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October 31, 1995


The opinion of the court was delivered by: MCAVOY


 Plaintiff, CATHERINE M. BARNEY, brings this action pursuant to the Federal Tort Claims Act claiming that she sustained injuries as a result of the negligent operation of an automobile by the defendant, UNITED STATES OF AMERICA, in the person of U.S. Marine Recruiter, Sergeant LeRoy Prantle. The defendant has moved to dismiss this action pursuant to Rule 12(b)(6) or, in the alternative, Rule 56. The plaintiff has opposed the defendant's motion, and has cross-moved for summary judgment on the issues of liability and serious injury.

 Plaintiff alleges that the car she was following stopped suddenly, while turning into a service station, to avoid hitting a number of children. The plaintiff was forced to stop, and consequently, she was struck from behind by the defendant's vehicle. The defendant claims that she stopped abruptly, and that this raises a material factual issue for a jury as to liability.

 In the course of being thrust forward and lurching back, the plaintiff bumped her elbow against the car frame near the front driver's side door, and caused the front bench seat to break. The plaintiff stated to the defendant and the police officer on the scene that she was fine. The plaintiff then went home, rather than to the emergency room, and later went to a house she was remodeling. The plaintiff alleges that, prior to the accident, she was in good health and without knowledge as to any chronic back ailments.

 The following day, the plaintiff went to work, where she held a position as a metal sorter. After experiencing pain in her back, and stiffness in her neck, the plaintiff left work and went to her doctor. The doctor prescribed a pain medication, gave her a neck collar, and sent her to the hospital for x-rays. The x-ray results of her elbow and cervical spine were "essentially negative." A CT scan of her lumbar spine showed "minimal" protrusion of a disc, but no herniation.

 The plaintiff's pain continued, and her physician referred her to another physician, who prescribed medication and a daily stretching regimen. This doctor, Dr. Drumond, noted a segmentation abnormality of six lumbar vertebrae as well as occult spina bifida at the fifth vertebral posterior element, and a probable herniated disc.

 The plaintiff continued to work full-time and to volunteer at a service station, doing oil changes and changing tires. Nevertheless, the plaintiff claimed that she was unable to work at the pace she did before the accident. She also claimed that the pain was constant and even intensified with the performance of certain activities.

 Since the plaintiff's pain persisted, her original doctor, Dr. Cabaluna, referred her to an orthopedic surgeon, Dr. Rubinovich. Dr. Rubinovich prescribed physical therapy, and fitted the plaintiff with a back brace. The source of plaintiff's pain has never been pinpointed, and the allegedly pain continues.

 Plaintiff's neck and elbow pains have resolved themselves, and the possible herniated disc is believed to be congenital, and thus, are not the subject of this lawsuit. Plaintiff, however, does claim that she has constant pain of varying degrees in her back. She claims that she can no longer work as long as she formerly could without breaks, but the plaintiff does not claim that she has been completely prevented from doing anything. The plaintiff has been reimbursed for the property damage she suffered.


 A. Motion To Dismiss Pursuant To Rule 12(b)(6), Or In The Alternative, For Summary Judgment Pursuant To Rule 56

 On a dismissal motion for failure to state a claim the general rule is that the allegations in a plaintiff's complaint are deemed to be true and must be liberally construed in the light most favorable to the plaintiff. Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984) cert. denied 470 U.S. 1084, 85 L. Ed. 2d 144, 105 S. Ct. 1845 (1985). A complaint should not be dismissed unless it appears beyond a reasonable doubt that the plaintiff cannot in any way establish a set of facts to sustain her claim which would permit relief. Hughes v. Rowe, 449 U.S. 5, 10, 101 S. Ct. 173, 176, 66 L. Ed. 2d 163 (1980); Bass v. Jackson, 790 F.2d 260, 262 (2d Cir. 1986).

 If on a motion made pursuant to Rule 12(b)(6) "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided for in Rule 56..." Fed. R. Civ. P. 12(b)(6). A motion for summary judgment should be granted "if the pleadings...together with the affidavits, if any, show that there is no genuine issue as to any material fact..." Fed. R. Civ. P. 56(c). There must be more than a "metaphysical doubt as to the material facts." Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2041, 114 L. Ed. 2d 125 (quoting, Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)). All ambiguities must be weighed in favor of the non-moving party. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989). "Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) ...

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