Harris v. Lemicex

*155M. Warshawsky, J.

(dissenting). I must respectfully dissent. I agree with the majority’s conclusion that the determination question is whether the impairment of plaintiff’s ability to move her back was serious enough to impact on her general ability to lead a normal life. I disagree, however, that this threshold has been met, even marginally, as a matter of law. A court must apply an objective standard in making this determination. Braden v Lee, 133 Mich App 215, 218; 348 NW2d 63 (1984).

In concluding that the trial court erred in granting summary judgment for defendants, the majority obviously places great weight on plaintiff’s affidavit. The medical reports submitted do not really discuss the effects of plaintiff’s injuries on her lifestyle, save that Dr. Leonard notes the possibility of a future need to wear a supportive garment and the possibility that plaintiff may have to be restricted from heavy lifting at work. In addition to this information, however, the trial court also had before it plaintiff’s deposition, which was not submitted to this Court despite the requirement that an appellant file a full record on appeal. MCR 7.210. According to defendants’ brief, plaintiff testified in her deposition that she suffers dizziness and neck pain if she stands too long, and lower-back pain after bending too long. Plaintiff also complained that her eyes and stomach are affected and her lifting ability impaired. Unlike the trial court, I cannot ascertain if this sums up the extent of plaintiff’s impairment. The availability to the trial court of complete information thus becomes important in a case where this Court finds only a "marginal” threshold showing of a serious impairment of a body function.

The majority uses a standard of review giving the benefit of any reasonable doubt to the opposing *156party. Even assuming that this standard is the same as viewing the evidence before the trial court in a: light most favorable to the opposing party, Sherrell v Bugaski, 140 Mich App 708, 711; 364 NW2d 684 (1984), I am unable to find that plaintiffs injuries seriously impaired her general ability to lead a normal life. I would affirm.