THOMAS J PETROCIK V WILLIAM JAMES DOWLING
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STATE OF MICHIGAN
COURT OF APPEALS
THOMAS J. PETROCIK,
UNPUBLISHED
November 28, 2006
Plaintiff-Appellee,
v
No. 269064
Marquette Circuit Court
LC No. 05-042234-NI
WILLIAM JAMES DOWLING,
Defendant-Appellant.
Before: Whitbeck, C.J., and Murphy and Smolenski, JJ.
PER CURIAM.
In this no-fault action,1 defendant William Dowling appeals by leave granted the circuit
court’s order denying Dowling’s motion for summary disposition under MCR 2.116(C)(10), and
sua sponte granting plaintiff Thomas Petrocik partial summary disposition under MCR
2.116(I)(2). Because a question of material fact exists regarding the nature and extent of the
injury to Petrocik’s knee, we reverse and remand.
I. Basic Facts And Procedural History
This case arises out of an automobile/pedestrian accident. Petrocik was exiting a sporting
goods store in the Marquette Mall when Dowling struck Petrocik with his vehicle. Petrocik filed
an auto negligence suit against Dowling, alleging that he sustained a serious impairment of body
function as a result of Dowling’s negligence. Dowling moved for summary disposition of
Petrocik’s claims. The circuit court denied Dowling’s motion and granted Petrocik partial
summary disposition, concluding that, as a matter of law, Petrocik suffered a serious impairment
of body function.
II. Summary Disposition
A. Standard Of Review
We review de novo a trial court’s decision on a motion for summary disposition.2 A
motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of the
1
MCL 500.3101 et seq.
2
Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003).
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complaint.3 When reviewing a motion for summary disposition, we consider the pleadings,
affidavits, depositions, admissions, and other documentary evidence submitted in the light most
favorable to the nonmoving party.4
B. Question Of Fact
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
has suffered death, serious impairment of body function, or permanent serious disfigurement.”5
A serious impairment of body function is defined as “an objectively manifested impairment of an
important body function that affects a person’s general ability to lead his or her normal life.”6
The issue whether a person has suffered a serious impairment of body function is a
question of law for the court if there is no factual dispute concerning the nature and extent of the
injuries, or if there is a factual dispute concerning the nature and extent of the injuries but the
dispute is not material to whether the plaintiff has suffered a serious impairment of body
function.7 Otherwise, the determination whether the plaintiff suffered a serious impairment of
body function is a question of fact for the jury.8
X-rays show that Petrocik sustained a fracture to his left knee. However, at oral
argument, Dowling’s counsel conceded that a question of material fact exists regarding the
nature and extent of Petrocik’s injury, specifically regarding whether Petrocik will have to have a
knee replacement surgery in the future. As such, this case must be remanded for a jury to
determine whether Petrocik sustained a serious impairment of body function.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
/s/ William C. Whitbeck
/s/ William B. Murphy
/s/ Michael R. Smolenski
3
Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004).
4
Id.
5
MCL 500.3135(1).
6
MCL 500.3135(7).
7
MCL 500.3135(2)(a).
8
See Kreiner v Fischer, 471 Mich 109, 132; 683 NW2d 611 (2004).
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