Author(s): Beth Andrews

TEMPORARY SERIOUS IMPAIRMENTS: ROUTINE RECOVERY FROM ARTHROSCOPIC SHOULDER SURGERY CONSTITUTES SERIOUS IMPAIRMENT AS A MATTER OF LAW

For years, appellate opinions on the no fault threshold have repeated the shibboleth that “an injury need not be permanent to be serious”. But to surmount this threshold, even temporary serious impairments must affect the “course and trajectory” of the plaintiff’s life. Nicke v Miller, 477 Mich 954; 723 NW2d 908 (2006). The reality, however, is that for “temporary serious impairments”, the devil is in the details. Almost any plaintiff who undergoes surgery has some period of incapacitation, beginning in the surgical suite, following in the recovery room and then continuing for some time thereafter. The question is when that period of incapacity rises to the no fault threshold of a “temporary serious impairment of body function”.

Clearly, the mere fact of surgery does not suffice. In Straub v Collette, the companion case to Kreiner v Fischer, 471 Mich 109, 135-136; 683 NW2d 611 (2004), the Supreme Court found no serious impairment despite the fact that Mr. Straub had hand surgery and did not return to his normal activities for several months. About this period of “temporary impairment”, however, the Supreme Court said:

“Given that Straub’s injury was not extensive, recuperation was short, unremarkable, and virtually complete, and the effect of the injury on body function was not pervasive, we conclude that Straub’s general ability to live his normal life was not affected. There is no medical evidence that Straub has any residual impairment or that the course of Straub’s life has been affected. The temporary limitations Straub experienced do not satisfy the statutory prerequisites.”

In Williams v Medukas, 266 Mich App 505; 702 NW2d 667 (2005), however, the result was different. There, the Court of Appeals found a serious impairment of body function as a matter of law when a salesman, avid golfer, grandfather and girls school basketball coach broke both arms and spent one month completely dependent on others – unable to feed himself or care for any of his own basic needs. The court noted that “[A]n impairment of short duration may constitute a serious impairment of body function if its effect on the plaintiff’s life is extensive”.

And in Benefiel v Auto Owners Ins Co, 277 Mich App 412; ___ NW2d ___ (2007), there was yet a different result. There, the Court of Appeals found a question of fact on serious impairment for a plaintiff who eventually recovered from surgeries on his shoulder and on multiple levels of his spine, but only after being unable to work for 3 months following the surgeries. He returned to work with significant limitations, but then lost his job in the family cleaning business due to his inability to satisfy job requirements. In finding a question of fact on the issue of temporary serious impairment, the court noted that “the more extensive the nature and extent of the impairment, the lesser the need for a lengthy or permanent duration of impairment in order to qualify an impairment as a serious impairment of body function”. (This case is presently on appeal to the Michigan Supreme Court on this and other issues.)

Most recently, however, in Donovan v Metro Plant Services, Inc, unpublished opinion per curiam of the Court of Appeals, issued March 6, 2008 (Docket No. 275272), the Court of Appeals found a temporary serious impairment as a matter of law in a rather run-of-the-mill shoulder injury based solely on the limitations placed on the plaintiff during his recovery from arthroscopic surgery. After several months of progressively worsening pain, plaintiff had surgery, then waited four weeks to begin three months of physical therapy. During much of this recovery period, he had to sleep in a chair and could not (or could but only with great pain and difficulty) work, drive, bathe himself, dress himself, tie his own shoes, brush his hair, clean, cook, mow, do laundry. He was unable to raise his left arm more than six inches away from his thigh and was unable to do many tasks for himself. (NOTE: From this description, it appears that plaintiff’s recuperation from this surgery followed a rather typical course.) About this short-but-extensive period of disability, the Court of Appeals stated:

“[A]n impairment that effectively limits the ability to carry out all of one’s normal activities (work, home, and recreational) meets the threshold despite the fact that the impairment may be of short duration, although in such a situation the amount of damages tied to the impairment would generally be lower because of the brief period involved.”

The court opined that to hold otherwise in situations like this, where a short-lived impairment severely or completely hampers nearly all aspects of a plaintiff’s life, would effectively negate the holding in Kreiner that an impairment of short duration can qualify as a serious impairment of body function. The court then followed this analysis with a rather peculiar statement:

“[T]he course or trajectory of a person’s life can be affected, if even momentarily, by a devastating, yet short-lived impairment, and the reference to one’s ‘entire’ normal life was clearly directed at requiring an effect on work, home, and recreational activities, i.e., most or all aspects of a person’s life. Until the Supreme Court decides to clarify some of the apparent contradictions in Kreiner, we find it necessary to give some meaning to the language concerning impairments of short duration.” [Emphasis added.]

Momentarily? This decision is likely to be appealed to the Supreme Court. In the meantime, however, expect to see this unpublished opinion cited in claims involving any injury which requires surgery and follow-up rehabilitation.

SUMMARY DISPOSITION GRANTED UNLESS IMPAIRED PLAINTIFF PROVES THAT DEFENDANT WAS 50% OR MORE AT FAULT

When is the issue of allocation of fault a question of law for the judge versus a question of fact for the jury? It depends.

Plaintiff motorist veers across the center line. An oncoming driver, realizing that there is a deep ditch to his right, attempts to avoid plaintiff by steering left into the lane where plaintiff should have been traveling. At the last minute, however, plaintiff veers back into his own lane, resulting in a head-on collision. Plaintiff recalls nothing of the accident (and can thus provide no evidence about how the accident occurred), but admits to having alcohol and marijuana in his system. Plaintiff’s expert (a consulting engineer) does not dispute his impairment, but contends that plaintiff’s quick reaction in moving back into his own lane was “more appropriate” and instead lays the blame on defendant driver’s poor decision-making. Note that in this case, the allocation of fault between the parties is especially critical because the relative percentages of fault will determine whether plaintiff’s claim is merely reduced by his percentage of comparative fault under MCL § 600.2959,

whether his claim for noneconomic losses is barred under MCL § 500.3135(2)9b) or whether his entire claim is “absolutely barred” under the impaired plaintiff penalty in MCL § 600.2955a(1).3

Such are the facts from Barton v Gayer, unpublished opinion per curiam of the Court of Appeals, issued March 11, 2008 (Docket No. 276932). In that case, the trial judge found a question of fact as to defendant’s negligence and the allocation of fault and denied defendant’s motion for summary disposition. On appeal, the appellate court reversed, finding no question of fact and that, as a matter of law, the defendant was entitled to summary disposition. The court held that where the facts were undisputed, the court was permitted to decide the issue of defendant’s negligence as well as the relative allocation of fault. It found defendant to be “clearly justified under the circumstances” because he was “responding quickly to a situation created by the plaintiff”:

“There are instances when negligence may be decided as a matter of law. Because the material facts are clear, and are in large part undisputed, there is no need for a trial of the facts, and the issue of negligence may be decided as a question of law…There is insufficient evidence that defendant was negligent…Defendant’s reaction to plaintiff’s swerving into the wrong lane, viz., to go into the left lane himself, was reasonable, and in accord with what a reasonably prudent person would do under the circumstances… Defendant had no duty to anticipate the negligent or unlawful conduct of plaintiff… Even difficult questions, such as reasonableness, must be decided as a matter of law upon undisputed facts.” (Citations omitted).

The court disregarded plaintiff’s contention that defendant had been negligent, calling it nothing more than “speculation and conjecture” because plaintiff’s consulting engineer expert ”could not cite to any evidence that plaintiff was unimpaired by intoxicants that plaintiff admits were in his system”. Moreover, the court held that it would not be enough for plaintiff to prove merely that the defendant was negligent:

“In order to survive defendant’s summary disposition motion, plaintiff must have presented evidence indicating that defendant’s fault was 50 percent or more the cause of the accident.”

One has to feel sorry for the trial judge, however. The appellate court’s opinion neglects even to mention the Supreme Court’s holding from Mallison v Scribner, 475 Mich 878; 715 NW2d 72 (2006). That case also involved the impaired plaintiff penalty and held that the trial judge had erroneously granted summary disposition to the defendant because the relative allocation of fault

– and thus whether the impaired plaintiff penalty applies – was a question of fact for resolution by the jury. The only clearly distinguishing facts between the two cases are that the plaintiff in Mallison was an impaired passenger who elected to ride with the impaired defendant driver, while the plaintiff in Barton was an impaired driver who was actually operating the vehicle.

One thing we do know for sure: drivers who cross the center line into oncoming traffic and drivers who use alcohol and marijuana will find little sympathy at the appellate level.