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McClelland v. Tucker

Decided: May 18, 1994.

LILLIAN MCCLELLAND, PLAINTIFF-RESPONDENT,
v.
ROBERT TUCKER AND MITTIE GRAY, DEFENDANTS-APPELLANTS.



On appeal from Superior Court, Law Division, Essex County.

Before Judges Muir, Jr., Thomas and Levy.

Levy

The opinion of the court was delivered by LEVY, J.S.C. (temporarily assigned).

Defendants appeal from a jury verdict awarding damages of $30,000 to plaintiff for personal injuries sustained in an automobile accident. Prior to trial, defendants admitted liability, leaving only damages to be determined by the jury. Plaintiff admits she is subject to the verbal threshold and may only recover for noneconomic losses if her personal injuries fit into one of the nine specified categories of N.J.S.A. 39:6A-8a. Defendants claim the jury instructions were erroneous and the verdict was against the weight of the evidence. We agree the jury instructions were erroneous and reverse for a new trial.

On April 2, 1989, plaintiff was a passenger in a car operated by defendant Robert Tucker. As the two drove through Newark, they collided with a car operated by defendant Mittie Gray. The accident caused plaintiff's right arm and shoulder to hit the passenger side door. Plaintiff felt no pain after the accident. That night she took a Tylenol and went to bed. The next morning plaintiff felt pain in her arm, neck and lower back. She went to the hospital where she was x-rayed, given pills for the pain and told to see her personal physician. A few days later, plaintiff went to see a doctor who again x-rayed these areas. He placed heat packs on her neck, arm and back; plaintiff received these treatments, in addition to physical therapy, for three months. No subsequent treatments were received and plaintiff sought no additional medical services.

Plaintiff filed an action against Tucker and Gray seeking damages for her soft tissue injuries. Plaintiff claims the injuries have a serious impact upon her life. Plaintiff alleges she can no longer do housework, nor can she lift her two year old grandson. Further, because carrying dishes caused back pain, her employer of 20 years changed her position from waitress to cashier. Plaintiff never missed a day at work on account of her injury, and the

change in position did not affect her salary; she claimed at oral argument, however, she no longer received tips, but there is no testimony to support this claim.

Plaintiff's doctor testified his initial examination revealed a flattening of the cervical curve indicating muscle spasm. There was hardness of the posterior cervical muscles and trapezoid and inner scapular muscles indicating spasm, restriction of motion and pain. Plaintiff also experienced swelling at the top of the elbow with pain on pressing. As to her lower back, plaintiff demonstrated a flattening of the normal spinal curvature with hardness, pain and limitation of motion.

After six weeks of treatment, a thermogram was performed on plaintiff's back and neck. The results, which were introduced at trial, "suggested" sensory root irritation in the neck at C5, C6, C7 and C8 and nerve root irritation in the lower back at L3, L4, L5 and S1 indicating a disc disfunction.

Upon plaintiff's final examination, she still complained of intermittent neck and back pain. The doctor found the back and neck had a normal curve and there was not as much spasm or tenderness; there was some limited range of motion. Her elbow was normal. In the doctor's opinion, plaintiff's injuries related to the accident and her condition was permanent. He indicated these injuries could ultimately lead to an inability to work.

Based upon an examination of plaintiff and review of her doctor's reports, defendant's physician found that plaintiff's back and neck had a normal cervical curve and both exhibited full mobility. Although plaintiff may have sustained temporary soft tissue injury, this doctor found no objective evidence to document her current subjective complaints and concluded plaintiff did not sustain any permanent injury. In his view, there was no medical reason why she could not work as a waitress or lift her grandchild.

I. Pretrial and Trial Motions

Defendants' pretrial motion for summary judgment and motion for involuntary dismissal at the Conclusion of the plaintiff's case

were denied, as was a motion for judgment made at the end of the trial. On appeal, defendants challenge these three rulings. Each motion was based on defendants' contentions that plaintiff failed to proffer credible objective medical evidence to support a claim under the verbal threshold, and that plaintiff failed to prove her injuries had a serious impact on her life. Oswin v. Shaw, 129 N.J. 290, 318, 609 A.2d 415 (1992) requires such proof for recovery of damages when the insured has selected the verbal threshold option.

As to the motion for summary judgment, the standard of review on appeal is the same as that before the trial court: whether there is a genuine issue as to a material fact and whether the moving party is entitled to an order as a matter of law. When the motion concerns the verbal threshold, the court is to decide whether the medical evidence shows that plaintiff's injuries fall within at least one of the nine categories, and if so, whether the credible, objective medical evidence demonstrates a material dispute of fact regarding the nature and extent of plaintiff's injuries. Additionally, there must be some evidence that plaintiff's injuries had a serious impact on her life. Similarly, when we review rulings made during trial on dispositive motions, we are concerned with whether the evidence, together with legitimate inferences that can be drawn from the evidence, sustains a judgment in favor of the non-moving party, here the plaintiff. R. 4:46-2; R. 4:37-2(b); R. 4:40-1.

Plaintiff's physician, Dr. Meyers, initially observed muscle spasm while examining her cervical spine; he heard her subjective complaints indicating a restricted range of motion of her neck, right arm and back. Dr. Meyers also observed a swelling and tenderness of her elbow, causing reduced range of motion. From these objective and subjective observations and the abnormal results of a thermogram of plaintiff's neck and back, he concluded she had muscle injuries. After a subsequent examination, he noted ...


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