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Facts – Plaintiff was injured in a car accident and sued to recover non-economic damages. After a bench trial, the lower court concluded that Plaintiff had not suffered a serious impairment of body function and entered a Judgment of no cause for action. The Michigan Court of Appeals reversed that decision. In doing so, the Court noted that there were multiple medical findings which established an objective injury including cervical spasms, swelling, limited range of motion and the straightening of the lordotic curve (which most probably was an aggravation of a pre-existing asymptomatic congenital cervical condition).

The Trial Court had concluded that since Plaintiff was never hospitalized, did not have surgery, was off work for eight weeks (but returned full-time both as a welder and sawyer), went to physical therapy on one occasion and was not placed on medical or work restrictions, Plaintiff at the very least had not established the requisite effect on his ability to lead a normal life. In fact, the Trial Court classified any such effect as "minor lifestyle changes."

The Court of Appeals analyzed Plaintiff’s claim in light of the recent Michigan Supreme Court decision in Kreiner v Fischer, 468 Mich 884 (2004). Using the multiple factor test set forth in that decision, it determined that Plaintiff had in fact sustained a serious impairment of body function given the nature and extent of the impairment with respect to Plaintiff’s activity level, duration of the impairment, extent of residual impairment and prognosis for eventual recovery. Behnke v Auto Owners, et al, Michigan Court of Appeals Unpublished Decision dated September 16, 2004, Docket No. 248107.

Recommendation – This particular result seems to be at odds with the Michigan Supreme Court’s decision in Kreiner and Straub. Here, Plaintiff did return to full-time employment, albeit in a reduced capacity. The Court seemed to concentrate on the claimed effect of the injury on Plaintiff, which allegedly made him less "energetic and fun-loving", more frustrated and depressed. We will continue to monitor this particular decision and will advise in the event the Supreme Court is called upon to review the matter.

Facts – Plaintiff was struck by a van while working at a highway construction site. The Trial Court granted Defendants’ Motion for Summary Disposition, finding that Plaintiff’s injuries did not meet the serious impairment of body function threshold for non-economic damages.

Following the accident, Plaintiff went to the Emergency Room for relatively minor injuries. The areas of interest were the right shoulder, right hip and left knee. All areas exhibited full range of motion, minimal symptoms, and negative x-rays. Plaintiff was given Tylenol and released to return to work the same day with restrictions. Two days later, he saw his family physician who noted some bruising and abrasions that were healing and a complaint of pain in the left knee, right shoulder and right thigh. Rehabilitation was prescribed, an MRI of the left knee was taken, disability continued, and a return visit was scheduled. At five weeks post-accident, the MRI of the left knee was normal. Although Plaintiff complained of left knee pain, he was able to perform all activities required of him. Physical exam of the knee was normal. There was no objective basis for Plaintiff’s complaints.

Plaintiff eventually sought the advice of an orthopedic surgeon. He had returned to full-time unrestricted construction work but complained of swelling and pain at the end of the day. Physical exam was unremarkable. Nearly a year post-accident, Plaintiff underwent additional testing on the left knee which was normal. He continued to complain of pain and limitation at work, at home, and at play. His activities were self-restricted.

In upholding the Trial Court’s grant of Summary Disposition, the Court of Appeals indicated that Plaintiff neither demonstrated an objectively manifested injury nor presented evidence that the injury affected his general ability to lead a normal life. The issue of whether an injured person has suffered a serious impairment of body function is a question of law if there is no factual dispute concerning the nature and extent of the person’s injuries, or if there is a dispute that is not material to the determination. Galvan v Cherkasov, et al, Michigan Court of Appeals Unpublished Decision dated September 14, 2004, Docket No. 247070.

Recommendation – Although treating physicians initially noted some bruising and abrasions, there was no question but that Plaintiff made what amounted to a full recovery. When analyzing this type of case, all records should be obtained (including physical therapy). Although Plaintiff’s MRI was suggestive of a strain and he was prescribed medication, Plaintiff was able to resume employment with no difficulty and required no restrictions.

Facts – Plaintiff sustained multiple injuries including quadriplegia. He sued Defendant for breach of the insurance contract, alleging that Defendant had unreasonably delayed or refused to pay PIP benefits in violation of MCL 500.3142. After determining that it would be more cost-efficient to construct a new home for Plaintiff rather than remodel his existing home, Defendant secured a proposal from a builder. Plaintiff paid the purchase price for the property on which the new house was to be constructed.

Some time during negotiations, Defendant presented Plaintiff with an accord and satisfaction agreement which provided that the money expended for the construction of the home would be secured by its retaining a first-priority lien on the home. The agreement further provided that the balance of the lien would be amortized over a twenty-year period that would commence upon the completion of the home with the balance of the lien being reduced by five percent each year. According to the agreement, the lien would be extinguished if Plaintiff continued to reside in the home for the entire twenty-year period. The agreement set forth several triggering events, including Plaintiff’s changing his permanent residence, conveying or transferring any interest in the residence without Defendant’s written consent, or failure to maintain insurance or pay property taxes. If one of these triggering events were to occur, Plaintiff would become liable for the amount of the lien that had not been amortized, and if Plaintiff did not remit payment within one year of the triggering event, Defendant could either seek payment from Plaintiff or foreclose upon, and sell the residence.

The agreement also contained several restrictions on Plaintiff’s ability to transfer any interest in, or encumber the residence. It required Plaintiff to hold harmless and indemnify Defendant from any personal injury or property damage claims arising from the residence, pay many of the expenses associated with the residence, and maintain and provide proof of an "All Risk" homeowner’s insurance policy designating both Plaintiff and Defendant as beneficiaries. Plaintiff did not sign the agreement.

Plaintiff moved for Summary Disposition, asserting that Defendant was required to construct the home pursuant to statute. He asserted that Defendant was not entitled to retain any interest in the residence. Defendant responded that the no-fault statutes did not prevent it from retaining a security interest in the home and that allowing Plaintiff to obtain title without allowing Defendant to maintain a security interest provided Plaintiff with a windfall in contravention of the purpose of the act.

In reversing the Trial Court’s ruling that Defendant was not entitled to a security interest, the Michigan Court of Appeals held that the resolution of the issue of reasonable accommodation is factually driven. In this case, Plaintiff was an adult and was willing to contribute his existing equity toward the remodeling of his new home. The Court found that without a security interest in the house currently in dispute, Defendant would be unable to recoup and re-invest the funds expended on the current house toward remodeling any future houses which may be necessary. Without the security interest, Plaintiff would be entitled to the entire net proceeds of any sale. Payne v Farm Bureau Insurance, 263 Mich App 521 (2004).

Recommendation – One should keep in mind that there are two potentially conflicting cases which interpret MCL 500.3107(1)(a). In Kitchen v State Farm Insurance Company, 202 Mich App 55 (1993) the Plaintiff was a minor who was given a life estate in the home. In Williams v AAA Michigan, 250 Mich 249 (2002), Plaintiff was an adult who was willing to contribute the equity from the house he already owned in order to maintain ownership of a new house to be built to accommodate his injuries. As such, merely granting Plaintiff a life estate in the newly remodeled home would have been manifestly unreasonable. When analyzing rights and responsibilities under this particular section of the no-fault code, it is obvious that resolution of the issue of reasonable accommodation is factually driven.

Facts – Plaintiff sustained injuries when she fell while walking on a sidewalk in front of a doorway of a building occupied by Defendants. After Plaintiff fell, she felt ice on the ground. Plaintiff filed suit alleging that Defendants failed to take reasonable care to prevent water from running off the roof over the doorway, causing an unnatural accumulation of ice and snow on the sidewalk adjacent to their property. The Trial Court granted Defendants’ Motion for Summary Disposition concluding that the condition was open and obvious.

Generally speaking, a landowner has no duty to remove a natural accumulation of ice or snow from a municipal sidewalk abutting his property. However, liability may attach if the landowner has taken affirmative steps to alter the natural accumulation, and in doing so, increases the hazard of travel for the public. Liability may also attach if the landowner has taken affirmative steps to alter the condition of the sidewalk itself, and in doing so, causes an unnatural accumulation of ice and snow.

In this case, there was no evidence to indicate that Defendants took any affirmative steps to alter the condition of the sidewalk or to route water from the roof over the doorway thereby increasing the flow of water from melting ice or snow onto the sidewalk. As such, Defendants were properly granted Summary Disposition. Dunlap v VanDyke, et al, Michigan Court of Appeals Unpublished Decision dated September 28, 2004, Docket No. 247699.

Recommendation – When investigating any slip and fall claim, one must always make a determination as to whether the landowner "increased the hazard" which allegedly existed. If so, liability may attach. Nonetheless, an "open and obvious" argument may still be available.

Facts – Plaintiff (a minor) injured his knee by falling on a horseshoe stake. Although the Trial Court refused to apply the open and obvious doctrine to Plaintiff’s negligence claim because Plaintiff was a minor, it did rule in Defendants’ favor on other issues.

In affirming the Trial Court’s grant of Summary Disposition, the Court of Appeals held that the horseshoe stakes were open and obvious. Plaintiff knew that the stakes were there and appreciated the risk that they posed. Although the stakes may have presented a potential for severe harm, there were no "special aspects" which created an unreasonable risk of harm. The Court also rejected Plaintiff’s "attractive nuisance" argument inasmuch as all conditions of the doctrine were not present. Salib, et al v Child’s Lake Estates, et al, Michigan Court of Appeals Unpublished Decision dated September 16, 2004, Docket No. 248715.

Recommendation – It is very important to determine whether the minor realized that the allegedly defective condition existed, and appreciated the potential risk. Courts will usually analyze a case such as this by looking at what a reasonable minor of the same age and experience would have done under the same or similar circumstances. Under an attractive nuisance theory, a possessor of land is subject to liability for physical harm to children trespassing thereon, caused by an artificial condition upon the land. There are five conditions which must be met before liability will be imposed.

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