Cassidy v. McGovern
| Decision Date | 23 December 1982 |
| Docket Number | 65753,Docket Nos. 65385,8,Nos. 7,s. 7 |
| Citation | 415 Mich. 483,330 N.W.2d 22 |
| Parties | Leo T. CASSIDY and Ardith M. Cassidy, Plaintiffs-Appellants, v. Terrance McGOVERN, Peter H. Seaton, and Seaton Industries, Inc., a Michigan Corporation, jointly and severally, Defendants-Appellees. Barbara Jean HERMANN and Michael Hermann, Plaintiffs-Appellants, v. Edwin Maxowal HANEY and Chester Ray Hackney, jointly and severally, Defendants-Appellees. Calendar415 Mich. 483, 330 N.W.2d 22 |
| Court | Michigan Supreme Court |
John D. Hayes, Traverse City, for plaintiffs-appellants in No. 65385.
Jack Carpenter, Petoskey, for defendants-appellees in No. 65385.
Posner, Posner & Posner by Samuel Posner, and Gerald F. Posner, Detroit, for plaintiffs and appellants in No. 65753.
Dale J. McLellan, Noreen L. Slank, Collins, Einhorn & Farrell, P.C., Southfield, for defendant-appellee Edwin M. Haney.
Mitchell & Leon by Robert I. Morrison, Detroit, for defendant-appellee Chester Ray Hackney; Gromek, Bendure & Thomas by Carl L. Gromek, Nancy L. Bosh, Detroit, of counsel.
Lopatin, Miller, Freedman, Bluestone, Erlich & Rosen by Steven G. Silverman, Detroit, amicus curiae, Michigan Trial Lawyers Ass'n.
In these cases, we examine the nature of the exception to tort immunity that exists under the motor vehicle no-fault act for non-economic loss suffered in cases of "serious impairment of body function". M.C.L. Sec. 500.3135; M.S.A. Sec. 24.13135. We hold that the question what injuries come within the class denominated as the "serious impairment of body function" is a question of statutory construction to be decided by the court. When there is no factual dispute regarding the extent of a plaintiff's injuries, or when any factual dispute does not straddle the line demarcating those injuries which constitute the serious impairment of body function, the court is to decide as a matter of law whether plaintiff has suffered a serious impairment of body function. In both of the present cases, the question whether there existed such an injury was a matter of law for the court. In Hermann v. Haney, 98 Mich.App. 445, 296 N.W.2d 278, we affirm the granting of summary judgment for the defendant. In Cassidy v. McGovern, 98 Mich.App. 100, 296 N.W.2d 200, we reverse the denial of plaintiff's motion for a directed verdict.
Barbara Hermann and her husband, Michael Hermann, commenced this action on March 29, 1978. They alleged that Barbara Hermann had been involved in an automobile accident on July 25, 1975, caused by defendants' negligence. She sought damages for her injuries, and her husband sought damages for loss of consortium. The complaint contained allegations that plaintiff had suffered injuries to her back, neck, head, shoulders, arms, and legs, as well as abrasions, contusions, and headaches. Plaintiffs further alleged that she had suffered a serious impairment of body function.
Defendants took Barbara Hermann's deposition. She testified that in the accident her head hit the windshield and her legs hit the dashboard. She was unconscious briefly, but regained consciousness when the police arrived. She was taken by ambulance to the Wayne County General Hospital, where x-rays were taken, and she was given one pain pill for her head and released.
She testified that she had suffered a bump on her head and bruises on her knees from the accident, but no other visible signs of injury. The bump on her head cleared up in one month, and the bruises in two months. The bruises did not cause difficulty for her. They were neither painful nor did they prevent standing or sitting.
However, she testified in the deposition that two days after the accident her neck and back began to bother her. Upon the recommendation of her attorney, she went to see Dr. Rosenberg. She visited Dr. Rosenberg's office nine times in approximately the month following the accident, and each time received a treatment with hot pads for her back and neck. No medication was prescribed. Her medical bill was $185.
Upon Dr. Rosenberg's recommendation, she stopped working. She was an operator for Michigan Bell and would experience pain if she would sit too long. She stayed at home in bed, and did no housecleaning. When she started feeling better approximately one month after the accident, she returned to work and was also able to resume housework. Her neck and back bothered her "a little bit" when she returned to work, but she was able to work a full shift, and none of her activities were restricted. Within two months after the accident, she had no problems with her back and neck. Apart from Dr. Rosenberg and other doctors in his office, she saw no other physician regarding her injuries.
After taking Barbara Hermann's deposition, defendants separately filed motions for summary judgment, pursuant to GCR 1963, 117.2(1) and (3). Defendants contended that her deposition indicated that she had not suffered a serious impairment of body function. The trial judge granted summary judgment for defendants and dismissed plaintiff's cause of action. In denying plaintiff's request to vacate the judgment when considering plaintiff's motion for rehearing, the trial judge stated, "For you to be allowed to continue to institute these types of cases as set forth in your complaint, as set forth in your motion for * * * rehearing, would be entirely contrary to the whole theory of no-fault".
Plaintiffs appealed to the Court of Appeals, arguing that the question whether Barbara Hermann's injuries met the threshold of serious impairment of body function was a question of fact for the jury. The Court of Appeals affirmed, Hermann v. Haney, 98 Mich.App. 445, 296 N.W.2d 278 (1980). Judge Maher, writing for affirmance, articulated the question as . Noting several cases, however, in which the Court of Appeals had ruled as a matter of law that the threshold had not been met, he identified a nonexclusive list of factors pertinent to the determination:
98 Mich.App. 449, 296 N.W.2d 278.
In this case, he concluded that summary judgment was proper because plaintiff's injuries were neither severe nor long-term, required only minimal treatment, and left no residual impairment. Judge Cynar concurred only in the result. Judge Cavanagh dissented. Agreeing that this was the type of injury that the Legislature had intended to keep out of court, he nevertheless concluded that absent further definition of "serious impairment of body function" by this Court or the Legislature, the question, except in extreme cases, was for the trier of fact.
Leo Cassidy and his wife, Ardith Cassidy, sued defendants alleging that they were entitled to damages for the non-economic losses they suffered as a result of an automobile accident on August 8, 1975, in which Leo Cassidy was injured. Defendants admitted negligence and waived contributory negligence. The only issue in the jury trial held May 9-11, 1977, was whether Leo Cassidy's injuries met the threshold of serious impairment of body function under the no-fault act, and if so, the amount of damages.
The evidence at trial indicated that as a result of the accident in which Leo Cassidy was thrown from the automobile, he suffered various injuries, including two broken bones in his lower right leg. He was taken by ambulance to Little Traverse Hospital and remained hospitalized there for the next 18 days. Dr. Kleinstiver, his treating physician since the night of the injury, testified that the fractures in both bones were complete, but did not break the skin. During the course of the seven months following the accident, Leo Cassidy wore four casts, the last being removed in March, 1976. During much of this time he used a walker, being unable to use crutches because of dizzy spells.
Dr. Kleinstiver testified that x-rays taken on May 3, 1976, showed that the fractures had healed well and that there was no question that they had completely healed by April of 1977, the last time he saw the plaintiff. Leo Cassidy, on his visit to Dr. Kleinstiver in April of 1977, however, complained of pains in the area of the break that would come and go, but were more troublesome when he was active. Dr. Kleinstiver gave him medication for the soreness. Dr. Kleinstiver stated that those pains could possibly have been caused by the scar tissue that would accompany the healing of the bones. The doctor testified, though, that while Mr. Cassidy did seem to have a little trouble with his leg in April of 1977, basically Mr. Cassidy had returned to normal and there was no significant residual damage from the injury.
Leo Cassidy testified that he is a potato farmer and that since the accident he has had to cut back on some of the activities incident to that type of work. He stated that his leg has continued to give him trouble and that it has returned only to about 50% of normal.
The defendant's only witness was Dr. Hume, who examined Mr. Cassidy on December 17, 1976. He noticed that Mr. Cassidy walked with a limp, the authenticity of which Dr. Hume did not question. The x-rays he took, however, showed that the fractures were well-healed. From his examination of Mr. Cassidy, the leg appeared capable of normal activity. Dr. Hume had no explanation for the continuing soreness that Mr. Cassidy described to him, and he testified that he thought that the problem would clear up.
At the close of proofs, plain...
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