Michigan Court of Appeals; Docket No. 77522; Published
Judges Hood, Wahls, and Kallman; Per Curiam
Official Michigan Reporter Citation: 144 Mich App 356; Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (Cassidy Era – 1983-1986) [§3135(1)]
Objective Manifestation Element of Serious Impairment (Cassidy Era – 1983-1986) [§3135(1)]
Important Body Function Element of Serious Impairment (Cassidy Era – 1983-1986) [§3135(1)]
General Ability / Normal Life Element of Serious Impairment (Cassidy Era – 1983-1986) [§3135(1)]
Determining Serious Impairment of Body Function as a Matter of Law (Cassidy Era – 1983-1986) [§3135(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this 2-1 per curiam Opinion, the Court of Appeals affirmed the trial court's grant of summary judgment in favor of defendant on plaintiff’s claim of serious impairment of body function. Plaintiff’s injury basically consisted of a soft tissue injury to her ankles, periodic headaches and back stiffness. Initially, it was plaintiff’s left ankle that was more severely injured in the accident, having sustained lacerations and contusions. Plaintiff sought treatment for her ankle on approximately 30 occasions over the two-year period following the accident; She complained of pain in the left leg, particularly when walking long distances, as .well as swelling. After a while, plaintiff began compensating for the left ankle pain by placing more weight on the right ankle, which, in turn, then became swollen and painful, particularly after prolonged weight-bearing, walking or running. One of plaintiff’s doctors concluded that her problem was "traumatic laxity or ankle instability" on the right side. She was advised to wear orthopedic molded shoes for stabilization and an air cast during periods of prolonged weight-bearing. She continued to be bothered with pain and swelling after prolonged physical activity.
The majority concluded that plaintiff’s injuries did not constitute a serious impairment of body function. The court spent little time with plaintiff’s complaints of headache and back stiffness, noting that neither of these two injuries prevented her from performing her daily activities. The majority did note, however, that plaintiff’s injury to her ankle "presents us with a much closer question." The court acknowledged that swelling and limited motion in the ankles did constitute objective manifestation of injury. In addition, to the extent that it affected plaintiff’s walking, it constituted an impairment of "an important body function." However, the court concluded that plaintiff’s impairment was not serious. Two physicians examined plaintiff and detected no swelling or other clinical evidence of injury on examination. In addition, plaintiff herself acknowledged that the swelling occurs only after jogging, cycling, walking in certain ways or being on her feet for prolonged periods. Therefore, the court noted, "It is clear that plaintiff was generally able to live a normal life, but had to structure her activities more carefully to avoid aggravating the weakness in her ankles. Accordingly, we conclude that plaintiff was not seriously impaired within the intendment of the no-fault act"
The court also made some observations regarding summary judgment practice under the Cassidy rule. The court stated that if a plaintiff is going to resist motions for summary judgment, it is incumbent upon the plaintiff to affirmatively show serious impairment of body function. If plaintiff is not able to show a "genuine issue of material fact," plaintiff must submit "enough evidence to obtain a ruling on the merits in her favor." In this case, the plaintiff took no steps to supplement the record beyond what the trial court had before it at the time of hearing. Moreover, the defendant's failure to submit an affidavit based on personal knowledge does not make the motion procedurally defective. Affidavits based on personal knowledge are unnecessary where defendant concedes for purposes of the motion that there is no genuine issue of material fact as to the nature and extent of plaintiff s injuries and the defendant relies on plaintiff’s answers to interrogatories and deposition testimony, as well as other exhibits.
Judge Kallman filed a vigorous dissent He stated:
"The majority states that plaintiff must structure her activities more carefully to avoid aggravating the weakness in her ankle. Yet the majority concludes that plaintiff’s impairment was not sufficiently serious to meet the threshold requirement I do not believe that the Supreme Court, by allocating the determination of the seriousness of an injury to the courts, intended the courts to make value judgments such as the one made in the present case. Under Cassidy, the test is an objective one which looks to the effect of an injury on the person's general ability to live that person's normal life. In the present case, plaintiff’s injuries have affected her ability to live her normal life. Persons who do not have plaintiff’s injuries are able to walk, run and do household chores without swelling, pain and twisting ankles."
