Michigan Court of Appeals; Docket #244483; Unpublished
Judges Markey, Murphy and Talbot; 2-1 (Judge Talbot dissenting)
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (Kreiner Era - 1996-2010) [3135(7)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
Determining Serious Impairment of Body Function As a Matter of Law [3135(2)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 2-1 unpublished opinion, decided after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of serious body function, the Court of Appeals originally reversed summary disposition for defendant [RB #2437]. The Michigan Supreme Court remanded the matter for reconsideration in light of Kreiner. On remand, the Court of Appeals again reversed, finding that plaintiff’s injuries constituted a serious impairment of body function as they affected her general ability to lead her normal life.
In this case, plaintiff suffered a right elbow fracture to her dominant arm and missed about 52 days of work. After the accident, plaintiff lived with her sister, who did “‘everything’ for her.” Although plaintiff was able to return to her normal life within several months of the accident, the evidence indicated plaintiff was unable to drive for several weeks, could not hold a coffee pot, dropped objects, needed help at work carrying heavy items, could no longer bow hunt, had difficulty taking out the garbage, washing dishes and bathing, and experienced pain when getting out of bed in the morning.
In finding that the several-month duration of the injury affected plaintiff’s ability to lead her normal life, the court determined that Kreiner does not require that an injury be permanent. In this regard, the court stated:
“Although the Kreiner Court spoke of ‘aspects of a plaintiff’s entire normal life,’ ‘the course or trajectory of the plaintiff’s normal life,’ and ‘affected aspects on the course of plaintiff’s overall life,’ we do not read this language as suggesting that plaintiffs must be affected for the remainder of their lifetime, or a majority of their lifetime, in order to qualify as suffering a serious impairment of body function. . . . Were we to read the language in that manner, it would conflict with our Supreme Court’s pronouncement that impairments of short duration can be sufficient to establish a serious impairment of body function under the right circumstances. . . . The Supreme Court did not rule, in the context of considering such factors as the prognosis for eventual recovery and the duration of the impairment, that if there was a finding that recovery was likely before the end of one’s lifetime, or that the impairment would not last the duration of one’s lifetime, a serious impairment of body function could not be found. It did not render such a holding because the statutory language would have been offended had the Court done so. We read Kreiner as indicating that an impairment of short duration may constitute a serious impairment of body function if the effect on a plaintiff’s life is extensive and if the impairment has a considerable impact on the plaintiff’s life as compared to his or her life before the accident. Of course, once the serious impairment of body function is established, the jury is free to assess the extent of non-economic damages that will fully compensate a plaintiff for the injury.”
The court then held that plaintiff suffered a serious impairment of body function as a matter of law even though plaintiff’s impairment was relatively short. It this regard, the court stated:
“It is true that the duration of plaintiff’s impairment was relatively short; however, the undisputed evidence indicates that she could not work, could not drive, was unable to hold a coffee pot, dropped objects at home, could not bow hunt, had difficulty taking the garbage out, washing dishes, and bathing, suffered pain on lifting herself out of bed in the morning, and plaintiff’s sister had to do ‘everything’ for her. Thus, although the impairment was short-lived, the impairment left plaintiff virtually unable to do anything for herself, or to undertake tasks in the same manner as she had done before the injury; the impairment was extensive.”
Judge Talbot dissented, comparing plaintiff’s injury to the injury in Straub v Collette [RB #2428]. In determining that plaintiff did not suffer a serious impairment of a body function, Talbot stated:
“Here, the injury was of shorter duration, but more serious. It affected plaintiff’s dominant hand, and the use of her other hand was limited by a previous stroke. However, it is hard to say that a two-month impairment to a hand could be sufficient to show that the course of plaintiff’s normal life had been affected. . . . Once the injury healed, plaintiff returned to her normal life. Considering the totality of the circumstances, a comparison with Straub supports a conclusion that plaintiff failed to prove that she sustained a serious impairment of body function.”
