Michigan Court of Appeals; Docket #268393; Unpublished
Judges Schuette, O’Connell, and Davis; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Noneconomic Loss Liability for Serious Impairment of Body Function Threshold (Definition) [3135(1)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
Determining Permanent Serious Disfigurement 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In this unanimous unpublished per curiam opinion, decided after the Supreme Court’s decision in Kreiner v Fischer [Item No. 2428] interpreting the statutory definition of serious impairment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.
The plaintiff in this case sustained a facial laceration on her right cheek. When the laceration healed, it left a 6 cm scar that extended from her cheek to her lower eyelid. The injury near her eye caused swelling, eye dryness, occasional blurriness, and twitching. Although the swelling subsided the other problems remained. In reversing the trial court’s decision, the Court of Appeals determined that eye dryness can be treated with drops and twitching and tingling do not impede a plaintiff’s general ability to lead her normal life. In this regard, the court stated:
“Presuming plaintiff’s complaints about here [sic] eye are objectively manifested, they amount to swelling that has subsided, occasional dryness that is amenable to relief in the form of over-the-counter eye drops, and some twitching and tingling. It does not appear to us that any of these complaints impede ‘plaintiff’s “general ability” to lead [her] life.’ . . . ‘A negative effect on a particular aspect of an injured person’s life is not sufficient in itself to meet the tort threshold, as long as the injured person is still generally able to lead [her] normal life.’. . . Although presumably uncomfortable, plaintiff’s lifestyle has apparently not been affected, nor has her general ability to lead her life. Plaintiff’s alleged eye condition therefore does not constitute a serious impairment of body function.”
The Court of Appeals next held that the trial court improperly determined that whether plaintiff sustained a permanent serious disfigurement was a question for the jury. Because the scar was permanent, the Court of Appeals explained that its severity is a question of law for the trial court to decide. Since the trial court did not make a determination regarding the scar’s seriousness, the Court of Appeals reversed and remanded for further proceedings. In this regard, the court stated:
“Here, we perceive no dispute that the scar is ‘permanent.’ Given that the scar has nearly reached its maximum amount of healing, there is no genuine factual dispute regarding the nature of the scar. Its severity is therefore a question of law for the court to determine. Unfortunately, the trial court did not make a determination of the scar’s seriousness at the present time, and we are reluctant to rely solely on the photographs that we have been given on appeal. . . . We . . . conclude that we do not have enough evidence to engage in a complete review of the seriousness of the scar. The trial court erred in denying summary disposition to defendant on the ground that the scar had been serious at one point, so that denial must be reversed. But because we cannot conclude with certainty that the scar is not now serious, we remand for the trial court to make that determination.”
(emphasis in original)
