A trial court wrongly dismissed this auto negligence action, the Michigan Court of Appeals has ruled, because there was a genuine issue of material fact about whether the 3-year-old boy’s fractured clavicle affected his “ability to lead his normal life” under the threshold injury standard set forth in McCormick v Carrier, 487 Mich 180 (2010).
In Piccione v Gillette (Docket No. 342826), the Court of Appeals relied on McCormick to conclude that a jury must decide whether the boy suffered a “serious impairment of body function” that affected his “general ability to lead his normal life” under the No-Fault Act, MCL 500.3101 et seq.
McCormick established the so-called “threshold injury test” for determining whether a Michigan auto accident victim has suffered a “serious impairment of body function.” If this threshold injury standard is met, a person injured in a car accident may pursue a claim for damages against the person responsible for the crash.
The Court of Appeals in Piccione emphasized that the boy’s general ability to lead his normal life did not have to be completely destroyed to constitute a threshold injury. Rather, “it only needs to have been affected, and here the evidence allows for an inference that [the boy’s] general ability to lead his normal life was affected even though it was not completely destroyed.”
Judge Michael J. Kelly wrote the published decision. Judges Jane E. Markey and Brock A. Swartzle concurred in a separate opinion, stating that binding precedent required reversal of the trial court’s dismissal.
Three-year-old Gavino Piccione was injured in an auto accident. He was taken by ambulance to the hospital and then released. When he returned to the hospital two days later, a CT scan showed that Gavino had an “oblique fracture of the mid diaphysis of the left clavicle.” He was prescribed a sling, instructed to take ibuprofen for pain and told to follow-up with his primary care doctor in about one week. Gavino was later prescribed a clavicle strap. According to his parents, Gavino resumed his regular activities and his life returned to normal about three or four months after the accident.
The plaintiffs, Gavino’s parents, filed this auto negligence suit against the defendants, the at-fault driver and his employer, in Kent County Circuit Court. The plaintiffs sought non-economic damages for Gavino’s pain and suffering.
In Michigan, a car accident victim can bring a claim for pain and suffering damages from an at-fault driver if a “threshold injury” was sustained in the collision. The majority of threshold injury claims involve a “serious impairment of a body function,” a term that is defined in the No-Fault Act, MCL 500.3135(5), as “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.” The plaintiffs maintained that Gavino sustained a serious impairment and, as result, they could seek monetary compensation for their son’s pain and suffering.
The defendants, however, disputed this claim and filed a motion to dismiss the lawsuit. The defendants asserted that Gavino’s broken clavicle did not meet the “serious impairment” threshold because it required minimal treatment and restricted the boy’s lifestyle for only a short period of time.
The Kent County Circuit Court agreed with the defendants and dismissed the plaintiffs’ claim.
Affected … Not Destroyed
The Michigan Court of Appeals reversed, ruling that a jury had to decide whether Gavino’s clavicle fracture affected his general ability to lead his normal life.
In making its decision, the Court of Appeals examined not only the seminal case of McCormick v Carrier, but also the published decision in Patrick v Turkelson, 322 Mich App 595 (2018). In Patrick, the Court of Appeals noted 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 life in his or her normal manner of living.’” Because no two people are the same, the extent to which a person’s general ability to live a normal life is affected is directly related to that person’s normal manner of living. “In other words, the inquiry is subjective,” the Court of Appeals observed in Patrick.
To show that a person’s ability to lead a normal life has been affected, a court must compare his life before and after the injury, the Court of Appeals explained. “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.’” As a result, courts “should consider not only whether the impairment has led the person to completely cease a pre-incident activity or life 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.”
The Court of Appeals also pointed out that MCL 500.3135(5) “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.” Further, while the Michigan Supreme Court in McCormick made it clear that a “serious disfigurement” must be “permanent,” this same restriction is not imposed on a “serious impairment of body function,” the Court of Appeals said. Therefore, “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.’”
Relying on McCormick and Patrick, the Court of Appeals said that Gavino’s injury affected his life enough for the plaintiffs’ claims be heard by a jury. In support of this conclusion, the Court of Appeals noted that Gavino:
Viewing these facts in a light most favorable to the plaintiffs, “a jury could conclude that Gavino’s general ability to lead his normal life was affected by the impairment,” the Court of Appeals stated.
In so finding, the Court of Appeals rejected the defendants’ contention that the threshold injury standard had not been met. “[A] person’s ability to lead his or her general life does not have to be destroyed in order to constitute a threshold injury; it only needs to have been affected, and here the evidence allows for an inference that Gavino’s general ability to lead his normal life was affected even though it was not completely destroyed,” the Court of Appeals wrote.
Moreover, a serious impairment of body function does not have to be permanent, the Court of Appeals reiterated. “[S]o the fact that the impairment to Gavino’s important body function only lasted three or four months has no bearing on the question at hand. Therefore, … summary disposition was not appropriate.”