Reidinger v. Linebaugh

35 Pa. D. & C.4th 78, 1998 Pa. Dist. & Cnty. Dec. LEXIS 163
CourtPennsylvania Court of Common Pleas, Lancaster County
DecidedJanuary 12, 1998
Docketno. 97-05050
StatusPublished

This text of 35 Pa. D. & C.4th 78 (Reidinger v. Linebaugh) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lancaster County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reidinger v. Linebaugh, 35 Pa. D. & C.4th 78, 1998 Pa. Dist. & Cnty. Dec. LEXIS 163 (Pa. Super. Ct. 1998).

Opinion

GEORGELIS, J.,

Before me is the defendant’s motion for partial summary judgment, which seeks to have me rule, as a matter of law, that the plaintiff, Jill Reidinger, has not suffered “serious injury” as contemplated under the “limited tort” option of the Motor Vehicle Financial Responsibility Law, Act of February 12,1984, P.L. 26, No. 11,75 Pa.C.S. §1701 et seq. The motion will be granted.

This lawsuit arises out of an accident, which occurred on August 19, 1996, while the plaintiff was bicycling. She was thrown from her bicycle when the defendant’s [80]*80vehicle struck the front of her bicycle. As a result of the accident, she sustained two fractured ribs, a collapsed lung, a soft tissue injury to her right shoulder and a small laceration to her right ankle.

At the time of the accident, the plaintiff was insured under the limited tort option provided for by 75 Pa.C.S. §1705. That option provides that, in exchange for a lower premium rate, an insured may waive her right to bring suit for noneconomic loss incurred as a result of an accident. However, an insured under the limited tort option may maintain an action for noneconomic loss if she can prove that she has suffered a “serious injury.” 75 Pa.C.S. §1705(d). “Serious injury” is defined as a “personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” 75 Pa.C.S. §1702. The issue before me is whether the plaintiff’s injuries rise to the level of serious impairment of body function or permanent serious disfigurement.

In Dodson v. Elvey, 445 Pa. Super. 479, 665 A.2d 1223 (1995), alloc. granted, 544 Pa. 608, 674 A.2d 1072 (1996), our Superior Court held that it is the function of the judge to make the initial determination whether a plaintiff has suffered a serious injury where there is no dispute of fact.

“In the context of summary judgment the court must determine initially (1) whether the plaintiff as moving party has established that he or she has suffered serious impairment of a body function; (2) whether the defense as moving party has established that plaintiff has not suffered serious impairment of a body function; or (3) whether there remains a genuine issue of material fact for the jury to decide----We emphasize that in deciding whether a material issue of fact exists for the jury, the judge should not focus on the injury but should [81]*81focus on the nature and extent of plaintiff’s impairment as a consequence of the injury.” Id. at 494, 665 A.2d at 1231. (citation omitted)

The court set forth the following analysis to determine whether a serious impairment of body function exists:

“ (a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?

“(b) Was the impairment of body function serious? The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. Generally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment ... In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the particular body function impaired, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors.” Id. at 499, 665 A.2d at 1233-34 (quoting DiFranco v. Pickard, 427 Mich. 32, 39, 398 N.W.2d 896, 901 (1986)); see also, Murray v. McCann, 442 Pa. Super. 30, 36, 658 A.2d 404, 407 (1995).

The court emphasized that: “ [a]n impairment involves more than the injury itself. The consequences of the injury must involve a serious impact for an extended period of time on a plaintiff’s life. ... It must interfere substantially with the plaintiff’s normal activities arid not impose only a mild or slight limitation.” 445 Pa. Super. 479, 499, 665 A.2d 1223, 1234 (1995) (citations omitted); see also, Leonelli v. McMullen, 700 A.2d 525, 528 (Pa. Super. 1997) (“[Pjlaintiff must establish that, for an extended period of time, the injuries substantially interfered with his or her normal activities.”). In deciding whether the impairment was serious, the Superior Court looked to other interpretations of the term. It noted that the Pennsylvania Air Pollution Control Act [82]*82defines “serious bodily injury” as one “which involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ or mental faculty.” Dodson v. Elvey, 445 Pa. Super. 479, 500, 665 A.2d 1223, 1234 (1995), quoting 35 Pa.C.S. §4009(d).

The plaintiff in Dodson sustained injuries in a motor vehicle accident and sought to recover noneconomic damages. When the defendant raised the limited tort election as a defense, Dodson contended that he had sustained a serious injury. His evidence showed that he immediately felt pain in his low back, in the back of his head and in his right arm and shoulder and that he developed a frontal headache secondary to mid-forehead contusion immediately after the collision. He was taken to the emergency room, where x-rays were taken, and he was given a sling for his right arm. He could not use his arm throughout the month following the accident. He did not return to his job as a warehouseman for about four months and wore the sling the entire time that he was out of work. He was under the treatment of an orthopedist who initiated hydrotherapy and diagnosed rotator cuff damage and a fractured elbow. He also saw a second doctor for eight visits and followed a physical therapy program. His doctor reported that he would “suffer long term with some mild to moderate right upper extremity weakness and more likely than not would develop arthritis in the future.” Id. at 489, 665 A.2d at 1228. It was also predicted that his soft tissue injury might be symptomatic periodically for the next two to three years.

At his deposition, Dodson stated that he continued to feel constant drumming pain primarily in his shoulder but sometimes in his elbow as well. He related that [83]*83he was able to do the same work as before the accident, but that it was harder to do with increased pain. He reported that he was unable to bowl, play softball or lift weights as he did before the accident. Upon review of the evidence, the Superior Court concluded that the record showed no serious interference with the plaintiff’s daily life and that summary judgment had properly been entered in favor of the defense.

In the instant case, the plaintiff sustained two fractured ribs, a collapsed lung, an injury to her right shoulder and a small laceration on her right ankle. She was taken to the emergency room and released from the hospital the following day. As part of a regularly scheduled follow-up, she returned to the hospital two days later. At that time, a chest tube was inserted to treat her pneumothorax. Following her release, she was instructed to be active and not to just lie in bed.

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Related

DiFranco v. Pickard
398 N.W.2d 896 (Michigan Supreme Court, 1986)
Murray v. McCann
658 A.2d 404 (Superior Court of Pennsylvania, 1995)
Dodson v. Elvey
665 A.2d 1223 (Superior Court of Pennsylvania, 1995)
Leonelli v. McMullen
700 A.2d 525 (Superior Court of Pennsylvania, 1997)

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Bluebook (online)
35 Pa. D. & C.4th 78, 1998 Pa. Dist. & Cnty. Dec. LEXIS 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reidinger-v-linebaugh-pactcompllancas-1998.