Analysis of the Serious Injury Threshold

Unfortunately, car accidents involving members of the New York City Police Department occur on a daily basis.

The potential exists in a variety of factual settings for members of the service to recover damages for injuries suffered in line-of-duty car accidents. Car accident victims must prove liability on the part of the other party and that the liability caused a serious injury. Police Officers’ rights to sue in automobile cases are somewhat different than the rights possessed by civilians. Although Police Officers and civilians are governed by the same “serious injury” standard to sustain a personal injury case, Police Officers have broader alternatives to sue.

Ordinary day-to-day driving on New York City streets can be treacherous. Driving an RMP while patrolling the streets of New York only enhances the danger. For the most part, RMP’s are road weary and are not properly maintained. It is routine that an “out of service” RMP be placed back into service because of the unavailability of driveable police vehicles. This fact creates a problem when RMP’s are utilized in the most exigent circumstances. Hundreds of emergency radio runs take place on any given day. Emergency radio runs create an incredible risk for the responding Officers and the general condition of the RMP’s multiplies that risk. In a line-of-duty accident, members of the service may have a claim against the City of New York if the member of the service can demonstrate that the poor condition of the vehicle was a contributing factor in the accident and the Police Department knew or should have known that the vehicle was in poor condition.

Although police officers are given extensive driver’s training, line-of-duty car accidents occur when motorists ignore the basic safety regulations (i.e., failing to stop at traffic control devices, speeding and failure to maintain a safe distance).  Line-of-duty motor vehicle accidents also occur when motorists ignore emergency lights and sirens and fail to yield to emergency police vehicles. Unfortunately, this scenario is common in the City of New York. Pursuant to Vehicle and Traffic Law Section 1144(a), motorists must yield to emergency vehicles.  If an accident occurs, the offending motorist may be liable for any injuries suffered by the occupants of the police car, even if the police vehicle had the red light. In a similar scenario, the passengers of the police vehicle may also have a claim against the City of New York, if the driver of the police vehicle was reckless in its operation. Although Vehicle and Traffic Law Section 1104 permits authorized emergency vehicles privileges to “violate” sections of the Vehicle and Traffic Law, these privileges do not include a driver’s recklessness. If the operator of an emergency vehicle is “reckless” in its operation, and an accident ensues, the passengers in the emergency vehicle may have a claim against the City of New York provided those individuals satisfy Insurance Law Section 5102(d), the definition of a “serious injury.”

Section 5102(d) of the Insurance Law defines a “serious injury” as follows:

. . . a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of 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.

The law is well settled that to make out a prima facia case that a “serious injury” has been sustained, an injured plaintiff must come forward with “competent, credible medical evidence of injury” predicated on a recent examination and the performance of objective tests.  Grossman v. Wright, 268 A.D.2d 79 (2nd Dep’t 2000); Ali v. Vasquez, 19 A.D.3d 520 (2nd Dep’t 2005).  What “competent, credible medical evidence” may form the basis of a “permanent consequential limitation of use” or a “significant limitation of use” of a body organ or member is now fairly well settled. 

First, permanent pain, even of an intermittent character, may form the basis of a “serious injury” as defined by Insurance Law Section 5102(d).  See, Dwyer v. Tracy, 105 A.D.2d 426 (3rd Dep’t 1984); Mooney v. Ovitt, 100 A.D.2d 702 (3rd Dep’t 1984); Lynch v. Adirondack Transit Lines, Inc., 169 A.D.2d 904 (3rdDep’t 1991); Bember v. Arain, 124 A.D.2d 379 (3rd Dep’t 1986); Gleissner v. LoPresti, 135 A.D.2d 494 (2nd Dep’t 1987).  Furthermore, the term “permanency” may refer to “persistent pain, or the operation of the organ, member or system in some limited way, or only with pain.”  Ottavio v. Moore, 141 A.D.2d 806 (2nd Dep’t 1987). 

However, subjective complaints of pain, even of intermittent pain, will constitute a “serious injury” only if supported by “credible medical evidence.”  Dwyer v. Tracey, supra.  Likewise, evidence of a limitation of range of motion, if it has an objective basis, may be sufficient to establish the existence of a “serious injury.”  Eng v. New Main Line Trucking Corp., 249 A.D.2d 359 (2nd Dep’t 1998); Fabiano v. Kirkorian, 306 A.D.2d 373 (2nd Dep’t 2003).

A herniated or bulging disc shown on an MRI scan may, under certain circumstances, constitute credible, “objective” medical evidence of a “serious injury.”  Toure v. Avis Rent-A-Car System, Inc., 98 N.Y.345 (2002); Flanagan v. Hoeg, 212 A.D.2d 756 (2nd Dep’t 1995); Jiminez v. Darden, 290 A.D.2d 419 (2ndDep’t 2002); Asta v. Eivers, 280 A.D.2d 565 (2nd Dep’t 2001); Hyacinthe v. U-Haul Co., 278 A.D.2d 369 (2nd Dep’t 2000); Hussein v. Littman, 287 A.D.2d 543 (2nd Dep’t 2001).  A herniated or bulging disc will constitute a “serious injury” if the damage to the disc can, through the use of an objective test, be shown to be the source of back or neck pain and/or a limitation or restriction of range of motion.  Ottavio v. Moore, 141 A.D.2d 806 (2nd Dep’t 1987); Kaiser v. Edwards, 98 A.D.2d 825 (3rd Dep’t 1983); Slack v. Crossetta, 75 A.D.2d 809 (2nd Dep’t 1980); Gonzalez v. Vasquez, 301 A.D.2d 438 (1st Dep’t 2003).

In this regard, in order for an injured plaintiff to meet his/her burden under Insurance Law Section 5102(d), it is now not enough to show that a herniated or bulging disc is the source of back or neck pain and/or a limitation of range of motion.  To establish  a “serious injury,” not only must there be an “objective”  basis for complaints of pain and restriction of motion, the “resulting limitations” in range of motion or normal daily activities must be “objectively” measured as well.  Vitale v. Lev Express Cab Corp., 273 A.D.2d 255 (2nd Dep’t 2000).  If such pain and/or limitation of range of motion is shown to be caused by a herniated or bulging disc and the resulting limitations or “related disabilities” are objectively measured, a question of fact for jury resolution has been raised and a motion for dismissal on “threshold” grounds must be denied.  Toure v. Avis Rent-A-Car, Inc., supra; Howell v. Reupke, 16 A.D.3d 377 (2nd Dep’t 2005).   A “related disability” or resulting limitation may be measured “quantitatively” (using a mechanical device such as a goniometer) or “qualitatively”(an evaluation “that has an objective basis and compares the plaintiff’s limitations to the normal function, purpose and use of the affected body organ, member, function or system”).  See, Toure, 98 N.Y.2d, supra, at 350.

In the leading case of Noble v. Ackerman, 252 A.D.2d 392 (1st Dep’t 1998), the Appellate Division, First Department explained that, “The existence of a herniated disc does not per se constitute a serious injury . . . it was still incumbent upon plaintiff to provide objective evidence of the extent or degree of the alleged physical limitations resulting from the injuries and their duration . . . subjective expressions of pain alone will not suffice to establish serious injury . . . the plaintiff must specify how the pain limits the use of a body function or organ, or affects his or her routine daily activities.”   Thus, a “serious injury” is shown where, as here, the injured plaintiff submits “a medical affidavit which demonstrates that the plaintiff’s limitations have been objectively measured or quantified . . ..” Parker v. DeFontaine-Stratton, 231 A.D.2d 412 (1st Dep’t 1996); Verderosa v. Simonelli, 200 A.D.2d 293 (1st  Dep’t 1999); Vitale v. Lev Express Cab Corp., 273 A.D.2d 225 (2nd Dep’t 2000).

Lastly, whether the limitations in range of motion or in normal daily activities caused by a herniated or bulging disc are “significant” within the meaning of Section 5102(d) presents a question of fact for jury resolution.  Lopez v. Senature, 65 N.Y.2d 1017 (1985); McCarthy v. Perault, 277 A.D.2d 669 (3rd Dep’t 2000); Rosado v. Martinez, 289 A.D.2d 386 (2nd Dep’t 2001).  In Toure, supra, the New York Court of Appeals set forth the standard which the Courts are to employ to determine whether the “statutory serious injury threshold” has been satisfied. Consistent with prior precedent, the Court in Toure, supra, stated that to meet that statutory threshold, objective proof of an injury is required; an injured plaintiff’s “subjective complaints alone are not sufficient.”  Toure, 98 N.Y.2d, supra, at 350.  The Toure Court stated that “objective proof” of an injury may consist of a herniated or bulging disc shown on an MRI scan coupled with “an expert’s designation of a numeric percentage of a plaintiff’s loss of range of motion” caused by that herniated or bulging disc. (Id.)

However, the Toure Court went on to state that to prove that an injured plaintiff sustained a “serious injury,” it is not always necessary to assign a “numeric percentage” to an injured plaintiff’s loss of range of motion; a “qualitative” assessment of the nature of the plaintiff’s limitations may also be used to establish a related disability or restriction.  In this regard, the Court of Appeals stated that, “An expert’s qualitative assessment of a plaintiff’s condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff’s limitations to the normal function, purpose and use of the affected body, organ, member and function.”  Toure, 98 N.Y.2d, supra, at 350.

Prior to Toure, supra, this Court consistently held that to establish the existence of a “serious injury,” it was always necessary for the plaintiff’s examining physician to “ascribe a specific percentage to the loss of range of motion” to an injured plaintiff’s spine.  See, Grossman v. Wright, 268 A.D.2d 79 (2nd Dep’t 2000); Forte v. Vaccaco, 175 A.D.2d 153 (2nd Dep’t 1991).  Thus, the decision of the Court of Appeals in Toure, supra, overruled  Grossman v. Wright, supra, and its progeny, to the extent that those cases require proof of a “percentage loss” to show a “serious injury.”  See, Balanta v. Stanlaine Taxi Corp., 307 A.D.2d 1017 (2nd Dep’t 2003) (“while he did not specify the percentage loss of range of motion in her shoulder, his finding of restricted range of motion was supported by objective evidence and MRI which revealed rotation cuff tendonopathy . . .”).  Accordingly, it is now no longer critical that a “specific percentage to the loss of range of motion” be attributed to the injured plaintiff’s limitations.

Thus, in Toure, supra, the Court of Appeals stated that while the plaintiff’s physician did not “ascribe a specific percentage to the loss of range of motion in the plaintiff’s spine,” he sufficiently described the “qualitative nature” of the plaintiff’s limitations.  That “qualitative description” consisted of the plaintiff’s physician’s opinion that the plaintiff’s difficulty sitting, standing or walking for extended periods were a “natural and expected medical consequence of his injuries.”  Again, the Toure plaintiff’s injuries consisted of one bulging and two herniated discs.  Toure, 98 N.Y.2d, supra, at 350.

It is difficult to ascertain in the early stages after a line-of-duty car accident whether an Officer has a “serious injury” to satisfy the threshold of Insurance Law Section 5102(d). In soft tissue cases, the determination of whether a case meets this serious injury threshold substantially rests with the results of medical treatment and testing. Department procedure dictates that all line-of-duty treatment and testing must be authorized by the New York City Police Department Medical District. At times, members of the service are paralyzed from pursuing injury claims when the District Surgeon does not authorize the necessary testing to determine whether an Officer’s injuries qualify as a “serious injury” under the Insurance Law.  Without the necessary treatment and testing, it is difficult to litigate a personal injury case.

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