New York's Serious Injury Threshold, An Overview
September, 2004
An injured motorist who seeks to recover damages for non-economic losses, such as pain and suffering, must first establish that he has sustained a “serious injury” as defined by Insurance Law §5102 (d). The Court of Appeals has recognized “that one of the obvious goals of the Legislature’s scheme of no-fault automobile reparations is to keep minor personal injury cases out of court.” Licari v. Elliott, 57 N.Y.2d 230, 236, 441 N.E.2d 1088, 455 N.Y.S.2d 570, 573 (1982).
Insurance Law § 5102(d) provides:
“Serious injury” means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system, or a medically determined injury or impairment of a non permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less that ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
The most recent developments in this area of law have focused upon the definitions of: “Permanent loss of use of a body organ, member, function or system” and “Permanent consequential limitation of use of a body organ or member.” These provisions have provided plaintiffs with less of a burden in establishing and qualifying a serious injury under New York’s No-Fault Law.
Where properly raised, the issue of whether a plaintiff has established a prima facie case of “serious injury” within the meaning of Insurance Law § 5102(d) rests with the Court in the first instance. Licari v. Elliot, 57 N.Y.2d 230, 237-8; Dwyer v. Tracey, 105 A.D.2d 476, 480 N.Y.S.2d 78, (3d Dep’t 1984). In Licari, the Court of Appeals stated that the “Court should decide the threshold question of whether the evidence would warrant a jury finding that the injury falls within the class of injuries that, under no fault, should be excluded from judicial remedy.” Licari, at 238. Furthermore, it is well settled that a motion for summary judgment is an appropriate avenue for determining whether a plaintiff can establish, prima facie, a “serious injury.” Zoldas v. Louise Cab Corporation, 108 A.D.2d 378, 489 N.Y.S.2d 468 (1st Dep’t 1985).
The Court of Appeals in Oberly v. Bangs Ambulance, Inc., 96 N.Y.2d 295, 727 N.Y.S.2d 378 (2001), held that “only a total loss of use is compensable under the ‘permanent loss of use’ exception to the no-fault remedy.” In Oberly, Plaintiff was injured while being transported in an ambulance when an IV pump fell from the shelf and onto Plaintiff’s forearm. Oberly, at 295. Plaintiff claimed to have suffered bruising and continuing pain and cramping in his right arm which limited his ability to practice as a dentist. Id. at 295. The Court of Appeals held that the injury did not qualify under the permanent loss of use category based on the fact that the loss of use was not total. Id. at 295.
It is well settled that “a significant limitation of use of a body function or system” has clearly not been established where there is a “minor or slight limitation of use.” Gaddy v. Eyler, 79 N.Y.2d 955, 957-958, 582 N.Y.S.2d 990 (1992). In fact, in Licari the Court of Appeals held that the term “significant” should be interpreted in light of the Legislature’s goal to keep minor personal injury cases out of court. Licari, at 236. Furthermore, in Scheer v. Koubek, 70 N.Y.2d 678, 518 N.Y.S.2d 788 (1987), the Court of Appeals held that a mere mild soft tissue injury resulting in no restriction of plaintiff’s mobility is clearly insufficient to make out plaintiff’s prima facie case of “serious injury” under Insurance Law §5102. Similarly, it is well settled that a plaintiff’s mere subjective complaints of pain are entirely insufficient to raise a triable issue of fact and do not satisfy the plaintiff’s burden of proof in opposing a motion for summary judgment. See Echeverri v. Happe, 256 A.D.2d 304, 681 N.Y.S.2d 315 (2d Dep’t 1998); Antoniou v. Duff, 204 A.D.2d 704, 583 N.Y.S.2d 102 (2d Dep’t 1992). The plaintiff must set forth evidence of objective medical findings or diagnostic test to support his claim of serious injury. See Trotter v. Hart, 285 A.D.2d 772, 728 N.Y.S.2d 561 (3d Dep’t 2001); Taber v. Skulicz, 265 A.D.2d 902, 695 N.Y.S2d 810 (4th Dep’t 1999).
The Court of Appeals stated that the burden of establishing a serious injury by objective evidence can be satisfied by demonstrating a quantitative numeric percentage of plaintiff’s loss of range of motion or an expert’s qualitative assessment of the plaintiff’s physical condition. The qualitative assessment must have an objective basis and the expert must also compare the plaintiff’s limitations to the normal function, purpose and use of the affected body organ, member, function or system. The Court of Appeals opined that the assessment made forth by the plaintiff’s expert can be challenged and refuted during defense counsel’s cross-examination. An expert’s opinion unsupported by an objective basis will be wholly speculative, thereby frustrating the legislative intent of the no-fault Law to eliminate insignificant injuries.
In two cases decided by the Court of Appeals, Toure v. Avis Rent A Car, 98 N.Y.2d 345, 746 N.Y.S2d 865 (2002), and Manzano v. O’Neil, 98 N.Y.2d 728, 749 N.Y.S.2d 478 (2002), the Court’s decisions significantly impacted the well known rule that objective proof of plaintiff’s injury is necessary to satisfy the statutory serious injury threshold. In Toure, Plaintiff claimed both a “permanent consequential limitation of use of body organ or member” and “significant limitation of use” under Insurance Law §5102(d). In support of a motion for summary judgment, Defendant submitted expert proof that Plaintiff had not sustained a serious injury. Toure, at 351. Plaintiff submitted the affirmation of a neurosurgeon in which the neurosurgeon concluded that an MRI revealed one bulging and two herniated discs. Id. at 351. He also conducted a physical examination of Plaintiff during which he noted muscle spasms and decreased range of motion in the lumbar spine. Id. at 351. No quantitative assessment was provided for the limitation. The physician noted in his affirmation that Plaintiff’s complaints of difficulty sitting, standing and walking for extended periods of time and his inability to lift heavy objects at work were “a natural and expected medical consequence of his injuries.” Id. The Court found that the doctor’s opinion was supported by objective medical evidence, including MRI and CT scan tests and reports, along with his observations of muscle spasms during his physical examination of Plaintiff. In the Court’s opinion, this was sufficient to defeat Defendant’s summary judgment motion. Id.
In Manzano, the Court overruled the Appellate Division, Fourth Department’s decision. The Fourth Department determined that Plaintiff’s two herniated discs did not constitute a serious injury, noting that Plaintiff failed to present evidence of the extent or degree of the alleged physical limitations resulting from the disc injury. Manzano, at 354. Plaintiff claimed that she sustained “a permanent consequential limitation of use of a body organ or member” under the tort threshold. Id. at 355. The Court of Appeals agreed and focused again on the qualitative assessment of Plaintiff’s treating physician. The physician did not assign a quantitative percentage to loss of range of motion in Plaintiff’s back or neck attributable to the disc injury, instead, he described the qualitative nature of Plaintiff’s limitations based upon the normal function, purpose and use of her body parts. In particular, Plaintiff claimed that she could no longer do heavy lifting of any kind, shovel the driveway or clean the house like she used to, could not carry a vacuum cleaner and could not pick-up her children. The Court held that such limitations were not so insignificant as to bar Plaintiff’s recovery under the No Fault Law. Id.
In Nitti v. Clerrico, 98 N.Y.2d 644, 744 N.Y.S.2d 759 (2002), the Court was presented with a different category of serious injury, the “90/180” category (a medically determined injury or impairment of a non permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less that ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment). Under this category of serious injury, the Court noted that a plaintiff must present objective evidence of “a medically determined injury or impairment of a non permanent nature.” Nitti, at 355. Plaintiff’s expert, a chiropractor, testified that Plaintiff sustained a “L4-5 intervertebral disk disorder with associated neuritis, which was further complicated by a congenital anomaly.” Id. at 356. He also noted spasm. Id. He conceded that his testing for restricted range of motion were tests that were subjective in nature as they were dependent, at least in part, on Plaintiff’s complaint of pain. In setting aside Plaintiff’s favorable jury verdict, the Court noted that spasm must be objectively ascertained. Id.
In Riolo v. Goggin, 309 A.D.2d 1199, 765 N.Y.S.2d 129 (4th Dep’t 2003), the Court held that the testimony of an expert, whose diagnosis was confirmed by objective findings that were quantified and documented, was sufficient to demonstrate that the victim sustained a “serious injury” within the meaning of the No-Fault Law. In Nicholas v. Turner, 6 A.D.3d 1009, 776 N.Y.S.2d 114 (3d Dep’t 2004), the Court held genuine issues of material fact, thus precluding summary judgment, existed as to whether Plaintiff suffered serious injury under the no-fault law’s 90/180 category. In opposing summary judgment, Plaintiff did not challenge the sufficiency of Defendant’s medical evidence as meeting the threshold burden on the issue of serious injury and further limited the proof to the 90/180 day category of serious injury. Nicholas, at 1011. With issues so limited, the Court only needed to address whether Defendant met its shifted burden of raising a triable issue of fact through competent medical evidence based upon objective medical findings and diagnostic tests under the 90/180 day category of serious injury. Id.; see also Marks v. Brown, 3 A.D.3d 648, 771 N.Y.S.2d 212 (3d Dep’t 2004); Mrozinski v. St. John, 304 A.D.2d 950, 951, 757 N.Y.S.2d 158 (3d Dep’t 2003). As to the objective medical evidence requirement, Plaintiff relied on the affidavit of Plaintiff’s treating chiropractor who treated her for back, neck, shoulder and head pain for a five month period commencing one week after the accident. The chiropractor’s affidavit also sufficiently correlated Plaintiff’s injuries with the inability of Plaintiff to perform certain normal, daily tasks. This information, particularly as to Plaintiff’s employment, was sufficient to support an objective medical finding of serious injury within the 90/180 category. See Nicholas, at 1011.
Learning Point:
As a result of this developing case law, New York’s Courts have become increasingly overburdened with cases that previously were resolved through Summary Judgment. Now, defendants are finding it extremely difficult to have a New York trial court grant their motions for Summary Judgment on the issue of “Serious Injury” under New York’s Insurance Law §5102(d).•
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