BERNICE RICHMOND V GARY W STROUP
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STATE OF MICHIGAN
COURT OF APPEALS
BERNICE RICHMOND,
UNPUBLISHED
August 12, 2008
Plaintiff-Appellant,
v
GARY W. STROUP and BERNICE L. LONGSTROUP,
No. 278177
Genesee Circuit Court
LC No. 06-084311-NI
Defendants-Appellees.
Before: Markey, P.J., and White and Wilder, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting defendants’ motion for summary disposition
pursuant to MCR 2.116(C)(10). We reverse.
This action arises out of injuries sustained by plaintiff in an automobile accident with
defendant, Bernice L. Long-Stroup. Long-Stroup, while operating defendant Gary Stroup’s
automobile, pulled out of a parking lot without yielding to oncoming traffic, and collided with
the front passenger side of plaintiff’s automobile. Plaintiff sustained fractures of a rib, her left
wrist and right ankle in the accident.
The circuit court granted defendants’ motion for summary disposition, which argued
solely that plaintiff’s injuries did not affect the course of her normal life. On appeal, plaintiff
argues that she presented sufficient evidence to raise a genuine issue of material fact regarding
whether the injuries affected her ability to live her normal life. We agree.
On appeal, this Court reviews a trial court’s determination regarding a motion for
summary disposition de novo. MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d 33
(2001). “In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), we
consider the affidavits, pleadings, depositions, admissions, or any other documentary evidence
submitted in [the] light most favorable to the nonmoving party to decide whether a genuine issue
of material fact exists.” Singer v American States Ins, 245 Mich App 370, 374; 631 NW2d 34
(2001). Summary disposition is appropriate only if there are no genuine issues of material fact,
and the moving party is entitled to judgment as a matter of law. MacDonald, supra, p 332.
Under the no-fault act, a person remains subject to tort liability for noneconomic loss
caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person
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has suffered death, serious impairment of body function, or permanent serious disfigurement.
MCL 500.3135(1); Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). A serious
impairment of body function means an objectively manifested impairment of an important body
function that affects the person’s general ability to lead his or her normal life.” MCL
500.3135(7); Kreiner, supra at 127-128. Therefore, to meet the requisite threshold, the
impairment of an important body function must affect the course or trajectory of a person’s
entire normal life. Id. at 130-131. The court must examine the plaintiff’s whole life before and
after the accident. Then, the court must assess the “significance of any affected aspects on the
course of the plaintiff’s overall life.” Kreiner, supra at 132-133.
The following nonexhaustive list of objective factors may be of assistance in
evaluating whether the plaintiff's “general ability” to conduct the course of his
normal life has been affected: (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 extent of a residual impairment is not established by self-imposed restrictions based on real
or perceived pain. Id. at 133 n 17; McDanield v Hemker, 268 Mich App 269, 282-283; 707
NW2d 211 (2005). However, a self-imposed restriction may be considered where it is not based
on pain, but rather, because the plaintiff is physically incapable of performing the activity.
McDanield, supra at 283.
“An impairment of short duration may constitute a serious impairment of body function if
its effect on the plaintiff’s life is extensive.” Williams v Medukas, 266 Mich App 505, 508; 702
NW2d 667 (2005), citing Kreiner, supra at 134.
Plaintiff claims that her injuries have affected the trajectory of her normal life with
respect to limitations following the accident. The accident occurred on January 11, 2006.
Plaintiff was taken by ambulance to the emergency room, where her wrist was set. Plaintiff
testified that she required and received personal attendant care for nine months following the
accident. She testified that she needed assistance bathing, dressing herself, and doing her hair,
and could not cook or clean. Because of her rib fracture, she could not lie on her side for three
months. Further, plaintiff was in and out of casts and braces for her ankle before she underwent
ankle surgery on August 28, 2006, and was again in casts for several months after the surgery.
Medical records submitted below establish that plaintiff was in a nonweight bearing cast and had
to use crutches until October 6, 2006. Because of her ankle injury alone, plaintiff was in casts
from the time of the accident in January 2006 until late November 2006, approximately 11
months. Dr. Susan Mosier-LaClair, one of plaintiff’s treating doctors following the accident,
disabled her from housework and caring for her personal needs until January 31, 2007. The
disability certificate Dr. LaClair signed stated that “patient [plaintiff] is disabled from doing:”
“Housework” as housework involves bending, lifting, twisting and prolonged
standing as required by changing linens, making beds; washing floors, sinks,
bathtubs, toilets, dusting low objects; polishing furniture; moving furniture;
picking up objects off floors; carrying garbage; caring for pets, etc.
[and]
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“Caring for the patient’s personal needs” which includes bending, twisting,
lifting, prolonged standing by bathing the patient; dressing the patient, driving
the patient; cooking for the patient; fetching, carrying and lifting things for the
patient, etc. [Emphasis in original.]
Plaintiff testified at her March 6, 2007 deposition (approximately 14 months postaccident) that her wrist and ankle continue to give her problems. She testified that before the
accident she planted flower gardens, but can no longer do so because she cannot dig or stoop to
plant. She testified that she planted in 2005 but did not in 2006. Plaintiff testified that she still
cannot lift heavy pots and that her husband continues to do the cooking, as he has since the
accident. Plaintiff testified that although she can push a vacuum cleaner with her right hand, she
cannot lift and/or twist it. She testified that she can only grocery shop for small items, like
bread, because lifting heavy items causes her pain, and that her husband must therefore do most
of the grocery shopping. At her deposition, plaintiff was wearing a wrist brace prescribed by a
doctor, which she testified helped maintain her wrist steady and helped to reduce pain.
Plaintiff also testified that because of her injuries she cannot stand for one hour without
resting because her ankle gets stiff and numb. She testified that before the accident she led
prayer service at her church every Sunday, and sang in the choir, which required standing for
more than one hour. She cannot lead prayer service anymore because it requires an hour of
standing, and no longer sings in the choir for the same reason.
The evidence submitted below sufficiently supported that plaintiff was limited in her
ability to care for her personal needs, to perform housework, and to engage in activities that were
important to her and integral to her life before the accident, including leading prayer service at
her church, singing in the church choir, and gardening, for more than one year following the
January 11, 2006 accident, i.e., until at least January 31, 2007.
As to employment, plaintiff testified at deposition that before the accident she worked as
a dispatcher at MTA, and typed for eight to ten hours a day. She testified that she did not return
to work at MTA after the accident because she could not type for any length of time because of
her left wrist injury and consequent pain, and that her typing speed had decreased from 70 wpm
to 20 wpm. Appended to plaintiff’s response to defendants’ motion for summary disposition was
a prescription form from Dr. Dass’s office stating that plaintiff “left old job due to distal radius
[fracture] and could not type all day 8-10 hours.” Other medical records submitted below
establish that the doctors plaintiff treated with after the accident on various occasions disabled
plaintiff from working, including until October 6, 2006 because of her ankle surgery. Plaintiff
testified at her deposition that she had been working part-time as an insurance sales agent since
approximately April 2006. She testified that in her new job, which is part-time, she does not go
into the office every day, works from home some days, and that there is less typing involved than
at MTA. Plaintiff testified that she had formerly worked as an insurance sales agent for two
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other insurers and had an agent’s license. She also testified that she was able to perform her job
as a part-time insurance sales agent.1
The record supports that plaintiff left her job at MTA because she could no longer type 810 hours a day. The record supports that plaintiff needed to obtain different employment as a
result of the injuries she sustained in the accident, and that, to that extent, her employment, her
work life, was affected.2 That plaintiff managed to work part-time in a different job beginning
around April 2006 does not alter our conclusion.
Plaintiff provided evidence supporting that her ability to care for her personal needs, and
to do housework (and activities involving lifting, bending, twisting and prolonged standing), and
her work life were seriously affected by the injuries she suffered, and the consequent surgery and
casts and crutches. We thus conclude that plaintiff established that her general ability to conduct
the course of her entire normal life was affected from the date of the accident, January 11, 2006,
until at least January 31, 2007. See Williams, supra at 508, citing Kreiner, supra at 134
(impairment of short duration may constitute a serious impairment of body function if its effect
on plaintiff’s life is extensive).
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Jane E. Markey
/s/ Helene N. White
1
Plaintiff’s affidavit, filed after she was deposed, stated that her husband had to help her with
her sales agent responsibilities, and did so by driving her to clients’ homes, and helping her in
and out of the car. The circuit court concluded that since plaintiff testified on deposition that she
was able to perform her job as a sales agent, her affidavit impeached her deposition testimony.
We do not find these statements intrinsically inconsistent.
2
Although plaintiff’s complaint alleged that as a result of the accident she lost earnings and
would indefinitely, plaintiff did not present evidence in response to defendants’ motion for
summary disposition that her change from full-time work at MTA to part-time work as an
insurance sales agent negatively affected her income.
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