Michigan Court of Appeals; Docket #285216; Unpublished
Judges Fitzgerald, Talbot, and Shapiro; 2-1 (Shapiro dissenting); 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)]
Objective Manifestation Element of Serious Impairment [3135(7)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 2-1 unpublished per curiam opinion decided without oral argument, the Court of Appeals dealt with the statutory definition of serious impairment of body function, as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 defendants on plaintiff’s claim for noneconomic losses.
The plaintiff in this case was an 8th grade boy who sustained a fracture of the left distal ulna (wrist), a fracture of the left hand; three fractures of the right foot, one of which was comminuted and shortened; and fracture of three ribs. The plaintiff’s fractures were immobilized with casts, he was required to use crutches, and he was restricted from using his right foot and left arm for one month during which time he required attendant care and household services. Due to his injuries, plaintiff missed two months of school and was unable to play football for one season.
In affirming the trial court’s decision, the Court of Appeals stated that although plaintiff missed two months of school, the interruption did not permanently affect his educational progress and did not affect the course and trajectory of his life. In so deciding, the Court of Appeals stated:
“We hold that, although it is no minor matter for a middle-school student to miss two months’ schooling, the interruption of this instance affected the trajectory of that school year, not of Anthony’s life in general. His own deposition testimony confirms that Anthony progressed normally in school despite that setback.”
Judge Shapiro dissented and stated:
“I respectfully dissent and conclude that plaintiff suffered a serious impairment of a body function as defined by MCL 500.3135(7).
In this case, defendant, a drunk driver with a blood alcohol level of .30, crossed the centerline at high speed and struck the car in which plaintiff, an eleven year old boy was a passenger. Plaintiff lost consciousness for a short period. He was taken to the hospital emergency department following the accident and treated thereafter by an orthopedic specialist and his pediatrician. He was initially diagnosed with a left distal ulna (wrist) fracture, a left hand fracture, and three foot fractures. One of the foot fractures was comminuted and shortened. Later, he was seen for difficulty breathing at which time he was diagnosed with rib fractures caused by the crash.
Plaintiff’s arm and his foot were both casted. He was prescribed household and attendant care services for one month. His physician barred him from any use of the right foot or left arm for one month and restricted plaintiff from any weight bearing on the right leg, preventing him from walking. He was permitted to start weight bearing one month following the crash, but was not permitted to run or participate in sports for a longer period. Plaintiff missed two months of school as a result of his injuries. He was not permitted to play football in the 2006-2007 season although plaintiff was hopeful that he would be able to play the next year. At his deposition he reported that although he no longer had pain in his foot or arm, he continued to have pain from his rib fractures.
While it appears that plaintiff has largely recovered from his injuries, he was unable to walk or use his left arm for at least one month and unable to participate in running or sporting activities for an extended period of time. He also missed two months of school, which is a significant period of time in the life of an eleven year old and his family. Being unable to walk and use one arm as well as being limited by rib fractures undoubtedly affects the ability to lead one’s normal life and certainly even more so for an active eleven year old. While the duration of these limitations was thankfully limited, the extent of the limitations was substantial and the duration was not de minimis. For these reasons, I conclude that plaintiff did suffer a serious impairment of body function as set forth in MCL 500.3135(7) and would reverse the trial court.”
