Michigan Court of Appeals; Docket # 327785; Unpublished
Judges Saad, Jansen and M.J. Kelly; 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)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion involving plaintiff’s claim for non-economic tort damages, the Court of Appeals held that summary disposition was improperly granted for defendants because questions of fact existed about whether plaintiff presented sufficient evidence of a serious impairment of body function under MCL 500.3135 and McCormick v Carrier, 487 Mich 180 (2010).
Plaintiff brought this action to recover non-economic damages related to an auto accident. Plaintiff alleged that defendant Mark Hastings was negligent in rear-ending his vehicle, which was stopped at a red light. Plaintiff sought damages from defendant-Elizabeth Ann Hastings under a theory of owner liability because she was the owner of the car that Mark was driving. Defendants moved for summary disposition, arguing that plaintiff did not establish that he suffered a serious impairment of body function, as required by §3135. Defendants claimed it was not demonstrated that plaintiff’s alleged impairments affected his general ability to lead his normal life. Specifically, defendants argued that plaintiff did not pursue “aggressive treatment” for his claimed neck injury and his limitations were essentially self-imposed and not the result of doctor-imposed restrictions. Plaintiff claimed he had not been the same and that his life changed dramatically after the accident, particularly because of neck pain. Plaintiff noted that he could not participate in recreational activities like he did before the accident, including reading, riding his motorcycle, golfing and flying his plane. Plaintiff also testified that the neck pain made it difficult to sleep. The trial court granted defendants’ motion for summary disposition. On appeal, plaintiff argued the trial court erroneously relied on McDanield v Hemker, 268 Mich App 269 (2005) because, while McDanield was not expressly overruled by McCormick, the principle of law it relied upon had been rejected.
The Court of Appeals agreed with plaintiff’s argument and held:
“The Michigan Supreme Court in McCormick expressly rejected the factors that the Kreiner [v Fischer, 471 Mich 109 (2004)] Court adopted to evaluate whether an individual’s impairment has affected that person’s general ability to lead his or her normal life, which included the Kreiner Court’s statement that “[s]elf-imposed restrictions, as opposed to physician-imposed restrictions” will not support a conclusion that a person’s general ability to lead his or her normal life has been affected by any impairment. These factors and the limitation on self-imposed restrictions were reiterated by the Court in McDanield. Therefore, the trial court erred when it expressly cited to and relied on McDanield for this proposition when it granted defendants’ motion for summary disposition.”
Next, the Court of Appeals examined whether plaintiff provided sufficient evidence that his injuries affected his general ability to lead his normal life. In this regard, the Court noted that evidence was offered that showed plaintiff’s ability to participate in his normal recreational activities was curtailed, including riding his motorcycle and flying his plane. The Court further pointed out that plaintiff said his neck bothers him “all the time” and that activities like reading and sleeping were difficult.
Based on the evidence, the Court of Appeals held there was a question of fact as to whether plaintiff suffered a serious impairment of body function under McCormick and §3135. The Court concluded:
“[T]here is a question of fact for a jury to resolve whether ‘plaintiff has shown that the impairment affected his general ability to lead his normal life because it influenced some of his capacity to live in his normal, pre-incident manner of living.’ … The trial court erred when it determined that these ‘self-imposed restrictions because of pain’ were fatal to plaintiff’s claim; indeed, these types of restrictions are now no longer a bar under McCormick. We stress that our holding is limited solely to whether there was sufficient evidence to show that plaintiff’s injuries affected his general ability to lead his normal life. Because they were not part of the instant motion for summary disposition, we offer no opinion on whether there was sufficient evidence to show that the other two requirements ([1] an objectively manifested impairment [2] of an important body function) for establishing a serious impairment of body function were met.”
