Michigan Court of Appeals; Docket #282111; Unpublished
Judges Beckering, Whitbeck, and Kelly; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (Kreiner Era - 1996-2010 [3135(7)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
Evidentiary Issues [3135]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion decided without oral argument, the Court of Appeals dealt with the statutory definition of serious impairment of body function, as interpreted by the Supreme Court’s decision in Kreiner v Fischer [Item No. 2428], and reversed the trial court’s Order granting summary disposition in favor of defendant on plaintiff’s claim for noneconomic damages.
The plaintiff in this case sustained a ruptured disc in his neck for which he initially was treated with physical therapy and pain medication. However, about a year and one-half after the accident, he underwent surgery to fuse the vertebrae and insert a plate.
The trial court granted defendant’s motion for summary disposition, finding that because the plaintiff had been disabled since 1993 due to injuries to his lower back and right shoulder, he failed to show that the course and trajectory of his life had been affected by the motor vehicle accident. In reversing, the Court of Appeals found that although plaintiff had a pre-existing disability, there was sufficient evidence to create an issue of fact regarding whether the neck injury further affected his ability to lead his normal life.
In so concluding, the court noted that plaintiff’s treating physician restricted him from performing activities that required lifting, sitting, standing, or walking. In addition, plaintiff’s physician stated that the injuries would affect plaintiff’s ability to lift, stand, bend, squat, kneel, sleep, and engage in sexual activity. Moreover, plaintiff averred that he could no longer fish, sleep in a bed, perform numerous chores, and watch his grandchildren’s sporting events. In addition, plaintiff stated he slept in a recliner and that his injury diminished his ability to engage in sexual relations with his wife. Based upon the totality of the evidence, the court stated that reasonable minds could differ as to whether plaintiff’s neck injury affected his general ability to lead his normal life. In this regard, the court stated:
“In his affidavit, Dr. Ribaudo averred that Tipton suffered a ruptured disc in his neck, which required surgical intervention, and stated that the ruptured disc was manifested in CT and MRI scans. Although Lang briefly suggests that Tipton’s impairment was not an objectively manifested impairment of an important body function, the existence of the ruptured disc was clearly objectively manifested by medical tests, which were interpreted by Tipton’s physician, and the ability to move one’s neck is an important body function. . . . Likewise, the fact that the injury required medical intervention including the implantation of a plate and the fusion of vertebrae are further objective manifestations of the impairment. hence, there is evidence that Tipton has suffered an objectively manifested impairment to an important body function. Therefore, the dispositive issue is whether the impairment to Tipton’s neck affected his general ability to lead his normal life.
Tipton testified . . . that he has lost the ability to fish, sleep in a bed, perform numerous chores, watch his grandchildren’s sporting events, and has diminished sexual relations with his wife. In addition, Tipton submitted an affidavit in which he averred that these activities constituted an important part of his normal life before the accident. . . .
Further, Dr. Ribaudo averred that he restricted Tipton’s activities and submitted documentation of those restrictions with his affidavit. Although the restrictions do not specifically preclude Tipton from performing any of the activities mentioned, they do include restrictions on physical movement, such as lifting, sitting, standing, and walking, that would be required to perform those activities. Dr. Ribaudo also specifically averred that Tipton’s neck injury would adversely affect Tipton’s ability to lift, stand, bend, squat, kneel, sleep, and engage in sexual activity. There is record evidence from which a reasonable jury could find that Tipton could perform certain activities before the accident at issue, that those activities were important to his ability to lead his normal life, and that he can no longer perform them as a result of his injuries. . . .
When the totality of the evidence is viewed in the light most favorable to Tipton, reasonable minds might differ as to whether Tipton’s neck injury affected his general ability to lead his normal life. Hence, there remains a genuine issue of fact as to whether Tipton’s neck injury constitutes a serious impairment of body function.”
