Cassidy v. McGovern

272 N.W.2d 644, 86 Mich. App. 321, 1978 Mich. App. LEXIS 2592

• Court: Michigan Court of Appeals
• Decided: October 3, 1978
• Docket: Docket 77-2507
• Status: Published

Opinions

Per Curiam.

The concurrence/dissent adequately states the facts in this case and satisfactorily disposes of most of the issues facing us. We differ on two points, however. Plaintiffs in this case argue that the trial court erred in refusing to include in its instructions the holding of McKendrick v Petrucci, 71 Mich App 200; 247 NW2d 349 (1976). As our brother does, we reject plaintiffs’ argument basically because a "trial court does not err in refusing to charge as to a particular party’s theory of another case”. But in discussing McKendrick, we must not de-emphasize the language concerning "particular body function”. While the language is not part of the holding of the case, it does have a significance which our brother seems to deny.

The choice of the words "particular body function” was not inadvertent: the McKendrick Court interpreted the statute as not requiring impairment of the total body function, e.g., through a life-sustaining organ such as the heart or liver. The Court chose the word "particular” to suggest that impairment of one specific body function comes within the ambit of the statute. The very nature of the impairment at issue in McKendrick, tendonitis of the biceps tendon of plaintiff’s right arm, implies that the Court was referring to a particular body function, not simply "body function”. Although not the holding of the case, we believe it is one of its important implications and should not be obscured.

On a second issue we differ more fundamentally with our brother. Plaintiff argued that as a matter of law he satisfied the threshold requirement of the no-fault act for serious impairment of bodily function. He therefore moved for a directed verdict. In denying the motion, the trial judge stated:

"Mr. Hayes [plaintiffs’ attorney], the McKendrick case defeats your argument. It is very clear in the McKendrick case that the Court has decided that the issue of serious impairment of body function is a fact question for the jury, and your motion is denied.”

McKendrick does not conclude that every question of whether a particular impairment falls under the act must be submitted to the fact finder. In Vitale v Danylak, 74 Mich App 615; 254 NW2d 593 (1977), this Court, consistent with McKendrick, allowed a trial judge to rule by summary judgment that plaintiff’s injuries (a stiff neck) did not, as a matter of law, meet the standard of serious impairment of body function. The Vitale Court stated that no specific "permissible limits” had been drawn but that the Court was of the opinion that "if any class of cases could approach such limitation, the case at bar must be included in that class”.

Just as there is a class of cases, of which Vitale is representative, in which the trial court can rule as a matter of law that plaintiff’s injury is so minor that it fails to reach the threshold, so there is a class of cases in which, as a matter of law, the threshold of serious impairment is reached by the very nature of the injury, i.e., reasonable minds could not differ on the question of whether the threshold is met. In such a case, the trial judge should not give the issue to the jury for determination.

The trial judge in the instant case used an erroneous standard. He thought, because of a misinterpretation of McKendrick, that he was forced to send the issue to the jury. He did not perceive that McKendrick does not foreclose the possibility of the court determining as a matter of law that the threshold was reached. In denying plaintiffs’ motion for a directed verdict, the judge here was unaware of this alternative.

We therefore remand to the trial court with instructions to the judge that McKendrick does not force him in all circumstances to send the issue of serious impairment to the jury. He should recognize that he may grant a directed verdict for plaintiffs, if the nature of Leo Cassidy’s injury was such as to meet the threshold of serious impairment as a matter of law.