Whitmore v. Sweitzer

30 Pa. D. & C.4th 467, 1996 Pa. Dist. & Cnty. Dec. LEXIS 319
CourtPennsylvania Court of Common Pleas, York County
DecidedMarch 7, 1996
Docketno. 93-SU-03081-01
StatusPublished

This text of 30 Pa. D. & C.4th 467 (Whitmore v. Sweitzer) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, York County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whitmore v. Sweitzer, 30 Pa. D. & C.4th 467, 1996 Pa. Dist. & Cnty. Dec. LEXIS 319 (Pa. Super. Ct. 1996).

Opinion

CASSIMATIS, J.,

— The defendant, Brenda E Sweitzer has filed a motion for summary judgment against the plaintiff, Edward F. Whitmore because the plaintiff who has elected the limited tort options set forth in 75 Pa.C.S. §1705 has not sustained a serious injury. The motion will be granted.

On December 11, 1991, Whitmore was a passenger in a vehicle driven by his wife, Andrea Whitmore, who has been joined as an additional defendant. As they entered the intersection of Eastern Boulevard and Edge-wood Road in Springettsbury Township, York County, Pennsylvania, their car collided with a vehicle operated by Sweitzer. This action was commenced by a complaint filed July 16,1993 in which Whitmore alleges Sweitzer was negligent, careless and reckless in causing the collision. Plaintiff further alleges:

“(10) As a result of the negligence, carelessness and recklessness of the defendant, plaintiff suffered serious and permanent injuries including, but not limited to, cervical sprain, lumbar sprain, contusions to his left shoulder, and severe damage to his nerves and nervous system.”

Through discovery it has been established that Whit-more has elected the “limited tort” option on his policy of automobile insurance in effect on the date of the accident. Now that discovery is complete, defendant in her motion for summary judgment argues plaintiff cannot overcome the threshold requirement of showing a “serious impairment of body ftmction” as required by the Motor Vehicle Financial Responsibility Law and Whitmore’s own choice of the “limited tort” option.

There is no longer any doubt that the court may consider the issue of “serious injury” in the context of a motion for summary judgment.

[469]*469In Dodson v. Elvey, 445 Pa. Super. 479, 66,5 A.2d 1223 (1995), the en banc Superior Court addressed the role of the trial court and jury in limited tort cases. The Superior Court held that a plaintiff must present objective evidence of a serious injury, in order to proceed to trial. The court stated:

“ [U]pon the filing of a motion for summary judgment, where there is no substantial dispute of material fact that the plaintiff has not met the ‘serious impairment of body function’ threshold, or that the plaintiff has indeed met the threshold, the court should make the determination as a matter of law. If, upon review of the undisputed record, the threshold has not been met, the case should be dismissed. If, on the other hand, the evidence conclusively establishes that the plaintiff has suffered ‘serious impairment of body function,’ then the jury may decide only the issues of liability and damages. We limit the jury’s role to a finding of liability and damages in such a case because to do otherwise would put the plaintiff to the double burden of showing ‘serious impairment of body function’ twice, once to the judge and again to the jury. Finally, if there is a substantial dispute of fact on the threshold issue, the question is one for the jury. We farther hold that a plaintiff may not create a triable issue of fact with subjective evidence only. We agree with both New York and New Jersey’s determinations that a plaintiff, to cross over the ‘serious injury’ threshold must show a material dispute of fact by objective medical evidence. Oswin, [129 N.J. 290] supra at 314, 609 A.2d at 427-429 [1992]; Licari, [57 N.Y.2d 230], supra at 239, 455 N.Y.S.2d at 574-75, 441 N.E.2d at 1092 [1982], Although we recognize that soft tissue injuries may be accompanied by subjective complaints of pain that are so severe that they result in a ‘serious impairment of body func[470]*470tion,’ Murray v. McCann, [442 Pa. Super. 30], supra at [30], 658 A.2d at 404 [1995], the impairment must be objectively manifested. Oral testimony alone (unless it is an admission of a party opponent) is never sufficient to support a motion for summary judgment, as credibility is at issue. Penn Center House Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989); Nanty Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932); Garcia v. Savage, 402 Pa. Super. 324, 586 A.2d 1375 (1991). We underscore that the inquiry does not focus on the injury itself but whether the injury caused serious impairment of body function.” Id. at 497-98, 665 A.2d at 1232-33. (footnote omitted)

The court applied that standard to the case before it. The court defined the term of serious impairment of bodily injury. The court stated:

“It remains for us to determine whether appellant presented enough evidence to create a triable issue of material fact on the question of whether he suffered a ‘serious injury’ and thus may carry his case across the limited tort threshold. In this case, appellant claims that he sustained a serious impairment of body function. This term is not further defined by the relevant statutes. We have not found any Pennsylvania cases that conclusively define the term. We are persuaded, however, as was the trial court in this case, that the definition adopted by the Michigan courts in DiFranco v. Pickard is a useful one.
“The ‘serious impairment of body function’ threshold contains two inquiries:
“(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 [471]*471body 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. An impairment need not be permanent to be serious. 427 Mich, at 39, 398 N.W.2d at 901. See also, Pennsylvania Standard Civil Jury Instruction 6.02(D) (1991).
“An 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. See Oswin, supra at 318, 609 A.2d at 429. It must interfere substantially with the plaintiff’s normal activities and not impose only a mild or slight limitation. See Licari, supra at 236, 455 N.Y.S.2d at 573-74, 441 N.E.2d at 1091.” Id. at 499, 665 A.2d at 1233-34. (footnote omitted)

Defendant argues plaintiff has not established causation or serious impairment of body function.

On the issue of causation, there is no testimony from the medical reports to indicate that the accident of December 11, 1991 caused the injuries complained of in Whitmore’s complaint.1

[472]*472In his deposition Whitmore testified he was not an active person prior to the automobile accident in 1991. He had been fully disabled since a work-related accident in 1990. That accident required surgery to repair a herniated lumbar disc.

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Related

Murray v. McCann
658 A.2d 404 (Superior Court of Pennsylvania, 1995)
Penn Center House, Inc. v. Hoffman
553 A.2d 900 (Supreme Court of Pennsylvania, 1989)
Dodson v. Elvey
665 A.2d 1223 (Superior Court of Pennsylvania, 1995)
Oswin v. Shaw
609 A.2d 415 (Supreme Court of New Jersey, 1992)
Garcia v. Savage
586 A.2d 1375 (Superior Court of Pennsylvania, 1991)
Nanty-Glo Boro. v. American Surety Co.
163 A. 523 (Supreme Court of Pennsylvania, 1932)
Licari v. Elliott
441 N.E.2d 1088 (New York Court of Appeals, 1982)

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Bluebook (online)
30 Pa. D. & C.4th 467, 1996 Pa. Dist. & Cnty. Dec. LEXIS 319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitmore-v-sweitzer-pactcomplyork-1996.