Owens v. City of Philadelphia

47 Pa. D. & C.3d 290, 1987 Pa. Dist. & Cnty. Dec. LEXIS 131
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedApril 3, 1987
Docketno. 1433
StatusPublished
Cited by1 cases

This text of 47 Pa. D. & C.3d 290 (Owens v. City of Philadelphia) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Owens v. City of Philadelphia, 47 Pa. D. & C.3d 290, 1987 Pa. Dist. & Cnty. Dec. LEXIS 131 (Pa. Super. Ct. 1987).

Opinion

CAESAR, J.,

On November 4, 1985, after a non-jury trial, this court entered a verdict in favor of plaintiffs, John and Joan Owens, and against defendants, the City of Philadelphia and Cornell Thompson, in the amount of $353,379.29 plus interest. Defendants filed timely post-trial motions for judgment notwithstanding the verdict or, in the alternative, for a new trial or remittitur. Plaintiffs filed a timely response to defendants’ motions.

The pertinent facts are as follows: On February 8, 1980, plaintiff was inside a parked truck from which he was unloading merchandise when it was struck by a trash truck owned by the City of Philadelphia and driven by a municipal employee, Cornell Thompson. The impact of the collision hurled plaintiff against the side of the truck and knocked him down. As he fell, his back twisted, and he was struck by falling cartons of canned goods. As a result of the accident, plaintiff sustained an injury to his back which permanently reduced the range of motion of his lower back by 20 percent. Plaintiff returned to work after 47 weeks, but his injuries left him unable to effectively carry out the duties he had before the accident. Eventually his job was changed from one involving loading and unloading individual cases and cartons to driving a tractor-trailer. In [292]*292this position goods were delivered on pallets, with much less involvement of plaintiff’s back. Since the accident, plaintiff has been in constant pain and is unable to participate in activities which he had previously enjoyed. ■

This court concluded that plaintiffs injury was caused by defendant’s negligent operation of a municipal vehicle, and that the 20 percent loss of motion in plaintiffs back constituted a permanent loss of a bodily function.

The court assessed damages for earnings and lost earning capacity in the amount of $168,379.29, and for pain and suffering, in the amount of $185,000. Upon motion of plaintiff, the' court added delay damages of $164,321.37.

In its post-trial motions, defendant, the City of Philadelphia, does not challenge the court’s finding of negligence, but claims that the court’s award of damages for pain and suffering is barred under the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541 et seq. Under that act damages for pain and suffering are recoverable only where death occurs or “only in cases of permanent loss of a bodily function, permanent disfigurement or permanent dismemberment where the medical and dental expenses . . . are in excess of $1500.” 42 Pa.C.S. §8553(c)(2). Defendant contends that “permanent loss of bodily function” is limited to the actual disjoining of a bodily part or the “functional equivalent of dismemberment.” In other words, the City maintains, damages under the Tort Claims Act can only be awarded when the claimant has suffered a permanent and total loss of use of a bodily part. Defendant argues that a 20 percent permanent loss of range of motion of a person’s lower back does not constitute a “permanent loss of bodily function,” [293]*293and therefore the court’s award for pain and suffering is improper.

THE POLITICAL SUBDIVISION TORT CLAIMS ACT

As applicable to this case, The Political Subdivision Tort Claims Act 42 Pa.C.S. §8541 et seq. sets up a general immunity of local agencies for damages on account of injury caused by an act. of the local agency or its employee. An exception was carved out for acts involving operation of a motor vehicle in the possession or control of the local agency. The local agency is hable if:

(1) The damages were recoverable under common law if the injuries were caused by a person not having available a defense under §8541 (relating to governmental immunity generally); and

(2) The act was caused by the negligent acts of an employee of the local agency acting within the scope of his duties. 42 Pa.C.S. §8542(a).

If the local agency is liable, damages are limited to:

(1) Past or future loss of earnings and earnings capacity.

(2) Pain and suffering only in cases of permanent loss of a bodily function, permanent disfigurement or permanent dismemberment where the medical and dental expenses . . . are in excess, of $1500.

(3) Medical and dental expenses.

(4) Loss of consortium.

(5) Loss of support.

(6) Property losses. 42 Pa.C.S. §8553(c).

The act further places a cap on damages of $500,000, 42 Pa.C.S. §8549, and provides for deduction of benefits received by the claimant from in[294]*294surance, 42 Pa.C.S. §8553(d).

In other words, the Tort Claims Act gives claimant injured by a vehicle controlled by a local agency, as in this case, a modified but otherwise traditional common law tort recovery, subject to certain thresholds and caps.

“PERM'ANENT LOSS OF A BODILY FUNCTION”

The Case Law

As previously noted, this case turns on the interpretation of the phrase “permanent loss of a bodily function.” As' interpreted by this court, the phrase embraces a diminution of function in the nature of a permanent loss of range of motion to a degree that is statistically significant.

Whether a diminution of range of motion can constitute “a permanent loss of bodily function” appears to be a matter of first impression.

The court has reviewed the law of other jurisdictions as well as that of this commonwealth and found only one case in which a court construed the term “permanent loss of a bodily function.” In Savitt v. City of Philadelphia, 557 F. Supp. 321 (D.C. Pa. 1983), the district court determined that “permanent loss of a bodily function,” as used in the Pennsylvania Tort Claims Act meant “(plaintiff), as a (proximate) result of the accident, can no longer perform a physical act or acts which she was capable of performing prior to the injury proximately resulting from the accident, and that this loss of bodily function is permanent, that is, that this loss of bodily function will exist for the remainder of her (Mrs. Savitt’s) life.” 557 F. Supp. at 328. The district court rejected defendant’s argument that plaintiff must have lost a limb or portion of her body in [295]*295order to have sustained a loss of bodily function within the meaning of the statute, concluding that “had the legislature intended that the term ‘loss of bodily function’ have the meaning sought by defendants, the words ‘permanent dismemberment’ and ‘permanent disfigurement’ in the same section . . . of the statute would be meaningless.” Id. at 329.

This court agrees with the reasoning of the United States District Court that “permanent loss of a bodily function” includes, as one of its meanings, that one can no longer perform physical acts which one was capable of performing prior to the accident and as a result of the accident. Further, this court found that because plaintiffs ability to rotate his body was permanently restricted, and produced pain to the extent he was able to rotate it, he was no longer able to do many of the acts necessary to perform his job, carry out household duties and daily living activities, and pursue life’s pleasures as he did before.

Statutory Construction

The Rules of Statutory Construction, 1 Pa.C.S. §1901 et seq., outline the general principles of statutory interpretation.

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Cite This Page — Counsel Stack

Bluebook (online)
47 Pa. D. & C.3d 290, 1987 Pa. Dist. & Cnty. Dec. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/owens-v-city-of-philadelphia-pactcomplphilad-1987.