Kelleher v. Kuchta

359 N.W.2d 224, 138 Mich. App. 45

• Court: Michigan Court of Appeals
• Decided: October 1, 1984
• Docket: Docket 71031
• Status: Published

Opinions

Per Curiam.

Plaintiffs appeal from an order of partial summary judgment entered in the Livingston County Circuit Court. The trial court determined that, as a matter of law, Matthew Kelleher had not sustained injuries which constituted a serious impairment of a body function. This case arises as a result of the Supreme Court’s ruling in Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982), that where there exists no factual dispute regarding the nature and extent of a plaintiff’s injuries, the trial court shall rule as a matter of law whether there has been a “serious impairment of body function”. MCL 500.3135; MSA 24.13135.

The facts of this case are not in dispute. At the time of the accident, Matthew was a normal seven-year-old child. He did suffer, however, from a mild problem with stuttering and was seeing a speech therapist at his elementary school for some 20 to 30 minutes each week. After the accident, the stuttering became more acute and required more intensive therapy. At oral argument, it was conceded that Matthew is making good progress with his speech problem and that his prognosis is excellent.

Unless this Court is going to end up simply "second guessing” the trial courts in these Cassidy cases, we must adopt some standard for appellate review which accords some deference to the trial judge who actually saw the evidence unfold, at least until our Supreme Court provides us with more definitive guidance. We believe that an appropriate standard is that unless the trial court’s ruling was clearly erroneous we should affirm the findings of the trial court. In this case, we do not find that the trial court’s ruling was clearly erroneous.

Affirmed.