DENIS J DONOVAN JR V METRO PLANT SERVICES INC
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STATE OF MICHIGAN
COURT OF APPEALS
DENIS J. DONOVAN, JR.,
UNPUBLISHED
March 6, 2008
Plaintiff-Appellant,
v
No. 275373
Wayne Circuit Court
LC No. 05-506577-NI
METRO PLANT SERVICES, INC., and
LAQUITA HILL,
Defendants-Appellees.
Before: Fitzgerald, P.J., and Murphy and Borrello, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court order granting summary disposition in favor of
defendants pursuant to MCR 2.116(C)(10) in this action involving a motor vehicle accident
that allegedly resulted in plaintiff suffering a serious impairment of body function, as required to
recover noneconomic damages under MCL 500.3135. The trial court found that plaintiff had not
met the serious impairment threshold as a matter of law because there was a failure to show that
the injuries affected plaintiff’s general ability to lead his normal life, MCL 500.3135(7). We
reverse and remand for further proceedings.
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). MCR 2.116(C)(10) provides for
summary disposition where there is no genuine issue regarding any material fact, and the moving
party is entitled to judgment or partial judgment as a matter of law. A trial court may grant a
motion for summary disposition under MCR 2.116(C)(10) if the pleadings, affidavits, and other
documentary evidence, when viewed in a light most favorable to the nonmovant, show that there
is no genuine issue with respect to any material fact. Quinto v Cross & Peters Co, 451 Mich
358, 362; 547 NW2d 314 (1996), citing MCR 2.116(G)(5). "A genuine issue of material fact
exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open
an issue upon which reasonable minds might differ." West v Gen Motors Corp, 469 Mich 177,
183; 665 NW2d 468 (2003). A court may only consider substantively admissible evidence
actually proffered relative to a motion for summary disposition under MCR 2.116(C)(10).
Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999).
Under MCL 500.3135(1), a person is subject to tort liability for noneconomic loss caused
by his use of a motor vehicle only if the injured person has suffered death, serious impairment of
a body function, or permanent serious disfigurement. A “serious impairment of body function” is
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defined as “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).
Under Kreiner, supra at 131-132, a court must first determine that there is no factual
dispute concerning the nature and extent of the person's injuries; or if there is a factual dispute,
that it is not material to the determination whether the person has suffered a serious impairment
of body function. If the court makes such a conclusion, it may continue to the next step. Id. at
132. But, if the court determines that there are factual disputes concerning the nature and extent
of a plaintiff's injuries that are material to determining whether the plaintiff has suffered a serious
impairment of body function, the court may not decide the issue as a matter of law. Id., citing
MCL 500.3135(2)(a)(i) and (ii).
If the court can decide the issue as a matter of law, it must then proceed to the second
step in the analysis and determine whether “an ‘important body function’ of the plaintiff has
been impaired.” Kreiner, supra at 132. If a court finds that an important body function has been
impaired, it must then determine whether the impairment was objectively manifested. Id. If the
court finds that there has been an objectively manifested impairment of an important body
function, “it then must determine if the impairment affects the plaintiff's general ability to lead
his or her normal life.” Id. This process involves an examination of the plaintiff's life before and
after the accident. Id. The court should objectively determine whether any change in lifestyle
“has actually affected the plaintiff's ‘general ability’ to conduct the course of his life.” Id. at 133.
“Merely ‘any effect’ on the plaintiff's life is insufficient because a de minimus effect would not,
as objectively viewed, affect the plaintiff's ‘general ability’ to lead his life.” Id. (emphasis in
original). The Kreiner Court provided a non-exclusive list of objective factors that may be used
in making this determination. Id. These factors include: (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. “A
negative effect on a particular aspect of an injured person's life is not sufficient in itself to meet
the tort threshold, as long as the injured person is still generally able to lead his normal life.”
Kreiner, supra at 137.
Importantly, 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). The Kreiner Court emphasized that an impairment of short
duration does not necessarily preclude a finding that a plaintiff suffered a serious impairment of
body function. Kreiner, supra at 134. Commenting on that aspect of Kreiner, this Court in
Benefiel v Auto Owners Ins Co, __ Mich App __; __ NW2d __ (2007)(Docket No. 273664), slip
op at 7, stated that “the more extensive the nature and extent of the impairment, the lesser the
need for a lengthy or permanent duration of impairment in order to qualify an impairment as a
serious impairment of body function.” This principle is applicable in the context of this case.
Here, plaintiff experienced left shoulder pain following the accident that progressively
worsened and became more severe over the course of several months until it became necessary
for plaintiff to undergo arthroscopic shoulder surgery. The orthopedic surgeon prescribed a
three-month session of physical therapy to begin four weeks after the surgery, and plaintiff did
participate in physical therapy. But the defining period of time for purposes of our analysis is the
one- to two-month period immediately after the surgery. With respect to a portion or all of that
time period, and in some cases beyond, the documentary evidence submitted by plaintiff
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reflected that he could not, or could but only with great pain and difficulty, work, drive, bathe
himself, dress himself, tie his own shoes, brush his hair, clean, cook, mow, do laundry, and he
was unable to raise his left arm more than six inches away from his thigh. He was generally
unable to engage in normal daily activities or his usual routine. Further, plaintiff had to purchase
a reclining chair in which to sleep because he could not sleep laying flat, and plaintiff needed
assistance getting up from the recliner. Indeed, plaintiff was forced to rely on his fiancée, father,
and friends to assist him with basic tasks associated with daily living, including the simple task
of buttoning his clothes. The question becomes whether these facts were sufficient for purposes
of showing that the impairment affected plaintiff’s general ability to lead his normal life.
Looking at the plain meaning of the words used in MCL 500.3135(7)(“affects the person’s
general ability to lead his or her normal life”), and those words only, the initial response would
be a resounding “yes.” The statutory language has no express, and we believe no implicit, time
component. However, we must take into consideration the interpretation of those words as set
forth in Kreiner and its progeny.
Plaintiff’s period of impairment was clearly one of short duration, but it was also
extensive with respect to the limits it placed on plaintiff’s life. The impairment was all
encompassing, touching on virtually every aspect of plaintiff’s daily activities. Kreiner’s
reference to impairments of short duration and the possibility that such impairments could satisfy
the threshold for recovering noneconomic damages most certainly was meant to address cases in
which the short-lived impairment severely or completely hampered nearly all aspects of a
plaintiff’s life. And this was recognized in Benefiel, supra, slip op at 7. If the language in
Kreiner is not given such an interpretation, the statement that impairments of short duration can
qualify as a serious impairment of body function loses all meaning and is rendered nugatory,
which clearly was not the intent of the Court. We do note that the discussion of short-duration
impairments in Kreiner, as well as the Court’s emphasis that an impairment need not be
permanent, appear to be somewhat at odds with other language in the opinion that refers to the
“course” or “trajectory” of a plaintiff’s normal life, to the plaintiff’s “entire” normal life, and to
the requirement that the injury be of “sufficient duration to affect the course of a plaintiff’s life.”
Kreiner, supra at 130-135.1 It would appear to this panel that the course or trajectory of a
person’s life can be affected, if even momentarily, by a devastating, yet short-lived impairment,
and the reference to one’s “entire” normal life was clearly directed at requiring an effect on
work, home, and recreational activities, i.e., most or all aspects of a person’s life. Until the
Supreme Court decides to clarify some of the apparent contradictions in Kreiner, we find it
necessary to give some meaning to the language concerning impairments of short duration. It
appears to this panel that an impairment that effectively limits the ability to carry out all of one’s
normal activities (work, home, and recreational) meets the threshold despite the fact that the
impairment may be of short duration, although in such a situation the amount of damages tied to
the impairment would generally be lower because of the brief period involved.
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It is difficult to divine what period of time constitutes “sufficient duration” to permissibly allow
an impairment of “short” duration to qualify as a serious impairment of body function.
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Defendants did not present any evidence that countered plaintiff’s evidence regarding the
nature and quality of his life for the period of short duration after the surgery. In their appellate
brief, defendants state, “Following surgery, Plaintiff’s ability to care for himself was apparently
restricted for a limited number of weeks, and Plaintiff did not return to work as a U.S. Marshal
for a limited number of months.” Accordingly, and based on our observations and the facts stated
above, we find as a matter of law that the impairment affected plaintiff’s general ability to lead
his normal life. Defendants proceeded below, and proceed on appeal, on the assumption that
defendant Hill was negligent and liable relative to the accident and that plaintiff can show an
objectively manifested impairment that was proximately caused by the accident, but this is only
for the purpose of analyzing the serious impairment issue in the context of the factor requiring an
effect on plaintiff’s normal life. Defendants clearly indicate that should their narrow argument
fail on this point, they vehemently challenge the claim that plaintiff suffered an objectively
manifested impairment that was proximately caused by the accident, as well as challenging
defendant Hill’s liability for the accident. Therefore, on remand, only if Hill is found negligent
and liable for the accident, and only if it is proven that the accident proximately caused
plaintiff’s left shoulder injury, as objectively manifested, and the need for surgery, judgment is
to be entered in favor of plaintiff in the amount determined by the trier of fact.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ E. Thomas Fitzgerald
/s/ William B. Murphy
/s/ Stephen L. Borrello
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