Piccione ex rel Piccione v. Gillette

• Decision Date: 17 January 2019
• Docket Number: No. 342826,342826
• Citation: 327 Mich.App. 16,932 N.W.2d 197
• Parties: Mario PICCIONE, AS NEXT FRIEND OF Gavino R. PICCIONE, a Minor, Plaintiff-Appellant, v. Lyle A. GILLETTE and Plumber’s Portable Toilet Service, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

327 Mich.App. 16

932 N.W.2d 197

Mario PICCIONE, AS NEXT FRIEND OF Gavino R. PICCIONE, a Minor, Plaintiff-Appellant,

v.Lyle A. GILLETTE and Plumber’s Portable Toilet Service, Defendants-Appellees.

No. 342826

Court of Appeals of Michigan.

Submitted January 8, 2019, at Grand Rapids.

Decided January 17, 2019, at 9:05 a.m.

West Michigan Injury Lawyers PLC (by Matthew G. Swartz, Muskegon) for plaintiff.

Straub, Seaman & Allen, PC (by Kerr L. Moyer, Grand Rapids and Joseph R. Enslen, Grandville) for defendants.

Before: Markey, P.J., and M. J. Kelly and Swartzle, JJ.

M. J. Kelly, J.

In this third-party automobile negligence claim, Gavino Piccione (by and through his next friend, plaintiff Mario Piccione) appeals as of right the trial court order granting summary disposition in favor of defendants Lyle A. Gillette and Plumber’s Portable Toilet Service. We reverse the court’s order and remand for further proceedings.

I. BASIC FACTS

This case arises out of a motor vehicle accident that occurred on December 5, 2016. It is undisputed that Gavino, who was three years old at the time, sustained injuries in the accident and was transported by ambulance to the hospital. Two days later, he returned because of pain in his left shoulder when he tried to lift his arm over his head. A CT scan showed that Gavino had an "[o]blique fracture of the mid diaphysis of the left clavicle." He was prescribed a sling, told to use ibuprofen and ice as needed for discomfort, and told to follow up with his primary care physician for a checkup in one week. Gavino’s pediatrician later prescribed a clavicle strap. Gavino’s parents testified regarding how Gavino’s life differed after the injury, but they also testified that after three or four months, he was physically recovered from his injury and was able to resume his normal life.

Defendants moved for summary disposition under MCR 2.116(C)(10), arguing that Gavino’s injury did not constitute a serious impairment of a body function because his injury required minimal treatment and only minimally restricted his lifestyle for a short period of time. At oral argument, defendants clarified that they were specifically arguing that plaintiff could not demonstrate that Gavino’s injury affected his general ability to lead his normal life because after a three- or four-month period, he was no longer physically restricted.

The trial court noted that "certainly when Gavino was in the sling he missed, you know, three to four-months of his normal life," adding that it is "obvious that a sling is going to slow down anyone that wears it for four-months." Yet, the court concluded that because Gavino had returned to "his probably very happy normal life as a four-year old," his injury did not rise to the level of a serious impairment of a body function. The court concluded that Gavino’s normal life was "running around and playing and focusing on his toys and other kids that might be around," and given that he was able to resume almost entirely his preaccident normal life, the injury did not constitute a serious impairment of body function. Accordingly, the court granted summary disposition in favor of defendants.

This appeal followed.

II. SUMMARY DISPOSITION

A. STANDARD OF REVIEW

Plaintiff argues that the trial court erred by granting summary disposition. We review de novo a trial court’s decision on a motion for summary disposition. Barnard Mfg. Co., Inc. v. Gates Performance Engineering , Inc. , 285 Mich. App. 362, 369; 775 N.W.2d 618 (2009). Under MCR 2.116(C)(10), summary disposition is appropriate "if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Patrick v. Turkelson , 322 Mich. App. 595, 605, 913 N.W.2d 369 (2018) (quotation marks and citation omitted). When considering such a motion, the reviewing court must review the "pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party." Latham v. Barton Malow Co. , 480 Mich. 105, 111; 746 N.W.2d 868 (2008). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v. Gen. Motors Corp. , 469 Mich. 177, 183; 665 N.W.2d 468 (2003). "Courts are liberal in finding a factual dispute sufficient to withstand summary disposition." Patrick , 322 Mich. App. at 605; 913 N.W.2d 369 (quotation marks and citation omitted). A court may not "make findings of fact; if the evidence before it is conflicting , summary disposition is improper." Id . at 605-606, 913 N.W.2d 369 (quotation marks and citation omitted).

B. ANALYSIS

Under Michigan’s no-fault act, MCL 500.3101 et seq ., tort liability is limited. McCormick v. Carrier , 487 Mich. 180, 189; 795 N.W.2d 517 (2010). However, "[a] person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement." MCL 500.3135(1).

Serious impairment of a body function "means an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life." MCL 500.3135(5).

To prove a serious impairment of a body function, a plaintiff must establish:

(1) an objectively manifested impairment (observable or perceivable from actual symptoms or conditions) (2) of an important body function (a body function of value, significance, or consequence to the injured person) that (3) affects the person’s general ability to lead his or her normal life (influences some of the plaintiff’s capacity to live in his or her normal manner of living). [ McCormick , 487 Mich. at 215, 795 N.W.2d 517.]

In making that determination, "there is no bright-line rule or checklist to follow[.]" Chouman v. Home Owners Ins. Co. , 293 Mich. App. 434, 441; 810 N.W.2d 88 (2011). Instead, "[w]hether someone has suffered a serious impairment is ‘inherently fact- and circumstance-specific and [the analysis] must be conducted on a case-by-case basis.’ " Id ., quoting McCormick , 487 Mich. at 215, 795 N.W.2d 517 (brackets in original).

In this case, the only question is whether the fracture to Gavino’s clavicle affected his general ability to lead his normal life. In Patrick , this Court reiterated that an "impairment to an important body function affects a person’s general ability to lead a normal life if it has ‘an influence on some of the person’s capacity to live in his or her normal manner of living.’ " Patrick , 322 Mich. App. at 607, 913 N.W.2d 369, quoting McCormick , 487 Mich. at 202, 795 N.W.2d 517. Because no two people are alike, "the extent to which a person’s general ability to live his or her normal life is affected by an impairment is undoubtedly related to what the person’s normal manner of living is...." McCormick , 487 Mich. at 202-203, 795 N.W.2d 517. In other words, the inquiry is subjective. Patrick , 322 Mich. App. at 607, 913 N.W.2d 369. To show that the impaired person’s ability to lead his or her normal life has been affected, we compare the person’s life before and after the injury. Nelson v. Dubose , 291 Mich. App. 496, 499; 806 N.W.2d 333 (2011). Important to making this comparison is the fact that "the statute merely requires that a person’s general ability to lead his or her normal life has been affected , not destroyed." McCormick , 487 Mich. at 202, 795 N.W.2d 517. Therefore, "courts should consider not only whether the impairment has led the person to completely cease a pre-incident activity or lifestyle element, but also whether, although a person is able to lead his or her pre-incident normal life, the person’s general ability to do so was nonetheless affected." Id . Additionally, "the statute only requires that some of the person’s ability to live in his or her normal manner of living has been affected, not that some of the person’s normal manner of living has itself been affected." Id . Lastly, as our Supreme Court explained in McCormick , "[w]hile the Legislature required that a ‘serious disfigurement’ be ‘permanent,’ it did not impose the same restriction on a ‘serious impairment of body function.’ " Id . at 203, 795 N.W.2d 517, quoting MCL 500.3135(1). Thus, there is no "express temporal requirement as to how long an impairment must last in order to have an effect on the person’s general ability to live his or her normal life." McCormick , 487 Mich. at 203, 795 N.W.2d 517 (quotation marks omitted).

In this case, Gavino was a three-year-old child at the time he suffered the impairment. His parents testified that as a result of the impairment, he was unable to go to school for approximately two weeks and that when he did return to school he was unable to use the play...