Michigan Court of Appeals; Docket #348307; Unpublished
Judges Jansen, Meter, and Cameron; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Causation Issues [§3135]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing the plaintiff’s third-party action because the plaintiff failed to present sufficient evidence to create a genuine issue of material fact (1) that she suffered an objectively manifested impairment as a result of the underlying motor vehicle collision.
The plaintiff, Victoria Denise Blake, was involved in a motor vehicle collision caused by Rayford Lee Evans turning left in front of her vehicle at an intersection. Blake’s airbags deployed as a result of the impact, but Blake denied emergency medical treatment at the scene, opting instead to seek urgent care treatment the following day. At her appointment, she complained of pain in her right arm, wrist, and hand, but not in her neck or back. Approximately one week after the collision, Blake sought treatment from her primary care physician, complaining of shoulder and back pain. Her primary care physician ordered x-rays of her shoulders and lumbar spine, all of which were normal. Then, almost one month after the collision, the plaintiff fell in her home and fractured her ankle. At her post-fall doctor’s appointments, she was diagnosed at least once with a collision-related “cervical sprain with radicular fractures, a lumbar sprain with radicular features.” Subsequent MRIs of her lumbar spine showed disc bulges at her L4-L5 and L5-S1 vertebrae, but Blake was discharged after her condition improved. More than one year after the collision, plaintiff presented to yet another doctor, who opined that the plaintiff had “cervical and lumbar disc herniations, cervical and lumbar sprains or strains, and cervical and lumbar facet syndrome.” Blake thereafter filed a third-party claim against Evans, and Evans moved for summary disposition, arguing that Blake’s injuries were not caused by the accident and that the plaintiff failed to prove that she had suffered an objectively manifested impairment that affected her general ability to lead her normal life. Ultimately, the trial court granted Evans’s motion, concluding that there was no evidence that the plaintiff suffered an objectively manifested impairment that was caused by the collision, or that the plaintiff’s alleged injuries affected her general ability to lead her normal life.
On appeal, Blake argued that the trial court erred in ruling, as a matter of law, that her injuries were not caused by the collision and that, in any event, her alleged injuries did not affect her general ability to lead her normal life. The Court of Appeals disagreed, noting that the images taken of her shoulders and lumbar spine after the accident, but before the fall, were normal. Blake asserts that the statements she gave to police at the scene—that her shoulder and back were hurting—tended to prove that her later-discovered back injuries were in fact related to the collision. The Court noted that these complaints of pain were entirely subjective, and thus would not suffice as a basis for reversing the trial court.
Regardless, plaintiff asserts that she testified that her shoulder and back were hurting immediately after the accident. Plaintiff’s testimony was directly contradicted by the records from the urgent care, which state that plaintiff denied any neck or back pain. Accordingly, plaintiff’s subjective complaints were insufficient to establish that her impairments were objectively manifested. Patrick, 322 Mich App at 607. Further, the police report listed plaintiff’s injury level at zero, and plaintiff testified that she declined any medical treatment at the scene of the accident. Plaintiff also asserts that Dr. Parker’s initial evaluation documented plaintiff’s complaints of neck and back pain, and concluded that plaintiff’s pain arose from the accident. However, plaintiff did not proffer Dr. Parker’s initial evaluation as evidence in the trial court. Therefore, this evidence cannot be used to create an issue of fact to reverse the trial court’s grant of summary disposition. See Maiden, 461 Mich at 121 (emphasis added) (“The reviewing court should evaluate a motion for summary disposition under MCR 2.116(C)(10) by considering the substantively admissible evidence actually proffered in opposition to the motion.”). See also Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649 NW2d 783 (2002) (“This Court’s review is limited to the record established by the trial court, and a party may not expand the record on appeal.”).
Because the plaintiff failed to prove that she sustained an objectively manifested impairment as a result of the collision, the Court neglected to address the trial court’s determination that her injuries did not affect her general ability to lead her normal life.
Because summary disposition was appropriate on the basis of a lack of causation, we need not address plaintiff’s remaining argument that her injuries affected her life.
