Michigan Court of Appeals; Docket #245699; Unpublished
Judges Neff, Zahra, and Murray; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (Kreiner Era: 1996-2010) [3135(7)]
Objective Manifestation Element of Serious Impairment (Kreiner Era: 1996-2010) [3135(7)]
General Ability / Normal Life Element of Serious Impairment (Kreiner Era: 1996-2010) [3135(7)]
Determining Serious Impairment of Body Function As a Matter of Law (Kreiner Era:1996-2010) [3135(2)]
Closed Head Injury Question of Fact [§3135(2)(a)(ii)]
Evidentiary Issues [3135]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, issued prior to the Supreme Court’s Opinion in Kreiner v Fischer [Item No. 2428], the Court of Appeals reversed the trial court’s refusal to grant summary disposition in favor of defendant on plaintiff’s non-economic loss tort claim alleging serious impairment of body function.
Although the facts are not clear, the plaintiff in this case alleged some type of closed head injury and back injury. The court acknowledged that these claimed injuries satisfied the objective manifestation requirement of the statutory definition of serious impairment of body function set forth in §3135(7). However, that fact did not suffice, because there was inadequate evidence that the objectively manifested conditions affected the functioning of plaintiff’s body. In this regard, the court stated, “Plaintiff’s subjective testimony about pain and other symptoms plainly was not objective evidence. While the radiology report reflecting that at least one white matter lesion was found in plaintiff’s brain and the x-ray showing spinal subluxations are objective findings, there was no evidence that these conditions affected the functioning of her body. Therefore, they did not constitute an objective manifestation of an impairment.” In expressing this opinion regarding the objective manifestation requirement, the court did note that the term “objectively manifested” required proof of a “medically identifiable injury or condition that has a physical basis” citing Jackson v Nelson [RB #2329].
With regard to plaintiff’s head injury, the court further noted that “while plaintiff avers that she suffered a closed head injury from the accident, she presented no medical testimony or other medical evidence to the effect that she has suffered a serious neurological injury. . . . Thus, there was no evidence to support a finding of serious impairment of body function either under a straightforward application of the definition of that term by MCL 3135(7) or under the proviso of MCL 3135(2)(a)(ii). . . .”
The court also ruled that there was insufficient evidence that plaintiff’s injuries affected her general ability to lead her normal life. In this regard, the court noted that before the accident, plaintiff worked part-time as a waitress, while after the accident, she worked not only part-time as a waitress but also a 30 hour position as an administrative secretary. Moreover, the court noted that plaintiff continued to attend community college where her grades, after the accident, exceeded a 3.4 grade point average. The court then made the following curious observation regarding plaintiff’s recreational activities, “Plaintiff’s complaints about her horseback riding declining from once every two weeks to only twice since the accident, and her inability to water ski or ‘tube,’ are not sufficient objective manifestations to establish that the injuries impacted her general ability to lead a normal life. In light of the objective evidence showing plaintiff’s continued ability to work, go to school, and take care of herself as she had done prior to the accident, we conclude that the relatively minimal decrease in certain social functions, even for a young adult, do not cause these injuries to fall within the statutory framework.”
