In Perl v. Meher, et al. (Court of Appeals, November 22, 2011), the Court of Appeals had the opportunity to readdress the various categories of "serious injury" as defined by the Insurance Law in three cases. Notably, the Court of Appeals discusses the evidence needed by a plaintiff to establish a "serious injury" under the category of "significant limitation of use of a body function or system." In two of the cases, the defendants moved for summary judgment seeking to have the plaintiff's claim of "serious injury" under this category dismissed.

In response, the court held that the plaintiff raised an issue of fact in response by offering evidence that the plaintiff's loss of range of motion was substantiated by a qualitative and quantitative assessment of the plaintiff's injury. The treating physician in both cases initially recorded the plaintiff's symptoms in qualitative terms, but not specific, quantitative measurements. The defendants argued that in failing to provide quantitative measurements of loss of range of motion contemporaneously with the examination was fatal to the plaintiff's opposition to the defendant's motion.

The Appellate Division sided with the defendants and affirmed the granting of their motions for summary judgment at the trial courts in this regard. The Court of Appeals reversed, rejecting a rule "that would make contemporaneous quantitative measurements a prerequisite to recovery." The Court of Appeals held that if they were to uphold such a rule, potential plaintiffs would be penalized for failing to seek out, immediately after being injured, a doctor "who knows how to create the right kind of record for litigation. A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries."

CPLR §5003-a allows a plaintiff to take a judgment against a defendant when a settlement is reached if the plaintiff properly tenders to the defendant a general release and stipulation of discontinuance. When the tender is made, the defendant must pay the settlement or the plaintiff can take a judgment in the amount of the settlement if the payment is not made within 21 days of the tender. In Tenzca v. St. Elizabeth Medical Center (4th Dept., September 30, 2011), the Appellate Division, Fourth Department dealt with the application of this statute in the presence of an acknowledged Medicare subrogation right.

In Tenzca, the court held that the plaintiff satisfied his obligations pursuant to CPLR §5003-a by tendering a general release and stipulation of discontinuance to defense counsel. The general release acknowledged the existence of a Medicare "lien" (sic.) and provided that a portion of the settlement would be paid to Medicare for the purpose of satisfying the subrogation right. The parties thereafter agreed that the defendant was permitted to withhold $50,000 of the settlement to satisfy the Medicare subrogation right.

The trial court entered a judgment at the plaintiff's request for the settlement amount when the defendant did not pay within 21 days of tender and the defendants moved to vacate the judgment. The trial court denied the defendant's motion to vacate the judgment. The Appellate Division, Fourth Department affirmed the trial court's holding that the plaintiff fully complied with CPLR §5003-a and the stipulation of the settlement. Therefore, the trial court was correct in denying the motion to vacate the judgment and the defendants would be ordered to pay costs, disbursements, and interest on the judgment.

In Barnhard v. Cybex International, Inc. (4th Dept., November 18, 2011), the plaintiff commenced an action seeking damages for injuries she sustained when an exercise machine tipped over and fell on top of her, breaking her neck and rendering her a quadriplegic. The plaintiff was employed as a physical therapist assistant and was working with an assigned patient when she was injured. The plaintiff stood on the weight-stack side of a piece of exercise equipment, put her hands on top of it and pulled on it in order to stretch her arms and shoulder. The machine, which weighed in excess of 600 pounds, was not secured to the floor and toppled onto the plaintiff. The machine was manufactured by Cybex International, Inc. Following trial, the jury apportioned liability for the accident 75% to Cybex, 20% to the plaintiff's employer, and 5% to the plaintiff. The jury awarded the plaintiff $8 million for past pain and suffering, $25 million for future pain and suffering, $1.7 million for medical expenses, $28.6 million for future medical expenses, nearly $2 million in lost earnings, and $792,000 for future care of potential children. The Appellate Division, Fourth Department, on appeal, set aside the entire award of damages for future care of potential children as it was based entirely upon speculation. The court also held that the jury's awards for past and future pain and suffering deviated materially from what would be reasonable compensation and reduced the award for past pain and suffering to $3 million and the award for future pain and suffering to $9 million.

In Hughes v. Murnane Building Contractors, Inc. (4th Dept., November 18, 2011), the plaintiff was injured in the course of his employment as a security guard at a construction site. The project involved the installation of a large pipe into a trench that was 1,200 feet long and 40 feet deep. While working the evening shift, the plaintiff was injured when he responded to a call on his cell phone from an employee of the excavation subcontractor on the project who had fallen from an extension ladder into the trench.

The plaintiff testified that the injured employee begged him for help and told him to come to the scene of the injury. The plaintiff climbed down a stair tower to reach the trench floor and walked toward an excavator in the area where he thought the employee was located. While walking on the trench floor, the plaintiff sank into the mud and was injured as he pulled himself out of the mud. After escaping the mud, the plaintiff walked back up to the stair tower and discontinued any efforts to assist the injured employee. The injured employee subsequently removed from the trench by emergency responders.

The plaintiff alleged that the general contractor and property owner's negligence caused the excavation subcontractor's employee to fall into the trench, which, in turn, caused the plaintiff to attempt to rescue him. Thus, the plaintiff alleged that the defendants were liable for their negligence towards the injured employee. The Appellate Division affirmed the ruling of the trial court that denied the parts of the defendants' motions for summary judgment dismissing the common law negligence cause of action because the defendants failed to meet their initial burden in establishing that the "danger invites rescue" doctrine was inapplicable. The defendants contended that the doctrine did not apply because the plaintiff could not have reasonably believed that the injured employee was in imminent peril when the plaintiff descended into the trench to attempt to rescue him and because the plaintiff's rescue attempt was unreasonable. The Appellate Division rejected those contentions and held that the plaintiff's belief that the injured employee was in imminent danger was not unreasonable as a matter of law. Further, the court also held that the rescue doctrine is not rendered inapplicable where the plaintiff's rescue attempts fail.

Prepared by Michael M. Chelus