Gavino R Piccione v. Lyle a Gillette

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MARIO PICCIONE, as next friend of GAVINO R. FOR PUBLICATION
PICCIONE, a minor, January 17, 2019
9:05 a.m.
Plaintiff-Appellant,
v No. 342826
Kent Circuit Court
LYLE A. GILLETTE and PLUMBER’S LC No. 17-002385-NI
PORTABLE TOILET SERVICE,
Defendants-Appellees.
Before: MARKEY, P.J., and M. J. KELLY and SWARTZLE, JJ.
M. J. KELLY, J.
In this third-party automobile negligence claim, Gavino Piccione, by and through his next
friend, plaintiff, Mario Piccione, appeals as of right the trial court order granting summary
disposition in favor of defendants Lyle A. Gillette and Plumber’s Portable Toilet Service. For
the reasons set forth in this opinion, we reverse the court’s order and remand for further
proceedings.
I. BASIC FACTS
This case arises out of a motor vehicle accident that occurred on December 5, 2016. It is
undisputed that Gavino, who was three years old at the time, sustained injuries in the accident
and was transported by ambulance to the hospital. Two days later he returned because of pain in
his left shoulder when he tried to lift his arm over his head. A CT scan showed that Gavino had
an “[o]blique fracture of the mid diaphysis of the left clavicle.” He was prescribed a sling, use of
ibuprofen and ice as needed for discomfort, and follow up with his primary care physician for a
checkup in a week’s time. Thereafter, Gavino was also prescribed a clavicle strap. His parents
testified to how Gavino’s life differed after the injury, but they also testified that after three or
four months, he was physically recovered from his injury and was able to resume his normal life.
Defendants moved for summary disposition under MCR 2.116(C)(10), arguing that
Gavino’s injury did not constitute a serious impairment of a body function because his injury
required minimal treatment, it only minimally restricted Gavino’s lifestyle for a short period of
time, and he is presently not physically restricted because of his injury. At oral argument,
defendants clarified that they were specifically arguing that plaintiff could not demonstrate that
Gavino’s injury affected his general ability to lead his normal life, again because after a three or
four month period, he was no longer physically restricted.
The trial court noted that “certainly when Gavino was in the sling he missed, you know,
three to four-months of his normal life,” and it added that it was “obvious that a sling is going to
slow down anyone that wears it for four-months.” Yet, the court concluded that because he has
now returned to “his probably very happy normal life as a four-year old,” his injury did not raise
to the level of a serious impairment of a body function. The court concluded that Gavino’s
normal life was “running around and playing and focusing on his toys and other kids that might
be around,” and, given that he was able to resume almost entirely his pre-accident normal life,
the injury did not constitute a serious impairment of body function. Accordingly, the court
granted summary disposition in favor of defendants.
This appeal follows.
II. SUMMARY DISPOSITION
A. STANDARD OF REVIEW
Plaintiff argues that the trial court erred by granting summary disposition. We review de
novo a trial court’s decision on a motion for summary disposition. Barnard Mfg Co, Inc v Gates
Performance Engineering, Inc, 285 Mich. App. 362, 369; 775 NW2d 618 (2009). Under MCR
2.116(C)(10), summary disposition is appropriate “if there is no genuine issue regarding any
material fact and the moving party is entitled to judgment as a matter of law.” Patrick v
Turkelson, 322 Mich. App. 595, 605; 913 NW2d 369 (2018) (quotation marks and citation
omitted). When considering such a motion, the reviewing court must review the “pleadings,
admissions, and other evidence submitted by the parties in the light most favorable to the
nonmoving party.” Latham v Barton Malow Co, 480 Mich. 105, 111; 746 NW2d 868 (2008). “A
genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to
the opposing party, leaves open an issue upon which reasonable minds might differ.” West v
Gen Motors Corp, 469 Mich. 177, 183; 665 NW2d 468 (2003). “Courts are liberal in finding a
factual dispute sufficient to withstand summary disposition.” Patrick, 322 Mich. App. at 605
(quotation marks and citation omitted). A court may not “make findings of fact; if the evidence
before it is conflicting, summary disposition is improper.” Id. at 605-606 (quotation marks and
citation omitted).
B. ANALYSIS
Under Michigan’s no-fault act, MCL 500.3101 et seq., tort liability is limited.
McCormick v Carrier, 487 Mich. 180, 189; 795 NW2d 517 (2010). However, “[a] person
remains subject to tort liability 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.” MCL 500.3135(1). Serious
impairment of a body function “means an objectively manifested impairment of an important
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body function that affects the person’s general ability to lead his or her normal life.” MCL
500.3135(5).
To prove a serious impairment of a body function, a plaintiff must establish:
(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). [McCormick,
487 Mich. at 215.]
In making that determination, “there is no bright-line rule or checklist to follow[.]” Chouman v
Home Owners Ins Co, 293 Mich. App. 434, 441; 810 NW2d 88 (2011). Instead, “[w]hether
someone has suffered a serious impairment is ‘inherently fact- and circumstance-specific and
[the analysis] must be conducted on a case-by-case basis.’ ” Id., quoting McCormick, 487 Mich
at 215 (brackets in original).
In this case, the only question is whether the fracture to Gavino’s clavicle affected his
general ability to lead his normal life. In Patrick, this Court reiterated that “an impairment to an
important body function affects a person’s general ability to lead a normal life if it has ‘an
influence on some of the person’s capacity to live in his or her normal manner of living.’ ”
Patrick, 322 Mich. App. at 607, quoting McCormick, 487 Mich. at 215. Because no two people
are alike, “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 . . . .”
McCormick, 487 Mich. at 202-203. In other words, the inquiry is subjective. Patrick, 322 Mich
App at 607. In order to show that the impaired person’s ability to lead his or her normal life has
been affected, we compare his or her life before and after the injury. Nelson v Dubose, 291 Mich
App 496, 499; 806 NW2d 333 (2011). Important to making this comparison is the fact that “the
statute merely requires that a person’s general ability to lead his or her normal life has been
affected, not destroyed.” McCormick, 487 Mich. at 202. Therefore, “courts should consider not
only whether the impairment has led the person to completely cease a pre-incident activity or life
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.” Id. Additionally, “the statute
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 itself been affected.”
Id. Lastly, as our Supreme Court explained in McCormick, “[w]hile the Legislature required that
a ‘serious disfigurement’ be ‘permanent,’ it did not impose the same restriction on a ‘serious
impairment of body function.’ ” Id. at 203, quoting MCL 500.3135(1). Thus, there is no
“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.” Id. (quotation marks omitted).
In this case, Gavino was a three year old child at the time he suffered the impairment.
His parents testified that as a result of the impairment he was unable to go to school for
approximately two weeks, and when he did return to school he was unable to use the play
equipment. Additionally, they testified that after the accident they had to help him go to the
bathroom, including by carrying him to the bathroom. His father testified that before the
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accident, Gavino could dress himself, but afterward he could not. There was also testimony that
Gavino needed help going up and down stairs because his balance was negatively affected by his
impairment. Further, at times, his ability to sleep without pain was also compromised; his father
testified that on occasion Gavino would wake up complaining about shoulder pain. Finally, the
record also reflects that before the accident Gavino liked to color, but after the accident he did
not want to do so. Further, before the accident he rode his bicycle, played soccer, and played
with his scooter in the basement, but after he was injured he was unable to do so. His mother
testified that, generally, after the accident, Gavino was “cautious” about physical activities.
Viewing the above facts in the light most favorable to plaintiff, a jury could conclude that
Gavino’s general ability to lead his normal life was affected by the impairment.
Still, defendants direct our attention to facts in the record showing that Gavino’s
impairment did not last the entire three to four month period he was in a sling/clavicle strap, and
there is also evidence that Gavino’s inability to go to school was only limited for two weeks.
Although certainly relevant, that evidence suggests that there is a factual conflict with regard to
the nature and extent of his injury. In such cases, summary disposition is not appropriate. See
Nelson, 291 Mich. App. at 499 (“The question whether there is a serious impairment of body
function is a question of law if there is no factual dispute about the injuries, or if any factual
dispute is immaterial to the question.”).
Further, on appeal, defendants contend that Gavino’s impairment eventually healed and
he was able to return, unaffected, to his normal life. The trial court agreed, finding that although
there was evidence that Gavino’s general ability to lead his normal life was affected by the
fracture to his clavicle, he was presently unaffected by the impairment and so he could not
satisfy the third prong of the McCormick test. Yet, a person’s ability to lead his or her general
life does not have to be destroyed in order to constitute a threshold injury; it only needs to have
been affected, and here the evidence allows for an inference that Gavino’s general ability to lead
his normal life was affected even though it was not completely destroyed. See McCormick, 487
Mich. at 202. Moreover, a serious impairment of body function—unlike a permanent serious
disfigurement—does not have to be permanent, so the fact that the impairment to Gavino’s
important body function only lasted three or four months has no bearing on the question at hand.
See id. Therefore, given that there is a genuine issue of material fact with regard to the third
prong of the McCormick test, and given that the trial court erred in its application of the statute,
summary disposition was not appropriate.
Reversed and remanded for further proceedings. Plaintiff may tax costs as the prevailing
party. MCR 7.219(A). We do not retain jurisdiction.
/s/ Michael J. Kelly
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