ALISON R NELSON V FREDDIE DUBOSE
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STATE OF MICHIGAN
COURT OF APPEALS
ALISON R. NELSON,
FOR PUBLICATION
February 1, 2011
Plaintiff-Appellant/Cross-Appellee,
v
No. 293455
Oakland Circuit Court
LC No. 2007-086875-NI
FREDDIE DUBOSE,
Defendant-Appellee/CrossAppellant.
ALISON R. NELSON,
Plaintiff-Appellant,
v
No. 294205
Oakland Circuit Court
LC No. 2007-086875-NI
FREDDIE DUBOSE,
Defendant-Appellee.
Before: JANSEN, P.J., and SAWYER and O’CONNELL, JJ.
JANSEN, P.J. (concurring).
I must agree with the majority’s conclusion that reasonable jurors could honestly have
disagreed concerning whether plaintiff’s injuries rose to the level of a “serious impairment of
body function,” and that the trial court therefore did not err by denying plaintiff’s motion for
judgment notwithstanding the verdict (JNOV). Guerrero v Smith, 280 Mich App 647, 666; 761
NW2d 723 (2008).
I write separately because, although I cannot say with absolute certainty that plaintiff
sustained a “serious impairment of body function” as a matter of law, I believe that the jury’s
determination that plaintiff’s shoulder condition did not constitute a threshold injury was against
the great weight of the evidence. The overwhelming weight of the evidence at trial established
that plaintiff’s shoulder injury did affect her “general ability to lead . . . her normal life” within
the meaning of MCL 500.3135(7). After the automobile accident but before her shoulder
surgery, plaintiff was unable to work as many hours as she had before the accident. This is
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because she was required to arrive late for work or leave work early to accommodate her
physical therapy schedule. Thereafter, following her shoulder surgery, plaintiff’s arm was in a
sling for several weeks.1 Plaintiff testified that she could not use a computer as well as before
the accident, that she could not sit for long periods of time as she had before the accident, and
that her attention level had been altered due to prescription pain medication. In addition,
plaintiff testified that she was unable to participate, to the same degree as before the accident, in
her extensive professional activities, travel, and golf. Following the accident, plaintiff also quit
volunteering for her church and drastically reduced her involvement in other community
activities. The uncontroverted evidence established that plaintiff’s shoulder injury kept her from
various activities that were important to her.
Plaintiff moved for a new trial pursuant to MCR 2.611(A)(1)(e) on the ground that the
jury’s verdict was against the great weight of the evidence. The trial court denied this motion,
allowing the jury’s verdict to stand. For the foregoing reasons, I believe that the trial court
abused its discretion by denying plaintiff’s motion for a new trial. Guerrero, 280 Mich App at
666. In my opinion, the “overwhelming weight of the evidence” in this case, id., tended to
establish that plaintiff’s shoulder injury affected her “general ability to lead . . . her normal life”
within the meaning of MCL 500.3135(7), and therefore constituted a “serious impairment of
body function” sufficient to satisfy the threshold of MCL 500.3135(1).
The obvious problem with this is that the propriety of the trial court’s ruling on plaintiff’s
motion for a new trial has not been presented for appellate review and is not properly before this
Court. MCR 7.212(5); MCR 7.212(7); Ypsilanti Fire Marshal v Kircher (On Reconsideration),
273 Mich App 496, 553; 730 NW2d 481 (2007); In re JS & SM, 231 Mich App 92, 98; 585
NW2d 326 (1998), overruled in part on other grounds In re Trejo, 462 Mich 341 (2000). As a
consequence, I must reluctantly concur with the result reached by the majority in this case.
/s/ Kathleen Jansen
1
Moving one’s arm is an important body function. See Williams v Medukas, 266 Mich App 505,
506; 702 Mich App 667 (2005).
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