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May 15, 2006


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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).


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

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?


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."


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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