Michigan Court of Appeals; Docket #260846; Published
Judges Murphy, White and Smolenski; Unanimous; per curiam
Official Michigan Reporter Citation: 266 Mich. App. 515, 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 unanimous published per curiam opinion decided without oral argument after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of serious body function, the Court of Appeals reversed the trial court’s order granting summary disposition in favor of defendant on plaintiff’s claim for noneconomic losses, finding that plaintiff suffered a serious impairment as a matter of law. The plaintiff in this case was diagnosed with detached retinas in both eyes caused by head trauma incurred in an automobile accident. Surgery to her left eye was successful, but complications after surgery on the right eye resulted in permanent loss of some visual acuity, a partial deterioration in her vision to 20/60 and a partial loss of peripheral vision. She also sustained multiple rib fractures and a collapsed right lung. Those injuries healed but plaintiff continued to suffer neck and back pain. In reversing, the Court of Appeals found that plaintiff had met the serious impairment threshold in regard to her loss of vision as a matter of law, but failed to present sufficient evidence on how the rib and lung injuries affected her general ability to lead her normal life.
In ruling that plaintiff alleged a serious impairment as a matter of law regarding her partial loss of vision, the court found that she had presented objective evidence regarding the seriousness and extent of the injury. In this regard, it stated:
“Plaintiff’s physician testified at his deposition that a sheet of gliotic tissue had formed on the surface of the retina of plaintiff’s right eye. Gliotic tissue causes images to appear distorted and out of focus through that eye. Plaintiff’s physician further testified that glasses could not correct the condition and that surgical intervention risked permanent blindness. In addition, plaintiff permanently lost some peripheral vision affecting her ability to see her feet while looking straight ahead. During the deposition, plaintiff’s physician stated that her deteriorated vision probably affected her general ability to lead her normal life.”
The court then held that because plaintiff must use special devices in order to engage in activities in which she engaged before the accident, this is clear evidence the vision loss affected her general ability to lead her normal life as a matter of law. In this regard, the court stated:
“Although defendants correctly note that, even with her vision loss, plaintiff can still perform virtually every activity that she performed before the accident, it is also self-evident that plaintiff 's vision loss will affect every aspect of her waking life to some extent. While plaintiff acknowledged at her deposition that she has adjusted to her vision loss, she also stated that there are a lot of things that are now difficult to do. She testified that even routine things, such as reading a book, are frustrating as a result of the injury. When asked about the level of frustration that plaintiff experiences in her day-to-day activities, plaintiff 's physician characterized it as ‘the difference of being able to walk from here to your car unimpeded versus walking from here to your car with the use of a crutch.’ Furthermore, plaintiff stated that she has trouble taking pictures, cross-stitching, and can no longer hunt. . . . Although ‘minor changes in how a person performs a specific activity may not change the fact that the person may still “generally” be able to perform that activity,’ . . . we do not believe that plaintiff’s inability to perform the activities she performed before the accident without the aid of special devices and significant retraining constitutes a ‘minor change’ in how plaintiff performs those activities. By this standard, plaintiff could have lost her right eye entirely and the loss still would not have affected her general ability to lead her normal life because she could learn to perform the same activities with just one eye. The fact that plaintiff has had to take special steps to pursue the activities she routinely pursued in the past is clear evidence that her vision loss has affected her general ability to lead her normal life. . . . Even if the effect on any one activity, such as hunting or cross-stitching, did not by itself constitute a serious impairment of a body function, we must consider plaintiff’s whole life in determining whether the threshold has been met. . . . Plaintiff’s vision loss will affect every aspect of her life to some degree and will affect certain specific activities, such as hunting, even more. Taking these effects in the aggregate, we conclude that plaintiff’s vision loss affects her general ability to lead her normal life, and, therefore, plaintiff’s vision loss is, as a matter of law, ‘a serious impairment of a body function.’ MCL 500.3135(a).”
