Williams v. McGowan , 135 Mich. App. 457 ( 1984 )

N. J. Kaufman, J.

(dissenting). I respectfully dissent. My reading of Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982), is that it does not apply to cases where there is a factual dispute which is material to the determination of whether there is a serious impairment of body function. In cases such as this, where the extent of plaintiffs injuries are disputed, the question of whether there has been a serious impairment of body function should be up to the trier of fact, unless no reasonable jury could view plaintiffs impairment as serious. Abraham v Jackson, 102 Mich App 567, 570; 302 NW2d 235 (1980), lv den 413 Mich 905 (1982). A grant of summary judgment is proper only when there are no material issues of fact, and this Court is liberal in determining whether a genuine issue of fact exists. Reeder v Hammond, 125 Mich App 223, 227; 336 NW2d 3 (1983).

In this case, plaintiff was treated for three years by V. P. Laursen, a chiropractor, who reported on October 10, 1980, eight years after the accident,

"It appears that an originally acute condition has gradually acquired all the symptoms of being chronic. * * * She was treated over a period of approximately eight months with spinal manipulation and physical therapy, however, without obtaining permanent relief. * * * She was last seen January 3, 1979, when she was told that no further improvement could be expected. Medication, spinal manipulation and physical therapy while it [sic] affords relief has not produced a cure. * * * She can be expected to experience exacerbations and remissions of symptoms in the future in direct proportion to the amount of stress to which she is exposed. * * * Perhaps vocational rehabilitation should be considered. Prognosis guarded.”

Plaintiff also stated in her deposition that her knees have been scarred, she has been plagued by eyelid infections, she was unable to return to work for six months, and when she did return it was on "light duty” status, that she had to wear a cervical collar for six months, and that for more than six years after the accident she was unable to participate in everyday activities such as bowling, swimming, dancing, housecleaning, sewing, pottery and ceramic art work. A jury could find on the basis of this evidence that plaintiffs injuries amounted to a serious impairment of body function.

Plaintiff may have difficulty proving that these injuries were attributable to the automobile accident; however, that does not mean that she should not have her day in court. See Brownell v Brown, 407 Mich 128; 283 NW2d 502 (1979).