Michigan Court of Appeals; Docket # 341433; Unpublished
Judges Gleicher, Borrello, and Beckering 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)**]
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 - Present) [§3135(5)**]
TOPICAL INDEXING:
Not applicable
SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals reversed summary disposition for Defendant Sean Powell (“Powell”) on the issue of serious impairment of body function because conflicting evidence created a genuine issue of material fact regarding whether Plaintiff Susannah Thompson (“Thompson”) satisfied the tort threshold.
Thompson claimed that she suffered “neck and back pain” as a result of her accident, and that the claimed impairment constituted a serious impairment of body function. Defendant Powell brought a motion for summary disposition arguing that Thompson failed to meet the first and third prongs required for serious impairment of body function under McCormick v Carrier, 487 Mich 180, 195; 795 NW2d 517 (2010). The trial court agreed and granted summary disposition. Thompson appealed.
On appeal, the Court of Appeals reversed the trial court’s grant of summary disposition finding that Thompson presented sufficient evidence to satisfy the tort threshold under McCormick. The Court noted that only the first and third prongs of McCormick were at issue and the second prong was not on appeal. The first prong of McCormick requires evidence to show “a physical basis for [plaintiff’s] subjective complaints of pain and suffering.” In this case, Thompson’s disposition testimony and medical records showed that she visited Dr. Neelum Gupta shortly after the accident and complained of experiencing arm, neck, and back pain since the accident. Thomspon explained that she did not have this pain before the accident, and she rated the pain as an “11” on a pain scale from 1-10. Thompson explained she was pregnant and her doctors limited the number of treatments to not conflict with her pregnancy. MRIs showed a straightening of the normal curvature and alignment of her cervical spine and Thompson “sustained musculoskeletal injuries with strains and sprains to her spine.” Powell presented evidence contradicting Thompson’s medical findings. However, the Court of Appeals reasoned that conflicting evidence was not sufficient grounds to grant summary disposition.
“However, it would be improper at this juncture in the proceedings to adjudicate whether plaintiff suffered a serious impairment of an important bodily function as it is clear there was evidence from which reasonable minds could reach different conclusions. This conclusion rests on the differing analyses of the medical records provided by Landan, Saenz and Khalid, which establish that a genuine issue of material fact exists regarding whether there was an objectively manifested impairment because West, 469 Mich at 183.”
The Court of Appeals also found that summary disposition was improper regarding the third prong of the McCormick test. The third prong requires that the plaintiff’s general ability to live his or her normal life be affected. In this case there was evidence that Thompson’s normal life was affected in respect to her personal grooming, her capacity to do household task, and to engage in social activities. Thompson testified that after the accident her husband helped her with personal grooming, such as showering and getting dressed. Thompson also testified that she was unable to perform household tasks such as laundry, grocery shopping, and cooking. Finally, Thompson testified that she could not lift her child because of her neck and back and she no longer visited the mall or friends. Powell took issue with the strength of Thompson’s evidence. The Court explained that granting summary disposition due to weak evidence was improper. Thus, the Court reversed the trial court.
“In other words, plaintiff is not required to show that her ability to lead her normal life was completely destroyed in every aspect, or even that her ability to lead all aspects of her normal life was affected. See id. at 202 (“[C]ourts should consider not only whether the impairment has led the person to completely cease a pre-incident activity or lifestyle element, but also whether, although a person is able to lead his or her preincident normal life, the person’s general ability to do so was nonetheless affected.”) (emphasis added); see also id. at 201.”
The Court therefore reversed the trial court’s grant of summary disposition.
