United States Court of Appeals for the Sixth Circuit; Docket #07-1650/1749; Published
Judges Norris, Rogers, and Kethledge; unanimous
Official Reporter Citation: Forthcoming, Link to Opinion 
STATUTORY INDEXING:
General Ability / Normal Life Element of Serious Impairment [3135(7)]
Evidentiary Issues [3135]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous published opinion by Judge Norris, decided after the Michigan Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of serious impairment of body function, the 6th Circuit Court of Appeals affirmed the trial court order granting summary judgment in favor of defendants on plaintiff’s claim for noneconomic losses.
The plaintiff in this case sustained a closed head injury characterized by seizures. In affirming the trial court judgment, the 6th Circuit Court of Appeals determined that due to the plaintiff’s age at the time of the accident, 5-years-old, it is difficult to apply Kreiner. Nonetheless, the court noted what has not been affected by the child’s injury. The court noted that the child missed only two weeks of school during the past five years, so her injury cannot be said to have affected her ability to attend school. The court also noted that the alleged seizures caused by the injury have not affected the child’s ability to participate in activities or interact with students and friends and that she enjoys participating in many things typical for a girl her age. However, plaintiff argues that the child’s general ability to lead her normal life has been affected through the effect the closed head injury has had on her academic performance. However, the court found it significant that the child had never been held back a grade, nor had she received assistance from a tutor or a special teacher of any kind. Although the child’s mother testified that her handwriting was poor, she also testified that her handwriting was poor the year before her accident. Because the only deficit regarding the child’s academic performance concerned her handwriting and that it was poor before the accident and after the accident, the court determined it was insufficient to create a genuine issue of material fact. In this regard, the court stated:
“Hannah’s youth at the time of the accident – she was five years old and had just finished kindergarten – makes it difficult to apply Kreiner to her case. Nonetheless, we begin by noting those things which have not been affected by Hannah’s alleged injury: Hannah has, by her mother’s account, missed only two weeks of school due to this accident, largely for visits to the doctor, so her injury cannot be said to have affected her ability to attend school. Nor has her injury, or the alleged seizures that come along with it, affected her ability to participate in activities or interact with other students and friends – she enjoys doing many things typical for a girl her age, such as playing basketball, riding her bike, and playing with her best friend (who has been so since the first grade).
This leaves plaintiff with the argument that her general ability to lead her normal life has been affected through the accident’s effect on her academic performance. This is a significant activity in a young person’s life, the importance of which we do not doubt. Defendant Laidlaw points out that Hannah has never been held back a grade in school, nor has she ever needed or received the assistance of a tutor, or a special teacher of any kind to help her with her school work. To be sure, there is more to academic performance than that – just because a student does not fail or need a tutor does not mean that her ability to perform academically has not been affected substantially enough to change her ability to lead her normal life. But Hannah’s mother had an opportunity to explain exactly how the injury has affected her daughter’s academic performance, and her explanation was, in our view, less than compelling. When asked if Hannah had experienced any problems at school during first grade, the year after the accident, the only problem she brought up was with her handwriting. She maintained this even when pressed as to whether there was ‘anything else besides her handwriting’ that was giving Hannah problems, and she eventually stated that otherwise, Hannah’s grades were good. What’s more, when putting Hannah’s low first-grade handwriting grade in perspective, she went on to testify that Hannah had also received a low handwriting score in kindergarten. This is the only evidence we have on this issue, and it is insufficient to create a genuine issue of material fact.”
(emphasis in original)
