Facts – Plaintiff was involved in a motor vehicle accident which caused him to be ejected from the truck that he was driving. The investigating police officer examined the accident scene and truck, took photographs and measurements, and drew a diagram. He concluded (and was permitted to testify at Trial) that Plaintiff was not wearing his seatbelt at the time of the accident. The officer reached this conclusion even though he never interviewed Plaintiff, never touched, examined, or tested the seatbelt, and had been informed by another officer that the Plaintiff told him and others at the scene that he was wearing his seatbelt at the time of the accident.

Prior to Trial, the Court held that the officer could offer his lay opinion on this subject under MRE 701. The Court of Appeals concluded that, since the officer’s testimony was based on his perceptions at the scene of the accident, they were admissible. The officer testified that he based his conclusion on the physical evidence at the scene, including his observation that Plaintiff had been ejected from the vehicle, as well as his observation that the seatbelt was in the retracted position and appeared to be in working order. Chastain v General Motors Corporation, Michigan Court of Appeals Published Decision dated December 27, 2002, Docket No. 222502.

Recommendation – The decision as to whether to admit evidence is within the discretion of the Trial Court and will not be disturbed on appeal absent a clear abuse of discretion. We would note that there does exist case law which excludes police officer opinion testimony (for example, Miller v Hensley, 244 Mich App 528 [2001]).

The admissibility of these types of opinions will generally be dealt with on a case-by-case basis. The deciding factor however appears to be based upon whether the witness is rendering an opinion which is rationally based on his or her own perceptions.

Facts – Plaintiff appealed the Circuit Court’s grant of Summary Disposition to Defendant on the basis that there existed no genuine issue of fact as to whether Plaintiff had suffered a serious impairment of body function. Plaintiff testified at deposition that he missed one day of work from his employment after the accident. He had to hire two men to help him in his remodeling business with heavy lifting and other things. An MRI confirmed a herniated disc at T1-T2. Medical records showed that Plaintiff experienced a cervical strain, muscle spasms, upper back and neck pain. However, the records did not link Plaintiff’s pain and symptoms to the disc herniation. Rather, the orthopedic physician’s records stated that the herniated disc remained asymptomatic. Plaintiff was discharged from physical therapy without restrictions approximately seven months post-accident. An IME approximately one year later showed no evidence of problems related to the thoracic spine, no spasms and no cervical strain. That evaluation concluded that no further treatment was necessary from an orthopedic standpoint.

In upholding the Trial Court’s grant of Summary Disposition, the Court of Appeals held that many of the physical complaints which Plaintiff had alluded to at his deposition, were unsupported by documentary evidence, or not attributed to the automobile accident in question. Sciatto v Walker, et al, Michigan Court of Appeals Unpublished Decision dated December 27, 2002, Docket No. 236456.

Recommendation – The Court of Appeals continues to take a hard line with respect to soft tissue injuries. Although the Plaintiff in this case treated to a moderate extent for about one year, there were enough facts in evidence to show that he had made a fairly decent recovery. Motions for Summary Disposition based upon lack of threshold injuries should always be a consideration and should be filed if warranted under the circumstances.

Facts – Plaintiff suffered injuries in an automobile accident to his non-dominant left hand (closed left fifth metacarpal displaced neck fracture), as well as open wounds including extensor tendon injuries to the middle and ring fingers. Plaintiff underwent outpatient surgery and attended some physical therapy. He wore a cast for a time. He was off work from his employment as a cable lineman until he returned on a part-time basis approximately two months after the accident.

At deposition, Plaintiff testified that he had been playing the bass guitar in a band that performed roughly every Friday or Saturday night. He could not play in the band for about four months because he did not have adequate strength in his fingers. He also claimed to have difficulty with household and personal tasks for approximately three months post-accident and had difficulty operating his "bow shop" and with processing deer during the 1999 season. He returned to work three months post-accident but had a continuing inability to completely straighten out his middle finger or to completely close his left hand.

In reversing the Trial Court’s grant of Summary Disposition, the Court of Appeals held that the left hand injuries did affect Plaintiff’s general ability to lead a normal life (albeit for a relatively limited time). Straub v Collette, et al, 254 Mich App 454 (2002).

Recommendation – In this particular case, there appears to have been no dispute that Plaintiff suffered an objective injury which did materially affect his ability to work at his full-time employment for about three months. Further, the Court found that his ability to play the bass guitar was a major part of Plaintiff’s normal life which was restricted for about four months. Again, the Courts will make their analysis on a case-by-case basis. This decision is somewhat surprising given the limited period of time during which Plaintiff appears to have been affected by his injury.

Facts – Plaintiff was involved in an automobile accident wherein she claimed to have suffered from post-traumatic headaches and neck/arm/shoulder pain. The Court concluded that Plaintiff submitted sufficient evidence of an objectively manifested injury. Plaintiff further alleged that her ability to lead a normal life had been disrupted inasmuch as she required assistance in doing household chores such as grocery shopping, vacuuming and cleaning. She had difficulty lifting and bathing her baby, playing on the floor with her children, walking for recreational purposes, transporting her children to sporting activities and enjoying recreational reading

However, the record also established that Plaintiff was able to work 40 hours per week as an accountant, missing only one day of work because of the accident. Although she required some assistance in performing household chores, she was able to cook, do some laundry, clean and vacuum, fold clothes, change linens and do some grocery shopping. Her one week vacation in Cancun included physical activities such as swimming. The Court of Appeals found that although Plaintiff had experienced some minor lifestyle changes since the accident and may require some assistance in performing some of the household chores, the facts did not establish that her ability to lead her normal life had been significantly altered. Yelizarov v Styles, Michigan Court of Appeals Unpublished Decision dated December 13, 2002, Docket No. 239740.

Recommendation – It is difficult to reconcile this Opinion with that of Straub summarized above. Again, the issue of serious impairment of body function must be addressed on a case-by-case basis. The Court of Appeals appears to also be willing to place a fair amount of reliance on IME reports. Strong consideration should be given toward conducting such an evaluation prior to the Motion if warranted.

Facts – Plaintiff allegedly sustained injuries when he slipped and fell on a wet bathroom floor. Plaintiff’s multiple sclerosis condition had caused him to become legally blind. It was argued that the hazardous condition was not open and obvious because of blindness.

The Court of Appeals held that the focus of any analysis should be on the condition itself, and not the "special aspects of the Plaintiff." The condition at issue would have been open and obvious to an ordinarily prudent person. Plaintiff failed to show that Defendant should have expected that Plaintiff would not discover the unsafe condition or fail to protect himself from it. Sidorowicz v Chicken Shack, Inc., Michigan Court of Appeals Unpublished Decision dated January 17, 2003, Docket No. 239627.

Recommendation – In reaching the above conclusion, the Court of Appeals emphasized the prior Supreme Court holding in Lugo v Ameritech Corp. Inc., 464 Mich 512 (2001). When attempting to evaluate a liability exposure in this type of situation, one should focus on the defect, and not necessarily the infirmities of the individual who has been injured.

Facts – This case involved a claim for medical malpractice. In essence, Plaintiff filed her Complaint with two days remaining in the limitations period. A private process server served process on the last day of the statute of limitations. The service of process was defective.

A statute of limitations can be tolled:

(a) At the time a Complaint is filed and a copy of the Summons and Complaint are served on the Defendant.

(b) At the time jurisdiction over the Defendant is otherwise acquired.

(c) At the time the Complaint is filed and a copy of the Summons and Complaint in good faith are placed in the hands of an officer for immediate service (but in this case, the statute is not tolled longer than 90 days after the copy of the Summons and Complaint is received by the officer).

The Court found that a private process server is not an "officer" for purposes of the tolling statute. Therefore, the Trial Court did not err in finding the statute of limitations had expired when the second action was filed. Lampkin v McIntosh, et al, Michigan Court of Appeals Unpublished Decision dated December 27, 2002, Docket No. 236561.

Recommendation – The fact and nature of service of process should be one of the first determinations made in any lawsuit. This is especially true when litigation is filed very close to the expiration of the applicable statute of limitations. As illustrated in this case, Plaintiff’s claim may be barred due to procedural irregularities.

Facts – This subrogation case arose out of a building fire allegedly caused by Defendant’s negligence. The landlord’s property insurer sued Defendant to recover the proceeds it paid out as a result of fire loss. Even though the lease did have language which could be interpreted as an agreement by the tenant to be bound in tort for fire damage, the Court disagreed. Michigan law requires a tenant to expressly accept tort liability (as opposed to contract liability). North River Insurance Company v Advanced Organics, Inc., Michigan Court of Appeals Unpublished Decision dated January 17, 2003, Docket No. 231711.

Recommendation – When attempting to determine whether subrogation is appropriate, one should review all applicable lease agreements and addendums.

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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