Michigan Court of Appeals; Docket # 344875; Unpublished
Judges Gleicher, Ronayne Krause, and O’Brien; 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(7)]
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 - Present) [§3135(7)]
Important Body Function Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(7)]
TOPICAL INDEXING:
Not applicable
SUMMARY:
A. Disposition:
In this unanimous per curiam unpublished opinion, summary disposition for defendant was REVERSED because the plaintiff presented sufficient evidence to create a question of fact regarding whether her claimed impairments affected her general ability to lead her normal life.
B. Nature of Injury/Disability:
The plaintiff in this case was 14 years old at the time of the accident. She was injured while riding as a passenger on a motorcycle that “overturned” while traveling at approximately 40 miles per hour. She suffered what the court described as a “right distal radial fracture, nondisplaced,” facial abrasions, and abrasions on her knee, a mild traumatic brain injury, facial abrasions, and knee abrasions.” Plaintiff was prescribed a soft cast for her wrist and “spent two days in the hospital.” Her injuries also led her to develop a speech impediment.
C. Medical Treatment:
Following the accident, the plaintiff was taken by ambulance to Bronson Hospital and was initially diagnosed with the aforementioned fracture. The hospital conducted a CT scan, which uncovered a “temporal contusion consistent with exam.” During testing relating to plaintiff’s speech impediment, plaintiff “los[t] a point on speech for disorientation.” She was “able to converse normally, but [did not] know her father’s name, what school she [went] to, and other similar details.” The plaintiff was then diagnosed as having the aforementioned “mild” traumatic brain injury.
D. Element #1 – Objective Manifestation:
The reversing summary disposition, the court noted that the objective manifestation element under McCormick was “really not in dispute.” The court then indicated its agreement that Plaitniff’s claimed impairments were objectively manifested, noting that “[a]n x-ray revealed her broken wrist, and doctors documented the abrasions to her face and knee. The records indicate a positive diagnosis of a traumatic brain injury, and plaintiff continued to report sensitivity in her mouth and clicking in her jaw.”
E. Element #2 – Important Body Function:
The court further recognized that the second prong of the McCormick analysis was also not in dispute. The court then recognized that plaintiff’s injuries all involved important body functions, stating that “[t]he use of one’s arms or wrists is an important body function, Kroft v Kines, 154 Mich App 448, 452; 397 NW2d 822 (1986), as is the use of one’s legs and knees, Kern v Blethen-Coluni, 240 Mich App 333, 341; 612 NW2d 838 (2000). “[M]emory is an important body function.” Guerrero v Smith, 280 Mich App 647, 664; 761 NW2d 723 (2008). The ability to brush one’s teeth and move one’s jaw without pain also clearly fits within this category.”
F. Element #3 – General Ability:
In holding that the plaintiff presented sufficient evidence to create a question of fact regarding whether her claimed affected her general ability to lead her normal life, the court noted that the plaintiff was “very athletic and played multiple sports in high school. As a result of her injuries, she missed her freshman year basketball season. She also had difficulty participating in running events during track and field due to continuing knee pain. She testified that she no longer enjoyed running because her knee would give out. Continuing dizzy spells resulted in her falling at a track practice and suffering another concussion. Before the accident, Martin had been a healthy young girl without generalized aches and pains. Immediately after her accident, Martin had to take prescription pain killers to control her wrist pain and missed a couple weeks of school. Even after her broken wrist healed, Martin experienced twinges of pain during damp weather. Martin further reported difficulties with one of her shoulders, limiting her ability to lift. Martin was a good student both before and after the accident. However, Martin reported partial amnesia from the October 2014 accident through February 2015, and described that she had to relearn the material taught during that time. There was evidence that Martin suffered from migraines before her accident, which she claimed only occurred when she was sick. Following her accident, Martin alleged that she suffered migraines more frequently and unconnected to any illness. She also reported more frequent milder headaches. Moreover, Martin’s life before the accident was not easy. She had recently left the home of her longtime foster mother to live with her biological father. Her biological father was verbally and physically abusive, causing Martin emotional trauma. Martin presented evidence that her emotional state declined further after the accident when she was bullied for the speech impediment caused by her mouth injury.. . . [Plaintiff] Martin’s injuries did not completely destroy her normal life, did not impact every facet of her life, and did not last forever. However, that is not the threshold to establish that a plaintiff’s injuries affected her general ability to lead her normal life. Martin presented evidence that, at least for a time, her capacity to live in her normal manner of living was impacted. And that period of time was sufficient to create a genuine issue of material fact.”
