Monday, March 25, 2013

Oberly v. Bangs Ambulance, Inc. case brief

Oberly v. Bangs Ambulance, Inc. case brief
751 N.E.2d 457 (N.Y. 2001)

SYNOPSIS: Plaintiffs, dentist and his wife, sued defendant ambulance company for personal injuries, and alleged defendant's negligence caused a pump to fall on plaintiff dentist during his ambulance ride as a patient. Plaintiffs alleged a serious injury under the No-Fault Law, N.Y. Ins. Law § 5102(d). An Appellate Division (New York) order affirmed dismissal of plaintiffs' suit for lack of evidence of a serious injury. Plaintiffs appealed.

OVERVIEW: Plaintiffs abandoned other serious injury standard exceptions of § 5102(d), which included "permanent consequential limitation of use of a body organ or member," to permit the plenary action in tort. Plaintiffs alleged that limitation of the use of his arm qualified as "permanent loss of use of body member, body function and body system" under § 5102(d). The appellate court agreed with that allegation, but found that plaintiff had not proven the "permanent loss of use."

Plaintiff contended that proof was not required since his limitation was permanent.

The appellate court finessed the latter issue by holding that, while the appellate division had properly affirmed dismissal, it improperly engrafted the term "partial" to the "loss of use" standard.

-Because both the "permanent consequential limitation of use" standard and the "loss of use" standard required a permanent injury, and because there was no qualitative difference between a partial "loss of use" and a "limitation of use," engrafting the term "partial" created a redundancy.
-The court of appeals held that to qualify as a serious injury within the meaning of § 5102(d), "permanent loss of use" was to be total.

OUTCOME: The court of appeals affirmed the order.

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