Michigan Court of Appeals; Docket #259937; Unpublished
Judges Fitzgerald, Saad, and Cooper; 2-1 (Judge Cooper concurring); 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)]
Important Body Function Element of Serious Impairment [3135(7)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 2-1 unpublished per curiam opinion, decided after the Supreme Court’s decision in Kreiner v Fisher [RB #2428], interpreting the statutory definition of serious impairment of 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 losses.
The plaintiff in this case was involved in two automobile accidents in which he sustained ill-defined injuries to his right knee. In the second accident, plaintiff also sustained ill-defined injuries to his left knee, as well as a back injury defined as acute, cervical, thoracic, lumbar strain. Defendant was involved in the second accident and claimed the injuries plaintiff sustained in that accident did not constitute a serious impairment of body function.
The Court of Appeals agreed with defendant and affirmed, finding that although plaintiff alleged a second accident aggravated the injuries to his right knee to the point where he required surgery and resulted in new injuries to his left knee and back, these injuries did not affect plaintiff’s ability to lead his normal life. In so holding, the court noted that after the second accident, plaintiff complained of popping in his right knee and claimed he could not walk on his right heel and toes. However, plaintiff had similar complaints before the second accident. Further, plaintiff claimed he had problems doing yard work and walking after the second accident, but admitted he could occasionally mow his yard and could walk one to two miles on a “good day.” Moreover, although plaintiff has been off from work since the second accident, he was off of work for over a year before the second accident occurred. In this regard, the court stated:
“There is no factual dispute concerning plaintiff’s injuries. . . . Dr. Michael Baghdoian stated that the second accident aggravated plaintiff’s right knee problems from the first accident. Also, Dr. Baghdoian seemed to indicate that while he originally thought after the first accident that the right knee would recover through physical therapy, he later believed surgery was necessary at some point after the second accident. Dr. Baghdoian also stated that it appeared that the second accident caused plaintiff’s left knee injury. Further, after the second accident, plaintiff was diagnosed with an ‘acute cervical, thoracic, lumbar strain.’ This evidence establishes that the second accident caused injuries to plaintiff’s knees and back.
Further, plaintiff arguably suffered an impairment to an important body function. Dr. Bradford Barker’s medical examination after the second accident indicated that plaintiff was ‘unable to walk on his right toes or his right heel.’ Before the second accident, Barker reported that plaintiff was able to walk on his toes and heels, albeit with difficulty. . . .
Importantly, however, notwithstanding that plaintiff suffered an impairment to an important body function, the impairment did not affect plaintiff’s general ability to lead his normal life. In fact, a review of the record indicates that plaintiff suffered similar problems both before and after the second accident. Though plaintiff was unable to walk on his right heel and toe immediately after the second accident, plaintiff could only walk on his heel and toes with difficulty and severe pain before the second accident. Further, though plaintiff complained of knee popping sensations after the second accident, he admitted that his right knee would ‘pop out’ frequently before the second accident. Moreover, while plaintiff claimed that he could walk one to two miles per day about two to three times per week before the second accident, he reported that, on a good day, he can walk one to two miles per day after the second accident.
Plaintiff testified that there are ‘tremendous’ things that he cannot do around his home since the second accident. However, in many respects, it appears plaintiff is not worse off after the second accident. For example, though plaintiff required 20 hours of assistance per week to do his yard work before the second accident, he was able to occasionally mow his lawn with a push mower after the second accident. . . .
In sum, our review of the record reveals that plaintiff experienced many of the same difficulties both before and after the second accident. We also note that all of the similarities in plaintiff’s pre- and post-accident lifestyle exist even though plaintiff also injured his left knee and back in the second accident. Clearly, though he sustained additional injuries in the second accident, there is little significant change, if any, in plaintiff’s pre- and post-accident lifestyle. Therefore, the second accident has not affected plaintiff’s ‘general ability to conduct the course of his life.’”
