Michigan Court of Appeals; Docket #269064; Unpublished
Judges Whitbeck, Murphy, and Smolenski; 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)]
Determining Serious Impairment of Body Function As a Matter of Law [3135(2)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, decided after the Supreme Court’s decision in Kreiner v Fischer [RB #2428], interpreting the statutory definition of serious impairment of body function, the Court of Appeals reversed the trial court Order denying defendant’s motion for summary disposition on plaintiff’s claim for non-economic losses and granting plaintiff’s motion for partial summary disposition.
The plaintiff in this case sustained a fracture to his left knee. In granting plaintiff partial summary disposition, the trial court relied on defense counsel’s concession that a question of material fact existed regarding the nature and extent of plaintiff’s injuries. In reversing the trial court’s decision, the Court of Appeals explained that the issue of whether a person has suffered a serious impairment of body function is a question of law for the court only where there is no factual dispute regarding the nature and extent of the plaintiff’s injuries. Here, defense counsel’s concession created a question of fact regarding the nature and extent of plaintiff’s injuries. Therefore, summary disposition was improper.
“The issue whether a person has suffered a serious impairment of body function is a question of law for the court if there is no factual dispute concerning the nature and extent of the injuries, or if there is a factual dispute concerning the nature and extent of the injuries but the dispute is not material to whether the plaintiff has suffered a serious impairment of body function. Otherwise, the determination whether the plaintiff suffered a serious impairment of body function is a question of fact for the jury.
X-rays show that Petrocik sustained a fracture to his left knee. However, at oral argument, Dowling’s counsel conceded that a question of material fact exists regarding the nature and extent of Petrocik’s injury, specifically regarding whether Petrocik will have to have a knee replacement surgery in the future. As such, this case must be remanded for a jury to determine whether Petrocik sustained a serious impairment of body function.”
