Michigan Court of Appeals; Docket #265177; Unpublished
Judges Bandstra, White, and Fort Hood; 2-1 (Judge White concurring)
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)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 2-1 unpublished opinion decided after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of serious impairment of body function, the Court of Appeals affirmed the trial court order granting summary disposition in favor of defendants on plaintiff’s claim for non-economic losses. The plaintiff in this case had previously been rendered totally disabled by a knee injury that developed into reflex sympathetic dystrophy (RSD), a chronic neurological syndrome that spread to every part of her body below the neck. In 2003, plaintiff fractured an ankle in an automobile accident for which she was non-invasively treated with a cast, a boot and a brace from December 2003 to May 2004. Although she walked with a cane for an unspecified period of time, the trial court determined that plaintiff’s general ability to lead her normal life was unaffected by the injury due to the limitations caused by the existing RSD. In affirming the trial court’s decision, the Court of Appeals agreed that plaintiff’s injury did not affect her general ability to lead her normal life. In so deciding, the Court of Appeals stated:
“Plaintiff sustained an ankle fracture in the automobile accident at issue here. She was scheduled for five out-patient visits and was non-invasively treated with a cast, boot, and brace from December 2003 until May 2004. The medical records reveal that, within weeks of the accident, she was allowed to walk with the aid of a walker and a four-prong cane. Her ankle was designated ‘healed’ without physical therapy at her May 2004 doctor visit. Plaintiff’s ankle injury itself did not sufficiently affect her ‘general ability’ to conduct her life under the Kreiner standard. . . . While plaintiff admits to suffering from RSD before the accident, she further argues that the accident exacerbated her condition. However, she has come forward with insufficient evidence to demonstrate that the impact of the accident on her progressively worsening RSD affected her general ability to lead her normal life. Plaintiff had no hobbies before the accident, and has not engaged in hobbies since the accident. Plaintiff walked with a cane before the accident, and has walked with a cane since the accident. Plaintiff reduced the frequency with which she drove after [the] accident; however, this was due to the fact that she had not been able to replace her vehicle which was rendered inoperable in the accident, and not because of her physical inability to do so.”
The court also rejected plaintiff’s argument that the trial court’s holding essentially amounted to a de facto ruling that a pre-existing disability will render a person unable to meet the serious impairment threshold. In so deciding, the Court of Appeals stated:
“We disagree with plaintiff’s contention that the trial court’s holding essentially amounted to a rule that persons with pre-existing disabilities will never be able to meet the serious impairment of body function threshold necessary to sustain an action for noneconomic damages. Rather, based on the facts of this particular case, plaintiff has not demonstrated that her ‘entire normal life,’ as unfortunately limited and painful as it may be, is appreciably different than her life before the automobile accident. . . . While we empathize with the amount of suffering plaintiff has had to endure since 1992 because of the RSD, the fact remains that ‘the course and trajectory of []plaintiff’s normal life has not been affected’ by the later accident here. . . . The trial court properly granted summary disposition in favor of defendants.”
