Michigan Court of Appeals; Docket # 347997; Unpublished
Judges Borrello, Meter, and Riordan; 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)**)]
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 - Present) [§3135(5)**]
Permanent Serious Disfigurement Definition [§3135(1)]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
A. Disposition:
In this unanimous per curiam unpublished opinion, wherein the plaintiff suffered shoulder and knee injuries, and facial scarring, the Court of Appeals: (1) AFFIRMED summary disposition for defendant in part with respect to the plaintiff’s shoulder injuries because he failed to establish that they were an objectively manifested impairment that resulted from the accident; (2) REVERSED summary disposition for defendant with respect to the plaintiff’s knee injuries because he presented sufficient evidence to support a finding that those injuries were objectively manifested and affected his general ability to lead his normal life; and (3) AFFIRMED summary disposition for defendant on the issue of permanent serious disfigurement because plaintiff’s facial scar “does not significantly mar [his] overall appearance.”
B. Nature of Injury/Disability:
The plaintiff in this case was a motorcyclist who was struck by the driver of a motor vehicle. A short time later, he suffered a significant fall while helping his elderly neighbor push her car out of her snow-covered driveway. The plaintiff claimed that as a result of the motorcycle accident he suffered knee and shoulder injuries, which are discussed in more detail below. Plaintiff’s injuries affected his ability to walk and perform household chores for approximately two to three months.
C. Medical Treatment
Following the motorcycle accident, the plaintiff was taken by ambulance to the emergency room. The plaintiff claimed during his deposition that he “was bleeding real bad, . . . had blood all over, was bleeding from his forehead, leg, and right hand,” which he claimed was “smashed [and] totally swollen up.” Plaintiff’s medical records from the day of the accident indicate that he was able to walk at the scene but had a “laceration on the right side of his forehead above his eye,” which was described in his medical records as a “3 cm laceration, a 2 in laceration, a 2in deep laceration, and a 2CM LAC TO RT FORHEAD [sic].” The Court then stated that “other documented injuries included lower back pain, bleeding, headache, hip pain, large hematoma on left lower extremity, mid anterior leg with superficial abrasions, abrasions to left leg, bruising on shin, and bruising on knuckles.” Plaintiff's medical “records also indicate that [he] had no head, neck, chest, or abdominal pain and did not lose consciousness.” An MRI subsequently taken of plaintiff’s left knee revealed “a small tear in the posterior portion of the medial meniscus that could heal on its own. Plaintiff elected to have the tear surgically repaired.” In the operative report, it was noted the plaintiff’s pre-operation and post-operation diagnosis was “[d]egenerative tear of posterior horn of medial meniscus of left knee.” Following the second incident wherein he fell while helping his neighbor, the plaintiff reported that his arm “felt weak,” that he experienced “occasional popping,” and that he had intermittent “numbness in his upper arm in certain positions.” According to plaintiff’s medical records, “[t]he onset was sudden with injury that occurred about four months ago while he was pushing the car out of the snow.” It was then determined that plaintiff suffered a “right shoulder impingement, labral tear, biceps tendon tear,” and that he “would undergo surgical treatment.”
D. Element #1 – Objective Manifestation:
The Court of Appeals held that the plaintiff did not suffer any objectively manifested shoulder injuries as a result of the motorcycle accident, and that his claimed shoulder injuries were ultimately caused by the second incident wherein plaintiff fell while pushing his neighbor’s car out of the snow. In this regard, the Court held “that plaintiff is not entitled to relief on the alleged injury to his shoulder because plaintiff failed to present any proof of a physical injury to his shoulder until after the 2018 incident. Until the incident that caused plaintiff to fall on the ice while pushing a car, and thereafter seeking medical attention, plaintiff had not been treated for his shoulder, and there is no medical evidence supporting his claims of pain. There were no records, medical or otherwise, that demonstrated an objectively manifested injury to plaintiff’s shoulder. Hence, plaintiff’s claims, relative to his shoulder, were legally insufficient under McCormick.” After reaching this conclusion, the Court did, however, find that the plaintiff presented sufficient evidence from which a jury could conclude that his claimed knee injuries were objectively manifested. In so holding, the Court noted that the plaintiff’s knees were primarily degenerative in nature, but the evidence supported a finding that they were sufficiently aggravated by the motorcycle accident.
E. Element #2 – Important Body Function:
The Court did not discuss this element.
F. Element #3 – General Ability:
The Court went on to find that the plaintiff presented sufficient evidence to support a finding that his alleged knee injuries affected his general ability to lead his normal life. In so holding, the Court noted “plaintiff testified that he was unable to walk, cook, grocery shop, or do laundry for a period of time (approximately two to three months) following the accident. Plaintiff did not need to show that his general ability to lead his normal life had been ‘destroyed,’ and there ‘is no quantitative minimum as to the percentage of a person’s normal manner of living that must be affected.’ Plaintiff can meet the third prong by showing impairment for a relatively short period, such as two to three months.” On this basis, the Court held that summary disposition was inappropriate.
G. Other Comments:
The Court held as a matter of law that the plaintiff’s facial scaring did not rise to the level of a permanent serious disfigurement because it was not “serious” enough to meet the requirements of § 3135(1). In so holding, the Court found that “the scar seems to mar plaintiff’s appearance somewhat such that it could constitute a disfigurement, and the parties do not seem to dispute that the scar will be long-lasting or permanent. . . . [However,] the scar is not immediately distinguishable from the overall appearance of plaintiff’s wrinkles and skin tone unless one is specifically looking for and considering the scar . . . .”
