KERN v. BLETHEN-COLUNI, 240 Mich. App. 333

Griffin, J. On May 18, 1996, an accident involving an automobile and a pedestrian occurred at a Royal Oak intersection. On that date, nine-year-old plaintiff Matthew Scott Trusty was attempting to cross the intersection with his bicycle when defendant John L. Blethen-Coluni, while operating his automobile, turned left into the intersection, striking and injuring the young pedestrian. As a result of the collision, plaintiff sustained a displaced and somewhat comminuted and oblique fracture of his right femur.

Plaintiff was hospitalized for six days (four in traction) and underwent surgery for the installation of an external fixator attached to the outside of his right femur by four pins drilled into the bone. Plaintiff wore the fixator for eleven weeks, during which time he was incapable of walking. During this eleven-week period, plaintiff was either carried, used a wheelchair, or “hobbled” on his other leg. Plaintiff missed three weeks of school because of his hospitalization and initial surgery. On August 5, 1995, plaintiff underwent a second surgery, during which the fixator device and four pins were removed.

Thereafter, plaintiff gradually returned to walking and other normal activities of a nine-year-old boy. i Through his next friend, Denise R. Kem, plaintiff filed a complaint on July 26, 1996, seeking non-economic damages for his alleged threshold injuries of serious impairment of body function and permanent serious disfigurement. By mistake, mutual to the parties and the court, the case was submitted to the jury regarding all issues including whether plaintiff sustained a threshold injury.

This was an error of law because plaintiffs complaint was filed exactly 120 days after March 28, 1996, and therefore the 1995 amendments of the no-fault act (1995 PA 222) were operative. See MCL 500.3135(2); MSA 24.13135(2). In light of the absence of objection, we review for plain error. MRE 103(d). “To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

See also Wischmeyer v Schanz, 449 Mich 469, 483; 536 NW2d 760 (1995). At trial, the jury received inconsistent jury instructions that set forth both SJI2d 36.01 (the repealed standards of DiFranco v Pickard, 427 Mich 32; 398 NW2d 896 [1986]) and SJI2d 36.11 (the purported standards of 1995 PA 222). During its deliberations, the jury expressed confusion regarding the law it should apply in deciding whether plaintiff sustained a threshold injury.

A handwritten note from the jury foreman to the trial judge states: We are having a hard time qualifying #4 with respect to “serious impairment of a body function.” Can we have a dictionary and/or some additional counseling on this issue? [Emphasis in original.] Following the dictates of DiFranco, the trial court offered no additional guidance to the jury: 1) Dictionary — no. 2) You have received all of the court’s instruction — please consider as a whole. Sometime later, the jury rendered the following verdict: Question No. 1: Was the defendant negligent? Answer. Yes. Question No. 2: Was the plaintiff injured?

Answer. Yes. Question No. 3: Was the defendant’s negligence a proximate cause of plaintiff’s injury? Answer. Yes. Question No. 4: Did the plaintiff’s injury result in serious impairment of a body function or permanent serious disfigurement? Answer. No. In his motion for a new trial, plaintiffs counsel first advised the trial court that 1995 PA 222 applied to this case and therefore the trial court should rule as a matter of law whether plaintiff’s injuries exceeded the no-fault tort threshold.

The trial court denied the motion, concluding [the court] finds that the issue of whether plaintiff sustained a serious impairment of body function or a permanent serious disfigurement was properly submitted to the jury and furthermore that the jury appropriately reviewed and considered the evidence and determined that plaintiff’s injuries did not meet the threshold of serious impairment or disfigurement. Therefore, this Court finds that the jury verdict was not against the great weight of the evidence or contrary to law and plaintiff’s motion for a new trial must be denied. Plaintiff now appeals.

We reverse and remand. We hold that plaintiffs femur fracture is a serious impairment of body function as a matter of law. We remand for a new trial on the issue of plaintiff’s damages. Additionally, because the appellate record is inadequate for our review de novo of plaintiff’s claim of permanent serious disfigurement, we remand for a ruling by the trial court and a new trial on damages if the court finds threshold disfigurement. n By enacting 1995 PA 222, the Legislature amended our no-fault automobile insurance act in a number of important respects.

Pertinent to this appeal, the Legislature overturned the Supreme Court’s DiFranco decision by codifying the tort threshold injury standards of Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982), overruled by DiFranco, supra. One of the major changes of the legislation was to make the determination of threshold injury (serious impairment of body function or permanent serious disfigurement) an issue of law rather than an issue of fact.

Considerations of greater uniformity and predictability of the law were argued by the supporters of the legislation: Putting the determination of whether the threshold has been met into the hands of the judge (as a matter of law) makes sense for several reasons. ... It will produce more uniformity in decisions by allowing judges to construct [sic] the statute rather than juries, which are more likely to vary in attitude based on geography or even one jury to the next.

Further, the phrase in question is not commonly used, so juries are not likely to have a clear sense of its meaning. [House Legislative Analysis, HB 4341, December 18, 1995, P 3.] The above legislative analysis echoes the concerns articulated by the Cassidy Court: We believe several considerations are instructive in determining whether the threshold requirement of “serious impairment of body function” is primarily a phrase presenting a fact question for the trier of fact, or a phrase requiring judicial definition as a matter of law.

First, it is not a term commonly used, for which juries would have a clear sense of the intended meaning. . . . Second, and important especially in conjunction with the first factor, one of the important reasons behind the no-fault act was to reduce litigation in automobile accident cases. Considering that the phrase involved is unspecific and one concerning which reasonable minds can usually differ regarding specific applications, if the

interpretation of the phrase is a matter to be left to the trier of fact, a trial would in most instances be required to determine whether the threshold requirements have been met. . . . Third, we cannot believe that the Legislature, when limiting the continued existence of traditional tort liability to certain specified exceptions, intended that the limits which they created would vary according to the specific jury impaneled or the specific part of the state in which a case was to be tried.

Although the requirement of serious impairment of body function lacks specificity, uniformity in its application is to some extent attainable through statutory construction by the appellate courts.

Unlike traditional tort litigation where differing views among differing juries are generally acceptable, the question whether tort immunity attaches is not a question which we believe the Legislature intended to leave as primarily a question for the trier of fact. [Cassidy, supra at 501-502.] Before the no-fault act amendments, the Supreme Court held in DiFranco, supra at 38: “The question whether the plaintiff suffered a serious impairment of body function must be submitted to the trier of fact whenever the evidence would cause reasonable minds to differ as to the answer.” In changing the law in response to DiFranco, the Legislature returned the determination of threshold injury to the trial judge as it existed under Cassidy.

The Legislature’s concern with the unpredictability of jury determinations regarding the no-fault tort threshold is aptly demonstrated in the present case.

The jury’s confusion regarding the phrase “serious impairment of body function” is documented in the jury’s inquiry to the court asking for a dictionary “and some additional counseling on the issue.” Among other instructions, the jury was advised that “the terms ‘serious,’ ‘impairment,’ and ‘body function’ have no special or technical meaning in the law and should be considered by you in the ordinary sense of their common usage.” This instruction contained in SJI2d 36.01 is incorrect in the context of cases governed by 1995 PA 222.

The legislative analysis for the bill not only repeats the Cassidy standards, it also emphasizes them: That means making the determination of whether the threshold for a lawsuit has been met a question of law for a judge to decide and not for a jury.

And it means that the term “serious impairment of body function” would once again refer to “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life" [House Legislative Analysis, HB 4341, December 18, 1995, p 2 (emphasis in original).] Contrary to the standard jury instruction, the term “important body function” has special meaning in the law. An important body function is a function of the body that affects the person’s general ability to live a normal life. Cassidy, supra at 505.

As the Supreme Court stated, “[w]alking is an important body function, the serious impairment of which constitutes” a threshold injury. Id. Further, for recovery to be realized, the injury must be “objectively manifested.” Id. In determining whether the impairment of the important body function is “serious,” the court should consider the following nonexhaustive list of factors: extent of the injury, treatment required, duration of disability, and extent of residual impairment and prognosis for eventual recovery. Hermann v Haney, 98 Mich App 445, 449; 296 NW2d 278 (1980), aff'd 415 Mich 483; 330 NW2d 22 (1982).

Finally, although the injury threshold is a significant obstacle to tort recovery, Cassidy, supra at 503, “an injury need not be permanent to be serious.” Id. at 505.

Consistent with the above standards, the no-fault act now defines serious impairment of body function as follows: As used in this section, “serious impairment of 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(7); MSA 24.13135(7).] m Absent an outcome-determinative genuine factual dispute, the issue of threshold injury is now a question of law for the court. MCL 500.3135; MSA 24.13135. On appeal, we review questions of law de novo.

Henderson v State Farm Fire & Casualty Co, 460 Mich 348, 353; 596 NW2d 190 (1999); People v Sierb, 456 Mich 519, 522; 581 NW2d 219 (1998). Because the Legislature has returned to the standards of Cassidy, we find Cassidy and its progeny instructive for the present case. In particular, we follow and adopt the analysis of Cassidy era cases set forth in Burk v Warren (After Remand), 137 Mich App 715; 359 NW2d 541 (1984). In Cassidy, itself, the Supreme Court held plaintiff Cassidy’s injuries were a serious impairment of body function as a matter of law.

Cassidy’s injuries were “complete breaks of both bones in his lower right leg for which he was hospitalized for eighteen days and wore casts for seven months.” Further, the plaintiff suffered dizzy spells affecting his mobility and minor residual effects lasting approximately IV2 years after the accident. Five months after the Cassidy decision, this Court in LaHousse v Hess, 125 Mich App 14; 336 NW2d 219 (1983), addressed injuries substantially similar to those of the present plaintiff.

In LaHousse, the plaintiff sustained a broken clavicle and a fracture of her left femur, the latter injury requiring surgery to insert a steel rod. Applying Cassidy, supra, our Court ruled the plaintiff’s femur fracture was a serious impairment of body function as a matter of law: Plaintiff suffered an injury to her left leg interfering with her ability to walk. As the Court said in Cassidy, supra, p 505, “[wjalking is an important body function”. Moreover, we find that, as a matter of law, plaintiff suffered a serious impairment of her ability to walk.

She was hospitalized for five days with her left leg in traction. For three months afterwards, she was unable to move herself about without the aid of a wheelchair, a walker or crutches. The trial court erred, therefore, by submitting the resultant “serious impairment” question to the jury. [LaHousse, supra at 18-19 (emphasis added).] The present case similarly involves a serious femur fracture and plaintiffs inability to walk for three months. Walking is an important body function. Although plaintiff had a good recovery, “an injury need not be permanent to be serious.” Cassidy, supra at 505.

In light of the seriousness of the initial injury, the treatment required, and the duration of disability, we hold that plaintiff sustained a serious impairment of body function. As an argument for affirmance, defendant asserts that the trial court correctly submitted the threshold determination to the jury because genuine questions of material fact existed regarding the nature and extent of plaintiffs injuries. We disagree. Here, there was no independent medical examination. The only testimony regarding the nature and extent of plaintiffs injuries came from plaintiff, his parents, and his treating physician, Dr.

Thomas Ditkoff. Although defendant seizes on minor discrepancies between plaintiffs testimony and that of his treating physician, we find no genuine outcome-determinative issue of fact. Approximately four months after the accident, Dr. Ditkoff noted that plaintiffs fracture appeared to be well healed and plaintiff had an excellent range of motion with almost full flexion. However, Dr. Ditkoff advised plaintiff to limit his activities for the next three months.

The nine-year-old plaintiff was instructed that he could do “a little bit of running and bicycling and things of that type, but that he should avoid activities such as playground equipment where he might fall or jump off.” Assuming plaintiffs recovery progressed normally, Dr. Ditkoff expected plaintiff to resume unrestricted activities seven months after the accident. Contrary to defendant’s assertions, the testimony of plaintiff and his treating physician do not conflict in any material respect.

Accordingly, a remand for a finding by the trial court on whether a genuine material factual dispute exists on the threshold issue is not necessary. Cf. May v Sommerfield, 239 Mich App 197; 607 NW2d 422 (1999). Plaintiff testified at trial (eighteen months after the accident) that his activities were unrestricted but his leg “kind of bothers me when I run on it too much or sleep on it wrong.” Plaintiff’s occasional ache in his thigh is minor and, therefore, immaterial to the determination of serious impairment of body function.

For these reasons, the trial court erred in submitting the threshold issue to the jury and in failing to rule as a matter of law in response to plaintiff’s motion for a new trial. rv The issue of permanent serious disfigurement is more problematic. Again, under 1995 PA 222, the determination whether a disfigurement constitutes “permanent serious disfigurement” is a question of law absent a genuine outcome-determinative factual dispute. However, the trial court refused to rule, as a matter of law, deferring to the jury. Unfortunately, the record is inadequate to facilitate our review de novo.

In this case, plaintiffs four surgical scars were depicted in a jury view and described in detail. However, no photographs or video of plaintiffs disfigurement are contained in the lower court record. Accordingly, we find it necessary to remand to the trial court for a ruling. If the trial court finds permanent serious disfigurement, a trial should be held on the issue of damages.

If the trial court rules against plaintiff, further relief will be considered by this Court only if plaintiff makes an offer of proof in the lower court with photographic or other documentary evidence sufficient to support plaintiff’s claim on appeal. MCR 7.210(A), 7.216(A)(9). Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Owens, J., concurred. We recognize that legislative bill analyses are not official statements of legislative intent. Nevertheless, bill analyses may be of probative value.

See Seaton v Wayne Co Prosecutor (On Second Remand), 233 Mich App 313, 321, n 3; 590 NW2d 598 (1998), and cases cited therein. The Cassidy Court explained: This conclusion [that walking is an important body function] is not affected one way or another by the fact that Leo Cassidy is a potato farmer who must be on his feet for long hours. We believe that the Legislature intended an objective standard that looks to the effect of an injury on the person’s general ability to live a normal life. [Id. at 505.] Because our review is de novo, we question the relief ordered in May.