This is the kind of fender-bender soft tissue injury, briefly incapacitating with a fast and full rеcovery, that the Legislature meant to keep out of cоurt by enacting the threshold requirements. However, by using the uncertain phrase "serious impairment of body function”, the *725 no-fault act utterly fails to accomplish that purpose and, ironically, makes autо-accident litigation even more of a crap game.
Any incapacity for a few days or weeks will seem "serious” to onе jury while another will find against a plaintiff who has a more extensive impairment „with continuing problems. The personalities of the jurors, the parties and the lawyers may affect the outcome.
It is no easier to say a body impairment is or is not "serious” than to say conduсt established by discovery is or is not "negligent”. But summary judgment is almost never appropriate in negligence actions;
Simonetti v Rinshed-Mason Co,
We recognize, however, that summary judgment is not an absolute impossibility on a motion that plaintiffs injury is or is not a serious imрairment of body function as a matter of law. In
Advisory Opinion re Constitutionality of
McKendrick v Petrucci,
"Where resolution of a case requires the trier of fact to make 'qualitative inferences’, summary judgment will usually not be appropriate.”
*726
Nevertheless in
Vitale v Danylak,
"While the opinion did not specify where the 'permissible limits’ are drawn, this Court is of the opiniоn that if any class of cases could approach such limitаtion, the case at bar must be included in that class. The plaintiff’s solе injury arising from the accident was a stiff neck, which was treated with minimal medication and subsequently disappeared within a week.” (74 Mich App 615 , 619.)
Vitale is the exception that proves the rule. Summary judgment for the defendant is avаilable only in those rare, clearest of cases in which a judge can decide "after accepting as true all of the рlaintiffs factual allegations, that no reasonable jury would find the injury sustаined to be serious”.
Cassidy v McGovern,
Although we strongly believe that plaintiffs incapacitation for a few weeks falls far short of *727 the statutory threshold we cannot say that all reasonable jurors would agree.
We reverse and remand with a suggestion that the circuit judge remove the case to a lower court. In the unlikely еvent that a jury finds in favor of plaintiff, nine weeks of convalescence, with lost wages and medical paid as P.I.P. benefits, surely would not justify an award in excess of $10,000.