Michigan Court of Appeals; Docket #259255; Unpublished
Judges White, Fitzgerald, and Talbot; 2-1 (Judge White 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)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 2-1 unpublished per curiam opinion decided without oral argument after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of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 impairment of body function, the Court of Appeals affirmed the trial court order granting summary disposition in favor of defendant on plaintiff’s claim for non-economic losses. The plaintiff in this case, a professional pianist, sustained injuries to his left foot, including a fracture to his heel, which affected his ability to walk and causes chronic pain. In affirming, the Court of Appeals found plaintiff’s injury has not affected his general ability to lead his normal life. In so holding, the court noted plaintiff’s inability to work is not related to his injury. Moreover, any restrictions on plaintiff’s activities are self-imposed. Self-imposed restrictions do not establish the existence of residual impairments. In this regard, the court explained:
“Viewing the evidence in a light most favorable to plaintiff, we conclude that plaintiff failed to offer evidence sufficient to establish that the injuries incurred from the automobile accident have affected his general ability to live a normal life. Plaintiff’s injuries, while unfortunate, have done little to preclude plaintiff from living his life in a normal manner. Plaintiff is a professional pianist dependent on market demand to sustain a living. His failure to procure work comes from a lack of need for his services, instead of a lack of ability on his part to perform due to injury. Moreover, plaintiff has not been limited in any of his daily living activities other than by limitations he has imposed upon himself. Such self-imposed restrictions, as opposed to physician-imposed restrictions, based on real or perceived pain do not establish the existence of any residual impairment. . . . We conclude that plaintiff has failed to establish a genuine issue of material fact regarding whether he suffered a serious impairment of body function that affected his general ability to lead his normal life. The trial court correctly granted defendant’s motion for summary disposition.”
In her dissent, Judge White noted that plaintiff suffered from permanent physician-imposed restrictions on walking, ladder climbing, carrying and lifting. Therefore, she concluded that plaintiff’s injuries affected his general ability to lead his normal life.
