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Summary Judgments and the Political Subdivision Tort Claims Act

by Sharon F. Harvey, Esquire

In Pennsylvania law suits brought against school districts and various county governments or agencies are subject to the limitations set forth in the of the Political Subdivision Tort Claims Act, 42 Pa. C.S. §8541 et seq.. The Political Subdivision Tort Claim Act allows for law suits to proceed against these "local agencies" only if specific requirements are met.

Section 8542 (b)

(1) of the Political Subdivision Tort Claims Act, which sets forth exceptions to governmental immunity, provides in pertinent part:

(c) Types of losses recognized. - Damages shall only be recoverable for:. .

(2) Pain and suffering in the following instances:

(i) death; or (ii) only in cases of permanent loss of a bodily function, permanent disfigurement, or permanent dismemberment where the medical and dental expenses referred to in paragraph (3) are in excess of $1,500.00.

(3) Medical and dental expenses including the reasonable value of reasonable and necessary medical and dental services, prosthetic devices, and necessary ambulance, hospital, professional nursing, and physical therapy expenses accrued and anticipated in the diagnosis, care and recovery of the claimant.

If the claim against the local agency does not involve a fatality or disfigurement, then, absent dismemberment, the plaintiff must prove that the injury sustained resulted in a permanent loss of use of a specific bodily function.

The Pennsylvania Supreme Court has interpreted the phrase "permanent loss of a bodily function" to mean that, as a proximate result of the accident, the injured claimant is unable to do or perform a bodily act or bodily acts which the claimant was able to do or perform prior to sustaining the injury, and the plaintiff must prove that this loss of bodily function will exist for the rest of his life. Walsh v. City of Philadelphia, 585 A.2d 445 (Pa. 1991). Residual pain alone is not sufficient to qualify for pain and suffering damages against a local agency unless the residual pain is actually manifested as a permanent loss of bodily function. Smith v. Endless Mountain Transportation Authority, 878 A.2d 177 (Pa. Commw. 2005).

Generally, the courts look to the functional capacity of the injured party, assess the extent of the limitation and whether or not the pain is intermittent or constant. If the injured party has returned to their normal pre-injury activities, even with residual pain, the courts have refused to allow the law suit to continue and have granted Summary Judgment.

In Smith v. Endless Mountain Transportation Authority, 878 A.2d 177 (Pa. Commw. 2005) the Commonwealth Court upheld the trial court’s grant of Summary Judgment stating that plaintiff’s failure to demonstrate that her residual pain prevented her from resuming her pre-injury activities meant that she had not sustained a permanent loss of a bodily function justifying the grant of Summary Judgment. The courts have also held that if a plaintiff places restrictions on their activities because they are afraid of being re-injured this self- imposed limitation is insufficient to establish a permanent loss of a bodily function.

In breaching the "permanent loss of bodily function threshold" successful litigants must demonstrate to the courts satisfaction that claimant is unable to perform a physical act which the claimant was able to perform prior to the injury and that the loss is permanent. Awards against a local agency have been allowed when the claimant had a reduction in overall physical capacity which prevented him from playing golf and when a plaintiff sustained traumatic injuries requiring him to use a walker for the rest of his life.

It is clear that each case is extremely fact specific and the determination of a permanent loss of bodily function will be assessed on a case by case basis. The complaints of the claimant and his credibility are undoubtedly the two most significant factors in allowing these cases to proceed to a jury.