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Can a ‘hockey-dad’ recover for pain and suffering after a car accident in Genesee County?

February 23, 2017 by Steven M. Gursten

An auto accident victim’s ‘statement’ minimizing what he can’t do after an automobile accident does not outweigh the evidence suggesting ‘serious impairment of body function’ under Michigan’s auto law

The biggest problem with Michigan’s auto accident law is that it tends to punish those people who try to put on a brave face and downplay how much  injuries from a car accident have affected their life, while rewarding the people who exaggerate injuries. The problem with a threshold test is that the people who try to do things – often with pain and great difficulty – get punished. People who give up and embellish their injuries and resulting lifestyle impairments get rewarded.

Trying to get on with your life usually ends up with the insurance company that is defending the negligent driver who hit you and caused your motor vehicle accident trying to use it against you, suggesting that your activity levels prove you’re undeserving of pain and suffering compensation.

That’s the danger with an auto law in Michigan that emphasizes impairment while minimizing pain.  Under Michigan’s No Fault Law, an automobile accident victim can sue for pain and suffering compensation, i.e., “non-economic loss” damages, only if he or she has suffered a “serious impairment of body function,” which is defined as “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.” (MCL 500.3135(1) and (5))

Good people get punished under Michigan law.

This problem was on prominent display in a recent Michigan Court of Appeals ruling.  While the end result in this case allowed the claim to continue, the lesson for auto accident lawyers and accident victims is that it could easily have gone the other way as well.  If the record of evidence hadn’t created enough of a question of fact to allow the case to proceed, it almost certainly would have been dismissed.    That’s how dangerous it is when an auto accident victim tries to put on a brave face and downplay his or her injuries.

In Hall v. Ball, Jonathan Hall was injured after being struck by Shawn Bell who was driving a Charter Township of Genesee police cruiser.

The trial dismissed Hall’s case, because of

“[O]ne statement by [Mr. Hall] that at present there is little he technically is incapable of doing that he could do prior to the accident and doing so simply causes him pain.”

The Court of Appeals, fortunately, reversed the trial court ruling.

The appellate court reasoned:

  • “This is one statement and it is taken out of context”; and,
  • “[A]s a general matter, parties are entitled to judgments and decisions based on the evidence, notwithstanding any expression of opinion they may have made inconsistent with that evidence to their own detriment.”

In terms of evidence, the judges reasoned there was enough to justify having a jury decide whether Mr. Hall has suffered a “serious impairment of body function,” entitling him to recover “non-economic loss” damages for his automobile-accident-related injuries:

“[Hall] suffered the requisite level of injury for this case to proceed … The record proves that plaintiff in fact refrains from some activities he enjoyed prior to the accident, ranging from playing hockey to playing with his child, so we cannot conclude that his life was unaffected. Plaintiff also complained that he developed debilitating, severe floaters in his vision, which are hardly subjective; such phenomena are well known to be caused by physically detectable objects, usually detached cells from the inside of the eye, literally floating through the vitreous in the eye. More importantly, plaintiff also suffered from serious muscle spasms in his lower back, which clearly were objectively manifested.”

Jury will decide whether driver of Genesee Township police cruiser was ‘grossly negligent’

In addition to trying to get Mr. Hall’s lawsuit dismissed by taking his statement out of taken of context, the lawyer for Mr. Ball and his employer, the Charter Township of Genesee, took the position that governmental immunity prohibited the case from proceeding.  The governmental immunity issue in Michigan is another dangerous landmine for auto accident lawyers that I’ve written about before on the pages of this blog.

The Court of Appeals, however, was not persuaded in this case, explaining that it was “express[ing] no opinion, and none should be implied, as to whether Ball actually engaged in such egregious conduct” as to constitute “gross negligence” and, thus, give rise to the governmental employee exception to governmental immunity.

But the court did say it was “unambiguously a critical question of fact” for a jury – not a trial judge on a motion to dismiss the case – to decide:

“Ball claimed that he believed [Hall] was pulling off the road to the right, whereas [Hall] claimed he had properly activated his left turn signal. … Had Ball in fact attempted to pass a car on the left, on a two-lane road, while that car was obviously turning left, we cannot conceive of how defendants have the chutzpah to contend that Ball’s conduct was anything but so blatantly reckless as to “demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a). This would not be not mere incompetent driving; it would border on intentionally causing a crash. Of course, the factual question must be resolved by the trier of fact.”

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