Michigan Court of Appeals; Docket #252650; Unpublished
Judges Cooper, Fort Hood, and Gribbs; 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In this unanimous unpublished per curiam, decided without oral argument after the Supreme Court’s decision in Kreiner v Fischer [RB #2428], interpreting the statutory definition of serious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’s order granting summary disposition in favor of defendant on plaintiff’s claim for non-economic loss.
The plaintiff minor child suffered from a pre-existing condition of her knees called Osgood-Schlatter condition. She was involved in an automobile accident which aggravated that condition. Applying the Kreiner standards to the instant case, the Court of Appeals held the minor child’s injury did not affect her general ability to lead her normal life. The evidence established that before the accident, the minor child enjoyed being a majorette in the school band, participated in physical education, and desired to be a cheerleader. Following the accident, the minor child restricted her physical activities because of the stiffness and lack of mobility in her knee. However, the minor child later joined the cheerleading squad and was able to participate in most movements. She had minimal medical treatment and her restrictions were slight and for unspecified periods of time. She generally ran without experiencing pain in her knees.
The court acknowledged that under Wilkinson v Lee, 463 Mich 388 (2000), a plaintiff may recover non-economic damages under §3135 if the trauma caused by the accident triggered symptoms from a pre-existing condition. However, the plaintiff must nevertheless demonstrate the aggravating injury satisfies the dictates of §3135. Comparing her pre-accident life to her post-accident life demonstrates her life is not sufficiently different to satisfy the threshold.
The court also rejected a claim there existed a question of fact regarding whether the child would need surgery or leg casts to help repair her knee condition. There was nothing cited by the plaintiff other than the “mere possibility” the minor child may one day need surgery or be fitted with leg casts to fix her leg. Without more, this was merely “speculation and conjecture” which is fundamentally insufficient to create a question of fact.
