Cavanaugh v. MorrisCavanaugh v. Morris
This is another verbal threshold case in which an injured passenger, plaintiff Danay Cavanaugh, whose husband Thomas Cavanaugh sues per quod, appeals from a summary judgment dismissing her complaint. We reverse.
Since the Supreme Court‘s decision in Oswin v. Shaw, 129 N.J. 290, 609 A.2d 415 (1992), this court has been besieged with appeals by automobile accident victims whose complaints have been dismissed by summary judgment on the ground that they have failed adequately to demonstrate that their soft tissue injuries meet the statutory standards of
On May 1, 1989, plaintiff, then not quite nineteen, was a passenger in a truck driven by her husband which was struck in the rear by a vehicle operated by defendant Stephen J. Morris. Her head struck a metal grating behind her seat and her right knee struck the passenger door. Complaining of blurred vision, severe headache, left shoulder and right leg pain, and numbness in her left hand, she was transported by ambulance to a hospital emergency room. X-rays were negative for fracture and she was released with instructions to rest and to obtain follow-up medical treatment. Because of frequent residential moves, she treated with several different primary physicians in an effort to obtain relief from her frequent prolonged severe headaches, neck and back pain, numbness and resulting weakness in her hand, and continuing problems with her knee, which she claims to have been exacerbated by a later fall caused by her knee and hip having locked, a consequence of the original injury.
Plaintiff‘s first physician, who saw her during the month following the accident, diagnosed “cervical sprain/strain, dorsal and lumbar spine somatic dysfunction, and left thoracic outlet syndrome.” A neurological consultation a year after the accident resulted in a diagnosis of “chronic strain and sprain injury involving the cervical, dorsal and lumbosacral paraspinal musculature” and “post traumatic headache disorder.” A follow-up examination by the neurologist in July 1990 reported “persistent paracervical
In her deposition taken in January 1992, plaintiff described her present symptoms as chronic pain in her right knee, hip, upper back and neck as well as a problem holding on to things with her left hand. She testified that her headaches were “under control” and that her main problems were with her hip and knee. With respect to the effect of these physical problems on her life, she testified that she is no longer employed outside her home. She explained that
I used to be a waitress before my accident and I can no longer — at least I feel I can no longer stand on my feet for more than three hours without feeling pains in my knee, my hip and my lower back. I have to vary from standing to sitting, to standing. I cannot stand no more than three, four hours at a time without experiencing pain.
She also testified that her injury and its sequelae had a continuing adverse effect on her sex life. Not only does she “get sharp stabbing pains through my hip,” but also “just sex in general is, how can I say, uncomfortable most of the time. My sex drive with my husband has decreased drastically from when we first met.”
We are satisfied that the report of continuing spasm long after the accident meets Oswin‘s objective medical-evidence requirement. See, e.g., Owens, supra. The medical reports also support the requisite causal relationship between the injury and the asserted resulting disability. Nor do we have any doubt that the asserted effect of the disability on plaintiff‘s employment capacity and marital relations would permit a jury to conclude that a serious impact resulted. We do not suggest that a jury would be compelled to make any of these findings in plaintiff‘s favor. We hold only that the showing on the summary judgment motion provided an adequate basis on which a jury could make favorable
We add only that the Legislature‘s verbal threshold scheme patently did not intend to exclude all soft tissue injuries. The trial courts must carefully scrutinize the plaintiff‘s proofs offered in opposition to a summary judgment motion in the light of Oswin and the subsequently developing jurisprudence fairly to determine whether the claim for noneconomic loss may continue.
The summary judgment appealed from is reversed and the matter is remanded to the trial court.