Nelson v. Myers
Nelson v. Myers
Opinion of the Court
This case comes to this Court as an appeal from a grant of summary judgment against plaintiff on her third-party claim against defendant arising out of an automobile accident under the Michigan no-fault act, MCL 500.3135; MSA 24.13135. The trial judge dismissed plaintiff’s case, finding as a matter of law that plaintiff’s facial scar did not constitute a permanent serious disfigurement. Plaintiff appeals, arguing that it does constitute a permanent serious disfigurement or that, at the least, there is a fact question as to its seriousness, and that the threshold determination in disfigurement cases cannot and should not be left to the trial bench.
Presented for this Court’s factual review were the transcript of the hearing on the motion, the motion papers and supporting documents, and two photographs which were made a part of the record by the trial judge.
In Cassidy v McGovern, 415 Mich 483, 502; 330 NW2d 22 (1982), the Michigan Supreme Court held that, where there is no material factual dispute as to the nature and extent of a plaintiff’s injuries, the threshold question of the existence of a serious impairment of body function is a question of statutory construction to be resolved by the court as a matter of law.
"Whether an injury amounts to a permanent serious disfigurement depends on its physical characteristics rather than its effect on the plaintiff’s ability to live a normal life.” Kosack, supra, p 491.
Using this standard, and reviewing the record and the photographs, we are unable to say that the physical characteristics of the scar under plaintiff’s left eye
Plaintiff expresses a policy fear that leaving these sorts of evaluations to the overburdened trial courts will result in injustices, since they may
Affirmed.
The scar is approximately three centimeters long, is slightly depressed and slightly lighter than the surrounding skin.
.We do not believe that the seriousness of a scar is susceptible of being proved or disproved by medical expertise, but rather is a matter of the common knowledge and experience of the trial bench in the first instance and, if the case goes to it, the jury.
We note that, even if we did think so little of the trial bench as to accept this premise, the same danger exists in serious impairment cases. There is some inherent contradiction in terming any human opinion, judicial or otherwise "objective”. Of the three no-fault threshold criteria, even death is arguable, as we see in the medical-legal dilemma over “removing life support”. However, just as the medical profession must set its own standards and make hard decisions on a case-by-case basis, so must we.
Dissenting Opinion
(dissenting). In my opinion, based on the record before us, the plaintiff did satisfy the threshold question of the existence of permanent serious disfigurement. Having done so, there is a fact question to determine the seriousness of the disfigurement.
I would reverse.
Reference
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