427 Mich. 32, 398 N.W.2d 896, 900-01 (1986). The inquiry is limited to:
(a) what body function, if any, was impaired, because of the injuries
sustained in the motor vehicle accident; and (b) was the impairment of
the body function serious. Washington, 719 A.2d at 740. The focus is not
on the injuries but on how the injuries affected a particular body
function with medical testimony generally required to establish the
existence, extent, and permanency of the impairment, although an
impairment need not be permanent to be serious. Id.
In addition, the Court expressly held that the threshold determination
of whether a serious injury has been sustained is an issue of fact to be
left to the fact-finder, unless reasonable minds could not differ on the
issue. Indeed, the Court noted that even if the parties agree on the
nature and extent of the injuries and there is no genuine dispute over
the facts, if the facts can support conflicting inferences, summary
judgment should not be granted. Id. at 740 n. 10.
The United States argues that this is one of those "clearest of cases"
in regard to the seriousness of the injury upon which summary judgment
may be granted. The United States argues that the medical evidence shows
that Sanderson-Cruz suffered from chronic lower back pain prior to the
accident and that her inability to work was unrelated to the accident but
rather stemmed from her pre-existing condition. Thus, the United States
argues that Sanderson-Cruz has not produced sufficiently probative
medical evidence to support a finding that she suffered any injury as a
result of the accident, let alone a serious injury.
I disagree. Sanderson-Cruz has presented evidence sufficient to support
an inference that she suffered a bodily impairment as a result of the
accident. The medical record reveals that on November 14, 1997,
approximately two weeks prior to the accident, Sanderson-Cruz had full
range of motion in her right arm. (Def. Reply, Exh. 6). When she was
examined two days after the accident she had limited range of motion in
her right arm. (Id.). In addition, after the accident her doctor
prescribed an anti-inflammatory and pain reliever to easy the pain and
"quiet some of the spasm down." (Id.). Thereafter, her doctor prescribed
a narcotic pain killer to combat pain.*fn6 (Id.). In addition, her
doctor has testified at his deposition that Sanderson-Cruz's lower back
problems had essentially resolved by the time of the accident. (Rodriguez
Dep. at 66). Thus, there is genuine issue of material fact as to whether
the accident caused Sanderson-Cruz to re-injure or cause her lower back
condition to be aggravated or whether the accident did not in fact cause
her any injury.
Sanderson-Cruz has also introduced evidence sufficient preclude summary
judgment on the issue of whether the injury she suffered as a result of
the accident was a "serious injury." The testimony of Sanderson-Cruz, the
expert medical evidence and the contemporaneous medical records support
an inference that as a result of the accident, Sanderson-Cruz continues
to have pain in her back and neck, cannot perform her former job as a
physical therapy aid because of physical limitations and cannot enjoy some
of life's many pleasures such as gardening, horseback riding and sexual
intercourse.*fn7 Finally, Sanderson-Cruz has offered evidence that her
injury may be permanent. Thus, this case is not "free and clear from
doubt" such that reasonable minds could not differ on the issue of
whether Sanderson-Cruz sustained a serious injury.
Washington, 719 A.2d at 740 n. 10; Furman v. Shapiro, 721 A.2d 1125, 1127
(Pa. Super. 1998) (injury to back evidence by bulging disc and where
plaintiff reduced her work status from full to part-time, could not lift
heavy object, experienced symptoms over period of years and treatment
included some physical therapy and home exercises, reasonable minds could
differ as to whether plaintiff suffered serious injury); Hames v.
Philadelphia Hous. Auth., 737 A.2d 825, 829 (Pa. Cmwlth. 1999) (attacks
on weight and credibility of evidence from plaintiff, and psychiatrist
where medical records showed physical injuries resolved within months and
not objectively manifested may not be resolved at summary judgment).
Therefore, summary judgment is inappropriate.
Based upon the foregoing, the motion for summary judgment will be
denied. An appropriate Order follows.
AND NOW, this 6th day of March, 2000, upon consideration of the motion
of the defendant, the United States of America, for partial summary
judgment (Document No. 10), the response, reply and sur-reply thereto,
and the supporting memoranda, pleadings, discovery record, exhibits and
affidavits submitted by the parties, having found that there are genuine
issues of material fact and that the defendant is not entitled to
judgment as a matter of law, and for the reasons set forth in the
foregoing memorandum, it is hereby ORDERED that the motion is DENIED.
IT IS FURTHER ORDERED that the parties shall submit a joint report to
the Court no later than March 31, 2000 as to the status of settlement. If
the parties need the assistance of the Court in facilitating settlement
negotiations, the report shall so indicate. By said date, plaintiff shall
contact the Deputy Clerk to arrange a date for a final scheduling