Scheer v. Koubek , 511 N.Y.S.2d 435 ( 1987 )

Main, J.

Appeal from an amended judgment of the Supreme Court (Keniry, J.), entered February 14, 1986 in Saratoga County, upon a verdict rendered in favor of plaintiff.

In the early afternoon of August 11, 1983, plaintiff was operating a motor vehicle in the Town of Halfmoon, Saratoga County, when the vehicle was struck from the rear by a motor vehicle owned and operated by defendant. The force of the collision was such as to propel the vehicle plaintiff was driving forward and off the highway. While plaintiff felt no immediate serious effects from the accident, the following morning she experienced severe neck, shoulder and left arm pain, and was driven to CHP medical center in Albany County by her husband where she was treated and fitted with a cervical collar and given medication. She subsequently developed back pains. After an extended period of treatment with but minimal improvement, plaintiff commenced this action against defendant, contending that his negligence caused the accident and her resulting permanent injuries.

After trial, the jury found that defendant was 73% to blame for the accident and also determined that plaintiff sustained significant limitation of use of a body organ, member, function or systems (see, Insurance Law § 5102 [d]). This appeal ensued. While other issues are raised, defendant’s primary argument is that the trial court erred when it denied defendant’s motion for a directed verdict by reason of plaintiff’s failure to prove that she sustained a serious injury as a result of the accident. We do not agree.

At trial, plaintiff testified that for eight days following the accident, she did not report for work but rested at home because of severe pain to the neck, shoulders and back with accompanying headaches. Because these complaints continued, on August 19, 1983 she consulted with and came under the care of Dr. John Graham, a duly licensed chiropractor, who continuéd to treat plaintiff up until the time of the trial but on a much less frequent basis for the year and a half prior to trial. Early in her treatment, plaintiff was advised against working at her job as a waitress, but she testified that for economic reasons she felt compelled to work and did so with few exceptions. Plaintiff testified that she still has periodic episodes of extreme pain in spite of the fact that her present job is not as physically strenuous. Graham testified that upon his original examination he found severe trauma to the vertebrae which resulted in inflammation of the nerves in the cervical area. According to Graham, X-ray films taken about three months after the accident revealed a straightening of the cervical curve and increased dimensions of the cervical vertebrae along with subluxation and misalignment which created a wedging effect, causing inflammation of the nerves and the severe muscle spasms he found present. He testified that after his final examination of plaintiff, completed shortly before the trial, he concluded that the healing process had left scar tissue and that while the muscles now retain the cervical vertebrae in normal position, "over fatigue or stress” of the muscles will aggravate the underlying condition, producing pain consistent with plaintiff’s complaints, and that the condition is permanent.

Although defendant’s doctor testified that his lone examination revealed nothing but subjective complaints, the issue of whether plaintiff suffered a significant limitation of use of a body function or system should be left with the jury unless there is no line of reasoning by which a jury could have reached that conclusion (Licari v Elliott, 57 NY2d 230, 239-240). In view of plaintiffs medical evidence indicating that plaintiff suffers a permanent disability from the effect of the presence of the scar tissue, and this court’s recent recognition that pain may form the basis of a serious injury and that whether it does so is ordinarily a triable fact issue, the trial court did not err (see, Butchino v Bush, 109 AD2d 1001; Hourigan v McGarry, 106 AD2d 845, appeal dismissed 65 NY2d 637; Kaiser v Edwards, 98 AD2d 825). Inasmuch as there was a clear line of reasoning for the jury to conclude as it did, the trial court’s denial of defendant’s motion for a directed verdict was proper.

We have examined defendant’s other arguments and find them unpersuasive.

Judgment affirmed, with costs. Main, Levine and Harvey, JJ., concur.