RICHARD M GEERDES V DEBORAH JEAN GLUPKER
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STATE OF MICHIGAN
COURT OF APPEALS
RICHARD M. GEERDES,
UNPUBLISHED
December 4, 2007
Plaintiff-Appellee,
v
No. 264856
Kent Circuit Court
LC No. 02-008670-NI
DEBORAH JEAN GLUPKER, and MARK
FREDERICK HAASE,
Defendants-Appellants.
Before: Fort Hood, P.J., and Smolenski and Murray, JJ.
MURRAY, J. (dissenting).
In general, “[o]ur courts are ‘reluctant to overturn a jury’s verdict’ where there is ‘ample
evidence’ to support the jury’s decision, . . . and will do so only where we are satisfied that
allowing the verdict to stand would be inconsistent with substantial justice.” Clark v Kmart
Corp, 249 Mich App 141, 150; 640 NW2d 892 (2002), quoting in part Krohn v Sedgwick James
of Mich, Inc, 244 Mich App 289, 295; 624 NW2d 212 (2001). In this case, the trial court
committed an error of law when it set aside the jury verdict. Additionally, because the trial court
properly instructed the jury, and the jury’s verdict was supported by the evidence presented, I
would reverse the trial court’s order granting a new trial and reinstate the trial court’s November
18, 2004, judgment of no cause of action rendered after the jury trial.
I. Facts and Proceedings
On September 29, 1999, defendant Deborah Jean Glupker rear-ended plaintiff Richard M.
Geerdes’ car while it was stopped at a red light. Plaintiff thereafter filed suit against defendants
seeking tort recovery for noneconomic damages pursuant to MCL 500.3135(1) of the no-fault
act, alleging that he suffered a serious impairment of body function (sometimes referred to
generically as a “threshold injury”) as a result of the accident. The parties engaged in the typical
discovery process, and defendants then filed a motion for summary disposition. In that motion
defendants argued that plaintiff failed to establish that he suffered a serious impairment of a body
function, and therefore the case should be dismissed. The trial court denied defendants’ motion,
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opining that there were factual disputes and the jury should determine whether plaintiff suffered
a threshold injury.1 Trial ensued.
Not surprisingly, the evidence presented at trial surrounded whether plaintiff suffered a
serious impairment of body function. At the close of plaintiff’s proofs, defendant moved for a
directed verdict. Defendants’ theory of the case and why they believed that plaintiff’s proofs
were insufficient to establish a threshold injury, were made clear in counsel’s argument to the
court:
But I think that as far as specifically for my motion for directed verdict, I
don’t think the plaintiff is able to establish that he has had a change in his lifestyle that’s sufficient under the No Fault Statute to satisfy the standard that we
have set forth in Kreiner.[2] And of course as the Court is aware in Kreiner,
Kreiner has given us a new definition as far as what it means as far as the
component of what it means to affect one’s person – a person’s ability to lead
their normal life, and Kreiner talks about that the impact must be to such an extent
that it must affect the course of a person’s life or alter the trajectory of a person’s
life, although some aspects of a plaintiff’s entire normal life may be interrupted
by the impairment if, despite those impairments, the course or trajectory of
plaintiff’s normal life has not been affected, and the plaintiff’s general ability to
lead his normal life has not been affected, and he does not meet the serious
impairment of body function threshold. [Emphasis added.]
Thus, defendants’ argument focused on plaintiff’s inability to prove that the impairment affected
his general ability to lead a normal life.
Plaintiff argued that the test of Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004)
was met, and that the jury should decide the case. The trial court agreed. In denying defendants’
motion for a directed verdict, the trial court ultimately concluded:
[W]e have plenty of proof here to get the issue of serious impairment to a jury.
It’s not anywhere near what the statute authorizes me to resolve.
After closing arguments, the trial court instructed the jury, consistent with Kreiner, supra
at 131, that it must make three separate findings before it concludes that plaintiff suffered a
serious impairment of a body function:
And now Michigan law says that a serious impairment of a body function
is an objectively manifested impairment of an important body function that affects
1
The record does not contain a copy of any written decision or transcript embodying the trial
court’s decision, but given that the case proceeded to trial, and the trial court instructed the jury
on what it needs to find for a serious impairment of a body function, this must have been the
conclusion of the court.
2
Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004).
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the person’s general ability to lead his or her normal life. Well, that’s better than
no definition at all, which is what we started out with, but there’s lots of terms in
there that need some work. And over the years the courts have come up with
what we think are some rules of them, the legislature wanted us to do that, it’s not
like we did it on our own, to help you understand these things. So we’ve got to
decide what’s an impairment, how is an impairment objectively manifested,
what’s an important body function, and what does it mean to affect a person’s
general ability to lead his or her normal life. Those are all the things you need to
know in order to be able to answer the question, is there a serious impairment of
a body function. [Emphasis added.]
The trial court went on to instruct the jury regarding what was meant by an “impairment”, how it
is “objectively manifested”, and how such an impairment can affect a person’s general ability to
lead a normal life.
The jury concluded that plaintiff did not sustain a serious impairment of body function.
Specifically, the jury verdict form reflects that the jury answered the following general question
in the negative: “Question No. 3: Did the injury sustained by [plaintiff] in the collision with Ms.
Glupker’s vehicle result in a serious impairment of some body function of his?” Accordingly,
the trial court entered a judgment of no cause of action on behalf of defendants.
Plaintiff subsequently moved for judgment notwithstanding the verdict or, in the
alternative, a new trial. In an August 17, 2005, opinion and order, the trial court found, contrary
to its rulings on defendants’ motions for summary disposition and directed verdict, that there was
no dispute regarding the nature and extent of plaintiff’s injuries, and concluded that it erred when
it submitted the threshold injury question to the jury. Instead, the trial court now concluded that
plaintiff suffered an objectively manifested impairment of an important body function as a matter
of law. The trial court did not address in any detail, however, whether the impairment affected
plaintiff’s general ability to lead a normal life, and did not indicate whether it was considering
the evidence submitted at the summary disposition stage, or the evidence submitted at trial. The
trial court concluded:
It was, therefore, error for this Court to have submitted to the jury the
issue of serious impairment. Given that there was no factual dispute concerning
the nature and extent of plaintiff’s paralysis and its underlying physical etiology,
and no basis for finding that that [sic] paralysis and its pain were other than a
serious impairment, it was this Court’s obligation to itself have resolved the issue
favorably to plaintiff, not as a traditional directed verdict, but in fulfillment of its
legislatively-assigned responsibility. . . . This Court cannot, however, grant
judgment for plaintiff. Because a key issue remains unresolved[.] . . .
Unfortunately, when the jury reported that it was ‘hung’ on the issue of cause, the
Court allowed it to skip that issue. A new jury must be convened, therefore, to
now resolve the issue.
II. Analysis
Defendants’ argument on appeal, as it was in the trial court, is that the threshold injury
issue was properly submitted to the jury, and the jury’s verdict was not against the great weight
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of the evidence. Accordingly, defendant maintains that the trial court erred when it reversed the
jury’s verdict and granted a new trial on the issues of causation and damages. This Court
reviews a trial court’s decision to grant a motion for a new trial for an abuse of discretion. Wiley
v Henry Ford Cottage Hosp, 257 Mich App 488, 498; 668 NW2d 402 (2003). An abuse of
discretion occurs when the trial court’s decision results in an outcome that is not within the range
of principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809
(2006); Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006). In relevant part, under
MCR 2.611(A)(1), a trial court can grant a motion for a new trial if the jury’s verdict is against
the great weight of the evidence presented, or if an error of law occurred during the proceedings.
Under the no-fault automobile insurance act, MCL 500.3101 et seq., tort liability for
noneconomic losses is limited to instances in which the injured person has suffered death,
serious impairment of body function, or permanent serious disfigurement. MCL 500.3135(1);
Hardy v Oakland Co, 461 Mich 561, 565; 607 NW2d 718 (2000); Williams v Medukas, 266
Mich App 505, 507; 702 NW2d 667 (2005). A serious impairment of body function is “an
objectively manifested impairment of an important body function that affects the person’s
general ability to lead his . . . normal life.” MCL 500.3135(7); Kreiner, supra at 129. Whether a
plaintiff has suffered a serious impairment of body function is a question of law to be decided by
the trial court, unless there is a material factual dispute concerning the nature and extent of the
person’s injuries. MCL 500.3135(2)(a); Kreiner, supra at 120.
To help determine whether a plaintiff has met the statutory threshold, the Kreiner Court
developed a “multi-step process . . . meant to provide the lower courts with a basic framework
for separating out those plaintiffs who meet the statutory threshold from those who do not.”
Kreiner, supra at 131. This multi-step inquiry entails the following: First, it must be determined
if the plaintiff suffered an impairment. Second, if an impairment is found, “the court must next
determine if an ‘important body function’ of the plaintiff has been impaired.” Id. at 132. Third,
if it is found that an important body function has been impaired, the court must next determine if
the impairment is objectively manifested. Id. Fourth, and finally, if the court “finds that an
important body function has been impaired, and that the impairment is objectively manifested, it
then must determine if the impairment affects the plaintiff's general ability to lead his . . . normal
life.” Id. (emphasis added). The Kreiner Court noted:
In determining whether the course of the plaintiff’s normal life has been affected,
a court should engage in a multifaceted inquiry, comparing the plaintiff’s life
before and after the accident as well as the significance of any affected aspects on
the course of the plaintiff’s overall life. Once this is identified, the court must
engage in an objective analysis regarding whether any difference between the
plaintiff’s pre- and post-accident lifestyle has actually affected the plaintiff’s
‘general ability’ to conduct the course of his life. Merely ‘any effect’ on the
plaintiff’s life is insufficient because a de minimis effect would not, as objectively
viewed, affect the plaintiff’s ‘general ability’ to lead his life. [Id. at 132-133.]
The Kreiner Court went on to list five non-exclusive, non-exhaustive objective factors to assist
in evaluating whether an impairment has affected a plaintiff’s “general ability” to lead or conduct
the course of his normal life: “(a) the nature and extent of the impairment, (b) the type and
length of treatment required, (c) the duration of the impairment, (d) the extent of any residual
impairment, and (e) the prognosis for eventual recovery.” Id. at 133. The five factors are not
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intended to be individually dispositive, but rather are intended to serve as a framework to apply
the totality of the circumstances to determine whether the plaintiff’s impairments affect his
general ability to conduct the course of his normal life. Id. at 133-134.
Here, the trial court properly instructed the jury on the Kreiner factors for finding a
substantial impairment of a body function. A jury is presumed to follow a judge’s instructions,
Bordeaux v Celotex Corp, 203 Mich App 158, 164; 511 NW2d 899 (1993), and as previously
discussed, the jury was properly instructed regarding the multi-step process of the serious
impairment of an important body function test. Accordingly, the jury is presumed to have
considered the fourth and final prong of the serious impairment of an important body function
test when it made its determination that plaintiff did not suffer a threshold injury. Indeed, there
is nothing in the record to suggest that the jury did not agree with the trial court’s conclusion that
plaintiff suffered an objectively manifested impairment, but then went on to find that plaintiff’s
impairment did not interfere with his general ability to lead a normal life.
However, in granting a new trial, the trial court erred by failing to perform the required
Kreiner analysis before setting aside the jury’s verdict and finding as a matter of law that
plaintiff suffered a serious impairment of body function. In particular, when making its
determination that plaintiff suffered a serious impairment of an important body function as a
matter of law, the trial court in large part failed to address the final prong of the serious
impairment of an important body function test, i.e., whether plaintiff’s objectively manifested
injuries affected his general ability to lead his normal life. Nowhere in the trial court opinion is
there a discussion regarding how the impairments suffered by plaintiff actually impeded his
general ability to lead a normal life. In fact, the trial court fails to mention any of the nonexhaustive factors discussed in Kreiner. Indeed, the court’s conclusion is contained in two
conclusory statements found within one paragraph:
The progressive loss over two years of the use of a limb, culminating in
partial paralysis and intense discomfort which required spinal surgery to correct,
was the kind of impairment, not minor interruption in life, which satisfies the
Michigan no-fault statute. Kreiner v Fischer (aft rem), 471 Mich 109 (2004). If
paralysis, except, perhaps, very short-term paralysis, is not serious enough to
warrant third-party tort recovery, only catastrophic impairments remain subject to
such liability, which is not what the Legislature intended. Kreiner, supra at 131,
fn 14.
Yet a complete analysis, or at least more than what was done here, is necessary before finding a
substantial impairment under Kreiner, supra.
As previously discussed, once it is found that the threshold injury question should be
decided as a matter of law, in order for the trial court to conclude that plaintiff suffered a
threshold injury it “must” find that plaintiff suffered an objectively manifested impairment of an
important body function that affected his general ability to lead his normal pre-accident life.
Kreiner, supra at 132. The trial court, however, did not perform a Kreiner analysis regarding
whether plaintiff’s objectively manifested injuries affected his general ability to lead his normal
pre-accident life. Instead, the trial court merely stated that plaintiff’s temporary “paralysis”
“must” be sufficient. However, at no time did plaintiff testify that he suffered from “paralysis”;
instead, plaintiff testified to temporary limitations in the use of his right arm, but even that did
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not impact his general ability to lead a normal life.3 Based on the evidence, the trial court’s
simple conclusion is not a sufficient replacement for the detailed analysis required by the statute
and Kreiner. Because the court is required to engage in the proper analysis under the statute and
Kreiner, failure to do so is an error of law that requires reversal.
Moreover, in reviewing the evidence submitted by the parties at trial,4 there was more
than sufficient evidence presented to support the jury’s verdict that plaintiff did not suffer a
threshold injury. Accordingly, the jury’s determination that plaintiff did not suffer a threshold
injury was not against the great weight of the evidence and should not have been set aside.
Ellsworth v Hotel Corp of America, 236 Mich App 185, 194; 600 NW2d 129 (1999).
Specifically, the trial evidence revealed that, as a result of multiple automobile accidents that
occurred before the one at issue here, at the time of the accident plaintiff already suffered from
chronic back pain which prevented him from working, performing simple household tasks, made
it difficult for him to drive, stand or sit for extended periods of time, and sleep. Plaintiff
repeatedly referred to himself as “disabled” prior to the instant accident. Plaintiff also suffered
from neck pain, and radiating pain into his left arm, prior to this accident, and as recently as
1998. Plaintiff no longer performed outdoor yard work, as he had moved to a condominium in
1994 or 1995. Before this accident, plaintiff had not worked for years.
On direct examination, plaintiff testified that after the accident he could not perform
many household chores (cleaning, etc), but on cross-examination he testified to essentially the
same limitations before the accident because of his back pain. Importantly, during direct
examination plaintiff testified that he experienced numbness or tingling in his left and then right
arms, with the impact being that sometimes he would inexplicably drop items in his hands.
However, plaintiff also testified that the radiating pain in his left arm was gone by April 2000,
only seven months after the accident. He also testified at one point that his neck range of motion
was normal by July 2001. As for his right arm, plaintiff testified that he could not lift a onepound weight over his head, and could not throw a ball.
In general, then, plaintiff’s testimony, on direct, naturally focused on what limitations he
had on his life after the accident compared to before the accident, while during crossexamination plaintiff’s pre-accident life was shown to be much like it was after the accident.
Thus, the record certainly contained evidence supporting the jury’s verdict.
/s/ Christopher M. Murray
3
In other words, the impact that his “paralysis” had on plaintiff’s life was not, according to
defendant’s theory, as significant to him as it would be to someone who had no prior
impairments or limitations. But because plaintiff had such a vast history of limiting
impairments, even to the extent of plaintiff referring to his pre-accident life as being “disabled”,
it was not enough for the trial court to simply imply that “paralysis” always affects a person’s
general ability to lead a normal life, and thereby take the issue away from the jury.
4
Presumably, the trial court only considered evidence presented at trial, for the error of law must
have occurred in the trial proceedings.
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