MICHAEL TERRY SOWER V MATTHEW SCOTT REYNOLDS
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL TERRY SOWER,
UNPUBLISHED
December 22, 2009
Plaintiff-Appellant,
v
No. 291691
Ionia Circuit Court
LC No. 07-025505-NI
MATTHEW SCOTT REYNOLDS and JODY
LYNN ADAMS,
Defendants-Appellees.
Before: K. F. Kelly, P.J., and Hoekstra and Whitbeck, JJ.
PER CURIAM.
In this action to recover noneconomic damages under the no-fault act, plaintiff appeals as
of right the trial court’s order granting defendants’ motion for summary disposition pursuant to
MCR 2.116(C)(10). The primary issue on appeal concerns whether plaintiff’s fractured femur
affects his general ability to lead his normal life, as is necessary for recovery pursuant to MCL
500.3135 and Kreiner v Fischer, 471 Mich 109, 130-131; 683 NW2d 611 (2004). We affirm.
This appeal has been decided without oral argument pursuant to MCR 7.214(E).
This Court reviews de novo a trial court’s order granting or denying summary
disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Summary
disposition may be granted under MCR 2.116(C)(10) when “there is no genuine issue as to any
material fact, and the moving party is entitled to judgment . . . as a matter of law.”
A plaintiff may recover noneconomic damages under the no-fault act only where the
plaintiff has suffered “death, serious impairment of body function, or permanent serious
disfigurement.” MCL 500.3135(1). “[S]erious 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). To meet the requisite
threshold, the impairment of an important body function must affect the course or trajectory of a
person’s normal life. Kreiner, supra at 130-131. In determining whether an impairment has
affected the course of a plaintiff’s normal life, a court should compare the plaintiff’s life before
and after the accident and evaluate the significance of any changes on the course of the plaintiff’s
overall life. Id. at 132-133. The court must analyze whether any difference has actually affected
the plaintiff’s general ability to conduct the course of his or her life. Id. at 133. The court may
consider factors such as the nature and extent of the impairment, the type and length of treatment
-1-
required, the duration of the impairment, the extent of any residual impairment, and the
prognosis for eventual recovery. Id.
On July 13, 2005, plaintiff sustained “a comminuted[1] fracture of the distal shaft of the
right femur with displacement, separation, and overriding of fragments.” He underwent surgery
the following day, which consisted of “intramedullary nailing,” where a rod is inserted into the
bone marrow canal in the center of the femur. The fracture was reduced and a femoral nail was
placed and locked. Plaintiff was hospitalized for approximately a week. He testified that he
used crutches for approximately ten weeks and then used them part time after that. He attended
numerous physical therapy sessions. Plaintiff’s physician restricted plaintiff from working until
January 2, 2006, approximately six months after the accident. Plaintiff was placed on light duty
restrictions for six weeks beginning December 19, 2006. He had no physician-imposed
restrictions after the expiration of the December 2006 restrictions. He did not resume working
until June 2007 because he could not find employment. At the time of his deposition in February
2008, he was working for another employer at a higher hourly wage.
Plaintiff testified regarding his daily experiences with pain in his leg, knee, and hip.
However, in evaluating whether a plaintiff’s general ability to conduct the course of his normal
life has been affected, the focus is not on the plaintiff’s subjective pain and suffering, but on
injuries that actually affect the functioning of his body. Netter v Bowman, 272 Mich App 289,
295; 725 NW2d 353 (2006). Plaintiff testified about changes in his recreational activities, but he
did not present physician restrictions that limited his activities in this regard. Self-imposed
restrictions based on real or perceived pain do not establish the extent of residual impairment.
McDanield v Hemker, 268 Mich App 269, 282; 707 NW2d 211 (2005).
An injury need not be permanent to be an impairment of an important body function, but
“it must be of sufficient duration to affect the course of a plaintiff’s life.” Kreiner, supra at 135.
“[A]n 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). However, the record in this case does not show that the injury’s effect on
plaintiff’s life was extensive during the period of the physician’s restrictions. The trial court did
not err in finding that plaintiff was unable to establish a serious impairment of body function
because his injury did not affect his general ability to lead his normal life.
Plaintiff also asserts that his surgical scars are a permanent serious disfigurement,
entitling him to noneconomic damages under MCL 500.3135(1). Where there is no material
factual dispute concerning the nature and extent of an injury, whether it constitutes a permanent
serious disfigurement is a question of law for the court. Fisher v Blankenship, ___ Mich App
___; ___ NW2d ___ (Docket No. 285852, issued October 22, 2009), slip op, p 6. “[A] threshold
disfigurement is a long-lasting and significant change that mars or deforms the injured person’s
appearance.” Id. at 7. “[W]hen determining whether a plaintiff has established a threshold
disfigurement, courts must objectively examine the physical characteristics of the injury on a
1
“Comminuted” means, “broken into several pieces, denoting especially a fractured bone.”
Stedman’s Medical Dictionary.
-2-
case-by-case basis and determine whether, in light of common knowledge and experience and
considering the full spectrum of the injured person’s life activities, the injury’s physical
characteristics significantly mar or deform the injured person’s overall appearance.” Id.
Plaintiff has submitted photographs of his scars, but the scars are difficult to detect in the
photographs. There is no basis for concluding that the scars significantly mar or deform
plaintiff’s overall appearance. Therefore, plaintiff cannot meet the threshold for recovery of
noneconomic damages on the basis of permanent serious disfigurement.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Joel P. Hoekstra
/s/ William C. Whitbeck
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.