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THIRD-PARTY NO-FAULT

The Court may review Plaintiff’s "whole life" in order to determine a "normal" pre-accident lifestyle, and this time frame may not be limited to the time immediately preceding the accident if Plaintiff had a pre-existing condition and was on the course of recovery but for the accident.

Facts – Plaintiff was involved in an automobile accident on February 13, 2002 and in a second accident occurring February 8, 2003. This action arose out of Plaintiff’s claimed injuries sustained in the 2003 accident. As a result of the second accident, Plaintiff suffered injuries to his left shoulder and neck and sought underinsured motorist benefits from his no-fault insurer. Following discovery, Defendant moved for summary disposition arguing Plaintiff did not sustain a serious impairment of body function when comparing his life between the first and second accident and his life after the second accident. The trial court granted Defendant’s motion.

On appeal, the court first had to determine the pre-accident time frame and lifestyle as it related to the second accident to determine whether Plaintiff sustained a serious impairment of body function pursuant to Kreiner. The court noted the actual extent of injuries caused by the second accident were difficult, if not impossible to separate from the first accident. Defendant maintained the time frame to consider for purposes of comparing Plaintiff’s pre second accident normal lifestyle was to use the time frame between the first and second accident. Plaintiff contended the proper time frame was to focus on 55 years of living that Plaintiff did prior to the second accident. Defendant specifically argued that Plaintiff’s testimony clearly demonstrated that he was already disabled as a result of the first accident and in his ability to lead his normal life after the second accident had not been effected as a result of the second accident. The court noted Kreiner did not provide a temporal directive limiting inquiry into a review of Plaintiff’s life immediately before the accident as compared to his life immediately after the accident. However, Kreiner did not suggest that appellate courts consider the entire span of a Plaintiff’s life before the accident in its analysis either. Thus, the court engaged in a fact intensive inquiry regarding what constituted Plaintiff’s "whole life" at the time of the accident to determine whether the second accident affected the course of his life.

By example, the court considered two hypothetical Plaintiffs. In the first example, Plaintiff sustained an injury which was plainly capable of healing, such as a simple leg fracture. In the example, the court maintained that while Plaintiff’s broken leg was in the process of healing, he sustained a second accident which exacerbated his injuries to the leg. In that case, a review of Plaintiff’s "whole life" would include the time frame prior to the first incident given that a simple leg fracture would have healed and Plaintiff lost the opportunity for his leg to fully recover given the second accident. In the second example, and, on the other end of spectrum, the court noted a first accident in which Plaintiff sustains a severed leg. Due to the permanency and completeness of the first injury, Plaintiff would have no opportunity for a full recovery if a second accident were to occur. In that scenario, Plaintiff’s pre-accident "normal" lifestyle would have been severely altered and the time frame between the first and second accident would be relevant.

In this case, Plaintiff fell within the two examples. As a result of the first accident, Plaintiff suffered neck, back and shoulder problems. He apparently experienced tremendous pain and was treating with a chiropractor who put him on ultra light duty. Plaintiff then began experiencing pain in his right and left shoulder and a burning sensation under his left shoulder blade. Plaintiff underwent physical therapy for his spine, neck and left shoulder. He reported improvement but continued to complain of occasional soreness in his neck and left trapezius coupled with associated fatigue of the left shoulder. While attending physical therapy, Plaintiff was involved in the accident at issue. In reviewing the record, the court noted that as a direct result of the second accident, Plaintiff lost all opportunity to completely heal and become pain free from the first accident. While it was impossible to know whether Plaintiff would have suffered any residual impairment in his neck, back or shoulders from the first incident, the records did not suggest that the injury sustained in the first accident resulted in catastrophic, permanent, residual impairment physically incapable of healing. Therefore, the court concluded that Plaintiff’s "whole life" was relevant to determined his "normal" pre second accident lifestyle.

The court then engaged in the Kreiner analysis. The analysis included review of medical records, work history and recreational activities as contained within the records. An MRI indicated the patient did have a significant and symptomatic disc herniation and significant symptomatic degenerative disc disease subsequent to the second automobile accident. Surgical intervention was recommended. On October 24, 2003 a physician performed a diskectomy and fusion surgery at C5-6 and C6-7. Following the surgery, Plaintiff experienced radiating pain. As of March, 8, 2004, Plaintiff complained of pain somewhat on the left side of the neck and somewhat toward the left shoulder and the left trapezius with burning. In addition, Plaintiff’s treatment consisted of at least 43 physical therapy sessions. However, despite Plaintiff’s comprehensive medical treatment program, one year following the surgery, he was still impaired by the residual pain and numbness. Plaintiff was unable to work for three months following the surgery and had doctor imposed restrictions on duties for additional months post surgery. Upon return to work, he was still physically unable to perform many of the physical tasks he was pre-injury. After reviewing the entire record, the court determined that Plaintiff’s injuries together with the surgery required, the lengthy treatment program and the likelihood of residual pain and functional limitation in the future, the accident did affect the course and trajectory of his life. Benefiel v Auto-Owners Insurance Company, Release for Publication December 27, 2007, Docket No. 273664.

Recommendation – When performing a Kreiner analysis and when presented with limitations on Plaintiff’s pre-accident lifestyle due to another injury, an analysis must be conducted to determine whether the pre-accident injuries would likely resolve but for the accident, or if the pre-accident injuries were permanent in nature, to determine what pre-accident lifestyle the court will use to determine if Plaintiff’s course or trajectory of his lifestyle has been affected by the accident.

Facts – In this case, Plaintiff was injured in an automobile accident occurring September 29, 1999 while he was stopped at a red light. The case proceeded to trial and during deliberations, the jury sent a note to the trial court indicating that it was hung with regard to the question of whether the collision was the cause of some injury to Plaintiff. However, the jury also indicated that it had reached an agreement regarding Question 3, addressing whether the injuries sustained by Plaintiff in the collision resulted in a serious impairment of body function. The jury concluded that Plaintiff had not sustained a serious impairment of body function. With that information, the trial court advised the jury that it could consider the case concluded and entered a judgment of no cause of action on behalf of Defendants. Plaintiff subsequently moved for a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court overturned the jury’s determination on threshold injury issue and granted a new trial on the issue of causation and damages.

On appeal, it was undisputed that in February of 2002, Plaintiff began to experience atrophy and weakness in his right arm and by November, 2003, it had progressed to a partial paralysis with intense pain. Surgery occurred on February 19, 2004 following a CAT scan which demonstrated the cause of atrophy and paralysis to a compression of the nerves on both the left and right side of Plaintiff’s cervical spine. The court noted that it necessarily follows that, until relieved by surgery, Plaintiff had endured a serious impairment of body function. The court stated that: "If paralysis, except, perhaps, very short-term paralysis, is not serious enough to warrant third-party tort recovery, only catastrophic impairments remain subject to such liability, which is not what the legislature intended." It was therefore error that the court submitted the issue of serious impairment to the jury. Plaintiff alleged he suffered from chronic neck pain and radiating pain, numbness, and tingling in his upper appendages after the 1999 accident. His treatment records indicated that he developed chronic neck pain and bulging discs immediately following the accident and, 14 months later, Plaintiff’s physician diagnosed him with cervical radiculopathy. Plaintiff symptoms increased over time and approximately four years following the accident, he suffered visibly from severe pain and a partially paralyzed limb. This necessitated surgical intervention. He also underwent injections and multiple rounds of physical therapy to correct his spine condition. There was lost mobility in his neck and pain and numbness affected his upper appendages. Therefore, as a matter of law, Plaintiff sustained a serious impairment of body function. However, the issue of whether Plaintiff’s condition was related to the automobile accident was a question of causation and should be determined by a new trial. Therefore, the Court of Appeals affirmed the motion for a new trial. Geerdes v Glupker, Michigan Court of Appeals Unpublished Decision Per Curiam December 4, 2007, Docket No. 264856.

Recommendation – If a claim includes a claim for paralysis, same may constitute a serious impairment as a matter of law unless the paralysis was of very short duration.

Facts –Plaintiff, a lifelong Michigan resident fell while traversing Defendant’s driveway. Snow had fallen earlier in the day in question followed by sunshine and warmer temperatures which served to melt some of the snow. In the evening, the temperatures dropped causing the melting snow to re-freeze to ice. Plaintiff testified she was aware the temperature was dropping and while she exited her car and walked up the driveway, she slipped sustaining injuries.

On appeal to the Michigan Court of Appeals, the court affirmed the trial court’s denial of Defendant’s Motion for Summary Disposition based upon the open and obvious doctrine. On appeal to the Michigan Supreme Court, the court reversed the Court of Appeals and adopted the dissenting opinion which noted "where there is snow and winter in Michigan, there is likely to be ice and the presence of snow puts a person on notice that there may be slippery conditions." Therefore, the case was remanded to the Macomb County Circuit Court for entry of Judgment and summary disposition in favor of Defendants. Kaseta v Binkowski, Michigan Supreme Court Order 134728, Decided November 21, 2007.

Recommendation – Where there is snow, there will likely be ice. This puts a Plaintiff on notice that there may be slippery conditions and they may be barred by the open and obvious doctrine.

Facts – Plaintiff was a neighbor and friend of a lessee who leased property from Defendant. On the day at issue, Plaintiff returned from work and walked across the street to the friend’s house. In that location, primary sidewalks run parallel to the streets and secondary sidewalks branch from the primary sidewalks which lead to individual homes. Plaintiff testified that she walked up the sidewalk to both the middle doorway and the back porch but, received no response. As Plaintiff was walking back to her residence, she reached the primary sidewalk. After walking "about 5 or 10 feet" she slipped and fell on an accumulation of ice and snow suffering injuries. Following discovery, Defendant filed a Motion for Summary Disposition which was granted by the trial court. On appeal, Plaintiff argued that the trial court erred in granting summary disposition in favor of Defendant on both the common law premises liability and statutory claims.

On appeal, the court noted that to sustain a negligence action, a Plaintiff must "establish a duty in tort". At common law, a landowner is under no obligation to repair or maintain an abutting public sidewalk. Plaintiff unequivocally testified that she was injured while walking on the "main sidewalk" which ran parallel to the property. Quite simply, her injury was caused by a condition existing outside the boundaries of the property. Therefore, Defendant’s duty extended only to the boundaries of the premises and an injury caused by a dangerous condition located outside those boundaries was not their responsibility. Plaintiff also sought to recover from Defendants pursuant to MCL 554.139(1). The court noted that even if a statute imposed duty to keep the premises free of snow and ice, Plaintiff was injured outside the boundaries of the property and therefore the injury simply did not occur in part of "the premises" within the meaning of MCL 554.139(1). Therefore, Defendants owed Plaintiff no common law or statutory duty. Boc v Oliver, Unpublished Michigan Court of Appeals Decision November 27, 2007, Docket No. 273552.

Recommendation – When determining whether Plaintiff has a viable negligence action based upon premises liability, care must be taken to determine whether Plaintiff was injured within the boundaries of Defendant’s premises.

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