Michigan Court of Appeals; Docket No. 88535; Unpublished
Judges Sawyer, McDonald, and Szymanski; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Determining Serious Impairment of Body Function As a Matter of Law (DiFranco Era – 1987-1995) [§3135(1)]
Bystander Claims [§3135]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous per curiam Opinion, the Court of Appeals upheld the trial court's determination that a bystander's claim for emotional injury damages based upon viewing of another's physical injuries requires that the bystander meet the serious impairment of body function threshold.
In this case, Dale Thayer claimed damages for "negligent infliction of emotional distress" based upon his observation of his severely injured son moments after his son had been struck by an automobile. Plaintiff argued that so long as the injuries of his son met the threshold, it was not necessary for his emotional distress injuries to also meet the serious impairment threshold. Plaintiff argued that his damages were analogous to derivative recovery for consortium, which is recoverable without regard to the serious impairment threshold. [See Rusinek v Schultz, (Item No. 534)].
The Court of Appeals rejected plaintiff’s argument and held that the person sustaining mental distress must establish that the injuries constituted a "serious impairment of body function." The Court cited the earlier decision of Luce v Gerow, (Item No. 172), in which a passenger sought to obtain recovery for mental injury resulting from her witnessing injuries sustained by another occupant of her vehicle. The Luce court held in that case that a claim for mental distress was actionable under the No-Fault Act, but the court indicated therein that the serious impairment standard was directly applicable to the plaintiff’s mental distress. Unlike consortium, the bystander claim premised upon viewing another's physical injuries is a direct action for recovery of damages sustained by the claimant; it is entirely independent of the claim for physical injuries.
In light of the recent decision of DiFranco, the Court of Appeals vacated the entry of summary disposition and remanded for further proceedings in conformity with DiFranco.
