On July 31, 2010 the Michigan Supreme Court in McCormick v Carrier overturned the existing case law interpretation found in Kreiner v Fischer, 471 Mich 109 (2004) of a serious impairment of body function for no fault automobile accident cases. Under MCL 500.3135, there is tort liability for non-economic loss arising out of the ownership, maintenance, or use of a qualifying motor vehicle “for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.”
In my first jury trial since this decision, I used the following jury instruction today (based on McCormick) to explain a Serious impairment of body function:
Serious impairment of body function is a (1) an objectively manifested impairment (observable or perceivable from actual symptoms or conditions) (2) of an important body function (a body function of value, significance, or consequence to the injured person) that (3) affects the person’s general ability to lead his or her normal life (influences some of the plaintiff’s capacity to live in his or her normal manner of living).
Under the first prong, it must be established that the injured person has suffered an objectively manifested impairment of body function. As such the focus is not on the injury itself, but how the injury affected a particular body function. An objectively manifested impairment is an impairment that is evidenced by actual symptoms or conditions that someone other than the injured person would observe or perceive as impairing a body function. In other words, an “objectively manifested” impairment is commonly understood as one observable or perceivable from actual symptoms or conditions.
If there is an objectively manifested impairment of body function, the next question is whether the impaired body function is “important.” The relevant definition of the adjective “important” is ‘marked by or having great value, significance, or consequence’. Whether a body function has great “value,” “significance,” or “consequence” will vary depending on the person. Therefore, this prong is an inherently subjective inquiry that must be decided on a case-by-case basis, because what may seem to be a trivial body function for most people may be subjectively important to some, depending on the relationship of that function to the person’s life. Likewise, if as to that person, the impairment is of an unimportant body function, the person has not suffered an impairment of an important body function. What is important to one is not important to all; a brief impairment may be devastating whereas a near permanent impairment may have little effect.
Finally, if the injured person has suffered an objectively manifested impairment of body function, and that body function is important to that person, then you must determine whether the impairment “affects the person’s general ability to lead his or her normal life.” To “affect” the person’s “general ability” to lead his or her normal life is to influence some of the person’s power or skill, i.e., the person’s capacity, to lead a normal life. In that regards, “to lead his or her normal life” is to have an influence on some of the person’s capacity to live in his or her normal manner of living. This requires a subjective, person and fact specific inquiry that must be decided on a case-by-case basis. Accordingly, this determining the effect or influence that the impairment has had on a plaintiff’s ability to lead a normal life necessarily requires a comparison of the plaintiff’s life before and after the incident.
In that regards the law merely requires that a person’s general ability to lead his or her normal life has been affected, not necessarily destroyed. Thus, the consideration is not only whether the impairment has led the person to completely cease a pre-incident activity or lifestyle element, but also whether, although a person is able to lead his or her pre-incident normal life, the person’s general ability to do so was nonetheless affected. Second, and relatedly, the law only requires that some of the person’s ability to live in his or her normal manner of living has been affected, not that some of the person’s normal manner of living has been affected. While the extent to which a person’s general ability to live his or her normal life is affected by an impairment is undoubtedly related to what the person’s normal manner of living is, there is no quantitative minimum as to the percentage of a person’s normal manner of living that must be affected. Third, and finally, the law does not create an express temporal requirement as to how long an impairment must last in order to have an effect on “the person’s general ability to live his or her normal life.” An impairment does not have to be permanent in order to be a serious impairment of body function.
If you decide that all three elements have been proved, then plaintiff is entitled to recover damages for non-economic loss for pain and suffering, mental anguish, fright and shock, denial of social pleasure and enjoyments, embarrassment, humiliation or mortification, aggravation of a pre-existing ailment or condition that you determine the plaintiff has sustained as a result of that injury.
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