Michigan Court of Appeals; Docket No. 340046
Judges Ronayne Krause, Gleicher, and Letica; Unanimous per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 - Present) [§3135(5)**]
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(5)**]
General / Miscellaneous
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals held that summary disposition was improperly granted below because: (1) Plaintiffs Joseph (“Joseph”) and Julie (“Julie”) Beattie presented sufficient evidence to create a question of fact regarding whether she suffered an objectively manifested impairment under McCormick; and (2) the plaintiff presented sufficient evidence to create a question of fact regarding whether her claimed injuries affected her general ability to lead her normal life. The Court further held that summary disposition was properly granted below regarding BC Lanes’ negligence in furnishing alcohol to Defendant Joseph Anderson (“Anderson”). The Court so held because the harm that occurred was not foreseeable by BC Lanes.
Julie and Joseph were injured during a road rage incident with Anderson that caused their Jeep to rollover onto its side. Anderson had been served alcohol by BC Lanes prior to the accident but had limited interaction with BC Lanes. During the incident, Julie’s right hand became caught between the roll bar of the Jeep and the Jeep’s top. The Court noted that “the claim of impairment underlying this case primarily pertains to [plaintiff’s] little finger of her right hand.” Following the accident, Julie was seen at an emergency room and had x-rays taken of her right hand and wrist. The x-rays “did not show any fractures or dislocations.” Julie eventually underwent an MRI scan, which showed “slight soft tissue thickening on the surface of her little finger.” She was then diagnosed with a “soft tissue injury to her right hand, with limited range of motion in some of her right fingers.” Julie was referred to an orthopedic surgeon, who also noted “a limited range of motion in [plaintiff’s] right ring and little fingers.” Julie underwent “a course of physical therapy,” after which she “achieved increased ring and small finger mobility (but still very limited in small finger), and slight improvement in functional use of right hand.” An independent medical exam “concluded that [plaintiff] suffered from posttraumatic right ring and fifth finger PIP joint arthrofibrosis.” Julie was later seen by another doctor, “who concluded that [she] sustained a right hand crush injury with resultant contractures PIP joint small finger with likely additional tendon adhesions between bone and extensor tendon as well as PIP joint contracture.” Julie later underwent a second independent medical examination that was conducted by Dr. Patrick Ronan. He determined that Plaintiff “sustained a bone bruise and soft tissue injury over the ulnar aspect of the dorsal hand related to the motor vehicle accident.” Dr. Ronan further “observed atrophic changes to [plaintiff’s] little finger that attributed the atrophy to disease.” Another doctor, however, concluded that Plaintiff “was engaging in symptom magnification by acting as if her right little finger would not bend when, in fact, it will.” The examining doctor further “opined that it was unnecessary for [plaintiff] to be wearing an elastic sleeve on her finger and that she should be using her finger normally.” Contrary to the foregoing, Julie testified during her deposition that “I cannot fully bend my finger all the way. It does not bend at my knuckle. I cannot make a fist.” Defendants argued that Julie’s injuries were not objectively manifested, and that she was “instead relying solely on subjective symptoms.”
In holding that Plaintiff presented sufficient evidence to create a question of fact regarding whether her claimed impairments were objectively manifested, the Court reasoned that Plaintiffs “provided medical records from [her] physicians showing that the limited range of motion in her right little finger was observed by her doctor and occupational therapist.” The Court further noted that plaintiff’s physicians “observed, and thus seemingly confirmed, her impairment.” The Court then noted that “to the extent that the doctors who performed the independent medical evaluations disagreed, there is a question of fact on the matter.”
In holding that Julie presented sufficient evidence to create a question of fact regarding whether her claimed impairments affected her general ability to lead her normal life, the Court found it significant that Julie testified during her deposition that “[she] cannot fully bend my finger all the way. It does not bend at my knuckle. I cannot make a fist.” Julie also stated that she also “experienced intermittent pain in her little finger depending on what she was doing. She maintained that she could not work as a cosmetologist because she could not grip styling tools. Additionally, she could not wash hair or perform pedicures or facials because those tasks require every finger.” Julie also “identified several hobbies that she was no longer able to engage in, including cross-country skiing and riding dirt bikes.” She further stated that she attempted to go golfing twice but experienced pain while doing so; that she could not mow the lawn unless she “wore a noodle on her right hand”; and that she struggled with gardening. Defendant contended that Julie’s work did not require the use her little finger, and point to testimony suggesting that Julie was still cutting hair at home. On this basis, the Court concluded, “Clearly, there is a factual dispute as to whether [the plaintiff] can work as a cosmetologist, including whether she is in fact doing so in some capacity. Those disputes are material to whether her impairment has affected her general ability to lead her normal life.”
The Court next upheld the trial court’s grant of summary disposition regarding BC Lanes’ negligence. The Court reviewed the four elements of negligence: (1) duty, (2) breach, (3) causation, and (4) damages. The Court concluded that BC Lanes could not have foreseen Anderson’s behavior because he was not hostile at the bowling alley. The Court then ruled that because there was no foreseeable harm, BC Lanes did not breach its duty to patrons and reasonable minds could not differ regarding this issue. The Court therefore upheld the grant of summary disposition for BC Lanes.
“In this case, we agree with BC Lanes that one could not reasonably conclude from the evidence offered that Anderson would “aggressively run Plaintiffs off the road after leaving the bowling center.” In light of Anderson’s limited interaction with plaintiffs while upon the premises, and the lack of any evidence that Anderson became hostile toward plaintiffs in particular, reasonable minds could not find that plaintiffs were in a state of danger foreseeable to BC Lanes.”
Thus, the Court reversed the trial court regarding the tort threshold, but upheld the trial court regarding the negligence of BC Lanes.
