Hermann v. Haney

• Citation: 98 Mich.App. 445,296 N.W.2d 278
• Decision Date: 01 July 1980
• Docket Number: Docket No. 43683
• Parties: Barbara Jean HERMANN and Michael Hermann, Plaintiffs-Appellants, v. Edwin Maxowal HANEY and Chester Ray Hackney, Jointly and Severally, Defendants-Appellees. 98 Mich.App. 445, 296 N.W.2d 278
• Court: Court of Appeal of Michigan — District of US

Page 278

296 N.W.2d 278

Barbara Jean HERMANN and Michael Hermann Plaintiffs-Appellants, v. Edwin Maxowal HANEY and Chester Ray Hackney, Jointly and Severally, Defendants-Appellees.

Docket No. 43683.

98 Mich.App. 445, 296 N.W.2d 278

Court of Appeals of Michigan.

July 1, 1980.

Rehearing Denied Aug. 15, 1980.

Released for Publication Sept. 24, 1980.

[98 MICHAPP 447] Samuel Posner, Detroit, for plaintiffs-appellants.

Brian D. Einhorn, Southfield, for Edwin Maxowal Haney.

Robert I. Morrison, Detroit, for Chester Ray Hackney.

Before MAHER, P. J., and CAVANAGH and CYNAR, JJ.

MAHER, Presiding Judge.

This appeal is from an order granting summary judgment for defendants. ¹ The question before this Court is whether it can be said with certainty that no reasonable jury could view Mrs. Hermann's alleged impairment of body function as "serious" under M.C.L. § 500.3135; M.S.A. § 24.13135. See McKendrick v. Petrucci, 71 Mich.App. 200, 247 N.W.2d 349 (1976).

Not every question of whether a particular impairment falls within the act must be submitted to the trier of fact. Cassidy v. McGovern, 86 Mich.App. 321, 272 N.W.2d 644 (1978). There are cases in which the trial court may properly rule that, as a matter of law, a plaintiff's injury fails to reach the threshold of a serious impairment. Brooks v. Reed, 93 Mich.App. 166, 286 N.W.2d 81 (1979); Harris v. McVickers, 88 Mich.App. 508, 276 N.W.2d 629 (1979); Vitale v. Danylak, 74 Mich.App. 615, 254 N.W.2d 593 (1977).

In Brooks v. Reed, supra, summary judgment in favor of defendants was affirmed where injuries to plaintiff's arms and wrists allegedly required four [98 MICHAPP 448] visits to a chiropractor at three to four week intervals for heat treatment and medication. In Harris v. McVickers, supra, one plaintiff alleged headaches and the other claimed a stiff neck, knee pains and headaches. Although there was no doubt that plaintiffs suffered discomfort, this Court affirmed an order of summary judgment in favor of defendant on the threshold question. In Vitale v. Danylak, supra, complaints of a stiff neck for one week following the accident and two or three visits to a doctor who presumably prescribed pain killers and/or muscle relaxants was appropriately decided by summary judgment in favor of defendant.

On the other hand, summary judgment was not deemed appropriate in McKendrick v. Petrucci, supra, where plaintiff alleged that tendonitis of the biceps tendon of his right arm caused him persistent pain which could not be corrected surgically. In Cassidy v. McGovern, supra, plaintiff sustained complete breaks in both bones of his lower right leg as well as other contusions and abrasions. The trial court was instructed to recognize on remand that, if the nature of plaintiff's injury is such as to meet the threshold of serious impairment as a matter of law, a directed verdict for plaintiff should be granted.

Finally, in Pohl v. Gilbert, 89 Mich.App. 176, 280 N.W.2d 831 (1979), judgment for defendant on the issue of serious impairment following a bench trial was reversed. There plaintiff incurred cuts, bruises, headaches and pain in her shoulders, neck and back when thrown from the car in which she was riding. Although treated with ultrasound, muscle relaxants, anti-inflammatory agents, pain killers and manipulation, plaintiff's condition had worsened in the four years since the accident. In all, plaintiff suffered a spine sprain, with pain [98 MICHAPP 449] radiating into her arms and legs. Muscle spasms steadily increased the pain and plaintiff lost sensation and suffered reduction of grip and intermittent loss of use of her right arm. She had scoliosis and the pain forced her to take to bed intermittently, seek frequent medical attention and reduce substantially her physical and social activities. She suffered occasional depression and spoke of suicide because of constriction of blood flow to the brain.

The above cases demonstrate that, in order to meet the threshold of serious impairment, either the initial injury must be severe or the effects must be continuing-either permanent or long-term. Among the factors to be considered are the extent of the injury, treatment required, duration of disability, extent of residual impairment and prognosis for eventual recovery. Additional relevant factors may be considered as well. Conversely, not all the factors mentioned need be present to find serious impairment in a given case.

For example, a severely injured person who eventually makes a total recovery with little or no residual impairment may be found to suffer serious impairment. Cassidy, supra. In other words, the more extensive or severe the injuries, the less need for residual impairment. Thus, one who suffers life-endangering injuries but experiences complete recovery within a relatively short time may nonetheless meet the threshold requirement. By the same token, a relatively less disabling condition which is permanent (or of significantly long duration) or recurring may constitute serious impairment by virtue of its longevity. E. g. tendonitis in McKendrick, supra ; nerve damage in Pohl, supra. The more...