Michigan Court of Appeals; Docket No. 337996
Judges Gleicher, Boonstra and Tukel; Unanimous; per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(5)**]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals held that the trial court erred in granting summary disposition for Defendant Jonathan Carr because Plaintiff Leonard Love (“Love”) presented sufficient evidence to create a question of fact regarding whether his claimed impairments affected his general ability to lead his normal life.
Love was rear-ended while riding as a passenger in a car that was stopped at a red light. He did not seek medical treatment immediately, but “sought treatment at an emergency room the next day.” He reported back pain and was provided analgesics. A few weeks later, he consulted Dr. Louis Radden “with complaints of constant pain in his back, right leg, neck and arm, as well as headaches.” He told Dr. Radden that his pain started after the accident. A cervical spine MRI revealed a “disc protrusion with an extruded disc fragment and mass effect on the cord at C4/C5, a broad-based disc bulge at C5/C6, and a diffuse disc bulge at C6/C7.” An additional MRI of Love’s right shoulder “reported partial tears of a rotator cuff tendon.” Dr. Radden diagnosed plaintiff with “cervical strain/sprain, cervical facet syndrome, cervical disc herniation C4-C5, C5-6, lumbar strain/sprain, lumbar facet syndrome, impingement syndrome of the right upper extremity and rotator cuff tear on the right.” Dr. Radden concluded that Love’s “injuries were related to the auto accident.”
The Court of Appeals held that deposition testimony of Love, together with Dr. Radden’s medical records, were sufficient to create a question of fact regarding whether Love’s claimed impairments affected his general ability to lead his normal life. In particular, the Court noted that plaintiff “testified that his work-related disability was primarily due to headaches that resulted from his head injury, and that the headaches eased after four or five years. Nevertheless, he continued to receive social security disability payments. While on disability and before the auto accident, as a ‘side job,’ he cooked ‘all the time’ for friends, family, his cousin’s tire shop, his church and others (he had been a cook in the Army). He has not been able to cook since the accident because he cannot stand on his feet for long periods of time, and his neck hurts. The cooking earned Love up to $2,000 each year. . . . Love described that his accident-related injuries also curtailed other activities. He is no longer able to engage in recreational pursuits such as basketball, volleyball and fishing, and cannot walk for significant distances . . . Love described that he is able to walk for five to 10 minutes continuously at a slow pace; he used to be able to walk two to three miles at a time. Sitting, too, is difficult. Love testified that he can only sit for short periods of time before experiencing pain. He claimed that prior to the accident, he would have sex four to five times every week, but now only has sex ‘maybe once every two weeks.’”
Additionally, “Dr. Radden’s records support that Love sustained a new, accident caused injury to his neck. A cervical spine x-ray obtained in 2010 was negative. The cervical spine imaging performed after the accident revealed disc protrusions and a mass effect on the spinal cord. While Love apparently complained of neck pain before the accident, no evidence describes the extent of the pain, or indicates that the pain restricted his activities. Post-accident, Love described that he can no longer perform a variety of activities that were important to him because of neck and back pain. Despite that Love was not gainfully employed, he participated in several sports and was able to cook for others. No evidence refuted these claims.” The Court concluded that when “viewed in the light most favorable to Love, the accident caused a marked change in his general ability to lead his normal life. Defendants’ evidence to the contrary is speculative at best.”
Finally, after rendering its holding, the Court of Appeals in this case concluded that “[i]n granting summary disposition the circuit court violated the fundamental tenets of summary disposition jurisprudence by engaging in fact-finding regarding the extent of Love’s disability, and by failing to credit Love’s evidence. Compounding this error, the court made a credibility determination by entirely disregarding Love’s deposition description of the ways in which his life changed after the accident. By deciding facts and discrediting Love, the court usurped the fact finder’s role. Because questions of fact abound regarding whether Love’s pre-accident life meaningfully differs.”
