Michigan Court of Appeals; Docket #261332; Unpublished
Judges O’Connell, Schuette and Borrello; 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)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion decided without oral argument after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of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 affirmed the trial court order granting summary disposition in favor of defendant on plaintiff’s non-economic loss claim following a motorcycle accident. Plaintiff suffered an avulsion fracture to his right tibia and a “first-degree” dislocated shoulder. Plaintiff underwent arthroscopic surgery on his knee and wore a sling for his shoulder injury for six weeks. Plaintiff used a wheelchair for nearly two months. After his cast was removed he was on crutches for a week and used a cane thereafter. Plaintiff was off work 14 weeks but doctor notes do not mention work restrictions. Although he worked construction before the accident, he did not return to that job. Instead, he opened a motorcycle detailing business. Plaintiff testified that his knee cracked and sometimes buckled when he pushed motorcycles up a ramp. Plaintiff testified he could no longer run well, kick a soccer ball or dive. In affirming the trial court’s holding, the Court of Appeals found that plaintiff failed to show that his injuries affected his ability to lead his normal life. In this regard, the court stated:
“Plaintiff was a construction worker before the accident, but after the accident he did not work for fourteen weeks. However, the notes from plaintiff’s doctor visit on March 4, 2004 do not mention work restrictions. It is difficult to determine whether plaintiff’s lingering unemployment was due solely to the accident. Plaintiff never returned to his previous position, and instead began a motorcycle customizing business in July 2004. Plaintiff had planned to switch careers before the accident occurred. . . . As of the date of plaintiff’s deposition, he had resumed riding motorcycles, and worked sixty to sixty-five hours per week. He maintained that pushing motorcycles up his shop ramp was sometimes difficult. He also maintained that his knee continued to ‘crack’ and sometimes ‘buckled’ on him, and stated that he could not run well or kick a soccer ball. Plaintiff could no longer dive because he could not jump on the diving board. . . . In the instant case, the trial court did not err by granting defendant’s motion for summary disposition because plaintiff has failed to show that these injuries coupled with any residual effects affected a significant change in his normal life. . . . In addition, any limitations on recreational activity also appear to be self-imposed by plaintiff. Self-imposed restrictions cannot establish an injury that affects one’s ability to lead a normal life. . . . While we find this to be a close case, under the standard established in Kreiner, supra, by which we are bound, we hold that plaintiff has not satisfied the ‘serious impairment of body function’ threshold for the recovery of non-economic damages set forth in MCL 500. 3135.”
