Michigan Court of Appeals; Docket #258533; Unpublished
Judges Hoekstra, Wilder, and Zahra; 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)]
Determining Serious Impairment of Body Function As a Matter of Law [3135(2)]
Determining Permanent Serious Disfigurement As a Matter of Law [3135(1)(2)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion decided without oral argument after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of serious body function, the Court of Appeals affirmed the trial court order granting defendant’s motion for summary disposition on plaintiff’s claim for non-economic losses finding that plaintiff’s injury constituted neither a severe impairment of body function nor a permanent serious disfigurement. The plaintiff in this case fractured her ankle when she was hit by a car while crossing the street. Plaintiff underwent surgery, was on crutches for about three months and received physical therapy for two months. In affirming, the Court of Appeals ruled that plaintiff had failed to prove a serious impairment of a body function. The court noted that a medical report dated four months after her accident indicated that she was back to full weightbearing and that she was not experiencing any pain. It also noted that although plaintiff testified there are activities in which she no longer participates, such as playing basketball and roller-skating, plaintiff did not provide evidence of physician-imposed restrictions. Further, even though she testified that her ankle swelled if she stood for more than eight hours, this did not establish the normal course of her life had been affected. In this regard, the court stated:
“In this case, plaintiff was struck by an automobile as she crossed the street. Plaintiff fractured her ankle, which required surgery. Plaintiff used crutches to ambulate for approximately three months. . . . Although plaintiff presented evidence concerning changes in her recreational activities, this did not establish a serious impairment of body function. . . . Plaintiff did not offer evidence linking her decision not to engage in basketball and roller-skating to a physician’s observation of limited movement or a physical incapability of performing some motion. She did not present evidence of any physician-imposed restrictions. Nor did she specify the reason that she discontinued the activities. In the absence of physician-imposed restrictions or restrictions that are attributable to physical incapacity, the change in activities does not show residual impairment. . . . Plaintiff’s deposition testimony that she limped also fails to establish a serious impairment of body function. Even assuming there was a limp from plaintiff’s perspective, the limp was not ‘appreciable’ to the physician who conducted the independent medical examination. A limp that is not appreciable to observers does not provide a basis for concluding that the course of plaintiff’s normal life has been affected. . . . Similarly, plaintiff’s testimony that her ankle swelled if she stood for more than eight hours does not show that the course of her normal life has been affected.”
As to the surgical scar, the Court of Appeals determined that because the scar was small and located on the inside of her ankle, plaintiff did not sustain permanent serious disfigurement.
