Michigan Court of Appeals; Docket #284016; Unpublished
Judges Sawyer, Murray, and Stephens; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Permanent Serious Disfigurement Definition [3135(1)]
Serious Impairment of Body Function Definition (Kreiner Era - 1996-2010) [3135(7)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
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In this unanimous unpublished per curiam opinion decided without oral argument, the Court of Appeals dealt with the statutory definition of serious impairment of body function, as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 affirmed 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 fractured left femur which required open reduction internal fixation surgery and hospitalization for three days. After surgery, plaintiff used a walker for four weeks, followed by crutches for eight weeks, and a cane for four to six additional weeks. Plaintiff was off work for six weeks and returned to work with sit-down only restrictions. All restrictions were lifted after 14 weeks.
In affirming, the Court of Appeals noted that before the accident, plaintiff did his own yard work and home maintenance, camped in an RV, hiked, and rode a bike. He jogged once a week and occasionally played tennis. After the accident, the court noted that plaintiff had help with his yard work for the first year after the accident. After the first year, plaintiff was able to mow his lawn with a riding lawn mower and perform home maintenance that required use of a ladder. In addition, the court noted that plaintiff continued to camp and ride his bike. Although he no longer hiked, jogged, or played tennis, his activities were not restricted by a physician. The court noted that plaintiff walks without assistance, performs unrestricted duties at his job, does some yard work and home maintenance, and engages in recreational activities. Therefore, the court found plaintiff did not suffer a serious impairment of body function. In this regard, the court stated:
“Prior to the accident, plaintiff did his own yard work and home maintenance, and enjoyed camping in his recreational vehicle, hiking, and riding his bicycle. He jogged once a week and played tennis on occasion. After the accident, plaintiff’s son-in-law did plaintiff’s yard work for the first year. Thereafter, plaintiff was able to mow his lawn using a riding mower, and to perform home maintenance that did not require the use of a ladder. Plaintiff continued to camp eight to ten times each summer and to ride his bicycle on a very limited basis. He no longer hiked, jogged, or played tennis because of pain. As a result of the surgery, plaintiff now has roughly an eight-inch scar on his upper left thigh. Additionally, plaintiff’s left leg has decreased in diameter due to atrophy. . . .
Plaintiff ceased performing heavy yard work and using a ladder following the accident. Plaintiff no longer jogs, rides his bicycle, or plays tennis; however, his activities were not restricted by a physician. Self-imposed restrictions, based on real or perceived pain, do not establish the extent of a residual impairment. . . .
Plaintiff’s broken femur has not affected his general ability to live his normal life. Plaintiff can walk without assistance, perform unrestricted duties at his job, do some yard work and home maintenance, and engage in recreational activities. Accordingly, the trial court was correct in ruling that plaintiff did not suffer a serious impairment of body function. . . .”
The Court of Appeals also found that plaintiff failed to show that he suffered a serious permanent disfigurement, even though he had an eight-inch surgical scar on his left thigh. The court noted that the scar was located on his upper thigh and is only slightly different in color from the surrounding skin. In concluding that plaintiff did not have a permanent serious disfigurement, the court compared his scar with the scar in Minter v City of Grand Rapids, 480 Mich 1182; 747 NW2d 229 (2008), in which the Supreme Court held that the plaintiff’s facial scar did not meet the no-fault standard for serious impairment. Based upon the Supreme Court’s holding, the Court of Appeals declined to find that a scar on a thigh is a serious disfigurement where the scar will be concealed and will not be readily apparent. In this regard, the court stated:
“The scar in question is approximately eight inches long, fairly narrow, is situated on plaintiff’s upper left thigh and is slightly different in color than the surrounding skin. By all indications, the scar is permanent. However, in applying common knowledge and experience, we determine that it is not a serious disfigurement. In Minter v City of Grand Rapids, 480 Mich 1182; 747 NW2d 229 (2008) (adopting dissenting opinion in Minter v City of Grand Rapids, 275 Mich App 220; 739 NW2d 108 (2007)), our Supreme Court held that the plaintiff’s facial scar did not meet the no-fault standard for serious disfigurement. . . . Based on the Court’s determination that a facial scar that impacted the movement of the face was not a serious disfigurement, we decline to hold that the scar on plaintiff’s thigh is a serious disfigurement where that scar will generally be concealed and will not be readily apparent.”
