*1 App 14 LaHOUSSSE v HESS 20, 1982, Docket No. 59338. Submitted October at Detroit. Decided 18, 1983. April Plaintiff, LaHousse, watching Carolyn play Clark her flaneé city park purchase at softball a when she decided a Coke parked Taking from an ice cream truck across the street. some her, change with she crossed the road to the truck. When she arrived, plaintiff money began realized she needed more recross the street towards vehicle. Somewhere in the mid- dle an street automobile hit her. aAs result of the accident, plaintiff suffered broken clavicle and a fractured left leg. leg injury required surgery to insert a rod steel addition, thigh. plaintiffs leg and buttocks were brought against Marilyn marred scars. Plaintiff an action Hess, car, Hess, car, driver the William the lessee of the East, lessor, owner, Hickey Stark the car’s Ford Motor Company, truck, Fiore, the driver of the ice cream Anna Maria owner, alleged and the truck’s Vito Fiore. Plaintiff that she had suffered serious function and disfigurement. The Fiores settled with the before close the trial. The returned a verdict of $30,000 negligent. but found been one-third judgment or, notwithstanding Plaintiff moved for the verdict alternative, a new trial. The trial court denied the motion $20,000. judgment appealed. and entered a Plaintiff Held: appellate 1. Plaintiffs relief is limited to a new trial since
she failed to move for a'directed verdict. 2. submitting The court erred in of whether suffered serious function to the [1] [2] [3] Validity Practice and 7 Am Jur 46 Am Jur dure Rule withstanding or in default of verdict under Federal Civil Proce- 42 ALR3d 229. Am Jur and construction of "no-fault” automobile insurance 2d, 2d, 2d, 50(b) References procedure Appeal Automobile Insurance Judgments or like state and Error § 776. with for Points §§ respect 130, provisions. 142. §§ in Headnotes to motions for 25, 69 ALR2d 449. 358. judgment plans. not- Hess LaHousse v dispute regarding the nature jury. there is no factual Where dispute plaintiff’s injuries or a factual where and extent determination, as must decide to the not material has suffered a serious matter of law whether of the record the the basis function. On *2 denied Appeals whether the error not decide of could Court plaintiff fair trial. a proportion Fiores’ jury properly of the considered 3. The Fiores, determining negligence, not the settlement with damages. comparative negligence were instructions on 4. The court’s improper. remanded. Reversed and Cynar, J., He would hold that submission dissented. impairment jury to the was harmless since the issue serious finding plaintiff liability suffered because of found impairment body or seri- of function either serious disfigurement, He affirm. or both. would ous op
Opinion the Court — Appeal Judgments — — Court Rules. 1. Directed Verdict granted response to a Only be successful a new trial can previ- upon postjudgment a in the absence of a attack verdict 515.2). (GCR 1963, a verdict ous motion for directed Impair- Liability — — — 2. Serious No-Fault Act Tort Insurance op Body ment Function. injury impairment body of function is a serious Whether an liability give to tort for under no-fault act so as to rise statutory construction be noneconomic loss is a court; dispute no factual where there is decided injuries regarding the nature and extent determination, dispute is to the where a factual not material plaintiff must as a of law whether decide matter (MCL body function has suffered a serious 24.13135). 500.3135;MSA by Cynar, J.
Dissent op Body Impairment — Negligence — 3. Serious Automobiles Jury Disfigurement — — Serious Function Permanent Appeal. — Instructions impair- submitting the of serious A trial court’s error in body ment to the is harmless where function as a function suffered serious App 14 op Opinion law, matter of where the suffered function disñgurement, damages and where the instructions on were adequate. Materna), Zeff & Zeff Michael T. (by plaintiff. Prokopp Sekerak), Beresh Erps, & David G. (by for defendant. Maher, P.J., R. M. and
Before: Bronson Cynar, JJ. Alleging
Per Curiam. she had suffered perma- disfigurement, brought nent suit for injuries she sustained she when was struck by 15, 1975, an August automobile. On watching fiancé at play city park softball purchase when she decided Coke from an ice *3 cream truck parked Taking across the street. some her, change with she the crossed road to the truck. arrived, When she realized she needed began more and money to recross the to- street wards her vehicle. Somewhere in the middle street an hit automobile her.
As a accident, plaintiff result of the suffered a broken clavicle a leg fractured left leg. required injury a in surgery insert steel rod plaintiff’s thigh. addition, plaintiff’s In leg and buttocks were by marred scars. lawsuit, her as defendants joined Hess, car,
Marilyn Hess, the driver of the William car, lessor, lessee of the East, Stark Hickey owner," and the car’s Ford Motor Company. Plain- tiff also joined as defendants the driver the ice truck, Fiore, cream Anna Maria and the truck’s owner, Vito Fiore. The Fiores settled with the plaintiff before the close of the trial. 17 v Hess Opinion of the Court $30,000 but found a verdict of returned negligent. Plaintiff been one-third notwithstanding the verdict judgment for
moved or, alternative, new The trial court a trial. in judgment a for the motion and entered denied $20,000. appeals by right. Plaintiff note at four claims of error. We
Plaintiff raises limited appellate relief is plaintiffs outset in the Although plaintiff moved to a new trial. notwithstanding judgment for trial, not previously or new she had verdict for directed verdict. her a motion brought motion for new only could be treated as a motion Hawkins, Michigan Court Honigman & trial. See (2d ed, p 167. Supp), Cum Rules Annotated appeal appli- as an we treat Accordingly, Warren, Burk v only. new trial cation for a (1981). 556, 560; NW2d 89 raise, fact, two claims of error Plaintiff’s first for discus- one and will be consolidated issue essence, argues, injury sion. Plaintiff of a func- leg her was a serious as tion as a matter law should it such an whether constituted Michigan’s to the jury. not have been submitted tort drastically restricts no-fault insurance law from automobile resulting liability injuries 500.3135; provides: MSA 24.13135 accidents. MCL for noneco- person subject liability "A to tort remains ownership, or mainte- nomic loss caused his nance, injured only if the vehicle use motor person function, death, has suffered disfigurement.” *4 can in tort recover requirement the statute’s "threshold” injury meets —i.e., "death, only if she has suffered 125 Mich op Opinion impairment function, of body or disfigurement”.
The Supreme Court that, has ruled recently under circumstances, certain whether has suffered a serious impairment body function question is a of law for the court to decide: "We hold that when there is no dispute factual regarding plaintiff’s the nature and extent injuries, shall be decided as a matter of law the court. Likewise, if there dispute is a factual as to the nature plaintiff’s and extent of a material injuries, dispute but the is not to the determination whether has suffered a serious function, court shall rule as a matter of law whether the thresh- old requirement 500.3135; of MCL MSA 24.13135 has McGovern, been met.” Cassidy 483, (1982). NW2d 22 Because no factual dispute existed as to the nature and extent injuries, whether those injuries constituted a "serious of body function” is a of law.
An "impairment of body function” is an impair- ment of an important function. Cassidy v McGovern, supra, p 505. Plaintiff suffered an in- jury to leg her left interfering with her ability to walk. As the Court said in supra, 505, Cassidy, p "[wjalking is an important body function”. More- over, that, we find as law, a matter of suffered a of her ability to walk. She was hospitalized for five days with her leg left in traction. For three afterwards, months she was unable to move herself about without aid of wheelchair, a walker or crutches. erred, therefore, by submitting *5 19 Hess op Opinion the Court the jury.1 We impairment”
the "serious deprived however, this error decide, whether must the did, it then trial If fair trial. of a plaintiff by denying its discretion court abused we reverse. See may a new trial motion for Co, 65; 253 NW2d 400 Mich Motor Ford Willett v (1977). 111 a fair plaintiff denied court’s error
The trial fact, that did not find she the in jury, if In function. body impairment serious suffered a finding, may the jury of such a the absence permanent damages only plaintiff’s for assessed the record Unfortunately, disfigurement.2 specific findings. the factual jury’s does not reveal Indeed, form to court submitted a verdict the trial necessary to ask for the failed jury the which posed question: the form information. The verdict impairment body sustain serious plaintiff "Did disfigurement?” permanent not response3 does indicate jury’s simple "yes” The behind possible findings lay of three factual which the The could have found that the jury verdict. impairment body suffered a serious disfigurement function, 1 jury: The trial court the instructed Michigan provides plaintiff may damages "The law in that recover bodily in this case if she suffered serious functions. case, upon you Based plaintiff the evidence in this must decide whether so, function; suffered an whether ** that function was serious 2 Jackson, (1980), App 235 NW2d Abraham v 302 example, plaintiff’s injuries jury for that the did function, decided that he amount had a serious but disfigurement. went on to suffered a disfigurement. damages only plaintiff’s award question affirmatively in its answered the second court’s attempt attempt, jury replied return a verdict. In its first negative. polling however, jurors, the that After trial court two decided required jurors agreed number of had not had injury. suffered neither sort of deliberations. he sent the back for further op Opinion record, appellate
both. On basis this an court cannot decide whether the trial court’s error submitting impairment” "serious to the jury denied a fair trial. Yet we ignore cannot possibility trial court’s error had such an effect.4 Accordingly, we hold the interests of justice require grant that we new trial.
Plaintiff’s final claims of error are without merit5 and may briefly. argues be discussed She jury, computing portion that the negli gence, determined the Fiores’ share of the total and, thus, negligence involved improperly consid ered the settlement. jury did not state that it assessed the Fiores’ negligence share of in comput However, the ing plaintiffs share. considering their share would not improper. have been Under Michigan’s system "pure” comparative negli gence, a plaintiffs "damages are pro reduced in portion to the contribution of that person’s negli * * Sterling Heights, Placek v gence Kirby 638, 661; v (1979), 275 quoting NW2d 511 Larson, (1977) 400 400 NW2d (opin J.). ion of To arrive at the plaintiffs Williams, share, a jury may compute proportionate the negli gence of each tortfeasor and subtract these shares suggests jury may plaintiff The record the have found that disfigurement. suffered There was evidence plaintiffs scarring. addition, jurors polled In when the were first two they only permanent admitted that found to have suffered disfigurement. court, however, The trial committed an additional error not raised appeal. instructions, charged on jury: its the trial court the "Your verdict will be for the defendant if did hot suffer an injury which resulted bodily in a serious function or if negligent negligent, the negligence defendant was not or if such proximate plaintiff’s injury.” not a cause of law, for, This jury was an incorrect statement of the even if the found function, no serious their verdict would be for the they disfigurement. Hess Opinion of may in this case jury the the total.6 from Anna Maria that defendant first determined one- Hess were each Marilyn and defendant Fiore remaining the assigned then negligent third so, the did not they If did to plaintiff. third settlement but rather the Fiores the consider improper. is This negligence. share of their di- complains judge the Finally, plaintiff one- have been find rected Dur- merit. claim is without This negligent. third sent a note to the their deliberations ing "If find that the ice cream we asking: court of the vehicle truck, and the driver pedestrian we responsible, can assume equally are percent will 33-1/3 each?” negligence be percent of seven the verdict replied: "Question [on * * * using percent of one hundred states form] total, parties which negligence combined damage injuries caused proximately negligence of such percentage what plaintiff, Your answer LaHousse? Carolyn attributable Although the court percent.” 33-1/3 would be more might jury’s have answered *7 we cannot simple say properly "yes”, with reply conveyed The court’s response its was error. party each only they if to the jury find negligent they then would equally merely This negligent. percent have been 33-1/3 criti- open the statement and leaves hypothetical percentage is the proper cal What inquiry: Consequently, negligence plaintiff? attributable response to tbe did not err its court jury. consis- a new trial and remanded for
Reversed however, suggest, each is liable This is defendant negligence. portion equivalent damages his As share for that to whether the apportioned, liability joint may we be so tortfeasors express opinion. no 125 Mich by Cynar, J. Dissent costs, tent with opinion. this No neither party having prevailed in full. (dissenting).
Cynar,
J.
Under
the facts of this
case, plaintiff could recover
for injuries
sustained
if she suffered
serious
or disfigure-
McGovern,
ment. As stated in
Cassidy
(1982),
The trial instructed the jury that verdict would be for plaintiff if it found that Carolyn LaHousse suffered an injury which re- sulted disfigurement, that defendant
was negligent and that such negligence was a proximate cause of plaintiff’s injury.
The jury that, was instructed entitled to damages, the jury was to determine the amount of money which would reasonably, fairly and adequately compensate for each of the elements of damage which the jury decided re- sulted from the negligence defendant, taking into account the nature and extent of injuries. The jury was to consider present at the time the *8 v Hess by Cynar, Dissent J. suffering, and mental pain of physical
elements shock, plea- fright denial social anguish, and embarrassment, humiliation enjoyment, sures and mortification, including disability, and was instructed leg. her left The impairment of the enumerated elements to consider whether and, so, into the future damage would continue long. If it was decided to how decide nature, then the injuries were long plaintiff likely to decide how was instructed mortality on tables was to live. instruction given. instructed the elements of was to be based on evidence and
damages were decided guess or The award speculation, conjecture. not on judg- sound suffering up pain objection Plaintiff no ment of made jury. verdict form submit- special instructions nor ted the jury.
I affirm. would