Cassidy v. McGovern

98 Mich. App. 100 (1980) 296 N.W.2d 200 CASSIDY v. McGOVERN Docket No. 44507. Michigan Court of Appeals. Decided June 4, 1980. John D. Hayes, for plaintiff. Carpenter, Fenner, Barney & Hofmann, for defendant. Before: ALLEN, P.J., and M.F. CAVANAGH and C.W. SIMON,[*] JJ. PER CURIAM. Plaintiffs appeal as of right from a March 20, 1979, order denying their motion for a directed verdict on the basis that plaintiff Leo Cassidy's injuries incurred in an automobile accident *102 constituted a serious impairment of body function as a matter of law. This decision was made after trial pursuant to a remand ordered by this Court in Cassidy v McGovern, 86 Mich App 321; 272 NW2d 644 (1978). This Court held that the trial court used an erroneous standard when ruling on plaintiffs' motion for directed verdict because the court believed that he was forced to send the threshold question of tort liability under MCL 500.3135(1); MSA 24.13135(1) to the jury. On remand, the trial court found that there was ample medical testimony and circumstantial evidence to warrant reasonable men to differ as to whether Leo Cassidy truly suffered a serious impairment of body function. The lower court ruled that as a matter of law the injuries did not qualify as a serious impairment of body function. On appeal, plaintiffs argue that a directed verdict in their favor is compelled as a matter of law. The proper test for determining whether a motion for a directed verdict in favor of the plaintiffs should be granted is whether reasonable men could reach different conclusions from the facts taken in the light most favorable to the defendants. Armstrong v LeBlanc, 395 Mich 526, 532; 236 NW2d 419 (1975). In the present case, liability was admitted; the sole issue submitted to the jury being whether serious impairment of body function had occurred. The jury rejected plaintiffs' position and found no serious impairment of body function, showing that reasonable men can differ. We hold that the trial court did not err in denying plaintiffs' motion for directed verdict. From our review of the testimony offered by plaintiffs, *103 we find that reasonable men can reach different conclusions. Thus, the trial court was correct in submitting this issue to the jury. Affirmed. Costs to defendants. M.F. CAVANAGH, P.J. (concurring). I concur in the result reached by my brothers but write separately only to note that this case presents us with the opposite side of the coin on the threshold question. I have concurred in Watkins v City Cab Corp, 97 Mich App 723; 296 NW2d 162 (1980), with the proposition that the vagueness of the phrase "serious impairment of body function" warrants its determination as a matter of law only where the injury squarely falls on either end of the spectrum. Anything in between should be left to the determination of the trier of the fact. This case epitomizes the reason for my persuasion. The injuries here consisted of complete breaks of both bones in the lower right leg to a man whose occupation was that of a farmer. The plaintiff was required to wear four different casts on his leg between the months of August 1975 to March of 1976. Plaintiff was required to utilize crutches and thereafter a walker. Plaintiff was unable to work due to the condition of his leg, and even up to the time of trial testified that his leg had returned to fifty percent of normal use and that he was still experiencing pain and limping. In my opinion, I cannot see how reasonable minds could differ that these injuries constituted a serious impairment of body function. However, differ they did. Both the trial judge and the jury in this instance determined that a serious impairment did not exist. Accordingly, for the reasons stated in Watkins v City Cab Corp, supra, I am constrained to affirm. NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment.