Michigan Court of Appeals; Docket No. 337043
Judges Sawyer, Hoekstra, and Murray; Unanimous; per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
The Michigan Supreme Court DENIED Leave to Appeal on 10/30/2018; Link to Order
STATUTORY INDEXING:
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(5)**]
Important Body Function 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In this unanimous unpublished per curiam opinion, the Court of Appeals held as a matter of law that Plaintiff Joseph Zichichi (“Zichichi”) did not satisfy the tort threshold under McCormick because his claimed impairments did not affect his general ability to lead his normal life.
Zichichi was hospitalized for two and a half days following the accident. Medical records showed that he suffered “broken ribs, a comminuted fracture in his right clavicle, and a mild traumatic brain injury.” Plaintiff underwent surgery to repair his clavicle, which required the installation of “multiple screws in his bone,” and his “injured ribs kept him from breathing deeply for a few days.” Zichichi was “forced to take a six week leave of absence” from his job as a manual laborer. After returning to work, he was restricted from normal activity for approximately three months after the accident. Plaintiff continued to complain of numbness on his right side.
In holding that Zichichi failed to satisfy the threshold as a matter of law, the Court of Appeals noted that the “[t]he trial court ruled that there was no genuine issue of material fact that plaintiff did not satisfy the third prong of the McCormick test—whether plaintiff’s injuries affected his general ability to lead his normal life.” The Court then found that “[b]ecause, as detailed below, there was no genuine issue of material fact on this issue, the trial court properly decided as a matter of law whether plaintiff suffered a serious impairment of body function. . . . The nature of plaintiff’s injuries was not in dispute. The medical records show that plaintiff suffered broken ribs, a comminuted fracture in his right clavicle, and a mild traumatic brain injury. Plaintiff was hospitalized for 2½ days. His injured ribs kept him from breathing deeply for a few days. Plaintiff had to undergo surgery in order to repair his clavicle, as a result of which he now has multiple screws in his bone. Because plaintiff’s work is manual labor, he was forced to take a six week leave of absence. When plaintiff did return to work, he was restricted in his activities until October 2015, approximately three months after the accident occurred, when he resumed normal work activities. Presently, plaintiff still complains of numbness on his right side. . . . The crux of this case is the temporal requirement, or, more accurately, lack thereof. Although as noted above, MCL 500.3135(1) contains no express temporal requirement, McCormick, 487 Mich at 203, measured by plaintiff’s current disabilities, he does not meet the threshold of having a serious impairment of body function. A 1-inch area of numbness, mostly felt in the shower, feeling “weird,” and having to differently arrange one’s pillows hardly qualify as objectively manifested impairments. Even if those symptoms were considered objectively manifested impairments, plaintiff does not meet the second or third prongs of the McCormick test: plaintiff’s temporary disabilities were neither subjectively important body functions nor did they affect plaintiff’s general ability to lead his normal life. Plaintiff still engages in his preaccident employment, fishing, and yard work, with no limitations. And, as noted, resumed work within six weeks of the accident and without limitations within three months of the accident. In fact, like the trial court, we can find no objective evidence that plaintiff’s general ability to lead his normal life has been affected.”
