Define That Term #103
Don't You Hate it When a Witness Does That?

Were Injuries Resulting From a Replacement Wheelchair Foreseeable?

Campbell v. Central N. Y. Regional Transp. Auth., 2006 NY Slip Op 03193, is a very interesting case in which the Fourth Department considered whether the injuries of a wheelchair-bound plaintiff that was hit by a bus were foreseeable.

The plaintiff suffered from "profound deformities" and as a result, used a highly customized wheelchair which was destroyed when hit by the bus owned by the defendant.  The plaintiff was forced to use a wheelchair on loan from a local medical facility that was not customized.  As a result, he developed "skin necrosis and abscess formation which required multiple surgical procedures to repair ...." and subsequently sued seeking recovery for those injuries and the replacement cost of his wheelchair.

The Court first noted that liability for negligence turns upon the foreseeability of any harm, not a particular harm and that once a prima facie case has been established, it is the province of the finder of fact to determine the legal cause of the injuries.

The Court further elaborated:

In order to establish a prima facie case, a plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury. Although there are times when [a]n interruption of the nexus between a defendant's negligence and the plaintiff's injury by the act of a third party may affect defendant's liability, the intervening act must be extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct.  When, however, the intervening act is a natural and foreseeable consequence of a circumstance created by defendant, liability will subsist...Invariably, summary judgment is appropriate where only one conclusion may be drawn from the established facts.  (Internal citations and quotations omitted.)

Accordingly, the Fourth Department held that the trial court improperly dismissed the Complaint.

The dissent disagreed and stated that:

The record establishes, however, that plaintiff sustained only minor soft tissue injuries that do not qualify as a serious injury within the meaning of Insurance Law § 5102 (d) and § 5104 (a). The record further establishes that the skin necrosis and abscess, which did not appear until approximately two months after the accident, were not related to any injury plaintiff sustained in the accident, but rather were caused by an ill-fitting replacement wheelchair. We must therefore conclude that, although the issue of proximate cause is ordinarily "for the fact finder to resolve," here the ill-fitting replacement wheelchair constituted an "independent intervening [occurrence] which operate[d] upon but [did] not flow from the original negligence".

I think that the majority is correct in regard to the foreseeability issue in this case.  But for the accident, the plaintiff's customized wheelchair would not have been destroyed, and he would not have ended up with abcesses, etc. due to the replacement wheelchair.  And, the injuries resulting from the inadequate replacement were not so outside the realm of possibility as to be unforeseeable.

However, the dissent touches upon an interesting issue regarding  whether the plaintiff's injuries (either directly resulting from the accident or from the non-customized wheelchair) constitute a serious injury.  I'm not sure of the answer, but my inclination would be that they don't.  Anyone else have an opinion either way?

Comments

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Damin J. Toell, Esq.

A determination of whether it constitutes a "serious injury" would, of course, turn on Insurance Law § 5102(d). Without knowing more about the specific impact of the "skin necrosis and abscess formation," it's not really possible to determine whether it qualifies. There were surgeries, but on what, and for what goal? Did it result in the "significant limitation of use of a body function or system"? Or perhaps it "prevent[ed] the injured person from performing substantially all of the material acts which constitute such person`s usual and customary daily activities for not less than ninety days during the one hundred
eighty days immediately following the occurrence of the injury or impairment"? Or perhaps even "significant disfigurement" beyond that which was already present?

(I could probably read the decision to figure this out, but I'm lazy right now. :) )

Anyway, suffice it to say that a simple description of the injury doesn't necessarily determine the seriousness (or lackthereof).

NBlack

The dissent simply states: "The record establishes, however, that plaintiff sustained only minor soft tissue injuries that do not qualify as a serious injury within the meaning of Insurance Law § 5102 (d) and § 5104 (a)."

I was too lazy to look at the statute when I posted, but my sense, from looking at the statute, oh, about 200+ times in the past, was that, from what I'd gleaned from the the decision, the injuries didn't cut it.

You've inspired me, Damin, to look at the statute yet again, and here it is, in its entirety: "(d) "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 than ninety days during the one hundred
eighty days immediately following the occurrence of the injury or
impairment."

I agree with your assertion that we probably don't have enough facts in re: to how much the injuries and subsequent surgeries affected the P's daily activities in order to determine whether his injuries qualified as a "serious injury."

But, based on the dissent's comment that it was simply a soft tissue injury, we can probably assume that the main issue was the severity of the injuries, as opposed to their affect on P's daily life.

If that is in fact the case, then it would seem that the injuries alone were insufficient to constitute a "serious injury."

Which makes me wonder why that issue wasn't raised in the majority's opinion since it would supercede the issue of foreseeability, wouldn't it?

Richard

The defendant probably now wishes he has hit the plaintiff harder with the bus, killing him. At least that way, the plaintiff would have been spared his painful recovery in a wheelchair that was not customized to his liking. Some people are just never satisfied.

Damin J. Toell, Esq.

While I am usually not sympathetic to people who whine about about not having every little thing their way, it seems to me that since the non-customized wheelchair led to skin necrosis and abscess formation, it was a little more than merely "not to his liking."

NBlack

I agree with you, Damin. (But, I can't tell whehter Richard was being sarcastic or serious. You never know with him! ;))

I think the facts in this case are analogous to one that I handled a whiel back wherein my client required a hip replacement due to a fall and required a longer hospital stay following the surgery due to a complications arising from bed sores.

We sought recovery for the fracture and the additional time/discomfort in the hospital due to the bed sores. The bed sores were a directly connected to the fall which caused his injuries, just as the sores in this case were, in my mind, a direct result of the accident which caused his soft tissue injuries and the damage to his customized wheel chair.

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