Michigan Court of Appeals; Docket No. 335780
Judges Jansen, Servitto, and Shapiro; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(5)**]
Determining Serious Impairment of Body Function As a Matter of Law (McCormick Era: 2010 – present) [§3135(2)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals held that summary disposition was properly granted for Defendant Keith Cermark (“Cermark”) below on the issue of whether either of Plaintiff Elsayed Afify’s (“Afify”) two minor sons satisfied the serious impairment of body function threshold under McCormick.
Afify brought this action on behalf of her two minor sons, Abdelrahman and Moustafa. Neither of them “sustained any apparent injuries at the time of the accident.” However, they “subsequently began to experience pain and physical limitations after the accident.” The only issue in this case was whether the two sons’ injuries affected their general ability to lead their normal pre-accident lives. The Court of Appeals held that both of them failed to present sufficient evidence to create a question of fact on this issue.
In reaching this conclusion with regard to the first of the two sons, the Court noted “even with giving the benefit of doubt to plaintiff, it does not appear that there is a genuine issue of material fact whether Abdelrahman’s injuries affected his general ability to lead a normal life. While there was record and deposition testimony that Abdelrahman stopped wrestling because of too much back pain, there was evidence that shortly after the accident, he continued with the school’s wrestling team. Moreover, after the accident, he participated on the school’s football team, began boxing in a private gym, joined the track team throwing shotput and discus, and started weight lifting classes, where he lifted weight every day, and achieved an “A” grade in wrestling.” In finding that summary disposition was appropriate with respect to the second son, Moustafa, the Court reasoned that “[t]here was evidence that he completed the basketball season after the accident, ran track in the spring of 2014 specializing as a long distance sprinter, participated in gym activities in school without any restrictions, and began playing on the football team, playing defensive tackle, linebacker, safety, and cornerback. As for his claims that he suffered from regular headaches and exacerbated anger issues, he has failed to explain how they affected his ability to lead a normal life. Further, headaches and anger issues cannot be considered relevant impairments where there is little, if any, medical evidence establishing the accident as the cause of these infirmities. To the degree that he is asserting that the headaches and anger issues are due to a prior closed-head injury, he failed to provide any medical report or deposition testimony from ‘a licensed allopathic or osteopathic physician who regularly diagnoses or treats closed-head injuries’ to testify about any ‘serious neurological injury.’” The Court further noted that “given . . . [the] young ages and active lifestyles” of the two boys, “it cannot be said that their life before the accident was more active, in any material way, than it was after the accident.”
