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This newsletter has been compiled utilizing the latest reported Michigan Court of Appeals and Supreme Court Decisions. Case citations (if published at the time this newsletter is distributed) will reference the specific reporter, volume and page number. Unpublished Decisions (or those which have not been published as of the date of newsletter distribution) will be cited by Appellate Slip Opinion number. Copies of all Decisions summarized within this newsletter are available for your review upon request. Questions and comments are welcomed.

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Facts – Plaintiff filed this action seeking damages for the wrongful death of the decedent, and a derivative claim for loss of consortium, after a pickup truck driven by defendant struck and killed the decedent, when the decedent suddenly turned his battery operated scooter into the path of defendant’s oncoming truck. The evidence established that defendant was traveling below the posted speed limit and immediately braked and veered away from the decedent. The back end of his truck swung around and struck the decedent. The trial court granted defendant’s motion for summary disposition.

In affirming the lower court’s ruling, the Michigan Court of Appeals held that the submitted evidence did not permit a determination that defendant responded in a manner that could be considered negligent. It indicated that it is not reasonable to expect a driver to recognize every hazard faced by other persons on the road and predict how they will respond to those hazards. Even the most exacting standard of conduct does not require one to exhaust every conceivable precaution to be considered not negligent. Aebig v. Poole, et al., Michigan Court of Appeals Unpublished Decision Dated December 16, 2004, Docket Number 250278.

Recommendation – This is precisely the type of case which would lend itself to a sudden emergency defense. Although the court did not analyze it in that respect, there is no question but that this panel felt that decedent was more than fifty percent at fault. The use of an accident reconstructionist may assist in determining whether the defendant breached a duty of care under the circumstances at issue.

Facts – Plaintiff filed litigation to recover non-economic damages under an uninsured motorist endorsement for injuries he sustained in an automobile accident. Defendant moved for summary disposition on the ground that plaintiff’s injuries did not meet the No-Fault threshold of a "serious impairment of body function". The circuit court agreed and granted defendant’s motion.

Before the accident, plaintiff was receiving Social Security Disability benefits for a back injury he sustained in 1990. Plaintiff was under medical restrictions as a result of that injury. He was not able to lift items weighing more than five or ten pounds and was also restricted from bending or twisting. In addition, in statements to the Social Security Administration in support of his application for disability benefits, plaintiff represented that his back injury affected his upper body strength and also restricted his use of arms and hands.

Plaintiff had not worked since 1990 because of his back injury, and as recently as 2002, a physician with the Social Security Administration confirmed that plaintiff was still totally disabled as a result of his back injury and his condition had not appreciably changed since 1990.

There was no dispute that plaintiff suffered an injury to his neck as a result of the automobile accident. Although plaintiff did not have regular problems with his neck before the accident, the evidence demonstrated that the impact of this additional pain had not affected plaintiff’s general ability to lead his normal life. In terms of activities, plaintiff claimed that he could not sleep through the night because of neck discomfort and also could not perform many household tasks. However, plaintiff failed to show that any restrictions on his activities were appreciably different from those that existed before the automobile accident.

In affirming the lower court’s ruling, the Court of Appeals indicated that it is not enough for plaintiff to show that his recent injury had some effect on his life, but rather, he must show that his general ability to lead his normal life was affected. In order to meet that test, it must be shown that the objectively manifested impairment of an important body function affects the course of a person’s life. Swartz v. State Farm Mutual Automobile Insurance Co., et al., Michigan Court of Appeals Unpublished Decision Dated December 28, 2004, Docket Number 250205.

Recommendation – This case presents another classic example of an individual who was "disabled" prior to the very accident which allegedly caused a serious impairment of body function, altering the course or trajectory of that individual’s life. There is no question but that Social Security Disability records are a valuable source of information (as shown above). Likewise, other sources of similar information (i.e.: Workers’ Compensation records, sickness and accident benefit providers, etc.) could hold the key to a successful motion for summary disposition based upon lack of serious impairment of body function.

Facts – Plaintiff, a trash hauler, was attempting to place a tarp over a load on his parked truck when he fell and sustained injuries. He received Workers’ Compensation benefits and also received wage loss and replacement service benefits from his personal No-Fault carrier. Subsequently, plaintiff’s Workers’ Compensation benefits were terminated.

Plaintiff filed this lawsuit seeking No-Fault benefits from defendant, his employer’s insurer. Defendant moved for summary disposition, arguing that plaintiff lacked standing because he had received both Workers’ Compensation benefits and No-Fault benefits for his injuries, and that in any event, he was precluded from receiving No-Fault benefits because he was injured while loading a parked vehicle.

In reversing the lower court’s denial of defendant’s Motion for Summary Disposition, the Michigan Court of Appeals held that accidental bodily injury does not arise out of the ownership, operation, maintenance or use of a parked vehicle if Workers’ Compensation benefits are available to an employee who sustains injury in the course of employment while loading, unloading, or doing mechanical work on the vehicle, unless the injury arose from the use or operation of another vehicle (MCL 500.3106[2][a]). The terms "loading" and "unloading" have been broadly interpreted to mean the complete operation of loading or unloading, including activities incidental to those operations.

Plaintiff was required to secure the load with a tarp before driving the truck to the dump. Plaintiff’s act of placing the tarp over the load was the final step of the loading process, and thus was within MCL 500.3106(2)(a). Plaintiff was not entitled to No-Fault benefits under that statute. Clark v. Pacific Employers Insurance Company, Michigan Court of Appeals Unpublished Decision Dated December 14, 2004, Docket Number 249591.

Recommendation – As the court indicated, if the facts are undisputed, the applicability of a statutory exception is a question of law for the court. The more background information that can be obtained, the better the odds that summary disposition will be granted.

Facts – Plaintiff filed suit asserting that neck and shoulder injuries incurred in a motor vehicle accident constituted a serious impairment of body function. The trial court disagreed and granted summary disposition in favor of defendant.

In affirming that decision, the Court of Appeals indicated that self-imposed restrictions did not satisfy the serious impairment of body function threshold for recovery of non-economic damages.

In this case, plaintiff had not gone on her annual camping or skiing trips since the accident. Other than stating that she should not generally lift items over 20 pounds, her doctors did not place any restrictions on her activities. Although plaintiff testified that she missed 2-3 days of work per month due to headaches and back pain, she continued to work full time as a secretary, generally putting in a nine hour day. Since the accident, plaintiff’s husband had done the majority of the cleaning, but plaintiff still cooked and did some laundry. Further, although she was required to get up and stretch during movies and had difficulty riding in a car for more than 1-1 ½ hours at a time, this did not constitute a significant change in her normal life. Patenge v. Knight, Michigan Court of Appeals Unpublished Decision Dated December 21, 2004, Docket Number 238893.

Recommendation – Keep in mind that a court must determine if an individual’s impairment affects the person’s general ability to lead his or her normal life. Factors which may be used in making this determination include the nature and extent of the impairment, the type and length of treatment required, the duration of the impairment, the extent of any residual impairment, and the prognosis for eventual recovery. As much pre and post accident information as possible should be acquired so as to make an adequate attempt at determining whether the course or trajectory of the individual’s life has been altered.

Facts – Plaintiff attempted to open a door located on defendant’s premises. It was sticking and very hard to open. The door opened abruptly and plaintiff fell, suffering a fractured ankle. The trial court granted defendant’s Motion for Summary Disposition holding that there was no duty to warn or protect plaintiff from an open and obvious condition.

In affirming the lower court’s ruling, the Michigan Court of Appeals indicated that pulling a door is an everyday experience. The condition was not unreasonably dangerous nor did it create a uniquely high likelihood of harm or severity of harm. Lafuente v. North, Michigan Court of Appeals Unpublished Decision Dated December 21, 2004, Docket Number 249551.

Recommendation – This court relied upon the prior published decision of Prebenda v. Tartaglia, 245 Mich App 168 (2001) which involved injury to a tenant when opening a door located in a common hallway. That court reasoned that the tenant encountered a commonplace and ordinary door. When investigating a claim of this type, it is always advisable to determine whether "special aspects" exist which might create an unreasonably dangerous condition.

Facts – Plaintiff slipped and fell while running on a leaf covered path on the grounds of an apartment/condominium complex. The trial court denied defendant’s Motion for Summary Disposition, finding a question of fact regarding the open and obvious nature of the hazard.

In reversing the lower court’s ruling, the Michigan Court of Appeals again noted that the test to determine whether a danger is open and obvious is whether an average user of ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection. It found that the presence of fallen leaves on the ground in late October is unremarkable. A reasonable person in plaintiff’s position would foresee the danger. Haden v. Walden Pond Condominium Assoc., et al., Michigan Court of Appeals Unpublished Decision Dated December 21, 2004, Docket Number 249476.

Recommendation – Again, documenting the specific condition which existed at the time in question will be a very important step in determining whether a motion for summary disposition is appropriate.

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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