A man who suffered a bone bruise in a car accident nine years ago has failed to convince the Pennsylvania Superior Court that his injury was serious enough to maintain a negligence claim.
A unanimous three-judge panel issued a memorandum Nov. 3 in Kitchen v. Kruman, finding that Christian Kitchen, who was 12 at the time of the accident, failed to show that his injury had an effect on him significant enough to overcome the limited tort threshold of his parents’ insurance policy.
Kitchen’s personal injury action stemmed from a June 2008 accident in which a vehicle driven by his mother collided with one driven by Jerome Kruman, leaving Kitchen with knee pain that he testified caused him to stop or take breaks while playing sports. The injury did not, however, keep him from meeting physical activity requirements to be a member of the U.S. Navy Reserve, he testified, and he has not received medical treatment for the knee since 2011, Senior Judge James J. Fitzgerald III wrote for the court.
The trial court granted Kruman’s motion for summary judgment asserting that Kitchen was bound by the limited tort policy.
On appeal, Kitchen argued that a jury should be allowed to decide whether his injuries constituted a serious impairment of his bodily function. He relied primarily on the Superior Court’s 2013 ruling in Cadena v. Latch and the same court’s 1999 ruling in Kelly v. Ziolko to support his argument, Fitzgerald said. In Cadena, the court noted that an impairment “‘need not be permanent to be serious.’”
Kitchen argued that he suffered serious injuries that affected his ability to walk, play sports, help with household chores and more, despite the fact that the trial court determined his impairment to be de minimis. He wore a knee brace following the injury, but stopped wearing it once he grew out of it, Fitzgerald noted.
The trial court determined that the injury had “‘little to no impact on his normal daily activities,’” and that he continued to maintain a “‘very active lifestyle’” and participate in numerous sports after the accident, pointing to a 2016 independent medical examination that contradicted Kitchen’s arguments regarding the severity of the injury. Fitzgerald agreed and offered his own additional observations.
For one thing, Fitzgerald said, the Pennsylvania Rules of Civil Procedure require an appellant to identify an issue of fact arising from evidence in the record controverting the evidence used to support the summary judgment motion. But Kitchen “totally failed” to controvert the independent medical examination, which said he remained extremely active after the accident and the residual pain was attributable to his activity level. Because his pain is “the product of his own lifestyle,” his case is distinguishable from Cadena and Kelly, Fitzgerald said.
Additionally, the plaintiffs in those cases had their day-to-day lives “seriously impaired” and Kitchen’s impact was minimal in comparison, “far from enough to classify it as serious impairment of bodily function,” Fitzgerald said.
Steven Wolfe, who represented Kitchen, said he did not believe the Superior Court’s decision was correct. Anthony Zabicki, who represented Kruman, did not return a call for comment.