*1
32
427 Mich
32
v PICKARD
DiFRANCO
v WARREN
BURK
PAUPORE v ROUSE
KUCERA v NORTON
DAULT
v
ROUTLEY
16,
75263, 75299,
January
74692, 74867,
Argued
75811.
Nos.
Docket
6-10).
23,
(Calendar
1986. Rehear-
Decided December
Nos.
1986
Burk, Kucera,
Routley, Mich 1206.
ings
and
denied
brought
in the
Circuit Court
an action
Macomb
Thomas DiFranco
damages
Pickard, seeking
and
against
noneconomic
Maurice H.
respect
body
claiming
impairment
function with
of an automobile
injuries
as a result
to his back
soft tissue
by
rear
struck in the
vehicle was
his
when
accident
J.,
Sanborn,
court,
removed
N.
The
Kenneth
defendant.
trial,
the defendant
Court. Prior
the 39th District
case to
Ward, J.,
court,
negligence.
B.
entered
William
The
admitted
negligence was
jury
defendant’s
judgment
verdict that the
on a
injuries,
plaintiffs
but
proximate
cause of
func-
plaintiff
a serious
had not suffered
Bivins, J.,
Court,
affirmed.
B.
Circuit
Ollie
tion. The Macomb
Allen, P.J.,
Appeals,
T. M.
Burns
The Court of
(Docket
JJ.,
appeal
plaintiff
No.
Martin,
leave to
denied the
76272).
appeals.
The
Ingham
brought
Court
Douglas
in the
Circuit
Burk
an action
Warren,
damages
seeking
against
suffered
David
riding his
as he was
the defendant’s truck
when he was hit
Brown, J.,
court,
judgment
motorcycle.
L.
entered
Thomas
negligent
jury
and had
on a
verdict
defendant
plain-
injuries,
plaintiffs
that the
proximately
but
caused the
injuries did not cause a serious
tiffs
Beasley,
Appeals,
JJ.
function. The Court
Deneweth
(T.
reversed,
Burns, P.J.,
concluding
concurring),
M.
References
349,
seq.
2d,
seq.,
et
357 et
Insurance
§§
Am Jur
Automobile
2d,
seq.
Insurance 2031 et
§
Am Jur
No-Fault
to Annotations under
See the annotations in the Index
Insurance.
Pickard
v
a serious
had sustained
48909).
(Docket
Supreme
Nos.
as a matter of law
Court,
granting
appeal, remanded the case to
leave to
in lieu of
light Cassidy
proceed in
instructions to
the circuit court with
(1982).
remand,
court,
McGovern,
the circuit
On
415 Mich
*2
plaintiff
Brown, J.,
that the
as a matter of law
Thomas L.
found
body
impairment
function. After
of
a serious
had suffered
P.J.,
remand,
Appeals,
R. B.
Brennan,
J.
and
of
V.
the Court
curiam,
JJ.,
per
opinion
in
Coleman,
reversed
an
Burns and
manifested,
objectively
holding
plaintiff’s
the
impairment
plaintiff
of
not
serious
that the
had
suffered
but
74636),
(Docket
body
No.
The
as a matter of law
plaintiff appeals.
brought
Paupore
Traverse
B.
an action in the Grand
Roderick
Johnson,
against Betty
Yvonne
A. Rouse and
Circuit Court
Rouse,
representative
personal
of
D.
de-
of the estate
Gerald
ceased,
passenger
alleging
injuries
sustained while a
a
son, Gerald,
by
by Betty Rouse and driven
her
car owned
perma-
impairment
body
function and
resulted in a serious
Brown, J.,
court,
disfigurement.
R.
The
William
nent serious
judgment
jury
had
verdict that Gerald Rouse
been
entered
on a
negligent
negligence
proximately caused the
and that his
had
plaintiff
plaintiff’s injuries,
had not
but concluded that
the
impairment
body
permanent
function or
suffered a serious
Maher, P.J.,
disfigurement.
Appeals, M.
The Court of
R.
serious
JJ.,
unpublished
McDonald,
in an
and Bronson
and
affirmed
curiam, finding
opinion per
that there was a material factual
dispute
plaintiffs injuries which
as to the nature and extent of
impairment
precluded
on the
of serious
a directed verdict
issue
(Docket
71705).
plaintiff appeals.
The
No.
brought
Traverse
Frederick Kucera
an action in the Grand
Norton, alleging
impair-
against
R.
serious
Circuit Court
Mark
body
respect
injuries
when
ment of
function with
sustained
court,
defendant
truck from the rear. The
struck
Forster, J., granted judgment
Charles M.
for the defendant
notwithstanding
plaintiff, concluding
jury’s
the
verdict for the
plaintiff
as a matter of law that the
had not sustained a serious
impairment
body
Appeals,
J. H.
function. The Court of
Kelly
Gillis, P.J.,
JJ.,
M. J.
affirmed in an
Mullen,
and
and
(Docket
73192).
opinion per
appeals.
plaintiff
curiam
No.
The
brought
Muskegon
Harley Routley
an action in the
Circuit Court
Dault,
against Gregory
seeking damages
R.
sus-
rear,
tained when his truck struck the defendant’s car from the
alleging
negligence
negligent, that the
that the defendant was
hernia,
plaintiff suffering
of the
a
and that the
cause
427 Mich
court,
The
function.
hernia was
serious
Pannucci, J., granted summary judgment for the
H.
Ronald
defendant,
holding
hernia is
serious
that a
Appeals,
Reilly,
Maher and
function.
Court of
R. M.
The
(M.
per
Kelly, P.J., dissenting),
opinion
affirmed in an
JJ.
J.
70293).
(Docket
plaintiff appeals.
curiam
No.
joined
opinion
by
Cavanagh,
Justices Brick-
In an
Justice
Supreme
Boyle,
Archer,
and
Court held:
ley,
impair-
question
a serious
whether a
suffered
jury
be submitted to the
whenever
ment of
function must
to differ as to
the evidence would cause reasonable minds
answer,
dispute as
even
there is no material factual
where
plaintiff’s injuries.
deciding
of the
the nature
extent
for,
reviewing
granting
denying,
orders
sum-
motions
vеrdict,
disposition,
judgment
mary
directed
notwithstand-
verdict,
ing
trial court must view the evidence
nonmoving party
light most
and determine
favorable to
dispute
as to the nature and
a material factual
exists
whether
plaintiff’s injuries,
and whether reasonable minds
extent
regarding
had sustained a
could differ
whether
body function. Where the threshold issue
fact,
findings
properly
generally
trier of
its
is
submitted to the
be
should not
disturbed.
*3
damages
Recovery
not intended to
of noneconomic
was
be
impairment
catastrophic injuries. The
limited to
"serious
of
significant,
body function”
is a
but not extraordinar-
threshold
high,
recovery. Impairment
ily
of
obstacle to
need
be
the
important
body
body
an
function.
entire
function or of
The
function,
requires
any,
inquiry
body
into what
if
was
threshold
impaired
injuries
because of
sustained in a motor vehicle
accident,
impairment
and
serious. The focus
whether the
of
injuries
inquiry
injuries,
is
the
the
not on the
but on how
function,
particular body
generally requiring
affected a
medical
existence,
testimony
extent,
permanency
to
the
establish
of
impairment.
the
serious,
determining
impairment
whether an
the
particular
impairment,
body
extent of the
the
function im-
length
impairment,
paired, the
the
of time of
the treatment
required
impairment,
any
to correct the
other relevant
impairment
factors should be considered. An
need not be
permanent
injury
necessary
to be
Nor is it
that an
serious.
be
permit
Rather,
recovery.
felt to
seen or
the noneconomic loss
medically
must be shown
have arisen from
identifiable
to
a
seriously impaired
body
a
function. When the
question
jury
jury,
threshold
submitted to the
the
should be
is
35
Pickard
DiFranco v
inquiry and as to the
two-fold nature of the
instructed as to the
determining seriousness.
in
factors to be considered
pending appeals
holding
applied
currently
in
is
be
proper interpretation
concerning
the
issue
the
which an
impairment
body
phrase
function” has
statutory
"serious
raised,
jury
a
is instructed after
to trials in which
been
summary disposition
decision,
in
and to cases which
date of this
of this decision.
after the date
is entered
Burk,
DiFranco, Paupore, and
affirmed.
Routley, reversed and remanded.
Kucera and
Riley, concurring
joined by Justice
Williams,
Chief Justice
part,
dissenting
there is no
part
in
stated that where
in
plaintiffs injuries
regarding
dispute
of a
the extent
factual
statutory construction
a matter of
is to decide as
trial court
body
plaintiif
has suffered a serious
whether
dispute
which straddles
there is a factual
function. Where
impair-
demarcating
those
which constitute
line
not,
function,
body
do
the factual
and those which
ment of
jury,
in-
dispute
which should be
submitted to the
is to be
claims,
plaintiff
that,
it
if it
the facts to be as
structed
finds
impairment of
function.
find a serious
must also
Justice Williams with Chief
Justice Levin concurred
opinion.
part
1 of his
reasons stated
(1984)
715;
App
affirmed.
137 Mich
NW2d
(1984)
156;
App
Clancey Price, A. & P.C. (by for Clancey), plaintiffs Paupore and Kucera. Halbower, P.C. (by
Law Offices of Norman C. James K. and Norman C. Halbower), Oslund plaintiff Routley. *5 37 v Pickard Opinion of the Court Halsey
Lee E. for defendant Pickard. Fraser, Trebilcock, Foster, Davis & P.C. C. (by Bush), A. Mark Hoover and Mark for defendant Warren.
Bensinger, Cotant, Richard G. Combs & P.C. (by Bensinger), defendants Rouse and Johnson and for Combs) Bensinger and Michael (by Richard G. for defendant Dault. (Gromek, Read); Douglas
Read & GrifBn (by J. Nancy Thomas, L. Bendure & L. Carl Gromek by Bosh, counsel) for defendant Norton.
Amici Curiae:
Eggenberger, Eggenberger, McKinney Weber, & Eggenberger), P.C. William D. (by for State Farm Mutual Company. Automobile Insurance Hay
Anderson, Wonch, & P.C. Thomas H. (by Hay), Michigan for Trial Association. Lawyers 3135(1) Michigan’s J. Section no-
Cavanagh, fault permits person automobile insurance law1 injured in a motor vehicle accident to recover damages for negligent noneconomic loss from a operator owner or of a motor vehicle if the only death, person suffered serious of body function, permanent or disfigurement: serious person A subject remains liability to tort ownership,
noneconomic loss caused his or her maintenance, injured person only or use of a motor if vehicle death, impair- has suffered serious function, ment of permanent disfig- serious 500.3135(1); 24.13135(1).] urement. MSA [MCL 500.3101; MCL MSA 24.13101. 427 Mich cases, at- of these five In each alleg- damages by tempted recover noneconomic ing a serious suffered that he had Applying rules articulated function. Cassidy 483; 330 NW2d McGovern, 415 Mich (1982), Appeals in each case held the Court sufficiently not incurred had the injuries requirements of *6 threshold meet the to 3135(1). § person Determining a seri- sustained a whether body impairment is a multifaceted function of ous problem. Cassidy decidеd, Court of the Since opin- approximately forty Appeals published has opinions subject. have these Some of the ions on legal conflicting factual conclusions. and reached Since 3135(1) damages which § limits noneconomic action, ordinarily in tort cause of recoverable are parameters those limita- the must determine we tions with reference Legislature’s intent, as to legislative language statutory expressed and in the history. must then be reach The conclusions we bench of rules for the in set a workable articulated goals mind, re- we have bar. With these and interpret- 3135(1), Cassidy, the cases § and viewed ing them, as follows: and hold
1) question suffered The whether impairment must be sub- function the evidence trier of fact whenever mitted to the as to minds to differ cause reasonable would no mate- where there is This is true even answer. rial dispute extent the nature and factual as to plaintiff’s injuries. 2) reviewing deciding for, orders motions disposition, summary granting denying, directed notwithstanding verdict, judgment verdict light most in the view the evidence the court must favorable to nonmoving party and determine: a) dispute as exists factual a material whether Pickard plaintiffs injuries, and extent of to the nature b) regard- differ minds could whether reasonable ing a serious had sustained whether the body function. properly submitted If the threshold issue findings generally fact, should its the trier be disturbed.
3) Legislature limit recov- intend to did not The catastroph- damages ery to the of noneconomic ically injured. "serious The significant, but not ex- is a function” threshold recovering high, traordinarily such obstacle damages.
4) the entire need not be of important body function. or of an 3135(1) recovery dam- of noneconomic Section ages bars injuries, persons minor
to those who suffered impair seriously did not or ability part, body, in to function. whole or 5) "general ability live a normal life” test longer *7 used to determine whether will no be impairment body of suffered a serious function.
6) impairment body function” The "serious inquiries: threshold contains two a) impaired body any, function, if What injuries sustained in a motor vehicle because accident?
b) impairment body function serious? Was inquiries injuries The focus of these themselves, is not on the on how the affected a but particular Generally, testi- function. medical mony existence, will be needed to establish the impairment. permanency extent, and of the 7) determining impairment was whether the serious, factors should be considered: several 427 Mich Opinion op the Court impairment, particular body of the extent function ment impairment, impair- length impaired, the of time the required lasted, to correct the the treatment any factors. An other relevant permanent to be serious. need be 8) question threshold is submitted When the jury, as to the two-fold it should be instructed func- nature of the "serious threshold, to be considered in tion” and the factors determining seriousness.
9)
3135(1)
plain-
Cassidy require the
Section
prove
out
that his noneconomic losses arose
tiff to
seriously
medically
injury which
of a
impaired
identifiable
interpretation
function.
require-
injury”
Cassidy’s "objectively manifested
App
adopted
Payne, 131 Mich
ment
in Williams v
(1984),
rejected.
403;
I. HISTORY OF §
one-quarter
Approximately
of the states have
enacted no-fault automobile insurance laws.2
Ann,
seq.;
10-4-701 et
38-319 et
Colo Rev Stat
Conn Gen Stat
§
Ann,
21, 2118;
Ann,
seq.;
seq.; Fla
Del Code
tit
DC Code
35-210Í et
§
§
Ann,
Ann,
seq.;
seq.;
Stat
Rev
627.730 et
Ga Code
33-34-1 et
Hawaii
§
§
Stat,
Stat,
seq.;
seq., repealed
294-1 et
Ill Rev
ch
1065.150 et
§
¶
78-1297;
seq.; Ky
Stat
1975 PA
Kan Stat Ann 40-3101 et
Rev
*8
Code,
48A,
seq.;
seq.;
Ann
seq.,
304.39-010 et
Laws,
Md Ann
art
538 et
Mass
§
231,
90,
34A,D,M,N,O;
6D;
MCL 500.3101 et
ch
ch
§§
§
v Pickard
41
basic feature of these acts is
motor
compulsory
insurance,
permits
vehicle
the insured to
insurer,
recover benefits
from
directly
regard
his
fault,
less
for certain economic losses sustained
3
as a
return,
result
a motor vehicle
In
accident.
the injured person’s
right
common-law
to recover
from
damages
negligent
operator
owner or
the motor
vehicle
a tort action is limited.4 No-
fault
laws were designed to
remedy
shortcom
ings of the traditional
tort recovery system —over
compensation
of minor
injuries, undercompensa
tion of serious injuries,
long payment delays, over
burdened
court
systems,
and
discrimination
against
those with low income and little education.
Attorney
Shavers v
415
Cassidy,
498-499;
Mich
General,
402
578-579;
Mich
was have abolished bodily injury for all tort damage, regardless property except very sustained, limited circum- under by the A was recommended stances.8 substitute bill May 30, 1972,9 on Committee on Commerce Senate and liability adopted by the Senate. The new tort provision proposed substantially original than that different
in the
bill.
proposed
to
several amendments
Senator Faxon
5 Delaware, Mаryland, Oregon, Pennsylvania,
Caro
and South
lina,
compulsory,
right
for
is
the
sue
where no-fault insurance
require
not limited. No-fault states which do
noneconomic loss is
insurance
place
right
coverage
for
also
no restrictions on the
sue
Arkansas,
Dakota, Texas,
Virginia.
South
these losses—
6
plaintiff proves
that he has suffered serious
Once
losses,
function,
even
of
for
he can
all of his noneconomic
recover
Smith,
longer
Byer
periods
v
is no
serious.
when
(1984).
541;
Mich
ble arises out of vehicle, owner, as an nance or use of a motor vehicle a motor registrant, operator the accident and for his acts or occupant or in a motor vehicle involved organizations responsible persons legally or liability exempt tort are from omissions However, owner, damage. regis- bodily injury property or an trant, exempt operator occupant so if is shall not be he personal protection excluded under section 13 from insurance arising bodily injury benefits for accidental from same applies exemption the law motor vehicle accident. This where determining liability. of this state controls tort stolen, insured, any person who had or not Section excluded occupying motor vehicle involved state uninsured vehicles were also excluded. the accident. Nonresidents out-of- 1275. 9 1972Journal of Senate Pickard op Opinion the Court provision limiting recovery of noneconomic damages injuries. to those who sustained certain proposed, withdrew, He but later an amendment which would have inserted after "death” fol- lowing injuries: threshold function,
permanent serious permanent disfigurement or medical bills in excess of $5000.00.[10] proposed
Senator Faxon two other amendments requirements: *10 to the threshold permanent, major, disability or extensive function, permanent competency, loss of mental $5000.00; bills in excess of medical permanent disfigurement or an serious extraordinarily which is so severe as to render the legal remedy this inade- therefor under statute quate. adopted.11
Neither amendment was The Senate substitute bill was sent to the House 8, on June 1972.12 on The House Committee Insur proposed bill, ance adopted its own substitute September
by the House on 1972.13 bill, Like the substitute Senate the House bill liability retained tort for if the noneconomic loss injured person impair died, or sustained a serious permanent disfigu ment of function or serious rement.14
10Id., 1380, 1390. pp
11 Id.,p 1391.
12 1972Journal of the House 2157. [13] Id., p 2807. 14 Section of the House substitute bill provided: person subject liability A remains to tort for noneconomic ownership, detriment caused his use of a maintenance or Mich passage representatives protested Several particularly bill, the limita- the House substitute upon recovery placed of noneconomic tions Representative Kelsey damages. "[a] stated that $10,000 tort action could result limit of before satisfactory . . .” much more . would have been Representative bill Clark criticized the entire wrong go partly will "[t]he because benefit present driver whose doer rather than safe suffering pain right will be for to recover almost eliminated.”15 presented lengthy
Representative Smeekens describing lobby- from the Detroit News article "tug-of-war.” the follow- ists’ The article included ing pertinent observations: open lawyers to the door leaves bill] [The which re-
represent involved in accidents clients disfig- death, disability, permanent sult in urement, benefits, or serious in excess of losses impairment of functions. key to how clause bill turn out. would lobbyists it company
The insurance wanted "significant body func- read serious ” "significant” opposed the word lawyers tions. *11 being in the included law. finally reported the no-fault The committee bill 10-0, only after the lost out in its efforts to save the but by
to the floor a vote of lobby insurance
key clause. lawyers many make whom considerable — on this basis—didn’t want word suing
incomes injured only person serious motor vehicle impairment if the dies or sustains disfigure- permanent function or [Id., p ment. 4122.] 15Id., pp 2832-2833. v Pickard Opinion op the Court "significant” in the law because it would make it [Emphasis added.][16] bring
more difficult to suit. Senate did not concur the House substi- 5, 1972, tute bill.17On October a Senate conference prior committee recommended that substitute bill be Senate adopted. Representative Cramp- objected ton to the "[t]his recommendаtion because possible probable—that bill makes it innocent — abiding law drivers will be clobbered some plowing through stop careless or drunken driver sign a stop light pain or live in for the rest —and any their life with no chance to recover dam- ages.”18 Nevertheless, the Senate and House adopted the recommendation.19 The no-fault act signed 1972, 27, was 294,20 on November as 1972 PA
and became effective on March 1973. although opponents short, a few believed that 3135(1) § would eliminate most suits for noneco- Legislature rejected proposals loss, nomic would have made it much more difficult to sue for damages. Specifically, rejected noneconomic it requirement threshold, medical bill $5000 permanent, function be major, requirement extensive, and a impaired significant be a one. The Legislature recovery thus did not intend to limit only catastrophically injured persons.
II. THRESHOLD IN OTHER STATES REQUIREMENTS provi- An examination of other states’ no-fault recovery sions limit of noneconomic dam- 16Id., p 2831.
17Id., 2889; p 1972 Journal of the Senate 1944.
18 1972Journal of the House 2972. 19Id., p 2971; 2005-2006, 1972 Journal of the Senate 2025.
20 1972Journal of the Senate 2032.
*12
ages most has the reveals that requirements. broadly threshold ended and worded 5(a)(7) Vehicle Uniform Motor Section permits recovery Reparations of dam- Act Accident ages $5000, in excess of for noneconomic detriment death, significant causes only if accident
but permanent disfigure- injury, permanent serious complete ment, inability than 6 months of more occupation. person in an to work injured inability person to work "Complete injured of an to inability perform, on occupation” in an means basis, of the duties part-time even some even required by the time of or, unemployed if at occupation his injury, by any occupation for which the 14 ULA person qualified. injured 64.] [See state The commissioners’ comments designed preserve requirements were threshold "only persons loss for who for noneconomic actions discourage very injury.” To have suffered arguable value, with some settlement claims 5(a)(7) requires § from deduction $5000 pp Id., 68- for noneconomic loss. amount awarded Michigan’s act, the umvara 69. Unlike no-fault persons, injured recovery permanently limits perform completely unable to and those who are job least months. their at six Every recovery of noneco- state which limits damages, except Michigan, enacted has nomic monetary thresholds, on the of the amount basis expenses reasonably as a result medical incurred accident.21Several states also the motor vehicle injuries specify a noneco- which can be the basis of are mentioned nomic loss action. Fractures $200, vary from in the case of soft tissue The threshold amounts (DC (NJ Ann, 39:6A-8[a]), 35- Ann Code $5000 § Stat repealed monetary 2105[b][6]). have their Florida and New York since Farrell, thresholds, critique monetary For a see thresholds. Hartig Insurance, eds, Koatz, Automobile and Uninsured Motorist & No-Fault 18.10(1), pp 18-9 to 18-12. § v Pickard *13 Opinion op the Court Kentucky specifically some statutes.22 Kansas and require weight-bearing the fracture be of a compound, bone, comminuted, or one which is displaced, compressed. Jersey New does not permit person recovery injured if the sustained only injuries soft tissue and incurred less than expenses. injury” in medical "Soft tissue is $200 extensively sprains, strains, defined to include ligaments, muscles, tendons, tears to and carti- lage.23 specific periods disability, Five states list (Dis- ranging (Georgia) days days from ten to 180 Columbia). trict of usually Like the these statutes umvara, disability.24 define what constitutes a Numerous states include loss or of a body injury, nearly function as a threshold all but require permanent.25 the loss or to be requires body im- Florida also paired important previously noted, an be one. As Michigan Legislature specifically rejected both requirements. Perhaps the threshold most akin to Michigan’s "serious function” "significant threshold is that of New limita- York— system.” However, tion of use of a function or 34-9(a); Ann 23 [22] Conn Gen Stat NJ Laws, Stat Kan Stat Ann ch Ann 39:6A-8(a) provides § Ann, 6D; 40-3117; NY Ins § 38-323(a); Law, Ky Ga Rev Stat §§ part: 5102(d), Code Ann, 304.39-060(2)(b); 5104(a) §§ 33-34-2(13), (McKinney). Mass 33- Bodily injury solely tissue, pur- confined to the soft for the pose section, sprains, of this means in the form of strains, contusions, lacerations, bruises, hematomas, cuts, abra- sions, scrapes, scratches, muscles, and tears confined to the tendons, ligaments, cartilages, nerves, fibers, veins, arteries and skin of the human .... Ann, 35-2105(b)(4); Ann, § 33-34-2(13); DC Code Ga Code Minn § Ann, 65B.51(3)(b)(4); Law, 5102(d); Stat NY Ins § ND Cent Code § 26.1-41-01(21). Ann, 38-323(a)(5); Ann, 627.737(2)(a); Conn Gen Stat Fla § Stat § Ann, 33-34-2(13); Stat, 294-6(1); Ga Code Hawaii § Rev Kan Stat Ann § 40-3117; 39:6A-8(a), Ky 304.39-060(2)(b); (b); Rev Stat Stat Ann NJ Law, 5102(d). NY Ins § 427 Mich several more also contains
the New York statute injuries.26 specifically threshold worded guidelines, provisions Using statutory as these Legislature easily clarified what could have our types of a suit can be basis damages. choosing By two rather noneconomic Legislature apparently amorphous thresholds, 3135(1) parameters preferred §of be de- process. veloped through judicial This has judiciary. proven a difficult task for be III. CASSIDY v MCGOVERN attempt Cassidy to define this Court’s first *14 impairment body a "serious what constitutes to meet this function,” threshold, is needed what evidence the issue should be submitted and when Cassidy Court concluded: to the factfinder. The 1) dispute factual there is no material When plaintiff’s concerning injuries, and extent of the the nature question sus- whether impairment body function must tained a serious by the trial court. a matter of law be decided as making determination, 488, 502. In this 415 Mich the evidence must be favorable to light most
viewed in the nonmoving p party. Id., 505. 2) body function” The "serious significant maintaining threshold is a obstacle to damages. It should be tort action for noneconomic considered conjunction with the other thresh- 3135(1), permanent i.e., § death and olds listed disfigurement. p injury Id., An need serious 503. although perma- permanent serious, not be to be pp nency Id., is a relevant consideration. 505-506. 3) important must be of an necessarily function, the entire but p Id., function. 504. See NY Ins Law, § 5102(d). v Pickard 4) To determine whether sustained a objective function, an used,
standard should be of an a normal life.” which "looks to the effect person’s general ability on the to live p Id., 505.
5) Recovery pred- for noneconomic loss cannot be solely pain suffering. Recovery icated on must "objectively injuries” be based on manifested functioning body. affect the Id. applied
These rules were to two cases where plaintiff’s injuries nature and extent of the were undisputed. Haney, In Hermann v the Court con- cluded, injuries law, as a matter of sufficiently were not serious to meet the threshold. bruises, Plaintiff’s cleared troublesome, were not up bump months, within two while the on Although her head subsided within one month. she had missed a month of work due to back and neck pains, pain month, diminished after that presеnted problems p no Id., after two months. 503. contrast, Cassidy at issue in
McGovern satisfied the threshold as a matter of law. Plaintiff had sustained two broken bones in right leg, hospitalized eighteen the lower days, and wore a cast for seven months. He suf- dizzy spells, fered which necessitated the use of a pain walker. He also suffered some residual one *15 years and one-half after the accident. The Court impaired concluded that the broken bones had plaintiff’s ability important body walk, to an func- tion. The fact that was a farmer who had many to be on his feet for hours was deemed an irrelevant addition, consideration. In objectively injuries claim was based on manifested (i.e., bones), general two broken rather than aches pains. and impairment The Court further concluded that light serious, of the extensive 427 Mich Opinion the Court of prob- recuperation
period minor residual of pp Id., lems. 504-505. recognized phrase Cassidy Court is not read- of function”
"serious ily to be its character would have definable and case-by-case developed As more cases on basis. hoped decided, it be- the Court would were sufficiently injuries types are come clearer what pp Id., 502-503. to this threshold. serious Although approximately meet Appeals forty Court published, opinions the answer have since been has much clearer. not become prob- Cassidy spawned addition, has other Appeals panels differed as lems. Court of the have reviewing granting or orders standard disposition, denying summary verdict, and directed "gen- notwithstanding judgment the verdict. The ability standard has eral live a normal life” proven apply as the threshold to be as difficult to designed clarify. It is what it types also unclear injuries "objectively manifested.” Sev- are panels ob- drawn distinction between eral have symptoms. jectively injuries This manifested prevents persons sus- distinction often tained soft tissue for noneconomic losses. who have recovering damages from necessary it to reexam- We therefore believe is holdings clarify major ine each Cassidy.
IV. DECIDING SERIOUS IMPAIRMENT
AS A MATTER OF LAW Cassidy is no material held when there dispute as to nature and extent of factual plaintiffs injuries, determine,
the trial court must law, as a matter of sustained whether Previously, a serious function. *16 v Pickard 51 Opinion of the Court Advisory Opinion re of 1972 PA Constitutionality 294, 389 477-478; (1973), Mich 208 NW2d 469 had held that phrases "serious impairment function” "permanent disfigure- serious provide ment” sufficient legal standards for inter- pretation and questions are of fact: generally This phrases capable Court holds that such are legal and, indeed, interpretation juries
judges sitting juries frequently without have and interpret comparable do phrases bearing upon various findings facets the law. Such result from questions denominated fact and thus are within province the exclusive Only the triers of fact. interpretation approaches when missible limits the Court. per- or breaches question it does become a law questions approached Such must be on a case case basis.
Advisory Opinion noted that
triers
of fact are
required to
routinely
pass on equally
ques-
difficult
tions,
reasonableness,
e.g.,
cause,
proximate
gross
Id.,
negligence,
and damages.
478-481.
pp
The Court of Appeals
Advi-
heeded
consistently
sory Opinion’s statement
the jury should
decide
usually
whether
had suffered a
function.27 It
also rec-
ognized that,
instances,
certain
the trial court
should decide
as
matter
of law whether
had,
not,
or had
established
a threshold
Such
injury.
a decision could be made where "it
can be said with certainty that no
jury
reasonable
could
plaintiffs
view a
as serious.”
Reed,
Brooks v
166, 171;
93 Mich App
286 NW2d
(1979),
(1981).
81
lv den
summary judgment to defen- should be App Danylak, 615, 620; Mich Id.; Vitale v dant. *17 (1977). Conversely, if was the 593 254 NW2d as minds could differ no reasonable so serious plaintiff had a serious sustained the to whether impairment function, should City summary judgment. granted v Watkins be App Corp, 162 723, 726; 296 NW2d 97 Mich Cab (1980); App Cassidy McGovern, 325- 86 Mich v (1978), 415 Mich rev’d 326; 272 NW2d (1982). making determination, the evidence this light to the most favorable in the viewed was nonmoving Gallagher party. Parshall, 97 Mich (1980); App Watkins, 654, 658-659; 296 NW2d supra. aforequoted Cassidy dismissed Court
The
Opinion
language
Advisory
it
because
from
opinion,
nonbinding advisory
contained
a
upon
discussion, and was based
made without
assumptions
proсedure
in trials that
about
trial
yet
The Court
The remainder of the paragraph suggests question threshold is a issue law when only there no dispute is material factual as to the plaintiff’s injuries. This language logic quite is 117.2(3) similar (now to that contained in GCR i.e.,
MCR 2.116[C][10]),
trial
court should
grant
a
judgment
motion for
summary
where
Kavanagh,
J.,
dissent,
partial
T. G.
in his
would have followed
(such
act)
Advisory Opinion. He reasoned that statutes
as the no-fault
(such
derogate
rights
which
right
common-law
as
to recover
damages)
strictly
Legisla
noneconomic
ture
be
must
Since the
construed.
standard,”
"amorphous
an
chose
he
this
not
believed
Court could
recovery
only
injuries.
limit
the most serious
there judgment moving party a as is entitled of law. matter reconsideration, that Cas- we find
After careful general sidy rules of with is inconsistent somewhat procedure. material there is no Even where civil disposition summary dispute, for a motion factual (as judgment as verdict and notwith- well directed verdict) standing granted if the should be conflicting support 73 Am Jur inferences. facts can Judgment, p Summary § 27, 2d, 754. Highway example, v State McMillan
For (1986), there Comm, 46; 393 426 Mich NW2d dispute the circum- as to no material factual surrounding at vehicle accident the motor stances issue, utility placement construction and concluding pole private struck. After company utility held could liable be that for utility pole, negligent placement of we re- the trial court. instructed manded the case to We company utility if should move the court that disposition summary on the basis there genuine fact, the no of material court issue whether minds could must determine reasonable company had nevertheless differ as to whether negligently. noted: acted We aspects 'prox- bearing upon "If the facts other (that is, aspects imate cause’ in other than causation fact) dispute persons not in are and reasonable application could not differ about the to those facts *19 concept cause,’ legal 'proximate of of court persons But if reasonable determines issue. differ, either could in because relevant facts are application legal concept or because of dispute ’proximate of at is an cause’ the case hand evaluative determination as to which reasonable differ, persons might ’proximate issue cause’ appropriate jury is submitted with instruc- Pickard (5th Keeton, [Prosser the law.” & Torts tions on ed), p p Emphasis supplied. Id., 63, § 8.]n 321. principles applied to the The same should be deter- mination of whether sustained a 3135(1) injury. § threshold retrospect, given Cassidy in for the reasons
requiring courts to determine threshold issues are appeared. compelling they initially not as though as Al- phrase "serious juries capable one,29 function” is are an uncommon understanding component parts its —"serious- "impairment,” "body ness,” Fur- function.” permitted juries thermore, are to decide the threshold issue where the nature and extent of the plaintiff’s injuries dispute. in are negligence litiga-
As to the fear that automobile dramatically modifying increase, tion will aspect this Cassidy will result more noneconomic- going pre-Cassidy However, loss cases to trial. require every case law did not a trial case. designed primarily Moreover, no-fault acts were seeking damages reduce the economic number cases e.g., wage loss, loss, loss, survivor’s 3135(1) expenses. Although designed § medical seeking to eliminate lawsuits noneconomic dam- ages injuries, for minor it cannot be said that the Legislature wipe intended to out almost all none- legislative history conomic-loss cases. The indi- stringent adopted cates that less thresholds were attorneys performing personal as a concession to injury work. argue permitting
To those who
more none-
enacted,
Michigan
Until
56 op Opinion the Court cripple go trial no- to will cases conomic-loss limiting liability system, that tort note we fault feature is not an essential losses for noneconomic place no no-fault states acts. Several no-fault damages. ability to these sue for on the limitations Opinion Advisory was decided note also that We shortly Legislature effective. The no-fault act became after the aware that threshold therefore juries. generally The submitted to be issues would Legislature attempt rectify this situa- did not tion, however. Cassidy given by the Court was
The final reason Legislature not intend to did that the belief vagaries juries. No threshold leave issues legislative the Moreover, is evident from statu- intent such legislative history. language tory appellate proven to be no courts have trial and juries have been in than would more consistent determining particular plaintiff suffered whether a Conflicting impairment function. a serious by Court of have been reached different results Appeals panels reviewing case.30Conflict- same 30 (1981), Warren, 556; App 89 Burk v 105 Mich 307 NW2d In clavicle, Appeals initially that a fractured Court of was set healed without body concluded month, reduction, placed in a for one closed brace cast complications, constituted a serious panel temporary The nature of function. did not believe that the this Court was outcome determinative. After re light Cassidy, the case for reconsideration different manded impairment. panel concluded that had not suffered a serious emphasized completely panel plaintiff had within recovered during seriously and was his one month cence. 137 inconvenienced convales (1984). App 715; Mich 359 NW2d Gorosh, 1; (1982), Range App sixty- 121 Mich NW2d ribs, clavicle, year-old right woman fractures of the six sustained perform hospitalized days, toe. She for four could not a small months, household three not return to various tasks for and did work experienced pain for seven Plaintiff residual full-time her ribs and the accident diseases. The of tute a months. near breathing. difficulty had evidence There was also plaintiff’s existing lung had exacerbated heart jury no returned a verdict of cause of action. Court initially Appeals did not consti- concluded a matter of law and function as v Pickard ing among involving have also arisen cases results plaintiffs.31 undoubtedly similarly injured This is plaintiffs injured are or recover because no two conflicting precisely These re- the same manner. ques- that threshold issues are often sults indicate *21 upon tions which reasonable minds can differ. capable weigh- Properly jurors are of instructed experiences ing using their evidence and collective particular plaintiff to a has determine whether impairment body suffered an of function and impairment whether that was serious. Their ver- represents judgment peo- of dict ple, the collective six opposed judge,
as
to the views of one trial
perhaps
panel
appellate judges reviewing
a
of
a
guidance
cold record. Without
Legislature,
further
from the
juries
we
are
believe
better
resolving
questions
suited to
threshold
where rea-
sonable minds can differ on the answer.32
remand,
properly
jury.
that
different
ment of
NW2d 686
the case was
submitted to the
After
a
panel
plaintiff
impair-
concluded that
had suffered a serious
body
712;
App
function as a matter of law. 140 Mich
364
(1984).
31
fractures,
conjunction
Clavicle
sustained alone or in
with other
injuries,
proved
classify.
have
to be difficult
In Burk v
Warren,
Appeals panels disagreed
two
young
Court of
as to whether a
man,
complications
of
only
who sustained
a broken clavicle which healed without
time,
impairment
within a short
had suffered a serious
body
Conflicting
sixty-
function.
results were also reached where a
year-old
clavicle, toe,
ribs,
woman suffered a fractured
and six
recu
perated
long
time,
relatively
period
supra.
over a
and suffered residual
problems.
App
Gorosh,
Range
Hess,
See
v
In LaHousse v
125 Mich
14;
(1983), young
Routley
properly submitted to the findings generally fact, trier of its should not be findings judge’s trial, disturbed. a bench they clearly fact must be affirmed unless are erro- Dep’t Highways, neous. Tuttle v of State 397 Mich 2.613(C). (1976); 44, 46; 243 NW2d MCR In a jury jury’s findings trial, fact, as reflected they verdict, its against must be affirmed unless are great weight Tuttle, of the evidence. pp 46-47, n 3. impairment”
vi. "serious threshold is SIGNIFICANT OBSTACLE Appeals opinions suggested A few Court of have only catastrophically injured persons that isfy can sat- *23 impairment body
the "serious of function” 34 Oakley, App 622; See also Bennett v 153 Mich 396 451 NW2d (1986). 32 427 Mich 60 Opinion the Court оf from stems supposedly limitation This threshold.35 DAIIE, v language Workman following (1979): 477, 508-509; 274 NW2d Mich intent, of from the face inferable legislative The to allow Legislature intended is clear: [§ victim victim and the catastrophically injured compensation in losses extraordinary economic to 3110 of the by provided §§ addition act. [Emphasis added.] recovery did not state Court
The Workman to the cata- limited damages was noneconomic describing merely It was injured. strophically sue for entitled to clearly who are persons those previ- no-fault act. As not covered losses rejected noted, Legislature specifically ously 3135(1) have re- which would amendments § or a injury, severe” "extraordinarily an quired disability. or extensive” "major function” The "serious extraordinarily not but significant, is a threshold listed injuries threshold The three high, threshold. 3135(1) No severity. equivalent are not in § to death. comparable is disfigurement and "seri- disfigurement” "permanent thresholds are function” ous signifi- since the former contains equivalent requirement permanency. additional cant — to the requirement refused to add this Legislature latter threshold. The "serious to eliminate designed threshold was function” and those injuries, based on minor clearly suits seriously ability which did not affect in part, in whole or body, function._ Rounds, 180; See, e.g., App 278 751 Kanaziz v 153 Mich 395 NW2d Owens, 208, 211; (1986); (1986). App Farquhar 149 Mich 385 NW2d *24 v Pickard IMPORTANT BODY FUNCTION
VII. AN BE IMPAIRED
MUST engrafted Cassidy judicially Court the re- The impaired body quirement must the function important. The Court reasoned: be "impairment language body function” is regarding impairment
ambiguous whether the any body body must function or of the entire be hand, any body one if function function. On the meaning, argu- were to be considered the intended ably impairment a serious of the use of the little finger requirement. would meet the threshold On hand, if the other an had to be of the function, body arguably only entire then life- threatening require- injuries satisfy would the options ment. We believe that neither of these legislative accurately reflect intent and that body function is better understood referring important body as functions. [415 Mich 504.] 3135(1) agree require §
We does functioning seriously body entire impaired. to be interpretation essentially
Such an would recovery damages limit of noneconomic to the catastrophically injured. questiona- However, it is Cassidy ble whether Court should have im- posed requirement
impaired important. legislative history be in- comparable dicates that a pairment threshold —"serious im- signiñcant re- functions” —was jected. Legislature recently Moreover, the used phrase bodily "los[s of] a vital function” to describe subject one class of which are not to the Mich op Opinion the Court damages recover- $225,000 noneconomic limit on malpractice actions.36 in medical able requirement imposing judicially than Rather clearly rejected, Legislature it would be Legislature’s overall preferable focus on damages recovery of noneconomic to bar intent those who may superficial injuries. It minor suffered possible as a a minor to describe be function. How- of some *25 capable fully judiciary is ever, the we believe having weeding to deter- without trivial cases out impaired im- is the mine whether portant. ability "general to live vm. TEST LIFE”
NORMAL during of whether the discussion This test arose impairment of Cassidy suffered a had Leo body function: that for body function Walking important is an bones. impaired by his broken Cassidy was Leo way or the one is not affected
This conclusion potato Cassidy is a that Leo by the fact other farmer long hours. We on his feet who must be objective intended an Legislature believe on of an looks to the effect standard that the normal life. general ability to live a person’s Mich 505.] [415 "general ability a normal life” test to live The plaintiffs’ defen- both and has been criticized problem attorneys.37 is obvious The most dants’ defining "a normal life.” what constitutes attempted Appeals to define has never Court the phrase, usually it concludes since significantly injuries affect sustained did 36See n 29. 37 Bosh, Cripple system, Impair Gromek & See threshold — Sinas, (1986); evolving 640, no-fault Bar 644 Ransom &
65 Mich
J
(1986).
threshold,
J
530-531
tort
65 Mich Bar
63
Pickard
v
style
daily
However,
plaintiff’s
life
activities.38
sig-
did
denied where
relief has been
style
nificantly
normal life
affect
activities.39
repeatedly
Appeals
stated
has
The Court of
performing
difficulty
is not suffi-
activities
mere
impairment of
a serious
cient
to establish
panels
denying
relief,
note that
often
In
function.40
"incapacitated”
plaintiff
or "confined
was not
given
usually
to the fact
is
Short shrift
bed.”41
engage
longer
in the
no
able to
that the
is
previously enjoyed.42
activities he
recreational
perform
such
However,
can still
if the
38
516, 520;
Garrison,
App
See,
e.g.,
NW2d
v
145 Mich
Denson
Oberlin,
195;
(1985);
supra, p
Routley,
v
127 Mich
n 32
McDonald
(1983).
73, 75-76;
App
338 NW2d
(1985),
Woods,
169;
App
64 427 Mich activities, indicates that he is able to live a this normal life.43 plaintiff eventually work,
If returned to even months, the Court of after an absence several Appeals usually that there has been has concluded significant no interference with the nor- permanent mal life.44 restrictions have been to lift or tions is true even if medical This placed plaintiff’s ability on perform types certain of work.45Restric- imposed plaintiff, than his rather ignored.46 generally usually doctor, are Relief has plaintiffs regained eventually denied to who been range motion, if their limitation was full even the initial
significant.47 Appeals strictly ap- short, the Court of has "general plied ability to live a normal life” perform day-to- If test. can common day eventually difficulty, activities, with some or can albeit usually work, the
return to
is
deemed not to have suffered a serious
43 Vreeland,
supra.
See
n 40
44See,
145, 148;
e.g.,
Shepler,
App
369
Salim v
142 Mich
NW2d 282
(1985) (three
(nine
absence); Routley,
supra
and one-half month
n 32
(four
Braden,
months); McDonald,
months);
supra
and one-half
n 41
n
(three months).
supra
41
45See, Walker,
e.g.,
supra, p
(twenty-pound lifting
n 33
829
restric
(limited
tion); Franz,
supra, p
bending
twisting, twenty-
n 39
177
Salim,
lifting restriction);
twenty-five-pound
supra, p
to
(plaintiff
ing
lifting
NW2d 11
n 44
147
involving
repetitive
must avoid activities
excessive or
reach
pulling); Routley,
supra, p
(thirty-
forty-pound
n 32
194
restriction);
Norton,
App 156, 158;
Kucera v
140 Mich
363
(1984)(plaintiff required helper
heavy lifting).
to do
46See,
Bennett,
e.g.,
Denson,
Franz,
supra;
supra;
n 34
n 38
n 39
supra;
Bugaski,
708, 711;
App
v
Sherrell
Mich
have been damages Cassidy since cover noneconomic decided.48 attempt "general ability” an test was evaluating objective the
devise an standard injury upon body’s ability to func- effect of an Cassidy To that the Court refused tion. to focus particular the extent injury solely . on how the affected agree way life, that this we 3135(1). § other not the intent behind Unlike Legislature states, threshold did not enact a plain- injury looks at how the affected the ability perform his normal activi- tiff’s work inquiries Instead, are whether ties. relevant impaired injury and, so, a if whether that was serious.
Focusing partic- injury on the effect an has on person’s results. ular life can lead to anomalous perma- Suppose concert sustains severe violinist legs in and is nent required to his an auto accident previ- If
to use a wheelchair. the violinist goоd ously sedentary lived a life and has a mental injury may seriously outlook, the affect his daily routine, work, or recreational activities. clearly impair- However, he has suffered a serious ment of function.
Suppose
permanent
the same violinist suffers a
dexterity
finger. Although
loss of
in his little
prevent
perform-
does not
the violinist from
was found to have sustained a
function,
law,
body
Lemicex,
only
as a matter of
four cases—Harris v
v
supra, Esparaza Manning,
supra, Range
n 41
v
n 32
(After Remand),
Hess,
supra,
supra.
Gorosh
n 30
n 31
LaHousse v
permitted
jury
were
to submit
Plaintiffs
threshold issue to
dispute
Slocum,
because a material
factual
in Akin
existed
v
337;
(1986),
Reutter,
App
App
Mich
313;
A test which perform and after could before which the the accident could malingerer hypo- reward the person penalizing cannot chondriac, who while despite the or tries to function afford to miss work compare attempts pain.49However, to a test which plaintiff’s post-accident activities abilities person’s equally hypothetical "normal life” is to a flawed. normal essential thing Very simply, no as "a there is such Determining activities are life.” living equally an a normal life is impossible task. "general ability test, a normal life” live proved applied Appeals, has
as the Court obstacle to recover- be an almost insurmountable damages. Apparently, only plain- ing noneconomic bedridden, for them- tiffs who are cannot care perform any type selves, or are unable to of work satisfy can this test. This was not the intent Lee, against supra, plaintiff In Braden v n 41 returned to work personal company physician the advice of because the doctor his Appeals Court of concluded that believed he could work. The had not suffered a serious because he could still part body function in tasks, perform employment-related albeit with pain. some Norton, work, supra, plaintiff very In Kucera v n 45 missed little chiropractic injuries his for over two but received treatments back lifting required heavy years. and one-half He an assistant to do engage in certain recreational activities. The Court could relief, emphasized plaintiff’s Appeals, denying lack of absenteeism wage loss. Pickard clarifying Legislature. than what Rather sufficiently im- meet the "serious serious to are pairment threshold, has function” the test in- nature of the threshold the true obfuscated quiry. of an the test favor We therefore discard approach objective is more con- which we believe legislative statutory language and with the sistent intent. A SUFFERED IX. WHETHER PLAINTIFF DETERMINING BODY FUNCTION IMPAIRMENT OF SERIOUS *29 body impairment of function” The "serious inquiries: straightforward threshold contains two 1) any, impaired body function, if What injuries in of sustained a motor vehicle because accident?
2) impairment Was serious? inquiries injuries is not on the
The focus of these particu- themselves, how the affected a but testimony body Generally, medical lar function. extent, existence, will be needed to establish Identifying permanency impairment. of the relatively body impaired functions is a were Determining easy impairment complicated task. whether requires a more was serious much evaluation of factors. impairment expressed
The extent an is often of person perma- A in numerical terms. nent who a suffers seventy-five-percent in limitation back move- impairment clearly has of ment suffered a serious person permanent function, a back while with five-percent probably However, has not. limitation impaired may particular body also function permanent ten-percent A make a reduc- difference. functioning impair- tion brain is a more serious ten-percent body function limita- ment tion than neck motion. 427 Mich Opinion op the Court length impairment body time person be A function lasts must also considered. who is rendered unconscious for several minutes at the scene of the accident has a substan-' suffered functioning during impairment tial of brain those problems, If minutеs. impairment there are no further appear A overall does serious. permanent impairment is more serious than a impairment temporary However, like character. plaintiff eventually the fact complete makes a negate recovery should not the fact that impairment he endured a serious function significant period permanent for a of time. A impairment may may depending serious, not be on the extent of the
affected. required type rectify of treatment impairment may relevant. An also be only by surgery may which can be corrected be more serious than that can one be remedied comparison A bed rest. abilities may and activities before and after the accident be relevant insofar existence, as it establishes the extent, and duration of an may function. Additional relevant factors also be *30 determining considered seriousness.50 approach penalize We believe that this will not person the who work, returns to favored or reward malingerer the who has little medical for his basis complaints. injury plain- The effect of the on the body paramount tiff’s functions is the considera- reasoning Haney, App Similar was used in Hermann v 98 Mich 445, (1982). (1980), 449-450; 296 483; NW2d 278 aff'd 415 Mich NW2d 22 adopted reasoning We have not the Hermann Court’s verbatim injuries, because it tends to focus on the seriousness of the rather impairment body than the the seriousness of the of function caused injuries. Pickard v op Opinion the Court tion, of the on the rather than the effect (or person’s) hypothetical plaintiff’s life.51 plaintiff question the suffered a whether impairment must sub- function be evidence, the to the trier of fact whenever mitted light most favorable to the nonmov- in the viewed ing party, that reasonable minds could is such jury that the the answer. To ensure differ as to fully threshold in- the nature of the understands quiry, jury on the follow- the should be instructed ing points:
1) damages, the noneconomic-loss To recover prove injuries plaintiff the he sustained must impaired one or motor vehicle accident body functions, and that more body function was serious.
2) determining whether jury serious, should consider function was impairment, such factors as the extent particular length impaired, lаsted, re the treatment time the any quired impairment, other to correct determining employ analysis in what New York courts a similar "significant body function or constitutes a limitation of use of a Elliott, supra, p plaintiff system.” In n 32 sustained a Licari concussion, sprain, sprain, acute cervical acute dorsal lumbar hospital initially He at a for two chest contusion. examined hours, days was readmitted two later for further tests. One doctor but plaintiff only very had "a mild limitation” of testified back and neck movement. Plaintiff returned to his suffered job as a cab driver twenty-four days after the accident. He testified that he could not help luggage fares with their or his wife with certain household tasks. dizziness, which were He also suffered from occasional headaches and relieved by aspirin. Appeals had offered no The New York Court held most, evidence as to the extent of the limitation of movement. At painful sprain, established that he had suffered a his and neck somewhat. There was no evidence limited that his The court focused back motion injuries significant body function. had caused a limitation of primarily testimony as to on the lack medical limitations, way than the the extent of had inconvenienced rather him. *31 427 Mich op Opinion the Court per impairment An need not be factors. relevant manent to be serious.52
X. BE "OBJECTIVELY MANIFESTED” INJURY MUST following requirement dis- This stems from Cassidy: cussion in significant aspect phrase
Another of the "serious impairment body function” is that it demon- legislative predicate recovery strates the intent objectively manifested for noneconomic loss on pain suffering is not injuries. Recovery for predicated on serious injuries that affect the Cassidy’s injuries were not
pain suffering, but on functioning body. Leo general aches and pains, two broken bones. Mich but rather [415 505.] App Payne, 131 Mich 409-
In Williams v
(1984),
Appeals
410;
manifested to her wife’s soft tissue jury substantially are more detailed than These instructions those contained in SJI2d 36.01: Michigan provides plaintiff may The law in recover loss)
(noneconomic damages in this case if he suffered serious upon impairment function. Based the evidence in this case, you impairment must dеcide whether suffered an and, so, impairment of serious. function if whether that requires the im- Serious function pairment important body be of an function. permanent An need not be to be serious. point jury We wish to out that in the in which the three cases sji impairment (DiFranco, Burk, Paupore) found no serious requirement not impaired "important” that the one be an Further, given. in the of these cases included instructions none objection was an instructional raised language. Pickard Opinion op the Court *32 important impaired any not seriously thumb had function, stated: the Court soft tissue Additionally, Mrs. Williams’ Thus, measurement. subject not to medical were manifested” a scien- "objectively they are symptoms of her context. The tific or medical however, objective manifesta- injuries, have found difficult. The pain makes certain activities tion: designate expressly which opinion did not Cassidy employ, objective manifestation to standard of medical measurements patient’s injury of or only by pa- the complaints tient’s pain substantiated that Mrs. limited activities. We conclude "objectively manifested” injuries are not Williams’ within meaning Cassidy. Medically unsub- the present in a tort pain always will be stantiated Legislature pain suffering. The action for could not intend so low a and avoiding threshold for proscription against tort actions. the no-fault act’s suffering not sufficient to meet pain General and is Additionally, Cassidy deci- the threshold. . . . injuries,” not spoke "objectively sion manifested injuries do not meet the symptoms. Mrs. Williams’ requirement. "objectively manifested” urge adopt Defendants us Williams believe interpretation Cassidy. They Court’s demon- directly that an wiiich cannot be injury medical tests through accepted strated the use of diagnosed on the basis procedures, but must be complaints, plaintiffs subjective physi- or the result- impressions, symptoms cian’s clinical from is not manifested. ing injury, objectively reasoning Their is as follows: com- yields subjective A examination physical com- plaints findings. Subjective and objective patient plaints perceived only by are those measured, e.g., pain, cannot be otherwise nausea, findings are Objective and vision. blurred himself, e.g., can see for physician those which thе Mich in- swelling procedures and inflammation. Some subjective complaints volve a combination tests, objective findings, e.g., range-of-motion manipulates patient’s where the doctor patient complains pain until or is unable to subjective complaints move further. Doctors use findings to form clinical objective impressions diagnoses. impressions, To these clinical verify tests, usually doctor orders such as x-rays, CAT-scans, tests, arthrograms, blood and the like. argue (e.g., Defendants itself etc.) cartilage, bones, torn broken must either be (i.e., perceivable directly the doctor must be able to injury), see, hear, or touch the or the nature and *33 through injury extent of the must be demonstrated medically accepted Symptoms test. or effects (e.g., spasms, swelling, injury caused and pain) satisfy supposedly are insufficient to Cassi- requirement dy’s objectively injuries. manifested x-rays clearly satisfy Thus, broken bones on seen interpretation Cassidy. However, defendants’ injuries generally to soft tissues cannot be or seen Seeing feeling symptoms felt. of torn or ligaments (e.g., spasms) stretched muscles or not is enough. plaintiffs subjective complaints Nor are pain Therefore, or limited motion. defendants be- injuries that, cases, lieve in most soft tissue cannot finding plaintiff be basis of a that the suffered a serious function because injuries objectively these are not manifested. Appeals always accept- The Court of has not rigid injuries ed this distinction between and symptoms. panels disagreed result, As a have on whether certain manifestations of soft tis- injuries, spasms,53 sue such as muscle swell- spasms objective Muscle were found be manifestations of soft Bennett, 153-154, Harris, supra, supra, pp tissue in n 34 n 41 v Pickard Opinion op the Court Cas lordosis,56 tenderness,55 ing,54 satisfy and loss of sidy. disagreed Panels have also as to whether range-of-motion conclusions drawn from tests are an panels manifestation of an Some objective injury. the results of these disregarded have summarily tests, if plaintiffs x-rays were normal especially neurological problems and no were discovered.57 panels distinguished have between "active” Other "passive” range-of-motion ap tests. Under this (i.e., the results of an аctive test a test proach, until where the moves her she feels manifestation pain) objective are not considered an can injury of an because control However, the limitation of movement test results.58 objective in tests is considered an passive observed manifestation of an injury.59 Cassidy’s
The Williams’
interpretation
"objec-
language
proved
manifested
has
tively
injury”
obstacle to recovery
be an almost
insurmountable
in
cases.
damages
injury
of noneconomic
soft tissue
Vanderlaan,
dissenting in Garris v
Judge
Ravitz,
619,
(1985),
627-628;
146 Mich
381 NW2d
App
Williams
reasoning:
Court’s
roundly criticized
Franz,
Clark,
553,
176;
supra, p
supra, p
n 39
n 47
but not in
Morris,
154,
Jenkins,
supra, p
Flemings
App
n 40
138 Mich
(1984).
790;
venting are difficult psychiatric trauma injuries and tissue or who suffer with certainly Yet, persons medically. impossible to measure would injuries years for these who suffer places with those gladly trade for 6 incapacitated and are badly fractured bone a or 7 able to lead months, thereafter are but who . . lives. . perfectly normal only alterna- suggests that the Payne Williams v is the use test "medical measurement” tive to the pain substantiated complaints of "patient’s Mich patient’s limited activities.” only by the diagnosis ordinary means of App 410. Where subjective are such of treatment prescription and indications diagnosis of patient, a doctor’s from a mani- satisfy objective injury should suffice . . . Cassidy. requirement announced festation injuries are recovery such deny because ... To com- denies capable "medical measurement” who suffer large class of individuals pensation to a as a result quality of life greatly reduced a automobile not intend such Legislature did Clearly, the accidents. im- arbitrary hurdle as that an test. posed by the "medical measurement” Cassidy. misinterpreted agree that Williams We plaintiffs concerned that Court was Cassidy damages merely by noneconomic could recover pain extreme had suffered testifying they Recognizing accident. following a motor vehicle recovery permitted Legislature only functions, impair body seriously had they to establish that required plaintiffs Court words, plaintiffs In other injury. such an suffered is there establishing must introduce evidence complaints their subjective basis for physical 3135(1) nor suffering. Cassidy Neither pain and § *35 Pickard Opinion op the Court damages plain- recovery of noneconomic limits or felt. can be seen tiffs whose testimony generally part ix, in medical noted As extent, required existence, to establish will be body permanency func- and disapprove have cases which of those tion. We types disregarded automatically of evi- certain plain- upon merely it based because dence symptoms complaints subjective of an or the tiff’s diagnosis expert’s injury. for it the basis An physician’s complaints, (e.g., ob- results) adequately be servations, challenged can and test through cross-examination at trial contrary presentation evidence. medical threshold function” "serious prove requires his noneco- medically identifiable of a impaired arose out nomic losses injury seriously function. required Cassidy this. more than no Court THIS APPLICATION OF XI. LIMITED RETROACTIVE DECISION holdings today’s are new or several of Since Cassidy, our articulated inconsistent with those applies us as well to the five cases before decision (1) pending appeals currently in which an as to: concerning proper interpretation issue phrase statutory "serious (2) raised, in which a has been trials function” jury decision, this after the datе of is instructed (3) disposition summary enters cases in which after the date of this decision. CASES
XII. OF LAW TO APPLICATION A. PICKARD DlFRANCO v by from behind was struck Plaintiff’s vehicle Mich May 20, 1978. He was taken defendant on ambulance to a hospital, complaining pain neck, shoulders, and lower back. Plaintiff was his *36 given with instruc- a cervical collar and released personal experi- physician if to his he tions enced further contact problems. May 24, 1978, examined
On plain- physician. spasms observed in Muscle were range-of-motion neck and back. Active tiff’s tests indicated lower-back lower forty- fifty-percent in to limitation thirty- forty-percent motion, and a X-rays limitation neck motion. revealed a de- (upper) spine, creased lordosis in the cervical and a (lower) spine. rotary mild of the thoracic scoliosis spinal physician The malities were due to muscle stretching concluded that these abnor- spasms, by the caused tearing ligaments, of muscles and as bruising. gave plaintiff a mus- well as internal He support. cle relaxant and a lumbosacral diag- hospital Plaintiff to the for was admitted physiotherapy, tests, nostic 20 to found. Plaintiff continued treatment and traction from June neurological problems 24, 1978. No were
through July, during continuing July, 1978, 1979, and once pain. plaintiff on neck and back He reexamined January shortly Spasms 17, before trial. x-rays again were detected and a de- revealed rotary creased cervical liosis. lordosis and a mild sco- Degenerative arthritis was also detected spine, secondary the lower trauma suffered in the area. which was to the range
Plaintiff’s improved, motion had but he still suffered a five- fifteen-percent motion, loss neck and a ten- to fifteen-percent loss of lower-back motion.
Plaintiff’s doctor described condition deny as chronic. He could neither possibility plaintiff nor confirm injury. of a disc The doctor noted previously had suffered neck and back v Pickard problems, susceptible had him made more plaintiffs injury. However, he believed that problems directly current accident. Hot were related to the auto
baths home traction could re- plaintiffs pain somewhat, lieve but his arthritis progress. inevitably would twenty-two years
Plaintiff stated thаt he old previously at the time of the accident and had led an active life. He testified as to the continued pain back, stiffness and in his neck and lower sports activities, curtailment of most of his inconveniences he and the experienced daily in his life. He frequently heating baths, treated himself with hot pads, massage. occasionally He used a home- traction device when he overexerted himself. job hospital x-ray
Plaintiff returned to his as a accident, technician two months after the with his permission. doctor’s No work restrictions were *37 imposed, although plaintiff performed lifting activ- cautiously. job ities October, 1978, He left this representative copying to become a service for a company. job occasionally machine moving This entailed crawling large under machines. Other following immediately than the two-month absence plaintiff accident, the his had not been absent from job problems. because of his back and neck shortly Cassidy The case was tried after was negligence decided. Defendant admitted and did plaintiffs not contest However, medical evidence. plaintiff he maintained that had not suffered a impairment function. The district plaintiff by court denied motions a directed and defendant for believing verdict, that minds reasonable jury could differ on the threshold issue. found The negligence proximate that defendant’s was the plaintiffs injuries, cause of but that had impairment not suffered a serious function. judgment The Macomb Circuit Court affirmed the Mich op Opinion the Court plain- Appeals denied Court of for defendant. appeal. application leave to tiffs undisputed demonstrated evidence medical injuries to the soft tissue sustained that muscles and ligaments These and back. his neck plaintiffs impaired functions injuries two ability lower back. neck and to move his —the plaintiffs extent the nature and Since disputed, if reason- be determined it must were not impair- whether differ as to minds could able ment was
serious. properly court the district We conclude plaintiffs verdict. for a directed motion denied Plaintiffs overall or conclude that injuries
impairment so extensive was not long minds would reasonable that all term Although plaintiffs it was serious. ability impaired
initially his to move his percent, forty fifty his neck lower back percent, forty by thirty limitations at his (five slight relatively to fifteen time of trial were percent). to work to return was also able He restrictions. no medical months with within two question, Although we conclude it is a closer properly defendant’s denied court that the district initial Plaintiffs verdict. motion for a directed months, substantial, two lasted physiotherapy. required The resi- traction and and dual inability permanent. Plaintiffs is steadily as his increase lower back will to move his per- say progresses. all We cannot arthritis plaintiffs sons would conclude not serious. properly sub- Therefore, threshold issue was *38 jury jury. found Since the mitted to the plaintiff a serious had not sustained against finding function, is not and this judg- great weight evidence, affirm we ment for defendant. v Pickard op Opinion the Court
B. BURK v WARREN plaintiff by 1, 1976, On June was hit defendant’s traveling thirty per as truck his he was miles hour on motorcycle. right He suffered a fractured clavi- (collarbone), cle as well as abrasions bruises hand, knee, on his and shoulder. Plaintiff was hospital, treated, taken to the and released. The fracture was set closed reduction. Plaintiff wore a pletely weeks, brace cast for four to six which com- right
immobilized his shoulder and arm. properly complica- The fracture healed without tions. very
Plaintiff testified that he was able to do sleep during little and could not the week follow- ing family physician, the accident. He contacted a prescribed pain who medication ease the help plaintiff sleep. removed, After the cast was plaintiff gradually physical resumed most of his including jogging, yard activities, tennis, and work. experienced pain However, he still when he en- gaged in certain activities. physician
Plaintiff’s testified that clavicle frac- generally problems, tures though pain do not cause future al- patient may slight suffer occasional
several months after the healed. prevented using right brace cast from his shoulder and arm. When he examined six weeks after accident, the fracture had healed and there was no tenderness at the fracture site. experienced pain Plaintiff still slight protuberance some and had a collarbone,
on his
but
these
were normal conditions which would subside. No
placed
restrictions were
on
activities.
September,
The case was tried in
1979. Neither
party
jury
moved for a directed verdict. The
found
negligent
proximately
that defendant was
and had
plaintiff’s injuries.
jury
caused
However, the
con-
*39
80
Mich
427
32
Opinion
of
Court
plaintiffs
a
did
cause
that
eluded
serious
impairment
body function. Plaintiff
of
notwithstanding
judgment
the verdict
for
moved
claiming
trial,
had
a
a
that he
sustained
or
new
impairment
body
a
of
as matter
of
function
serious
law.
Ingham
the motion.
Circuit Court denied
The
Appeals
that for the rela-
found
The Court
period
plaintiff
tively
ing,
was
of time
convalesc-
short
greatly
arm and shoulder was
the use
his
impose
require-
a
The Court refused
reduced.
ment
permanent
impairment be
that
the serious
lengthy. It
the no-fault statute
or
also noted
liberally
in
construed
is remedial and should be
favor
accident victims. The Court concluded
plaintiff
had sustained a serious
App
105 Mich
a matter of law.
as
(1981).
556;
Defendant’s
abeyance pending
held in
this Court’s decision
Cassidy.
to the
The
thereafter
remanded
case was
proceed in the
circuit court with instructions
(1983).
Cassidy.
On a different Court of objectively injury found that and that the manifested functioning arm of the shoulder and important body However, is an function. the Court right noted that could his hand and use eating. had He not sustain a com- no trouble did pound only one fracture and wore brace cast long- permanent Moreover, month. range there was no or panel injury. from effect second concluded that impairment had not suffered a App 715; Mich as a matter of law. (1984). NW2d v Pickard Opinion op the Court undisputed plain- evidence established that prevented tiff suffered an him from moving using right his shoulder and arm. This total function lasted four to disparate by six weeks. As evidenced results Appeals, however, reached the Court of reason- *40 plaintiffs able minds could differ as to whether panel overall was serious. As the first relatively noted, a fractured clavicle is a common injury, requires generally only a brace cast complications. and heals with few Plaintiff fact quickly permanent healed and suffered no residual impairment. properly
We conclude that the case was submit- jury. jury’s finding plain- ted to the tiff did not sustain a serious Since the was not against great weight evidence, of the it should not be disturbed.
C. PAUPORE vROUSE passenger by Plaintiff was a in a car owned Betty defendant son, Rouse and driven her Rouse, Gerald when it was involved in a serious September one-car 11, accident on 1980. Plaintiff right sustained a severe fracture of his and left jaw, displaced lower presented and a wisdom tooth. Plaintiff April,
several 1983, doctors at his trial. Howard, D.D.S., David testified that he exam- plaintiff hospital shortly ined at after hospitalized days. accident. Plaintiff for six During period, plaintiffs this wisdom tooth was surgically removed from his throat and the broken portions jaw repositioned of his were and wired together. plaintiffs Arch bars were inserted onto together. teeth and his mouth was wired swelling surgery eating talking from the made plaintiff difficult for Thereafter, one week. could Mich op Opinion the Court relatively liquid speak well, consume a diet although he could not chew. plaintiffs on Octo- mouth
Dr. Howard unwired supports place. 1980, 23, the arch rewired one week but left ber later be- Plaintiff’s mouth was cause of some movement site. The at the fracture permanently December removed on wires were jaw plaintiff’s had Dr. stated 1980. Howard satisfactorily. healed adequately clean his
Because could developed wired, it an infection mouth while was displaced. had been Three the wisdom tooth where other wisdom cally. might surgi- extracted, one teeth had be acknowledged these teeth Dr. Howard regardless have needed to be removed nonfunctional, teeth are Since wisdom accident. the function- not interfere with their removal did ing plaintiffs mouth.
Stephen D.D.S., that he exam- Beeker, testified jaw had in 1981 after his healed. ined Because erly, together prop- teeth did not fit *41 comprehensive orthodontic
he recommended surgery treatment, include on which could further phase jaw. of treatment would last active (Plaintiff eighteen undergo twenty-four did not months. treatment.) Dr. this Beekеr believed plaintiff’s jaw might have caused earlier some evident to problem malocclusion, but the became more plaintiff after accident. build-up eardrums,
Because of fluid behind the temporarily thirty percent plaintiff hearing. lost of his plain- Denton Nelson examined
When Dr. 15,1980, tiff on December he recommended conser- decongestant sprays i.e., treatment, nasal vative attempts By air into ears. Janu- and ary to inflate suggested making 1981,
19, inci- Dr. Nelson inserting tubes into the sions permit eardrums drainage. problem February By 1981, v Pickard with the left ear had cleared. Dr. Nelson decided perform surgery right not to on the ear. Plaintiff did not return for further treatment. On cross- attempted examination, defendant to show that build-up by prob- the fluid could have been caused lems not related Nevertheless, to the accident. Dr. plaintiff’s hearing Nelson believed that loss was jaw. related to the trauma of the fractured Plaintiff twenty testified that he lost fifteen to pounds liquid jaw due to his diet. His was swollen pain, for almost one month. To reduce the he consumed three bottles of codeine elixir. He con- experience pain tinued to mouth, occasional in his ears, and back. presented Moyer,
Defendants Brenda a friend plaintiff with whom resided for one and one-half hospital. months after he was released from the style She testified that life did not change significantly after the accident. He worked van, danced, on his shortly and drank at a local bar discharged hospital,
after he was from the spent much of his time at the beach. Plaintiff sing together could talk and with his mouth wired appear pain. Moyer and did not to be in Ms. acknowledged pain took medication during this time.
Plaintiff moved for a directed verdict on the negligence, proximate issues of cause, and serious impairment. The Grand Traverse Circuit Court denied the motion because a material factual dis- pute jury existed. The found that Gerald Rouse negligent negligence had been and that his had proximately plaintiff’s injuries. caused However, jury concluded that had not suffered a permanent serious serious function or
disfigurement. Appeals judgment The Court of affirmed the for 427 Mich Opinion the of Court light Viewing in the thе evidence defendants.60 defendants, that to the Court found most favorable dispute the factual as there was a material plaintiffs injuries which extent of nature and impair precluded directed verdict on ment issue. Appeals
Contrary conclusion, the to the Court of plaintiffs injuries not were nature extent of and disputed. undisputed showed evidence jaw, ultimately had sustained fractured temporary experienced teeth, lost four wisdom hearing difficulties, residual misa- and had some argued lignment his Defendants of teeth. hearing malocclusion, teeth, and loss problems three proximately the acci- not caused were deciding purposes for motion dent. For argument verdict, be must directed defendants’ plaintiffs accepted. Nevertheless, frac- the cause required jaw, it, set and the tured treatment plaintiffs ability mouth to use his limitations on disputed. Surgery required to set were not together jaw, for mouth was wired nearly chew, lost He three months. could liquid twenty pounds diet, because Viewing only through teeth. could talk the clenched light favorable to defen- evidence most plaintiff clearly dants, an suffered ability for function —the to use his mouth eating speaking. properly
Nevertheless, denied the trial court plaintiffs rea- motion directed verdict because impair- minds on sonable ment could differ whether the drink, eat, was serious. Plaintiff was able and talk while his mouth wired. The fracture satisfactorily healed to four months. within three Assuming plaintiffs malocclusion was caused 60Unpublished opinion per Appeals, Court of decided curiam the (Docket 71705). 4,1984 October No. *43 v Pickard Opinion of the Court by prior impair- injuries, his there no residual finding jury’s ment of mouth function. Since impair- plaintiff had a serious not suffered great against ment of function was not weight evidence, it not should be disturbed. plaintiffs ability on
We note work his go van, beach, to the and dance at a local after bar question the accident was not relevant to the whether he had sustained a serious "general ability his mouth function. Unlike the test, live a normal life” the focus of the threshold inquiry particular body must be on the extent impaired, on how the plaintiffs daily affected life.
D. KUCERA v NORTON plaintiffs 24, 1980, On October defendant struck truck from the rear. Plaintiff was thrown forward impact steering addition, into the wheel. popped the rear window of the cab out hit and plaintiffs home, head. Plaintiff drove but went to a hospital pains sharp several later hours because of x-rayed, given in his neck and back. He was mus- during relaxants, cle and released. Plaintiff rested ensuing and weekend returned to work the following Monday. repaired pumps,
Plaintiff testified that wells, he drilling job company. and motors a well This lifting pumps weighing often entailed 60 to 120 pounds. accident, Since the was restricted lifting objects weighing thirty thirty- from five over
pounds. restriction, To accommodate this plaintiff’s employer provided helpers heavy to do lifting. acknowledged Plaintiff that he had missed very injuries. little work because his main- He tained that he went to work even when his back experience pain hurt. He continued to in his neck 427 Mich explained He blades. his shoulder and between pursuing prevented his him from how the snowmobiling, (skiing, prior activities recreational hunting) other activities. curtailed several chiropractor by a one examined Plaintiff was He testified that after the accident. month complained deeply, inability pain, to breathe of chest an pain blades. shoulder between X-rays spasms on the taken were observed. Muscle date *44 (Novem- plaintiff’s accident, initial visit of the 1980), (February 28, of trial and the date ber 1983) (i.e., partial disloca- a revealed subluxation tion) and scoliosis. thoracic vertebra sixth chiropractor abnormalities stated that these The plaintiff’s impact with the steer- of the result were ligaments ing mus- wheel, which caused the holding place to stretched in be cles the vertebrae liga- that were such and torn. The ments and muscles would resume not be able to their normal function. chiropractic plaintiff
Initially, treat- received eight every day weeks. for six to ment Plaintiff was advised other work, off not to take time per day, his for more than four hours stand on feet pounds. twenty-five and not lift more than Subse- although frequent, quent plaintiff treatments were less being every treated at least once was still sought help generally he Plaintiff when two weeks. difficulty breathing experienced spasms had region. generally the midthoracic This occurred plaintiff objects. It whenever lifted heavier was plaintiff’s opinion chiropractor lifting permanent be and that he restriction would chiropractic need treatment for the rest would degener- Ultimately, his life. ate and arthritis would his condition would develop. presented expert an en- medical
Defendant’s tirely plaintiff story. different His examination of Pickard February 11, 1982, on uncovered no evidence spasm, damage, fracture, nerve or disc disease. range of Plaintiffs motion was not limited. This asymmetry plaintiffs doctor which an chest detected pain. However, cause did not could back he causally this believe that condition was related to expert no condi- accident. Defendant’s found chiropractic tion which warranted treatment. motion on the Defendant’s for a directed verdict threshold under The issue taken advisement. jury plaintiffs $10,000 found in favor and awarded damages. immediately for Defendant moved judgment notwithstanding Likening the verdict. plaintiffs injuries to those described in Hermann v Haney, the Grand con- Traverse Circuit Court cluded that a had sustained serious as a matter of law. Appeals judgment Court affirmed the defendant. lifting plaintiff It found that the use of back in important body function,
is an
but
impairment.
had not
sustained
very
noted
Court
had missed
given
helper,
work,
little
not suf-
had
any
wages
earning capability.
fered
loss of
*45
Although plaintiffs social activities had been hin-
injury
perma-
dered, the
was not
to
akin
death or
disfigurement.
panel questioned
nent The
plaintiffs injuries
objectively
whether
were
mani-
fested, but did not decide the issue
the
because
impairment
App
was not
156;
serious. 140 Mich
(1984).
Unlike the other cases before a this fac- dispute tual existed as to the nature and extent of plaintiffs injuries. dispute sending This warranted jury, the threshold issue to the unless it can be judgment said that defendant was matter of law when the evidence to entitled as a in the is viewed light plaintiff. most favorable to medical Plaintiffs Mich 32 had a soft that he suffered established
evidence prevented back, him his tissue engag- pounds lifting thirty-five more than from ing plaintiff’s injury Thus, in certain activities. ability impaired his to use function —the lifting. back serious, rea- was the
As whether plain- the minds could differ on basis sonable previously to lift Plaintiff was able evidence. tiff’s According plain- pounds at unassisted. least expert, seventy-percent this tiff’s permanent lifting ability will is a condition which Chiropractic gradually treatment will deteriorate. plaintiff’s probably necessary life. for rest of be granting Therefore, the circuit court erred notwithstanding judgment motion for defendant’s plaintiff finding jury’s the verdict. Since sustained a serious not function is weight great against evidence, plaintiff must be reinstated. verdict Appeals incorrectly on Court of focused wage plaintiff’s loss. lack absenteeism despite to work fact that continued pain, employer provided helper, his negate back func- fact that does tion peals reasoning impaired. Ap- significantly The Court of penalize persons re- who
would turned to favored work. The Court should have permanency on focused instead the extent and plaintiff’s impairment.
E. ROUTLEY v VAULT driving 25, 1980, June a tractor- On trailer when he struck car from the defendant’s (The parties disputed negligence rear. whose accident.) Plaintiff was thrown about caused the
passenger compartment, his but maintained *46 v Pickard grip steering result, on the wheel. As a he sus- inguinal tained a bilateral hernia. sought help July 7,
Plaintiff first medical on deposition, plaintiff’s 1980. In his doctor stated plaintiff’s complaint pain chief was his left groin, thigh.61 which radiated A into the left small inguinal impulse plaintiff was discovered and was advised not to work. When was reexam- impulse promi- later, ined one week was more nent. The doctor concluded that had sus- tained a hernia as a result of the accident.
Surgery performed July 24, 1980, on repair hospitalized the hernia. Plaintiff was for days. Although plaintiff initially five obtained again experienced pain relief, some he due to scar surrounding ilioinguinal tissue nerve. A second operation performed April 2, 1981, on discharged remove the scar tissue. Plaintiff was hospital days from the five later. experienced pain
Plaintiff soon after the second operation. opined pain His doctor that the could be operation caused scar tissue from the second irritating However, a nerve. he did not contem- plate performing suggested surgery. further He plaintiff gradually return to his nоrmal activi- long they lifting ties, as as did not involve more thirty forty pounds. than deposition, plaintiff
In his stated that he suffered pain, per- constant which intensified when he many physical Operating heavy formed activities. equipment pain groin, legs. back, caused in his eight He could not stand on his feet hours. Lifting gallon climbing flight of milk complained pain 61 Plaintiff X-rays also in his neck and back. compression revealed a minimal fracture of the eleventh thoracic However, plaintiff’s physicians vertebra. were not certain whether the parties fracture was related to the accident. The did not discuss problems during summary judgment. back the motion for *47 427 Mich Opinion of the Court perforin pain. He could not stairs caused severe prior pursue his recreational or household chores ability pain with his also interfered activities. to children. play engage to his with in sexual relations perform he that could Plaintiff believed log- sedentary work, not return to his but could ging job. granted for motion defendant’s
The circuit court summary judgment Al- issue. on the threshold undergone operations, though plaintiff two had Cassidy Legislature and court that believed impair- as a serious would not view hernia Court ment function. Appeals in a two-to-one The Court of affirmed plaintiff’s majority decision. The observed ability to was somewhat restricted. walk and lift incapacitated However, period for an extended he was prohibited engaging from his en- time plaintiff. daily fact, In was normal activities. operation couraged by his doctor after second . employment not involve to return to heavy lifting. which did majority to consider declined logging job fact involved some the heavy lifting. App 190, 195; 363 NW2d 140 Mich (1984). Kelly Judge argued dissent, In his that sum- improper mary judgment was because reasonable minds impairment light as of the could differ to seriousness
when evidence was viewed plaintiff. most favorable He noted that to pain plaintiff still suffered a result of chronic as Although plaintiff’s physician operations. the two encouraged gradually normal him return to his accomplished activity, plaintiff had not level this goal. addition, could reasonable minds plaintiff’s injury differ on restricted his whether ability p Id., lift. 196. walk and reasoning. Kelly’s Judge It
We concur with is Piсkard undisputed plaintiff suffered a hernia due to operations, accident, underwent two hospitalized nearly weeks. abil- two Plaintiff’s impaired ity to walk and lift is residual surgery. Thus, effects of the injury an suffered impaired functions. On the in the basis evidence contained depositions treating physician, and his minds the im- reasonable could differ on whether pairment Plaintiff serious. thirty forty pounds, cannot lift more than experienced pain lifting gallon has severe *48 Although plaintiff milk. did not state how much weight prior prior accident, he could lift to the his required employment undoubtedly him lift more pounds. forty experienced than vere also Plaintiff se- pain climbing standing stairs, after on his long periods, engaging feet for and in certain activities. Plaintiff’s did not doctor foresee the surgery, need for further he did not but state improve substantially condition would in the underwent, near future. The fact that recuperated operations performed from, two general weighs under anesthesia also in favor of finding impairment. Summary judgment a serious inappropriate. for defendant therefore
XIII. CONCLUSION guidance Legislature, Without further from the we believe the factfinder is able to better determine whether the a seri- sustained ous function in those cases where reasonable minds could differ the an- on swer. In cases, each of the instant the threshold jury. issue should have been submitted to the Ap- DiFranco, In the decision of the Court peals is affirmed. 427 32 Mich Opinion by Williams, C.J. Burk, is Appeals the Court
In the decision of grounds. on different affirmed the of Appeals Paupore, decision of Court In the is affirmed. Kucera, the of Appeals Court
In the decision the remanded Grand The case is is reversed. on entry judgment for of a Circuit Court Traverse plaintiff. for the verdict jury’s the of Appeals Routley, decision of Court Muskegon to the case is remanded is reversed. The proceedings consistent Circuit Court further opinion. this with JJ., concurred
Brickley, Archer, Boyle, J. Cavanagh, with in (concurring part dissent-
Williams, C.J. ing part). in Although I concur results cases, I these in each of majority reached Four analysis. from the dissent respectfully must Cassidy opinion Court issued its years after this McGovern, (1982), 483; Mich NW2d fit to decision of five sees overrule the majority adopt óf six-membеr court and members I accept dissent in that case. cannot position the bench and premise that such action assists construing phrase, bar in "serious *49 of progress of or is to the body function” conducive jurisprudence in this state. orderly the shrift the given Even view of short decisis, might sign doctrine of I inclined to stare be it the if I were majority opinion persuaded of misinterpretation corrected an earlier the will Legislature. I reach the cannot that conclusion. principal with majority, The conclusions the disagree, I as are follows: 1) question The whether the suffered Pickard Opinion Williams, C.J. sub- must be body function impairment of serious the evidence trier of fact whenever to the mitted the as to to differ minds reasonable would cause no mate- there is where This is true even answer. rial the and extent to the nature dispute as factual injuries. im- 4) ... of an not be impairment need body function. portant 5) test normal life” to live a "general ability the whether longer used to determine no be
will plaintiff suffered a [Ante, pp function. 38-39.] conclusion, to be no appears there As to the first normal rule from the depart reason compelling the jury law and construes judge The proposition the facts. decides on "[t]he a serious suffered question whether submitted function must be the evidence would trier of fact whenever as to the answer” minds to differ reasonable cause of fact dispute there is no material even where this Court reason for which very sidesteps These cases in these cases. appeal leave to granted the bench and bar give in an effort to were taken "seri- phrase, legislative definition of the further majority function.” The ous definition, the need for further recognizes itself and states: thresholds, amorphous choosing By two rather par- preferred that Legislature apparently 3135(1) developed through ameters of be § process. [Ante, p
judicial 48.] starting point as a using Cassidy Rather than *50 427 Mich 32 by Opinion Williams, C.J. development working for the further of a defini- body function, of serious tion majority eliminates aids construction adopted by case, in that the Court without substi- tuting any Henceforth, similar aids. decisions as to what constitutes a serious by juries function will bе rendered and no have in law will to aid the bench and bar. been will be created the future accept majority’s Even if we were to conclu- meaning phrase sion that the shall now be will still have to be jury, jury left to the interpret duty phrase. instructed in its The nothing guide majority does the trial courts respect. this meaning language § is a matter statutory princi-
of ple It construction. is a well-settled statutory
of law that construction ais matter jury. for the courts and not for the agree majority’s Second, I with the conclusion Legislature that the did not intend to limit recov- ery damages catastroph- of noneconomic to the ically injured. majority’s recitation of the legislative history demonstrates that the lawmak- rejected language perhaps ers which would have high only raised the threshold so the cata- strophically injured successfully could it. overcome quoted Representatives The and comments of Clark
Crampton (ante, 45), pp however, indicate legislators, least, that threshold, those at believed that finally it drafted,
as was still a opinion, my Cassidy substantial obstacle to suit. In history limiting was consistent with this recov- ery suffering impor- to those holding functions, tant and in its that Leo v Pickard Opinion Williams, C.J. complete Cassidy, of both who suffered breaks *51 leg, casts in his lower wore for seven months bones completely almost after one and was recovered years, did indeed suffer a "serious and one-half impairment meaning body the of function” within Therefore, I no reason statute. can see to of the impairment Cassidy that the rule "serious discard of impairment contemplates body of function” the statutory important body lan- function. In the an ap- guage, impairment body of function” "serious pears requirements of with the threshold other disfigurement” "permanent "death,” serious leaving strong implication, rule the of under impairment generis, ejusdem need while the permanent fatal, it not to be tran- not be sient or trivial either. legis- by perhaps itself, the not definitive While impairment words, use of the "serious lators’ impairment body than "serious function” rather helps persuade the correct- function” me of Cassidy Court’s conclusion ness of legislators impairment any did not mean serious body function.1 "general ability life” normal
As to live a regard exclusively test, it I do as defini- while regard question tive, I do it as useful. The is there been a whether has Medically body function. there tests are scientific practical this. are tests that to measure But there person’s may ability walk, also be A useful. perform daily lift, talk, normal is an activities determining important the seri- consideration 1Therefore, agree majority’s I find it with statement difficult 65) (ante, p inquiries that "the relevant are whether and, so, impaired if whether added.) (Emphasis serious.” 427 Mich Opinion Williams, C.J. injury. many ousness of matters in an While these depend plaintiff, upon credibility cases juries questions judges credibility resolve every day.
GENERAL CONCLUSION agree conclusion, while I with the results in consistently cases, hold, each of these Cassidy, I would with dispute that where there is no factual regarding plaintiff’s injuries the extent of a statutory court struction whether is to decide as a matter of con- has a serious suffered function. there is a Where dispute factual ing the line demarcat- straddles impair- those which constitute serious *52 body function, not, ment of and those which do dispute jury factual is to be to the submitted that, which should be instructed if it finds the plaintiff claims, facts to be as the it must also find a serious function. Paupore,
Therefore, DiFranco, Burk, in in juries impairment, agree found no serious I results, with the but hold that the trial courts should have found no serious as a matter of law. Routley disputes,
In Kucera and the factual in my pre- view, "straddled the line” and therefore jury questions. jury sented the Kucera, In resolved dispute court, favor. The trial viewing light the evidence in the most favorable to plaintiff, granted judgment notwithstanding judge the verdict to defendant. While the trial assuming duty correct in to determine whether plaintiffs claimed constituted a seri- impairment, agree ous I the court’s conclu- jury’s sion was in error and the verdict should be reinstated. Pickard Williams, C.J. by Opinion summary granted Routley, the trial court
In plaintiffs my view, judgment for the defendant. continuing complaint a accident caused gallon lifting disability milk or a in which pain, flight climbing in severe resulted of stairs impair- jury, serious described a if believed agree I therefore function. ment of inappropriate. summary judgment When jury my should that the tried, it view is is matter to be as the facts that, if it finds be instructed impair- plaintiff, contends, it must find a body function. ment of J., C.J. Williams,
Riley, with concurred Chief Justice I concur with J. Williams Levin, opinion. part l of his for the reasons stated