Pullen v. Warrick

J. T. Kallman, J.

(dissenting). I respectfully dissent from that portion of the majority opinion which holds that plaintiff was not seriously impaired within the meaning of MCL 500.3135; MSA 24.13135.

The question in the present case, whether plaintiff has suffered a serious impairment of body function, is no longer one to be determined by the jury. In Cassidy v McGovern, 415 Mich 483, 502; 330 NW2d 22 (1982), the Supreme Court held that *367when there is no factual dispute as to the nature and extent of a plaintiffs injuries the question of serious impairment of body function shall be decided as a matter of law by the court. I cannot conclude, as a matter of law, that plaintiff has not suffered a serious impairment of body function within the meaning of MCL 500.3135; MSA 24.13135.

Plaintiff has been treated for the injuries to her ankles since August 1, 1980. She experiences pain and swelling in her left ankle after jogging, cycling or walking. These activities cause her ankles to twist. Sustained standing while doing household chores also causes her ankles to swell. Dr. Salerno has prescribed use of orthopedic shoes and utilization of an air cast during periods of prolonged weight bearing, walking or running. It is Dr. Salerno’s opinion that plaintiff’s ability to walk, run, or endure weight-bearing has been materially impaired. The majority states that plaintiff must structure her activities more carefully to avoid aggravating the weakness in her ankle. Yet, the majority concludes that plaintiff’s impairment was not sufficiently serious to meet the threshold requirement. I do not believe that the Supreme Court, by allocating the determination of the seriousness of an injury to the courts, intended the courts to make value judgments such as the one made in the present case. Under Cassidy, the test is an objective one which looks to the effect of an injury on the person’s general ability to live that person’s normal life. Cassidy, supra, p 505. In the present case, plaintiff’s injuries have affected her ability to live her normal life. Persons who do not have plaintiffs injuries are able to walk, run, and do household chores without swelling, pain and twisting ankles.

While I agree with the majority that the thresh*368old requirements of MCL 500.3135; MSA 24.13135 were intended to erect significant obstacles to tort actions for noneconomic loss, I do not believe that they were intended to bar recovery for injuries such as those sustained by plaintiff in the present case. The no-fault act does not define the phrase "serious impairment of body function”. As the majority points out, walking is an important body function. Cassidy, p 505. Here, plaintiff’s ability to walk, run, jog and stand have been impaired. These are all important body functions. The impairment of the body function must also be "serious”. The word "serious” implies a great degree of impairment. However, it is clear that the injury may be sufficiently serious to meet the threshold requirement without being permanent. Cassidy, p 505. The Legislature intended that individuals with a serious impairment of a body function, whether it be for three hours or three years, be compensated for the impairment. In the present case, I conclude that plaintiff’s injuries, for which she has been treated since 1980, are serious.

I find that plaintiff has an objectively manifested injury which reasonable persons could conclude has seriously impaired an important body function. Therefore, I would reverse the summary judgment and remand for trial.