Facts – Plaintiff was a rear seat passenger in a vehicle which collided with a truck. She complained of neck pain and was taken to the hospital. X-rays of the Plaintiff’s neck were negative. Diagnosis was of neck strain. Two months later, Plaintiff began treating with her family physician for neck pain and headaches. She consulted several specialists and eventually reported that her neck pain had resolved. The Trial Court granted Defendant’s Motion for Summary Disposition finding a lack of serious impairment of body function, inasmuch as there was no evidence which demonstrated that Plaintiff’s neck injury affected her ability to lead a normal life. The Court of Appeals, in upholding the Trial Court’s decision agreed that, although muscle spasms are an objectively manifested injury, Plaintiff must provide evidence to show that her general ability to lead a normal life was adversely affected by the injury which was caused by the accident. In this case, it appeared as if her main limitations resulted from back pain, which was not related to the accident. Brown v Van Nolf, et al, Michigan Court of Appeals Unpublished Decision dated November 20, 2003, Docket No. 242628.

Recommendation – This is yet another in series of cases which have recently held that muscle spasm is an objective sign of injury for the purpose of analyzing whether an individual has sustained a serious impairment of body function. As can be seen however the defense was able to prove through medical testimony that Plaintiff’s limitations did not result from the neck strain, but rather from an unrelated back condition. It is very important that a complete pre-accident medical history be obtained so as to determine whether a Plaintiff’s current condition is proximately related to the automobile accident at issue.

Facts – Plaintiff missed eight days of work as a result of the accident. These absences were not based upon a doctor’s recommended work restriction, but were self-imposed. Plaintiff underwent physical therapy for less than one month and experienced an almost complete reduction in pain during that period. After completing physical therapy, Plaintiff had no work or activity restrictions imposed by a doctor. She claimed that she had been unable to exercise or do household chores, but provided no evidence to support that assertion. At most, Plaintiff showed that she had difficulty performing such tasks. Although Plaintiff took a pay cut to find work that was less physically demanding in her field, this limitation was self-imposed as well. The only evidence Plaintiff provided to show the impact of her injuries on other areas of her life, was an affidavit from Dr. Boggs who made a general legal conclusion that Plaintiff had suffered a serious impairment of body function. Given the foregoing, Plaintiff did not meet the required showing under Kreiner v Fisher, 468 Mich App 884 (2003). The Court of Appeals held that the term "general" (as in general ability to lead a normal life), can require a focus on multiple aspects of a person’s life to determine the effect of an impairment on the person’s lifestyle. It is proper to compare a person’s lifestyle before and after an accident. Miller v Andrews, et al, Michigan Court of Appeals Unpublished Decision dated November 13, 2003, Docket No. 241948.

Recommendation – As illustrated above, the Appellate Court appears to be reluctant to reverse a Trial Court’s grant of Summary Disposition where Plaintiff’s claim is based upon self-imposed restrictions. If in doubt, obtain an authorization and contact Plaintiff’s treating physician so as to determine whether there may be specific medical restrictions on the claimant’s ability to perform normal daily activities. If not, there may be no serious impairment of body function.

Facts – The Trial Court granted Defendant’s motion for directed verdict in an automobile negligence action, holding that Plaintiff had not established the third prong of the impairment of an important body function test. The third prong requires that the impairment relate to a person’s general ability to lead a normal life. The Trial Court found that although Plaintiff may not be able to perform the same job as before the accident, his activities since the accident support the conclusion that Plaintiff was able to work. The Court of Appeals agreed and felt that the Trial Court’s ruling was appropriately based on Plaintiff’s own admission, rather than disputed facts. Atchison v Wakeman, et al, Michigan Court of Appeals Unpublished Decision dated November 13, 2003, Docket No. 242205.

Recommendation – The term "serious impairment of body function" is 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. This definition can be broken down into three criteria that Plaintiff must establish: (1) an objectively manifested impairment, (2) of an important body function, (3) affecting the Plaintiff’s general ability to lead his normal life. Whether Plaintiff has suffered a serious impairment of an important body function is a question of law for the Court to decide if there is no material factual dispute, concerning the nature and extent of the injuries. As such, it is very important that a thorough examination of Plaintiff’s social, recreational and employment activities be conducted so as to compare pre- and post-accident abilities.

Facts – Plaintiff entered onto Defendant’s premises for the purpose of pumping gasoline. As she approached the pumps, she was confronted by a pile of slush. Instead of avoiding that condition, she walked directly through it and slipped on what she believed to be a patch of ice that had accumulated in a small depression in the pavement. Plaintiff’s theory was that the ice had formed before it was covered with the slush. The Trial Court granted Defendant’s Motion for Summary Disposition, holding that there were no "special aspects" which would differentiate this risk from any typical open and obvious risk. The Trial Court reasoned that if a business owner clears a pathway to his/her door by shoveling snow/ice/slush to the side and an invitee chooses to ignore the pathway, that person cannot be heard to hold the landowner responsible. In this case, the slush pile was readily visible and could have easily been avoided. The dangers posed by slush (including the existence of ice), are well known.

In upholding the Trial Court’s decision, the Court of Appeals found that the condition at issue was not unavoidable and was not unreasonably dangerous because of special aspects that impose an unreasonably high risk of severe harm. Jarabek v Paxon Oil Company, Michigan Court of Appeals Unpublished Decision dated November 20, 2003, Docket No. 241957.

Recommendation – In this particular case it would appear that Plaintiff admitted that she could have taken an alternate route. Additionally, her belief that she slipped on ice which had formed underneath the slush, was found to be speculative. As we have previously indicated, a thorough investigation should be made with respect to all premises liability claims and the condition should be documented by the taking of photographs if possible.

Should you have any questions or comments regarding this or any of our newsletters, please feel free to contact us by voice 989.799.3033, e-mail jtc@saginaw-law.com or write to Collison & Collison, P.C., 5811 Colony Drive, North, P.O. Box 6010, Saginaw, MI 48608-6010.

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