Tuesday, May 15, 2018

Limited Tort Motion for Summary Judgment Denied in Lackawanna County

In his recent Opinion in the case of Borick v. Manley, No. 2013-CV-994 (C.P. Lacka. Co. April 4, 2018 Gibbons, J.), Judge James A. Gibbons of the Lackawanna County Court of Common Pleas denied a Defendant’s Limited Tort Motion for Summary Judgment.  

According to the Opinion, the defense argued that the Plaintiff did not sustain any serious injury as a result of the accident.  In support of this argument, the defense asserted that the Plaintiff did not lose consciousness as a result of the accident and that no airbag deployed.   It was also asserted that the Plaintiff refused an ambulance at the scene of the accident.  The defense additionally noted that the Plaintiff left the scene of the accident and proceeded to drive to work, after which she subsequently had her mother drive her to the emergency room.  

The defense also asserted that the Plaintiff was diagnosed in the emergency room with only cervical and thoracic strain injuries.   Thereafter, the Plaintiff underwent diagnostic studies, including x-rays, MRIs, and an EMG test, all of which returned normal results.  

Although the defense conceded that the Plaintiff continued to assert ongoing and chronic neck and back pain, it was the defense position that the Plaintiff’s allegations alone coupled with a lack of long-term diagnosis confirmed by any medical record, rendered the Plaintiff’s case barred by her Limited Tort selection.   As additional support for its argument, the defense also pointed to its IME report.  

In opposition, the Plaintiff emphasized the injuries and treatment alleged and also asserted that the injuries sustained were serious injuries as allegedly demonstrated by the impact of the accident upon the Plaintiff’s life.   In particular, the Plaintiff asserted that, following the accident, she was unable to work in her position as a pharmacy technician and/or as a bartender, given that she was allegedly no longer able to remain on her feet for extended periods of time due to her injuries.   The Plaintiff additionally noted difficulties in driving, lifting, exercising, performing household activities, walking her dog, and other activities of daily living.  

Judge James A. Gibbons
Lackawanna County
Based upon the record before it, and viewing the evidence in a light most favorable to the non-moving party as required by the Motion for Summary Judgment standard of review, Judge Gibbons found that genuine issues of material fact existed as to whether the Plaintiff sustained a serious injury.   As such, the court denied the Defendant’s Motion for Summary Judgment and allowed the case to proceed to trial.  

Anyone wishing to review a copy of this decision may click this LINK.


    

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