In Smart v. Kowalesky, unpublished opinion per curiam of the Court of Appeals decided October 25, 2011 (Docket No. 298395), the Court of Appeals re-versed a trial court’s dismissal of the Plaintiff’s third party tort case arising out of an automobile accident. The case involved the issue of whether the Plain-tiff suffered a serious impairment of body function under MCL 500.3135.
In this case, plaintiff sustained injuries in 2007 when the vehicle he was driving collided with a vehicle driven by Frank Kowalesky and owned by Judy Lee Kowalesky. The Plain-tiff suffered a broken foot in Michigan car accident.
The Plaintiff was off work for 90 days after the accident. His foot was in a cast for three to four weeks, and then in an orthopedic boot. Although he returned to custodial work without restrictions, his ankle remained stiff and difficult to bend. He had a permanent numb feeling along his arch and toward the front of the bottom of his foot. The pain in his left foot was “always there.”
He took extra-strength Aleve and Tylenol to man-age the pain. Fusion surgery was an option if plaintiff’s pain became intolerable. The Plaintiff testified how the injury impacted his life at home. Although he was able to perform many of activities he did prior to the accident, he did them with pain, much greater difficulty, less frequency, and in some case not at all.
Plaintiff’s treating physician imposed no restrictions on plaintiff’s home or recreational activities as of July 2, 2007. However, plaintiff there-after began to develop foot deformities and arthritis.
The Defendants argued that the Plaintiff’s injuries did not rise to the level of a serious impairment of body as set forth in Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004). The trial court agreed and dismissed the case.
Three months later, the Michigan Supreme Court decided McCormick v Carrier, 487 Mich 180; 795 NW2d 517 (2010) which reversed Kreiner. On Appeal, the Court held that the trial court’s decision was based on case law that had been over-ruled. For that reason, the Court vacated the trial court’s order granting summary disposition in favor of defendants and remanded the case to the trial court for further proceedings in light of the McCormick decision.