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Stevenson v Neubar, et al (COA – UNP 3/4/2021; RB #4230)


Michigan Court of Appeals; Docket # 351886; Unpublished
Judges Swartzle, Markey, and Tukel; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion

General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – Present) [§3135(5)**]

Not Applicable

In this unanimous unpublished per curiam, the Court of Appeals reversed the trial court’s summary disposition order dismissing plaintiff James Stevenson’s third-party action against defendants Sarah Neubar and Carl Neubar.  The Court of Appeals held that a question of fact existed as to whether Stevenson satisfied the third prong of the “serious impairment of body function” test set forth in McCormick v Carrier, 487 Mich 180 (2010): whether his wrist injury affected his general ability to lead his normal life.

Stevenson broke his wrist in a car crash caused by Saran Neubar’s failure to yield the right-of-way to him, and spent eight weeks thereafter in a cast.  For five weeks while Stevenson was in a cast, he was unable to attend class because he could not type on a computer, and he also required assistance performing his duties at work.  Furthermore, he could not participate in his usual leisure activities during that time, and required help around the house caring for his children and completing household chores.  After he completed physical therapy, however, he was not placed on any further medical restrictions, and thus in his subsequent third-party action against Neubar, the trial court determined that these temporal effects of his wrist injury did not sufficiently affect his general ability to lead his normal life.

The Court of Appeals reversed the trial court’s summary disposition order, noting that McCormick expressly provided that there is no “temporal requirement as to how long an impairment must last in order to have an effect on the person’s general ability to lead his or her normal life,” nor is there a requirement that an injury completely destroy one’s ability to lead his or normal life, not merely affect it.  Therefore, since Stevenson’s ability to lead his normal life was indisputably affected for at least the time he was in a cast, summary disposition was improperly granted to the Neubars.

“Under these rules, plaintiff’s temporary inability to participate in school, hockey, bowling, golf, household chores, childcare, and his having to make adjustments at work makes summary disposition inappropriate, because viewing those effects in the light most favorable to plaintiff demonstrates that the injuries are intertwined with questions of fact as to whether they affected plaintiff’s ability to lead his normal life for various periods of time.

 Plaintiff’s broken wrist did not destroy his ability to lead his normal life, but it did affect it.  Plaintiff missed classes for five weeks because of his inability to type and use a computer.  Similarly, plaintiff was unable to fully perform his work duties for multiple weeks, and he had to adjust to working on a computer with one hand and was required by the injury to ask his coworkers for help.  His in-laws had to take over child care for him a month.  Thus, while plaintiff did not miss any days of work, a jury could nevertheless conclude that his ability to perform his work functions was impaired as a result of serious body impairment.  Additionally, plaintiff was unable to lift weights for four months as he regularly had before the accident; at the time of his deposition, plaintiff had resumed lifting weights but was still lifting about 50 pounds less than he was before the accident.  Furthermore, plaintiff was unable to play in his hockey league for four months under doctors’ orders, and he did not play for an additional month after that.  Plaintiff also limited his golfing and bowling activities because of his wrist injury.

 Plaintiff had essentially returned to normal seven months after the accident, when he was deposed, and arguably had resumed his normal activities three months after the injury, although at the time of his deposition he still complained of weakness and wore a wrist brace.  The effect of the serious impairment may have been of relatively short duration, which ‘may be relevant,’ yet ‘there is no temporal requirement for how long an impairment must last.’  MCL 500.3135(5)(c).  Consequently, viewing these facts in the light most favorable to plaintiff, a jury could conclude that plaintiff’s general ability to lead his normal life was affected for some period of time by the serious body impairment. [citation omitted] As applicable here, if the jury finds that the impairment affected plaintiff’s ability to lead his normal life, the duration of any such impairment goes to the amount of damages to which plaintiff might be entitled, not to whether he is entitled to damages at all.”

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