Michigan Court of Appeals; Docket No. 86760; Unpublished
Judges Beasley, R.B. Burns, and Lostracco; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (DiFranco Era – 1987-1995) [§3135(1)]
Objective Manifestation Element of Serious Impairment (Kreiner Era – 1996-2010) [§3135(7)]
Important Body Function Element of Serious Impairment (DiFranco Era – 1987-1995) [§3135(1)]
General Ability / Normal Life Element of Serious Impairment (DiFranco Era – 1987-1995) [§3135(1)]
Determining Serious Impairment of Body Function as a Matter of Law (DiFranco Era – 1987-1995) [§3135(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this important post-DiFranco decision on the issue of serious impairment of body function, the Court of Appeals addressed the issue of proper jury instructions in light of DiFranco.
Plaintiff was injured on March 24, 1982, and sustained injuries consisting of brain damage, manifested by a number of symptoms and problems. He claimed brain dysfunctions resulting in unreliable memory, difficulty with language, trouble making choices, and trouble communicating. Substantial medical evidence was offered in support of plaintiff’s claims. Dr. Emmanuel Tanay, a psychiatrist, testified that there was no doubt that plaintiff suffered permanent brain damage as a result of the accident. The injury was manifested by prolonged unconsciousness, post-traumatic epilepsy, personality changes, memory impairment, and evidence of diplopia, or double vision. The director of the Division of Neuropsychiatry at Henry Ford Hospital testified that plaintiff suffered a brain dysfunction as a result of the accident. These injuries resulted in plaintiff’s memory becoming unreliable, his inability to relate sounds and symbols smoothly was compromised, and this language difficulty was having significant effects on plaintiff’s decision making ability and communication. Plaintiff’s treating physician testified that he suffered extensive right side scalp and temporal lacerations, along with brain swelling, and a basilar skull fracture. A speciality in physical medicine and rehabilitation testified that plaintiff was suffering a mild seizure disorder. A neurologist testified that plaintiff had sustained an injury to one of the nerves supplying the eye muscles, resulting in limitation of downward movement of the left eye. A neuropsychologist offered testimony on behalf of defendant that plaintiff had no evidence of brain damage.
Plaintiff claimed that because of his injuries he did poorly in his engineering classes in school and dropped out. He was unable, as a result, to pursue his career goal of becoming an Air Force pilot. At the conclusion of proofs, both parties moved for directed verdict on the issue of serious impairment. The Court denied both motions on the basis that there were questions of fact on the issue of serious impairment requiring jury resolution. After instructions, the jury determined that plaintiff’s injuries did not result in a serious impairment of body function. Plaintiff appealed the judgment of no cause for action which was entered on July 23,1985. Part of the appeal consisted of a challenge to the jury instruction of the trial court in which the jury was instructed that to be a serious impairment, the impairment must be of an important body function, "must be objectively manifested," and capable of scientific medical measurement In addition, the court instructed the jury that the impairment must "seriously affect the plaintiff’s ability to perform common day-to-day activities and to lead a normal life."
In reliance upon the recent decision in DiFranco (Item No. 978), the Court of Appeals held that the issue of serious impairment of body function was properly submitted to the jury. However, the Court held that the trial court's instructions went beyond even those instructions contained in SJI2d 36.01, in that they required that the injury be objectively manifested and seriously affect the plaintiff’s ability to lead a normal life. The instructions contained language which had subsequently been rejected by DiFranco, and the Court of Appeals concluded that it is entirely possible that the jury would have concluded that there was a serious impairment of body function given the set of instructions outlined by DiFranco. Because the jury instructions given were plainly incorrect under DiFranco, and because the DiFranco instructions might well have resulted in a different verdict, the Court of Appeals reversed and remanded for new trial.
