not claim permanent bodily injury.

Concessions made before the trial court foreclose a contrary argument on appeal.

Misani v. Ortho Pharm. Corp., 44 N.J. 552, 555-56 (1965); Ji v. Palmer, 333

N.J. Super. 451, 459 (App. Div. 2000).

      Affirmed.




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