Kelleher v. Kuchta
Kelleher v. Kuchta
Concurring Opinion
(concurring). I concur in the result reached by the majority but am not completely satisfied that the “clearly erroneous” standard of review is appropriate in serious impair
Other panels of this Court have recently considered post-Cassidy serious impairment cases. In Braden v Lee, 133 Mich App 215; 348 NW2d 63 (1984), and in McDonald v Oberlin, 127 Mich App 73; 338 NW2d 725 (1983), this Court, affirming grants of summary judgment, simply determined "as a matter of law” that the plaintiffs’ injuries failed to meet the minimum threshold requirements for recovery.
Applying the above standard to the facts of the instant case, I would hold that reasonable minds could not differ on whether Matthew Kelleher’s
In Tuttle, the Michigan Supreme Court imported the clearly erroneous standard from the United States Supreme Court language in United States v United States Gypsum Co, 333 US 364, 395; 68 S Ct 525, 542; 92 L Ed 746, 766 (1948).
In Williams v Payne, 131 Mich App 403, 412; 346 NW2d 564 (1984), another panel of this Court distinguished permanent and serious disfigurement cases from serious impairment of body function cases, observing that in serious impairment cases this Court is in as good a position as the trial court to judge verbal descriptions of an impairment. In "disfigurement cases based on physical observation, however, the appellate courts must grant great deference to the observations of the trial court on what is, in effect, a factual conclusion about the severity of an injury”. The Williams Court cited GCR 1963, 517.1 and held that the trial court is “to' make adequate findings on the record * * * [to] describe the injuries and [to] reach a legal conclusion on whether they meet the threshold”. 131 Mich App 412. It concluded by applying an abuse of discretion standard of
Opinion of the Court
Plaintiffs appeal from an order of partial summary judgment entered in the Livingston County Circuit Court. The trial court determined that, as a matter of law, Matthew Kelleher
The facts of this case are not in dispute. At the time of the accident, Matthew was a normal seven-year-old child. He did suffer, however, from a mild problem with stuttering and was seeing a speech therapist at his elementary school for some 20 to 30 minutes each week. After the accident, the stuttering became more acute and required more intensive therapy. At oral argument, it was conceded that Matthew is making good progress with his speech problem and that his prognosis is excellent.
Unless this Court is going to end up simply "second guessing” the trial courts in these Cassidy cases, we must adopt some standard for appellate review which accords some deference to the trial judge who actually saw the evidence unfold, at least until our Supreme Court provides us with more definitive guidance. We believe that an appropriate standard is that unless the trial court’s ruling was clearly erroneous we should affirm the findings of the trial court. In this case, we do not find that the trial court’s ruling was clearly erroneous.
Affirmed.
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