Michigan Court of Appeals; Docket #265595; Unpublished
Judges Murphy, Meter, and Davis; 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)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
Determining Serious Impairment of Body Function As a Matter of Law [3135(2)]
Closed Head Injury Question of Fact [3135(2)(a)(ii)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, decided after the Supreme Court’s decision in Kreiner v Fischer [RB #2428], interpreting the statutory definition of serious impairment of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 denying defendants’ motion for summary disposition on plaintiff’s claim for non-economic losses.
The plaintiff in this case sustained a closed head injury in a motor vehicle accident. In addition, his pre-existing neck and back injuries were aggravated. In affirming the trial court’s decision, the Court of Appeals first determined that because plaintiff’s expert did not expressly testify under oath that he may have suffered a serious neurological injury, the case cannot automatically proceed to trial under MCL 500.3135(2)(a)(ii). Nevertheless, plaintiff is not precluded from asserting that the closed head injury constituted a serious impairment of body function. In this regard, the court stated:
“With respect to the alleged closed-head injury, plaintiff cannot take advantage of MCL 500.3135(2)(a)(ii) because plaintiff’s experts did not expressly testify‘ under oath that there may be a serious neurological injury[,]’ as mandated by the statute, nor can it be implied from the experts’ statements that they opined that plaintiff’s closed-head injury may be a serious neurological injury. See Churchman v Rickerson, 240 Mich App 223, 229-231; 611 NW2d 333 (2000). Therefore, the case cannot automatically proceed to trial under that provision. However, the inapplicability of MCL 500.3135(2)(a)(ii) in relation to the alleged closed-head injury does not preclude plaintiff from asserting that the closed-head injury constituted a serious impairment of body function under the general principles of MCL 500.3135.”
(emphasis in original)
The court next determined that the plaintiff presented sufficient documentary evidence that his injuries affected his general ability to lead his normal life. In so finding, the court noted that plaintiff presented evidence that due to the accident, he has a 50 pound weight restriction, he can no longer lift weights, run, jog, or walk his family’s three dogs, he can no longer perform household chores, such as dusting, vacuuming, moving furniture, snow shoveling, and lawn maintenance. In addition, plaintiff presented evidence that he has some cognitive problems with his attention, concentration, and memory which have affected his work and scholastic performance. Moreover, since the accident, plaintiff now has sleep problems which cause him to awaken every hour or two. In this regard, the court stated:
“There was evidence that plaintiff had been under a fifty-pound weight restriction, that he no longer runs or jogs, which he did daily before the accident, that he cannot fully perform household chores such as dusting, vacuuming, moving furniture, snow shoveling, and lawn maintenance, that plaintiff can no longer go to the gym to exercise and lift weights as he did two to three days a week before the accident, and that he at times has difficulty performing work activities because of cognitive problems. Further, there was evidence that plaintiff could not walk the couple’s three dogs at the same time, although he could handle walking their smallest dog. . . . Additionally, there was evidence that plaintiff has some memory problems, causing him to forget to do things like closing doors around the home, taking his lunch to work, telling his wife about phone messages, and letting the dogs inside. . . . Plaintiff claimed that the head injury has also made it difficult for him to concentrate and comprehend at school. Plaintiff further contended that he has sleep problems related to the accident in that he cannot get comfortable, which has resulted in him sleeping in another bed in a room separate from his wife and, on some nights, rising every hour or two. . . . Taking into consideration the documentary evidence, we hold that reasonable minds might differ and that there is a factual issue with respect to whether the injuries, including the alleged closed-head injury, affected plaintiff’s general ability to lead his normal life.”
