Farquhar v. Owens

V. J. Brennan, J.

We hold that the proofs did not indicate a serious impairment of a body function and we affirm the trial court’s entry of judgment of no cause of action and the denial of plaintiff Deborah Farquhar’s motion for judgment notwithstanding the verdict._

*211In this case, the injury suffered by plaintiff Deborah Farquhar was a broken arm, and, from the reports, that was the only lingering injury. I would hardly classify that as a "catastrophic” injury.

In Wolkow v Eubank, 139 Mich App 1; 360 NW2d 320 (1984), the plaintiff received objectively manifested injuries, i.e., broken bones. The fractures were of the left second rib and the left clavicle. The rib healed without treatment, though the clavical fracture required that plaintiff wear a clavicle strap for SV2 months. During this SV2 month period, the plaintiff complained that the strap was "very distressful” and interfered with her sleep. After the strap was removed, plaintiff was able to do some household tasks but was still unable to raise her left arm over her head or straight out from her shoulder. Dressing and showering were painful. However, after seven months, plaintiff was almost fully recovered. Plaintff was unable to drive for a five-month period. Plaintiffs doctor advised her not to work or drive for at least three months after the accident. At the time of appeal, plaintiff still asserted that she suffered from headaches and neckaches. This Court found no serious impairment of body function.

See also Sherrell v Bugaski, 140 Mich App 708, 711; 364 NW2d 684 (1984), where the Court found no serious impairment of a body function. There, the Court agreed that the plaintiff sustained a back injury that had objective manifestations, noting that the "x-rays show the absence of a normal spinal curvature and that the injury does impair important body functions. Plaintiff cannot sit for long periods and finds running or jogging painful.” The Court could not find this "serious” within the meaning of the statute because the injury had not caused a significant impact on the plaintiff’s abil*212ity to have a normal life. She could walk, drive, and work and her doctors had never restricted her social activities or work.

"When considering the seriousness of the injury, the court should be mindful of the other threshold requirements for recovery of noneconomic loss (i.e., death and permanent serious disfigurement), and the legislative reasons for limiting the recovery for noneconomic losses, namely to prevent overcompensation for minor injuries and to reduce litigation in automobile accident cases.” Routley v Dault, 140 Mich App 190, 193; 363 NW2d 450 (1984).

In my opinion, the trial court could have concluded as a matter of law that plaintiff did not suffer a serious impairment of an important body function. Although there was a dispute as to the duration and seriousness of the impairment, under Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982), I do not believe that this dispute was material to the determination of serious impairment and whether plaintiff’s injury met the statutory threshold question. Although it was error for the court to send the question of serious impairment to the jury, the error here was harmless, because the jury reached the same conclusion as the court should have reached as a matter of law.

We do agree with Judge Shepherd as to his conclusion that the trial court did not abuse its discretion by allowing the cross-examination of plaintiff covering her alleged drinking problem; however, since retrial is not necessary here, we decline to comment on the manner in which a trial court must weigh the testimony under MRE 403. We also find that counsels’ arguments, while irrelevant, do not mandate a new trial.

Affirmed.

*213C. Jobes, J., concurred in result only.