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Home My WebLink About97-0481 CivilERIC LEPORE, Plaintiff V. MISSY McGEE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-0481 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT BEFORE BAYLEY and OLER, JJ. AND NOW, this ORDER OF COURT 2:3, '~ day of November, 1999, upon consideration of defendant's motion for partial summary judgment, and for the reasons stated in the accompanying opinion, the motion is denied. BY THE COURT, esley Oler~-~) J. , Keith O. Brenneman, Esq. 44 West Main Street Mechanicsburg, PA 17055 Attorney for Plaintiff Ann Margaret Grab, Esq. 110 S. Northern Way York, PA 17402-3737 Attorney for Defendant :rc ERIC LEPORE, Plaintiff V. MISSY McGEE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-0481 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT BEFORE BAYLEY and OLER, JJ. OPINION and ORDER OF COURT Oler, J., November ,1999. This civil action for negligence arises out of an accident in which a motor vehicle driven by the defendant allegedly ran over the left foot of the plaintiff, causing fractures to his first and second toes, inter alia.~ In connection with this: claim, Plaintiff is deemed to have elected the limited tort option under the Pennsylvania Motor Vehicle Financial Responsibility Law.2 For disposition at this time is a motion for partial summary judgment filed by defendant. The motion is based upon an alleged absence of a serious injury to the plaintiff in the accident, and seeks a preclusion of recovery for noneconomic damages in accordance with Section 1705(d) of the act. ~ Plaintiff's Complaint, paragraphs 6, 9. 2 Motion of Defendant, Missy McGee, for Partial Summary Judgment, paragraphs 5-6; Plaintiff's Response to Defendant's Motion for Partial Summary Judgment, paragraphs 5-6. The matter was argued on October 13, 1999. For the reasons stated in this opinion, defendant's motion for partial summary judgment will be denied. STATEMENT OF FACTS For present purposes,3 the record in this case consists of plaintiff's complaint, defendant's answer with new matter, plaintiff's reply, defendant's motion for partial summary judgment, plaintiff's answer to the motion, a deposition of plaintiff, and plaintiff's answers to defendant's interrogatories. On a motion for summary judgment, the court will "view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.''4 "[A]ll. inferences must be resolved in favor of... the non-moving party .... ,5 Viewed in this light, the facts may be summarized as follows. On thd evening of January 31, 1995, a car being operated by defendant in a certain parking lot in Mechanicsburg, Pennsylvania, ran over the left foot of the plaintiff.6 See Pa. R.C.P. 1035.1. Washington v. Baxter, 553 Pa. 434, 441,719 A.2d 733,737 (1998). Id. at 448, 719 A.2d at 740. N.T. 11-37, Deposition of plaintiff, March 19, 1998 (hereinafter N.T.__ 2 Plaintiff incurred fractures of the first and second metatarsals and severe bruising;7 a high degree of pain ensued.8 A temporary cast was placed on plaintiff's foot at a hospital emergency room and pain medication was prescribed for him.9 Subsequently, an orthopedic specialist placed a permanent cast on the foot, which was replaced after a week by a second permanent cast due to constriction from the initial one.l° The second permanent cast was removed after six weeks. ~ Following the removal of the cast, plaintiff walked on crutches for two weeks.~2 Thereafter, he was able to walk on the injured foot "on and off," but experienced considerable pain in doing so.~3 His foot emitted a popping sound, and the orthopedic specialist instructed him not to be on hig feet for sustained periods of time and not to lift more than twenty-five pounds for the indefinite future.TM 7 Plaintiff's answers to defendant's interrogatories, paragraph 9. 8 N.T. 37-38. 9 N.T. 38-39. 10 N.T. 42-43. ~ Id. ~2 N.T. 43. ~3 Id. ~4 N.T. 43-44. 3 Post-traumatic arthritis developed in plaintiff's foot? More than three years after the accident, plaintiff remained unable to do heavy lifting or to stand for sustained periods of time.~6 His foot swelled up twice a month and he continued to experience pain in it on more than a weekly basis.~7 He had been forced to give up playing football, bike riding, weight lifting and holding his twenty-two pound child for sustained periods of time.~ 8 Defendant's motion for partial summary judgment is based upon the general statutory preclusion of recovery for noneconomic losses arising out of a motor vehicle accident where the injured party is subject to the limited tort alternative under the Pennsylvania Motor Vehicle Financial Responsibility Law, in the absence of serious injury.~9 Plaintiff disputes defendant's contention that, as a matter of law, plaintiff's injury was not serious for purposes of the act? DISCUSSION Pennsylvania Rule of Civil Procedure 1035.2 provides as follows: ~5 N.T. 52; Motion of Defendant, Missy McGee, for Partial Summary Judgment, Exhibit 3 (medical records). ~6 N.T. 52. 17 N.T. 54-55. ~8 N.T. 56-59. 19 See Act of February 7, 1990, P.L. 11, §8(d), 75 Pa. C.S. §1705(d) (1999 Supp.). 20 Plaintiff's Response to Defendant's Motion for Partial Summary Judgment, paragraph 23. 4 After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Section 1705(d) of the Pennsylvania Motor Vehicle Financial Responsibility Law generally limits recovery in a case of the present type to economic damages, unless the injury incurred by the plaintiff was serious: Each person who [is subject to] the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss [with certain exceptions]. Act of February 7, 1990, P.L. 11, §8(d), 75 Pa. C.S. §1705(d) (1999 Supp.). "Serious injury" is defined as "[a] personal injury resulting in death, serious impairment of body function or permanent serious disfigurement." Act of February 12, 1984, P.L. 26, §3, as amended, 75 Pa. C.S. §1702. The determination of whether an injury qualifies as a "serious impairment of body function" involves a consideration of what body function, if any, ~vas impaired because of injuries sustained in a motor vehicle accident and whether the impairment of the body function was serious. See Washington v. Baxter, 553 Pa. 434, 447, 719 A.2d 733,740 (1998). The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function .... In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious.2~ The Pennsylvania Supreme Court has held "that the legislative history [of i the provision in question] does not support the view that the threshold determination of whether a serious injury has been sustained is to be made by the trial judge .... [T]he legislature ... [has implicitly] indicated that the traditional summary judgment standard was to be followed and that the threshold determination was not to be made routinely by a trial court judge ..., but rather was to be left to a jury unless reasonable minds could not differ on the issue of whether a serious injury had been sustained." Washington v. Baxter, 553 Pa. 434, 446-447, 719 A.2d 733,740 (1998). Washington v. Baxter, 553 Pa. 434, 447-448, 719 A.2d 733, 740 (1998). 6 In this context, as with other summary judgment cases, "summary judgment will be granted only in those cases which are free and clear from doubt." Washington v. Baxter, 553 Pa. 434, 441,719 A.2d 733,737 (1998). After a careful consideration of the record in the present case, viewed in the light most favorable to the plaintiff, and of the factors recited above pertaining to the issue of whether plaintiff suffered a serious impairment of body function as a result of the motor vehicle accident in question, including the duration of the impairment, the court is of the view that reasonable minds could differ as to whether the injury was serious for purposes of the aforesaid act. For this reason, defendant's motion for partial summary judgment on this issue can not be sustained. ORDER OF COURT AND NOW, this 23rd day of November, 1999, upon consideration of defendant's motion for partial summary judgment, and for the reasons stated in the accompanying opinion, the motion is denied. BY THE COURT, Keith O. Brenneman, Esq. 44 West Main Street Mechanicsburg, PA 17055 Attorney for Plaintiff s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Ann Margaret Grab, Esq. 110 S. Northern Way York, PA 17402-3737 Attorney for Defendant :FC 8