Fortunately, most children can recover from injuries quickly. However, under Michigan law this can work against them because insurance companies try to use this fact as a way to escape having to pay compensation. As explained in more detail below, to obtain compensation for pain and suffering, a person (including a child), must show they sustained a threshold injury due to their injuries from the car accident.
In most situations, this means demonstrating the plaintiff has suffered a “serious impairment of body function.” This terms and what it entails under Michigan car accident negligence law was explored in Piccione v. Gillette, 327 Mich App 16; 932 N.W.2d 197 (2019).
Facts of the Case:
The plaintiff was a three-year old child involved in a car accident. A few days after the crash, a CT scan revelated he had an “[o]blique fracture of the mid diaphysis of the left clavicle.” He was given a sling and his parents were told to use ibuprofen and ice as needed. Later the child’s pediatrician prescribed a clavicle strap.
The child’s parents testified he was unable to go to school for approximately two weeks and when he did return he was unable to use the play equipment. They also testified he needed help to go to the bathroom, dressing, going up and down the stairs and he had trouble sleeping. The child was also unable to engage in normal recreational activities such as coloring, riding his bicycle, his scooter and playing soccer. However, after three to four months, he was physically recovered from his injury and fully able to resume his normal life.
The plaintiff’s parents filed a lawsuit against the at-fault driver for their son’s pain and suffering. The defendant filed a motion to dismiss the case, arguing the plaintiff did not sustain a “serious impairment of body function” as defined under MCL 500.3135. The trial court agreed, and dismissed the plaintiff’s case for pain and suffering.
Relying upon the Michigan Supreme Court case McCormick v. Carrier, 487 Mich. 180; 795 N.W.2d 517 (2010), the Court of Appeals reversed the trial court and allowed the plaintiff to proceed with his claim for damages against the defendant.
The Court began by looking at the MCL 500.3135 and the law for obtaining pain and suffering compensation following a motor vehicle accident in Michigan.Under Michigan’s no-fault act, MCL 500.3101 et seq., tort liability is limited. McCormick v. Carrier, 487 Mich. 180, 189; 795 N.W.2d 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.”
The Court then referred to the McCormick decision and what a plaintiff needs to establish to prove a serious impairment of body function:
(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, 795 N.W.2d 517.]
The Court did not really discuss whether the plaintiff established an objective manifestation impairment. Given the child had fracture of his clavicle that was confirmed by a CT scan, it was clear the plaintiff met this element.
The Court also acknowledged that the child’s clavicle fracture involved an “impairment to Gavino’s important body function.”
The Court next spent much of the opinion discussing how the plaintiff presented sufficient evidence to support a finding that his injuries affected his general ability to lead his normal life. In making this ruling, the Court stated:
To show that the impaired person’s ability to lead his or her normal life has been affected, we compare the person’s life before and after the injury. Nelson v. Dubose, 291 Mich. App. 496, 499; 806 N.W.2d 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.”
In addition, the Court discussed how under Michigan law, 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 itself has been affected. Last, there is no “express temporal requirement” for how long an impairment has to last to have an effect on the person’s general ability to live his normal life. McCormick, 487 Mich. at 203, 795 N.W.2d 517.
In applying these principles, the Court found it important the child was unable to go to school for approximately two weeks. When he did return, he was unable to use the play equipment. Further, he needed help using the bathroom, dressing and going up and down the stairs because his balance was affected. The Court also mentioned:
The record also reflects that before the accident Gavino liked to color, but after the accident he did not want to do so. And 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, Gavino was “cautious” about physical activities after the accident.
In reversing the trial court, the Court ruled that a jury could conclude the plaintiff’s general ability to lead his normal life was affected by the impairments from the car accident.
Result of the Case:
This case is very helpful for injured plaintiffs who have had scarring or other injuries to their appearance.
This case was important for a number of reasons. First, it establishes that even children who recover quickly are entitled to receive pain and suffering compensation after a car crash.
Second, it reiterated that satisfying the threshold standard under McCormick does not require a permanent injury. Even restrictions and impairments that only last a few months or less can qualify a person for compensation under Michigan’s no-fault law.