VICTORIA A REDDY V RENE A SWEETLAND
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STATE OF MICHIGAN
COURT OF APPEALS
VICTORIA A. REDDY,
UNPUBLISHED
March 23, 2001
Plaintiff-Appellee,
v
No. 217852
Genesee Circuit Court
LC No. 96-044232-NI
RENE A. SWEETLAND and SPENCER M.
DALLAIRE,
Defendants-Appellants.
Before: Gage, P.J., and Cavanagh and Wilder, JJ.
PER CURIAM.
Defendants appeal as of right from a judgment of $21,500 ($23,500 less ten percent
comparative negligence) entered in plaintiff’s favor in this pre-tort reform, no-fault claim for
noneconomic damages pursuant to MCL 500.3135; MSA 24.13135. We affirm.
This action arose as a consequence of plaintiff sustaining a crushing foot injury when a
door on the vehicle in which plaintiff was a passenger slammed shut on her foot.1 A jury trial
was conducted in October 1997. Following the close of proofs, the trial court granted plaintiff’s
motion for directed verdict on the issue of serious impairment of body function. Thereafter, the
jury returned a verdict finding defendants negligent and plaintiff ten percent comparatively
negligent. The jury awarded plaintiff $2,500 for past damages and no future damages. Plaintiff
moved for additur which the trial court granted in the amount of $18,000 ($20,000 less ten
percent comparative negligence) for past damages. Defendants did not consent to additur and the
trial court granted plaintiff’s motion for a new trial on the issue of past damages only. The
second jury awarded plaintiff $23,500 and a judgment was entered for plaintiff in the amount of
$21,500 ($23,500 less ten percent comparative negligence).
Defendants first argue that the trial court erred by granting plaintiff’s motion for a
directed verdict on the issue of whether plaintiff’s injury resulted in a serious impairment of a
1
Plaintiff’s complaint for noneconomic damages was filed prior to the effective date of the 1995
amendments to the no-fault act (1995 PA 222). See MCL 500.3135(2); MSA 24.13135(2); Kern
v Blethen-Coluni, 240 Mich App 333, 335-336; 612 NW2d 838 (2000).
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body function. We disagree. This Court reviews a trial court’s grant or denial of a motion for
directed verdict de novo. Meagher v Wayne State University, 222 Mich App 700, 708; 565
NW2d 401 (1997). On appeal, this Court reviews all the evidence presented up to the time of the
motion, in the light most favorable to the nonmoving party, to determine whether a factual
question existed upon which reasonable minds could differ. Id.
The parties agree that DiFranco v Pickard, 427 Mich 32; 398 NW2d 896 (1986), controls
the question of whether plaintiff’s injury was a serious impairment of body function. See Kern v
Blethen-Coluni, 240 Mich App 333, 338; 612 NW2d 838 (2000). The DiFranco Court held that
the proper inquiry in deciding dispository motions regarding the serious impairment requirement
in a claim for noneconomic damages includes whether a material factual dispute existed as to the
nature and extent of the plaintiff’s injuries and whether reasonable minds could differ as to
whether the plaintiff sustained a serious impairment of body function. DiFranco, supra at 38-39,
59. The DiFranco Court further held that the serious impairment threshold required a
determination of the particular body function that was impaired and whether the impairment was
serious. Id. at 39, 67. Factors to be considered to determine the seriousness of impairment
included the extent of the impairment, the body function that was impaired, the length of time the
impairment lasted, and the type of treatment required. Id. at 39-40, 67-68.
In this case, there was no material factual dispute regarding the nature and extent of
plaintiff’s injuries. The undisputed evidence produced at trial, which included testimony from
both plaintiff’s physician and defendants’ medical expert, indicated that plaintiff sustained a
crushing injury to her foot which resulted in three fractured bones and extreme swelling
necessitating two initial surgeries. Because the bones failed to heal properly, plaintiff underwent
a third surgery at which time the bones were aligned and stabilized with pins and wire.
Subsequently, plaintiff had the pins removed in a fourth surgery. Plaintiff’s ability to walk was
substantially impaired from the date of the injury until approximately September 1994 as a
consequence of her injury and associated medical treatments. Thereafter, and at least through the
date of the trial, plaintiff continued to suffer pain, swelling, numbness, and cramping in her foot.
Although defendant argued that the bones in plaintiff’s foot may not have initially healed
properly because plaintiff failed to follow her physician’s instruction to remain non-weight
bearing, no evidence was produced at trial to support the allegation.
Further, we agree with the trial court that reasonable minds could not differ as to the
seriousness of plaintiff’s impairment. The use of a foot and associated ability to stand and walk
are important body functions that were impaired by the injury. Further, the impairment was
serious as evidenced by (1) plaintiff’s physician and defendants’ medical expert’s
characterization of the injury as “very severe” in nature, (2) the fact that four surgeries were
required to treat the fractures, (3) plaintiff’s associated incapacitation which included periods of
being confined to bed, casted, and/or required the use of crutches, (4) plaintiff’s inability to work
for three months, and (5) plaintiff’s residual impairment which included pain, swelling,
numbness, and cramping in the foot that plaintiff’s physician testified would likely be permanent
problems. Accordingly, the trial court did not err in granting directed verdict to plaintiff on the
issue of serious impairment of body function.
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Next, defendants argue that the trial court abused its discretion in ordering additur and a
new trial. We disagree. The proper consideration when reviewing a grant or denial of additur is
whether the jury award is supported by the evidence. Setterington v Pontiac General Hosp, 223
Mich App 594, 608-609; 568 NW2d 93 (1997). This Court reviews a trial court’s grant of
additur and a new trial for an abuse of discretion. See MCL 600.6098(4); MSA 27A.6098(4);
Arnold v Darczy, 208 Mich App 638, 640; 528 NW2d 199 (1995).
In this case, the trial court held that the jury verdict was inadequate, granted additur, and
denied plaintiff’s motion for a new trial on the condition that defendants consent to a judgment of
$18,000 ($20,000 less ten percent comparative negligence), the lowest amount the trial court
found to be supported by evidence. See MCR 2.611(E)(1). In making its determination that the
jury award was inadequate, the trial court properly considered the evidence presented, including
that plaintiff sustained three fractures requiring four surgeries and suffered incapacitation and
extreme pain from the injury. The trial court held that, although substantial and uncontroverted,
the jury apparently ignored such evidence. After carefully reviewing the record and according
due deference to the trial court’s opportunity to observe the evidence and witnesses, we cannot
say that the trial court abused its discretion. See Setterington, supra.
Finally, defendants argue that the trial court abused its discretion by limiting the second
trial to the issue of past damages. We disagree. A new trial on the issue of damages is
permissible when a defendant's liability was clearly established. Lagalo v Allied Corp (On
Remand), 233 Mich App 514, 523; 592 NW2d 786 (1999); Denha v Jacob, 179 Mich App 545,
550; 446 NW2d 303 (1989). Further, new trials limited to "some of the issues" is permitted by
the court rules. MCR 2.611(A)(1); Hierta v General Motors Corp (Supplemental Opinion), 148
Mich App 796, 799; 385 NW2d 690 (1986).
In this case, the first jury returned a special verdict which found defendants liable for
negligence and separately determined the amount of damages to which plaintiff was entitled and
plaintiff’s comparative negligence. The only issue disputed by either party was the amount of
damages awarded to plaintiff. The jury verdict was not ambiguous and clearly determined that
defendants were negligent and such determination was not influenced by any alleged trial error.
See generally MCR 2.611(E)(1); Kern, supra at 337; Hierta, supra at 800. Further, the evidence
clearly established defendants’ liability in negligence. Plaintiff was a passenger in the vehicle
being driven by defendant Sweetland when Sweetland unexpectedly began driving while plaintiff
was attempting to enter and seat herself in the vehicle, before plaintiff could properly shut the
door, causing the door to fly open and slam shut on plaintiff’s foot. Therefore, a partial new trial
on the issue of damages was sufficient. See Brewster v Martin Marietta Aluminum Sales, Inc,
145 Mich App 641, 669; 378 NW2d 558 (1985). Accordingly, the trial court did not abuse its
discretion by ordering a new trial limited to past damages only.
Affirmed.
/s/ Hilda R. Gage
/s/ Mark J. Cavanagh
/s/ Kurtis T. Wilder
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