Michigan Court of Appeals; Docket #295512; Unpublished
Judges Fitzgerald, O’Connell, and Meter; 2-1 (Judge O’Connell dissenting); per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion
STATUTORY INDEXING:
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 - Present) [3135(7)]
Important Body Function Element of Serious Impairment (McCormick Era: 2010 – present) [3135(7)]
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [3135(7)]
Determining Serious Impairment of Body Function As a Matter of Law (McCormick Era: 2010 – present) [3135(2)]
Determining Permanent Serious Disfigurement As a Matter of Law [3135(1)(2)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this non-unanimous unpublished per curiam post-McCormick opinion, Judge O’Connell concurring in part and dissenting in part, the Court of Appeals affirmed the trial court’s denial of the defendant’s motion for summary disposition on the issue of serious impairment of body function, and also affirmed the trial court denial of defendant’s motion for directed verdict on that same issue. The Court of Appeals also found that the trial court abused its discretion in failing to grant defendant’s motion for summary disposition and directed verdict on the issue of permanent serious disfigurement, but found that reversal of the jury’s verdict was not required because there was substantial evidence for a reasonable jury to have concluded that the damages were sustained as a result of plaintiff’s alternate theory of recovery which was the issue of serious impairment of body function.
Plaintiff was injured in a motor vehicle accident in August 2005. His injuries were to his left knee requiring outpatient surgery under general anesthesia. The injury resulted in an inability to bear weight on the leg, difficulty with repetitive bending, and restrictions on plaintiff’s normal activities. Plaintiff also sustained scars on his leg approximately 3.5 inches in length.
Following his surgery plaintiff was in a full-leg cast or brace for a few weeks, used crutches, and was off work for two or three weeks.
Plaintiff’s normal manner of living prior to the accident consisted of an active lifestyle outside of work which included jogging, bowling, working out, and riding his bicycle. Plaintiff testified that he was unable to conduct his normal manner of living for at least three years following the accident. Plaintiff testified that the knee caused him pain every day and that his physical ability was not anywhere near the level it was before the accident.
Plaintiff also sustained scars as a consequence of his injury and as a result of the surgery. The scar was described as being “flattened,” approximately 2.8 centimeters in width and 7.6 centimeters in length, but that it was partially covered by hair.
In addressing the issue of serious impairment of body function, the Court utilized the standards elucidated in McCormick. Specifically, that the plaintiff need only produce evidence:
“that some of the person’s ability to live in his or her normal manner of living has been affected, not that some of the person’s normal manner of living has itself been affected. Thus, while the extent to which a person’s general ability to live his or her normal life is affected by an impairment is undoubtedly related to what the person’s normal manner of living is, there is no quantitative minimum as to the percentage of a person’s normal manner of living that must be affected.”
The court held that, viewed in the light most favorable to the plaintiff, the facts demonstrated that plaintiff’s objectively manifested impairment of an important body function affected his ability to lead his normal life and therefore the trial court properly denied defendant’s motion for summary disposition. Additionally, the Court held that the trial court properly denied defendant’s motion for directed verdict when reviewing the evidence in the light most favorable to the non-moving party.
With regard to the issue of permanent serious disfigurement, the Court found that the trial court erred in failing to grant the motion for summary disposition on that issue stating that although the scars may be permanent, the scars do not rise to the level of being permanent serious disfigurement because the scars do not meet the requirement of being “serious.” However, the Court did not feel reversal was justified because here, substantial evidence was presented for a reasonable jury to conclude that the damages were sustained as a result of plaintiff’s alternate theory of recovery, which was the issue of serious impairment of body function.
The Court of Appeals also addressed evidentiary issues concerning whether or not the trial court erred in precluding evidence of photographs or videotapes of the plaintiff. The Court of Appeals affirmed the trial court ruling precluding introduction of that evidence on the basis that it had not been disclosed in accordance with the trial court’s scheduling order, and further, such evidence was not admissible for purposes of impeachment because the evidence did not show plaintiff engaging in activities inconsistent with his testimony (mowing the lawn). The Court of Appeals also affirmed the trial court ruling on defendant’s objection to the admissibility of “hearsay” evidence regarding statements of plaintiff’s doctors regarding his restrictions. The trial court ruled that such statements were not hearsay because they were not offered to prove the truth of those statements.
In a separate opinion, concurring in part and dissenting in part, Judge O’Connell would have reversed on the evidentiary issues with regard to the video and photographs and the hearsay statements, and remanded the matter for a new trial limited to the issue of whether or not plaintiff had sustained a serious impairment of body function, and if so, what amount of noneconomic damage he sustained.
