Michigan Court of Appeals; Docket No. 57311; Published
Judges Kaufman, Brennan, and Beasley; Unanimous
Official Michigan Reporter Citation: 121 Mich App 1; Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (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 unanimous Opinion by Judge Beasley, the Court dealt with questions regarding serious impairment of body function. The plaintiff in this case was a 60 year old woman who sustained fractures of the right clavicle, six ribs, and the small toe of the right foot and was hospitalized for four days. She was disabled from her employment for approximately six months and complained of continued pain and discomfort several years after the accident. An Oakland County jury returned a verdict of no cause for action in favor of defendant, from which plaintiff appeals.
In its first holding, the Court of Appeals rejected plaintiff’s argument that her injuries amounted to a serious impairment of body function as a matter of law. In so holding, this panel specifically rejected the conclusion of a previous panel of the Court of Appeals in Burk v Warren, item number 401, which held that a fractured clavicle constituted a serious impairment of body function as a matter of law. This panel included Judge Beasley who wrote the instant opinion in rejecting the Burk holding, the Court stated, "We do not suggest that injuries flowing from an automobile accident never can amount to a serious impairment of a body function as a matter of law. For instance, permanent blindness or permanent paraplegia are injuries that would not be submitted to the jury on the issue of serious impairment In view of our foregoing analysis, we are no longer willing to follow the Burk rationale and to hold that a broken clavicle is, in all events, as a matter of law a serious impairment of body function. Rather, we decline to make a general unvarying rule holding that a broken clavicle is a serious impairment of body function. We will be constrained to review each case on its facts to determine whether all reasonable persons would find as did a trial judge."
The Court then reviewed the testimony of plaintiff’s treating physician and consulting expert and concluded that a jury reasonably could render a no cause of action verdict.
The Court also rejected plaintiff’s argument that the trial judge should have supplemented the standard jury instruction on serious impairment of body function (SJI2d 36.01) with an instruction regarding the standards for determining serious impairment of body function which was taken from the principle set forth in Hermann v Honey, item number 353. The Court found that this supplemental instruction was not accurate and was, in fact, slanted in plaintiff’s favor. The Court commented on the general rule recognized by the Supreme Court that the use of standard jury instructions are mandatory whenever they are applicable, accurate, and requested by a party. In this case, the use of SJI2d 36.01 was the correct instruction.
