Michigan Court of Appeals; Docket No. 74214; Published
Judges Cynar, Wahls, and Finch; Unanimous; Per Curiam
Official Michigan Reporter Citation: 146 Mich App 44; Link to Opinion 
STATUTORY INDEXING:
Permanent Serious Disfigurement Definition [§3135(1)]
Determining Permanent Serious Disfigurement as a Matter of Law [§3135(1)(2)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this 2-1 decision by Judge Finch, the court affirmed summary judgment in favor of defendant, holding that plaintiff’s facial scars did not constitute permanent serious disfigurement under the threshold provisions of §3135 of the act. The court cited Kosack v Moore (Item No. 848) for the proposition that the reasoning of the Cassidy decision has been extended to resolving questions of permanent serious disfigurement In applying Cassidy, the court reviewed photographs from the trial court. Upon doing so, the majority stated they were, "unable to say that the physical characteristics of the scar under plaintiff’s left eye either constitute a permanent serious disfigurement or create any fact issue on the question." The majority acknowledged that there is no doubt that the scar is permanent. However, it was not serious.
The court stated that, "Plaintiff’s embarrassment and sensitivity about her appearance, including her reluctance to wear contact lenses, and her choice of eyeglass frames are all subjective reactions to a condition which may (and must) be objectively judged by the trial court, just as our complaints of pain and discomfort in a serious impairment case." The court did note, however, that there may well be cases involving facial scars "where the trial court should leave a marginal question to the jury." However, this is not one of those cases.
In the footnotes, the majority noted that the scar was approximately three centimeters long, is slightly depressed and slightly lighter than the surrounding skin. The court also noted in footnote 2, "We do not believe that the seriousness of the scar is susceptible of being proved or disproved by medical expertise, but rather is a matter of the common knowledge and experience of the trial bench in the first instance, and if the case goes to it, the jury."
Judge Cynar dissented. He stated that based upon the record, "The plaintiff did satisfy the threshold question of the existence of permanent serious disfigurement. Having done so, there is a fact question to determine the seriousness of the disfigurement."
