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Dumire v Evener (COA – UNP 10/15/2020; RB #4161)

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Michigan Court of Appeals; Docket # 350270; Unpublished
Judges Swartzle, Jansen, and Borrello; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion


STATUTORY INDEXING:
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 - Present) [§3135(5)**]
Important Body Function Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(5)**]
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(5)**]

TOPICAL INDEXING:
Not Applicable


SUMMARY:

A. Disposition:
In this unanimous per curiam unpublished opinion, summary disposition for defendant was REVERSED because the plaintiff presented evidence to create a question of fact on the general ability element under the McCormick standard.

B. Nature of Injury/Disability:
Plaintiff suffered a three-millimeter fracture to his left elbow. As a result, his doctor “recommended plaintiff avoid lifting, pushing, or pulling with his left arm for three weeks.” Plaintiff was then unable to work as a self-employed handyman for one week, and plaintiff claimed that he had to “self-limit his personal and work activities for at least two months after the accident.” Plaintiff’s medical records also revealed that “he enjoyed a normal range of motion with his left arm and did not require significant medical treatment for the injury. However, the medical records also demonstrate plaintiff continued to experience pain when using the left arm to lift heavy objects or when he applied pressure to the area.”

C. Medical Treatment:
After the accident, plaintiff was seen at the emergency room where an x-ray of his shoulder revealed a fracture to his left elbow. The Court’s opinion does not elaborate further on the nature and extent of Plaintiff’s post-accident treatment.  However, the Court noted that plaintiff offered medical records relating to subsequent treatment that plaintiff received for his injuries.

D. Element #1 – Objective Manifestation:
Although the Court of Appeals ultimately concluded that summary disposition was inappropriate on the issue of serious impairment of body function, the Court nevertheless recognized that Plaintiff presented sufficient evidence in the trial court to satisfy the objective manifestation element as a matter of law. In so finding, the Court reasoned that “[w]hile the evidence is somewhat minimal, the record shows plaintiff provided objective medical evidence that he suffered a three-millimeter fracture to his elbow as a basis for his pain and that this condition—to some extent—'weakened, diminished, or damaged’ his left elbow or caused it to function poorly or inadequately.”

E. Element #2 – Important Body Function:
The Court of Appeals similarly found that plaintiff presented sufficient evidence to satisfy the important body function element as a matter of law. In so finding, the Court stated “[c]oncerning the second prong, ‘the important-body-function inquiry is an inherently subjective one. The focus is on whether the body function has great value, significant [sic], or consequence, and the relationship of that function to the individual’s life must be considered.’ Id. (quotation marks and citations omitted). It is undisputed that plaintiff was, at the time of the accident, a self-employed handyman and the trial court could reasonably infer the impairment of plaintiff’s left arm and elbow, arising out of the accident, affected a function important to plaintiff’s employment and general ability to function.”

F. Element #3 – General Ability:
Despite having found that plaintiff presented sufficient evidence to satisfy the first two elements of McCormick as a matter of law, the Court of Appeals concluded that a question of fact remained regarding whether plaintiff could satisfy the general ability element. In so holding, the Court reasoned that “the admitted medical records indicate plaintiff suffered a fracture to his left elbow and he was directed . . . to avoid pushing and pulling heavy items in the course of his work. Plaintiff also testified in his deposition that the impairment to his elbow caused pain when moving or lifting items. Further it is undisputed that, at the time of the accident, plaintiff was self-employed as a handyman and, according to plaintiff, the injury to his elbow impacted his ability to work. Hence, it was reasonable for the trial court to infer that plaintiff’s use of his left arm and elbow were an important bodily function, both for his everyday living and his work as a handyman. Thus, considering the evidence in the light most favorable to plaintiff, impairment of plaintiff’s left elbow would have affected a bodily function important to plaintiff—namely, the use of his left elbow and arm. Considering the existence of these factual issues, the trial court erred in granting summary disposition to defendants.”

G. Other Comments:
The Court of Appeals further rendered a finding in this case regarding the propriety of summary disposition.

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