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Piccione v Gillette (COA – PUB 1/17/2019; RB #3837)

Michigan Court of Appeals; Docket # 342826; Published
Judges Markey, Kelly, and Swartzle; per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion; Link to Concurrence


STATUTORY INDEXING:
Serious Impairment of Body Function Definition (McCormick Era: 2010 – present) [§3135(5)**]
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 –present) [§3135(5)**]

TOPICAL INDEXING:
Not applicable


SUMMARY:
In this unanimous published per curiam opinion, the Court of Appeals reversed summary disposition for Defendant Lyle Gillette (“Gillette”) on the issue of serious impairment of body function. The Court found a genuine issue of material fact regarding Mario Gavino’s (“Gavino”) general ability to live his normal life.

Gavino sustained an injury in a motor vehicle accident when he was three years old. Plaintiff Mario Piccione (“Piccione”) brought the action as Gavino’s next friend. A CT scan showed that Gavino had an “oblique fracture of the mid diaphysis of the left clavicle.” He was prescribed a sling, ibuprofen, and ice. Gavino was prescribed a clavicle strap after a period of time. Gavino physically recovered from his injury after three or four months and he was able to resume his normal life. At trial Gillette argued that Piccione could not demonstrate that Gavino’s injury affected his general ability to lead his normal life because after three or four months Gavino was no longer physically restricted. The trial court noted that “certainly when Gavino was in the sling he missed, you know, three to four-months of his normal life,” and it was “obvious that a sling is going to slow down anyone that wears it for four-months.” However, the court concluded that because Gavino returned to his very happy normal life as a four-year-old, there was no serious impairment of body function and it granted summary disposition to Gillette.

The Court of Appeals reversed the trial court because it found that there was a genuine question of material fact if the injury affected Gavino’s general ability to live his normal life. To sustain a third-party action for serious impairment of body function a plaintiff must show that the injury has affected the plaintiff’s general ability to lead his or her normal life. Under this standard there is no “bright line rule or checklist.” The Court will compare the life of the plaintiff before the accident to the plaintiff’s life after the accident when deciding if there is an impairment to the plaintiff’s general ability to lead his or her normal life. In this case, Gavino’s parents testified that he was unable to go to school for a period of time after the accident. When he did return to school, he was unable to play on the equipment as he had done previously. Gavino needed help using the bathroom at school and dressing himself at home. Gavino also struggled to sleep at night because of the pain. Finally, before the accident Gavino liked to color, but after the accident he did not want to do so. The Court explained that under McCormick v Carrier, 487 Mich 180; 795 NW2d 517 (2010), a plaintiff did not need to have his life permanently altered, the injury must only need to have affected the plaintiff’s general ability to lead his or her normal life. Thus, given the facts in this case, the Court found that there was a genuine issue of material fact regarding Gavino’s ability to lead his normal life.

“The trial court agreed, finding that although there was evidence that Gavino’s general ability to lead his normal life was affected by the fracture to his clavicle, he was presently unaffected by the impairment and so he could not satisfy the third prong of the McCormick test. Yet, a person’s ability to lead his or her general life does not have to be destroyed in order to constitute a threshold injury; it only needs to have been affected, and here the evidence allows for an inference that Gavino’s general ability to lead his normal life was affected even though it was not completely destroyed. See McCormick, 487 Mich at 202. Moreover, a serious impairment of body function—unlike a permanent serious disfigurement—does not have to be permanent, so the fact that the impairment to Gavino’s important body function only lasted three or four months has no bearing on the question at hand. See id. Therefore, given that there is a genuine issue of material fact with regard to the third prong of the McCormick test, and given that the trial court erred in its application of the statute, summary disposition was not appropriate.”

The Court therefore reversed the trial court and remanded the case for further proceedings.

Concurrence by Judges Markey and Swartzle

Judges Markey and Swartzle concurred in the opinion and further explained:

“We concur in the per curiam opinion. This case is factually analogous to Neci v Steel, 488 Mich 971; 790 NW2d 828 (2010). For reasons similar to those set out by Justice Young in his concurring opinion in Neci, we conclude that binding precedent compels reversal and remand in this case.”

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