Judges Opinions, — July 13, 2016 9:58 — 0 Comments

Sotolongo vs. Rosado and Alamo-Baez No. 2013-00837

Civil Action-Law-Negligence-Motor Vehicle Accident-Motion for Summary Judgment-Causation-Injuries-Vehicle Insurance-Limited Tort-Noneconomic Loss-Serious Impairment of Body Function-Negligent Entrustment

Plaintiffs filed a Complaint in negligence against Defendants, alleging that Plaintiff Roberto Sotolongo, Jr., (“child”) sustained a fractured clavicle in a motor vehicle accident in which he was a backseat passenger in a vehicle driven by Defendant Rosado and owned by Defendant Alamo-Baez when Defendant Rosado. Defendants filed a Motion for Summary Judgment, asserting that Plaintiffs are unable to prove that the child sustained any injury as a result of the accident, noneconomic damages cannot be recovered on behalf of the child because his parents elected limited tort insurance coverage and Plaintiffs cannot sustain their claim of Negligent Entrustment because there is no evidence that Defendant Alamo-Baez should have known Defendant Rosado would drive negligently at the time of the accident.

1. When faced with a motion for summary judgment, the nonmoving party is required to come forward with evidence to support its position that a genuine issue of material fact remains.

2. The issue of causation with regard to a negligence claim is a question of fact for the jury.

3. In a personal injury case where there is no obvious causal relationship between the accident and the injury, unequivocal medical testimony is necessary to establish a causal connection.

4. Where the facts presented indicate a possibility that medical personnel who attended to the child on the date of the accident may have missed the injury and the child behaved as if he were hurt after the accident according to observations of the child’s family members, the question of whether the child sustained the fractured clavicle during the accident generally is a factual question to be resolved by the jury.

5. However, on a Motion for Summary Judgment alleging no evidence of causal link between the accident and the alleged injury, Plaintiffs must provide a response to the Motion for Summary Judgment, including medical evidence of a causal link between the alleged injuries and the accident.

6. Under the limited tort insurance option, a person subject to that coverage is unable to recover for noneconomic loss unless he or she has suffered a serious injury. 75 Pa.C.S. § 1705(d). A serious injury is a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement 75 Pa.C.S. § 1702.

7. In determining whether impairment of body function is serious, the extent of the impairment, the length of time the impairment lasts, the treatment required to correct the impairment and any other relevant factors should be considered. An impairment need not be permanent to be serious. The focus is not upon the actual injury, but on how the injury affected a particular body function.

8. Although the issue of whether an injury is a serious injury usually is a question for the jury, it is appropriate for the court to make the determination when reasonable minds cannot differ as to the issue.

9. Based upon the description of the injury set forth in the record, the child’s injury is not the type of imperfection that would qualify as serious disfigurement so as to allow the recovery of noneconomic damages in an individual subject to limited tort insurance coverage.

10. It is negligence to permit a third person to use an object or to engage in an activity that is under the control of the actor if the actor knows or should know that such person intends or is likely to use the object or to conduct himself or herself in such a manner so as to create an unreasonable risk of harm to others.

11. In order to show that the owner knew or should know that a third person intends or is likely to use motor vehicle to conduct himself in an activity that creates an unreasonable risk of harm to others, a plaintiff must show that the owner had some reason to question the third person’s use of the vehicle, such as if the person to whom the vehicle has been entrusted does not have a valid driver’s license, is intoxicated or has a reputation as an unsafe driver as shown by prior accidents or citations.

12. Where Plaintiffs came forward with no evidence that would cause Defendant Alamo-Baez to know that Defendant Rosado would drive carelessly at the time of the accident, the action for Negligent Entrustment cannot be sustained.

L.C.C.C.P. No. 2013-00837, Opinion by John C. Tylwalk, President Judge, April 25, 2016.

Self-represented Litigants for Plaintiffs

Paul Grego, Esquire, for Defendants

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA CIVIL DIVISION NO. 2013-00837

ROBERTO SOTOLONGO, JR., a Minor by and through his Natural parents and guardians, ALIDA DELVALLE AND AND ROBERTO SOTOLONGO

v.

EDNA DEJESUS ROSADO, MELVIN JOSUE ALAMO-BAEZ

ORDER OF COURT

AND NOW, this 25th day of April, 2016, upon consideration of Defendants’ Motion for Summary Judgment, the Brief submitted in support thereof, and Oral Argument, the following is the Order of this Court in accordance with the accompanying Opinion:

1. Defendant’s Motion for Summary Judgment as to Count I of the Complaint in No. 2013-00837 is DENIED. However, Plaintiffs are Ordered to provide Defendants with an expert medical report as to causation with regard to the injuries sustained by the minor Plaintiff, Roberto Sotolongo, Jr., within thirty (30) days of this Order. Upon Plaintiffs’ failure to provide such a report to Defendants, this action will be dismissed upon Defendants’ application to the Court.

2. Defendants’ Motion for Summary Judgment as to Plaintiffs’ claim for non-economic damages on behalf of the minor Plaintiff Roberto Sotolongo, Jr. in No. 2013-00837 is DENIED. However, Plaintiffs are Ordered to provide Defendants with an expert medical report in support of their position that minor Plaintiff Roberto Sotolongo, Jr. sustained a “serious injury” within the meaning of 75 Pa.C.S.A. §1705(d) as alleged in the Complaint within thirty (30) days of this Order. Upon Plaintiffs’ failure to provide such a report to Defendants, Plaintiffs’ claim for non-economic damages on behalf of the minor Plaintiff Roberto Sotolongo, Jr. will be dismissed upon Defendants’ application to the Court.

3. Defendants’ Motion for Summary Judgment as to Count II of the Complaint in No. 2013-00837 is GRANTED.

BY THE COURT:

JOHN C. TYLWALK, P.J.

APPEARANCES:

ROBERTO SOTOLONGO, JR., A Minor SRL

By and through his Natural Parents

And Guardians, ALIDA DELVALLE and

ROBERTO SOTOLONGO

PAUL GREGO, ESQUIRE FOR EDNA DEJESUS ROSADO

AND MELVIN JOSUE ALAMO-BAEZ

OPINION, TYLWALK, P.J., APRIL 25, 2016.

This is a Motion for Summary Judgment in No. 2013-00837. The Complaint alleges that the minor Plaintiff, Roberto Sotolongo, Jr. (“Roberto, Jr.”), was a backseat passenger in a vehicle driven by Defendant Edna DeJesus Rosado (“Rosado”) and owned by Defendant Melvin Josue Alamo-Baez (“Alamo-Baez”) which was involved in an accident at Prescott Road and King Street on August 11, 2011. It is alleged that Rosado ran a stop sign on King Street, the vehicle collided with another vehicle in the intersection, and that Roberto, Jr. sustained a fractured clavicle as a result. Roberto, Jr.’s mother, Alida, was also in the vehicle and sustained injuries. Plaintiffs allege negligence against Rosado and negligent entrustment against Alamo-Baez.

The Motion for Summary Judgment was filed with this Court on October 8, 2015 and the Certificate of Service indicates that it had been mailed to Plaintiffs’ counsel on October 7, 2015. On October 7, 2015, Plaintiffs’ counsel had filed a petition to withdraw his appearance in this case. In his petition, Plaintiffs’ counsel indicated that the Plaintiffs had advised him that they were looking for another attorney. After a Rule was issued and Plaintiffs failed to respond, Plaintiffs’ counsel was permitted to withdraw by Order dated December 14, 2015. No other attorney has entered an appearance on Plaintiffs’ behalf and Plaintiffs have taken no action with regard to the Motion for Summary Judgment. Defendants note that although the Motion for Summary Judgment was served on Plaintiffs’ counsel prior to his withdrawal from the case, Plaintiffs were served with all notices regarding the listing of this matter for argument, including the briefing schedule and the date of oral argument.

Defendants seek summary judgment on three issues. They seek dismissal of the negligence claim in Count I, arguing that Plaintiffs are unable to prove that Roberto, Jr. sustained any injury as the result of the accident. If the negligence claim is not dismissed, Defendants argue that non-economic damages cannot be recovered on behalf of Roberto, Jr. because his parents elected limited tort coverage in their auto insurance policy. Finally, Defendants contend that Plaintiffs are unable to establish their claim of negligent entrustment in Count II because there is no evidence that Alamo-Baez should have known Rosado would have driven negligently on the date of this accident.

Negligence

Defendants first argue that Plaintiffs cannot prove their negligence claim as they are unable to prove Roberto, Jr. sustained any injury as a result of the accident. The documents provided by Defendants with their Motion indicate that Roberto, Jr. was checked by EMTs at the scene of the accident, but was not provided with any treatment. He was taken to Good Samaritan Hospital emergency room immediately after the accident; however, no problems were found and he was discharged with no limitations and with no medications. A week later, on August 18, 2011, he returned to the emergency room with his father, Roberto, Sr., who reported that Roberto, Jr. had hit his shoulder when he ran into a door frame a day earlier. At that time, it was noted that Roberto, Jr. was complaining of pain in the clavicle and he was unable to raise his arm above his head without pain. Plaintiffs claim that this injury was sustained in the automobile accident.

Defendants argue that Plaintiffs’ explanations for this course of events are unsatisfactory and contradictory. Alida, Roberto, Jr.’s mother, was admitted to the hospital on the day of the accident. Roberto, Sr. and Roberto, Jr.’s grandmother (who was staying in the home immediately after the accident) did not know that Roberto, Jr. had been injured. In his deposition, Roberto, Sr. claimed that he was not focusing on Roberto, Jr. immediately after the accident due to his wife’s injuries, but that he later began to notice that the boy was crying, could not move his arm, and claimed to be in pain.

Alida claims that she was in the hospital for six days after the accident and did not see observe her son during that time. She claims that the grandmother told her that the boy was not eating, was crying and hiding under the bed, and would not let his father or grandmother take care of him. She noticed her son’s injuries when he was brought to the hospital to see her on August 18, 2011. She saw that he was “slim” from not eating and that he winced when she took his arm. When she had him take his shirt off, she saw a bone protruding. She then had Roberto, Sr. take the boy directly to the emergency room.

Defendants claim that Alida’s testimony is contradicted by her own medical records which indicate that she was discharged on August 13, 2011, two days after the accident, and that she was actually in the home during the time before Roberto, Jr. returned to the emergency room. Also, at his deposition, Roberto, Sr. could not explain why he made the statement about the door frame. Defendants note that when a witness’ testimony is clearly not credible, such as when it directly contradicts a fact, as contained in minutes of a meeting, etc., a court may disregard it as opposition to a motion for summary judgment, citing Stephen v. Paris Cleaners, Inc., 885 A.2d 59 (Pa. Super 2005); Gruenwald v. Advanced Computer Applications, Inc., 730 A.2d 1004 (Pa. Super. 1999), and Lucera v. Johns-Manville Corp., 512 A.2d 661 (Pa. Super. 1986). Defendants therefore argue that the contradictory evidence provided by Alida and Roberto, Sr. should be disregarded and that it is clear that Roberto, Jr.’s injuries were not causally related to the accident.

The issue of causation with regard to a negligence claim is a question of fact for the jury. Flickinger’s Estate v. Ritsky, 305 A.2d 40 (Pa. 1973). Here, the facts indicate a possibility that the medical personnel who attended to Roberto, Jr. on the date of the accident missed his injury. Also, it does appear that the boy was behaving as if he was hurt after the accident according to the observations of the child’s father and grandmother. The fact that he ran into a door afterward does not necessarily mean that the injury happened then. Thus, whether the boy sustained the fractured clavicle during the accident is a factual question which should be resolved by the trier of fact. The matter of Alida’s possibly inaccurate statements regarding the length of her hospital stay and Roberto, Sr.’s inability to explain the door frame story go to the credibility and the weight, if any, to be given to their testimony. These assertions do not necessarily negate the allegations that the injury occurred as a result of the accident.

When faced with a Motion for Summary Judgment, the non-moving party is required to come forward with evidence to support its position that a genuine issue of material fact remains. Pa.R.C.P. No. 1035.3. Pennsylvania law is clear that in a personal injury case when there is no obvious causal relationship between the accident and the injury, unequivocal medical testimony is necessary to establish the causal connection.” Albert v. Atler, 381 A.2d 459 (Pa. Super. 1977). Plaintiffs have failed to respond to the Motion or to provide any documentation to support their assertion of a causal link between Roberto, Jr.’s injuries and the accident.

Normally, we would enter judgment against a party for failing to respond or provide documentation to support such a claim. However, we are concerned with the timing of the filing of the Motion for Summary Judgment here and the withdrawal of Plaintiffs’ formal counsel from this case. Defendants served Plaintiffs’ counsel with the Motion, but he took no action to protect Plaintiffs’ position. Although Plaintiffs were served with notices regarding the disposition of the Motion once their counsel was permitted to withdraw, there is no indication that they had ever received or knew of the Motion previously such that they would have reason to understand the meaning of the Notices. For that reason, we will grant Plaintiffs thirty (30) days from the date of the Order accompanying this Opinion to provide Defendants with medical evidence of a causal link between Roberto, Jr.’s injuries and the automobile accident involved in this case. If Plaintiffs fail to produce such documentation, Defendant may make application to the Court for dismissal of the negligence claim.

Damages

Defendants next argue that Plaintiffs are unable to recover non-economic damages for Roberto, Jr. due to their selection of limited tort auto coverage. They reason that, even if Roberto, Jr. sustained the fractured clavicle during the accident, this is not a serious injury sufficient to pierce the limited tort threshold.

We agree that Roberto, Jr. is bound by his parents’ selection of the limited tort option. Under 75 Pa.C.SA. §1705(d), he cannot recover for non-economic loss unless he has suffered a “serious injury.” A “serious injury” is a “personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” 75 Pa.C.S.A. §1702. Although this is usually a question for the jury, it is appropriate for the court to make the determination when reasonable minds cannot differ as to this issue. Washington v. Baxter, 719 A.2d 733, 740 (Pa. 1998).

Generally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment. In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious. Washington v. Baxter, supra. The focus is not on the actual injury, but on how it affected a particular body function. Id.

In Alida’s deposition, she stated that Roberto, Jr. went to three doctor visits over a three-month period, wore a brace during that time, and took over-the- counter anti-inflammatory medicine. She also claimed his doctor restricted him from attending school for fifteen days. Defendants point out that this testimony is contradicted by Roberto, Jr.’s medical records which indicate that his treatment lasted only one month, beginning with his emergency room visit on August 18, 2011, and his last orthopedist appointment being September 20, 2011. After his first orthopedist visit on August 30, 2011, he no longer required his brace and he was permitted to return to normal activities since he could move his arm with very little discomfort. There was no note indicating he should not return to school and the records contain a notation that there should be no growth or functional problems.

We agree with Defendants that Plaintiffs have failed to provide proof that Roberto, Jr.’s injury rises to the level of a serious injury as a matter of law as they have failed to provide any medical evidence in this regard. Our review of the materials submitted with this Motion reveals that Roberto, Jr. did not require extensive medical treatment for his clavicle and that he received medical attention for a relatively short period of time. There is no evidence of a permanent impairment of his range of motion or the use of this area of his body and it appears that he suffered only temporary minor inconvenience. There is no documentation to support Alida’s contention that he was required to miss school and it appears that he was able to return to his normal activities by the time of his first orthopedic appointment, which was within approximately three weeks after the accident. Based on the evidence presently before us, we agree that reasonable minds could not differ that Roberto, Jr. did not sustain a serious impairment of a bodily function.

We also agree that the record is void of evidence that Roberto, Jr. suffered a permanent serious disfigurement. A “hardly discernible” scar is not the type of injury for which the legislature intended to allow recovery. Walsh v. Phillips, 38 D. & C. 4th 178 (C.C.P. Bucks Cnty. 1997). The seriousness of a scar is a matter of common knowledge and experience and may be determined by the trial court initially. Id. For example, it has been found that a four-centimeter laceration to the right inner leg and a four-inch incision four inches below a plaintiff’s armpit, areas which are usually covered by clothing, are not permanent serious disfigurements. See, Reidinger v. Linebaugh, 35 D. &. C. 4th 78 (C.C.P. Lancaster Cnty. 1998).

In this case, Defendants did nothing to defend against this Motion and we have not been given the opportunity to view Roberto, Jr. in person or in photographs. However, it is alleged that he has a bump around the clavicle area, although it is usually covered by clothing. Based on this description, we would agree with Defendant that this is not the type of imperfection which would qualify as a serious disfigurement such that the recovery of non-economic damages would be appropriate. However, since we are affording Plaintiffs additional time to establish proof of a causal relationship between Robert, Jr.’s injuries and the accident alleged in the Complaint, we will afford him the same amount of time to produce evidence of a permanent serious impairment or disfigurement. Thus, we will deny Defendant’s Motion on this issue at this time and permit Plaintiffs to provide additional proof within thirty (30) days. Plaintiffs’ failure to produce such proof will result in dismissal of any claim for non-economic damages upon Defendant’s application to the Court.

Negligent Entrustment

Defendants also claim that Plaintiffs are unable to establish their negligent entrustment claim against Alamo-Baez. Pennsylvania has adopted the Restatement (Second) of Torts with regard to this cause of action:

It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in such a manner as to create an unreasonable risk of harm to others.

Restatement (Second) of Torts §308 (1965). In order to show that the owner knew or should know that the third person intends or is likely to use a thing or to conduct himself in an activity which creates an unreasonable risk of harm to others with regard to the use of motor vehicles, a plaintiff must show that the actor had some reason to question the third person’s use of the vehicle. For example, such a cause of action may be pursued if a person to whom a vehicle has been entrusted does not have a valid license, 75 Pa.C.S.A. §1574, is intoxicated, Corgini v. Portersville Valve Company, 470 A.2d 515 (Pa. 1983), or has a reputation as an unsafe driver shown by prior accidents and/or citations. Moore v. McMillian, 14 D. & C. 3d 302 (C.C.P. Phila. 1980).

Here, Plaintiffs failed to allege or come forward with any evidence that Alamo-Baez negligently permitted Rosado to operate his automobile at the time of the accident for Plaintiffs have shown nothing which would have caused him to know that Rosado would drive carelessly that day. The discovery submitted with this Motion reveals that Rosado was a licensed driver and had consumed no illegal drugs, alcohol, or medication during the eight hours preceding the accident. She was not under any physical or mental disability. Thus, Plaintiffs will be unable to establish this cause of action against Alamo-Baez, and we will enter judgment in his favor.

1) Complaint, Counts I and II, respectively.

 

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