Michigan Court of Appeals; Docket #357138; Unpublished
Judges Gadola, Borrello, and Kelly; 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)**]
Determining Permanent Serious Disfigurement as a Matter of Law [§3135(1)(2)]
TOPICAL INDEXING:
Negligent Entrustment
SUMMARY:
In this unanimous, unpublished, per curiam decision, the Court of Appeals reversed the trial court’s denial of Defendants Thomas Makuch and the Estate of Martin Jay Tibbitts’s motion for summary disposition seeking dismissal of Plaintiff Eric Steven Quint’s auto negligence action. The Court of Appeals held: (1) that Quint failed to satisfy the third prong of the test for serious impairment of body function set forth in McCormick v Carrier, 487 Mich 180—whether his injuries affected his general ability to lead his normal life; (2) that Quint failed to present sufficient evidence to create a question of fact as to whether he suffered any lacerations or abrasions in the subject car crash which would constitute permanent serious disfigurements; and (3) that there was no evidence Makuch was an incompetent driver—or, if Makuch was an incompetent driver, that Tibbitts knew he was an incompetent driver—and thus no basis for Quint’s claim against Tibbitts for negligent entrustment.
On October 19, 2018, Thomas Makuch was driving Steven Quint, a legally incapacitated person, in a vehicle owned by Martin Jay Tibbitts, when Makuch dropped his phone on the floor of the vehicle. He reached down to grab the phone, took his eyes off the road, and crashed into a parked car and a utility pole. The crash caused Quint to sustain a laceration on his right wrist and forehead and a nondisplaced horizontal left iliac fracture. After the crash, Quint filed a third-party action against Makuch and Tibbitts, alleging that the crash caused him to sustain both a serious impairment of body function and a permanent serious disfigurement, and including a count for negligent entrustment against Tibbitts. Makuch and Tibbitts moved for summary disposition, arguing that Quint failed to establish that his injuries affected his general ability to lead his normal life, failed to establish that he had suffered a permanent serious disfigurement, and failed to establish that Tibbitts had negligently entrusted his vehicle to Makuch. The trial court denied their motion.
The Court of Appeals reversed the trial court’s denial of Makuch and Tibbitts’s motion, first as to the issue of serious impairment of body function. The Court of Appeals held that Quint failed to establish that there was any appreciable difference in his pre-and post-crash ability to lead his normal life. The Court noted that Quint needed a cane to ambulate after the crash, just as he had for 10 years prior to the crash. The Court noted that Quint was unemployed and receiving Social Security disability benefits at the time of the crash, and that his pre-crash life “consisted mainly of driving, either to estate sales or taking his girlfriend to buy heroin.” After the crash, the Court noted that Quint “returned to living with his girlfriend and driving her [around].” Lastly, the Court noted that Quint was involved in another car crash in April 2019, and that any changes in his general ability to lead his normal life after that point were attributable to April 2019 crash and a drug overdose in July 2019.
“Defendants’ first issue deals with the third McCormick prong: whether the alleged impairment has affected plaintiff’s ability to lead his normal life. Whether plaintiff’s ability to live a normal life has been affected ‘requires a comparison of [the plaintiff’s] life before and after the incident.’ McCormick, 487 Mich at 202. A comparison of plaintiff’s life before and after the accident, in this case, shows there is no appreciable difference in plaintiff’s pre-and post-accident ability to lead his normal life. All of plaintiff’s physical limitations and health conditions remained the same before and after the accident. For instance, plaintiff’s obesity, back pain, COPD, and headaches existed before, and continued after the accident, as did his drug and alcohol use and smoking. Plaintiff’s back pain caused him to use a cane after the accident, but he admitted at deposition to having such pain for years and had started using the cane over 10 years ago. While plaintiff did not work after the accident, he had not worked for years before the accident, receiving Social Security disability benefits. His normal life consisted mainly of driving, either to estate sales or taking his girlfriend to buy heroin. He returned to living with his girlfriend and driving her after the accident, just as he had previously. Plaintiff’s claims are also contradicted by the Lakeland Rehabilitation Center’s discharge examination, which showed plaintiff was able to independently dress, walk, eat, bathe, and care for his personal hygiene following the accident. In sum, a comparison of plaintiff’s life before and after the October 2018 accident shows that the accident did not affect his ability to live his normal life.
This conclusion is not surprising given plaintiff’s injuries. Plaintiff was diagnosed as having a nondisplaced stable horizontal left iliac fracture and a cut on his wrist and was treated for both conditions. No other injuries were identified. While plaintiff experienced withdrawal symptoms while in the hospital after the accident, these symptoms are not attributable to the accident but rather plaintiff’s alcohol and drug consumption. Plaintiff’s photographs of his arms and face show barely visible marks on his wrist and head. As noted by John F. O’Leary, Ph.D., ABPP, and Brian Kirschner, M.D., any adverse effects on plaintiff’s life are because of a later car accident, occurring on April 26, 2019, and plaintiff’s July 27, 2019 drug overdose, not from the October 2018 accident. Any injuries from the October 2018 accident were ‘mild’ at best.”
The Court next turned to this issue of permanent serious disfigurement, holding that Quint’s wrist laceration did not constitute a permanent serious disfigurement. The Court described photographs of Quint’s body after the crash as showing “barely discernible marks on his wrist and forehead,” and that “any alleged scarring is almost indistinguishable from [Quint’s] skin.” Furthermore, the Court noted that Quint, himself, contradicted himself on the issue of whether he suffered a permanent serious disfigurement when he testified at his deposition that he “did not know” whether he suffered any lacerations or abrasions during the crash, and, further, that any lacerations or abrasions he sustained in the crash may have healed.
“Plaintiff did not suffer a permanent serious disfigurement. The photographs of plaintiff show barely discernible marks on his wrist and forehead. Indeed, any alleged scarring is almost indistinguishable from plaintiff’s skin. We have found that a scar, which is ‘not immediately and readily noticeable,’ such that those who know plaintiff ‘would not ‘really notice’ the scar,’ does not constitute a permanent serious disfigurement. Kanaziz v Rounds, 153 Mich App 180, 187; 395 NW2d 278 (1986).
Plaintiff’s position is also undermined by his own testimony, which is contradictory at multiple points. Plaintiff maintains he experienced scarring as a result of the accident, yet he also testified at deposition that he did not know whether he sustained any cuts or abrasions during the accident. He also acknowledged that any cuts he may have received could have healed. In short, his testimony is contradictory and undermines his position on this issue.
A consideration of the ‘full spectrum’ of plaintiff’s life, not just his physical appearance, also supports the conclusion plaintiff did not suffer a permanent serious disfigurement. Fisher, 286 Mich App at 67. As noted, there is no substantive difference between plaintiff’s life before the accident and after the accident. He continued to have the same health ailments, returned to his previous home and relationship, and continued driving. There is no evidence of the almost indiscernible marks on his wrist and head causing him to experience any additional hardship, nor is there evidence his appearance was significantly different before the accident.”
Lastly, the Court turned to the issue of negligent entrustment, holding that there was no evidence (1) that Makuch was an incompetent driver, and (2) that, even if Makuch was an incompetent driver, there was no evidence Tibbitts knew as much. Makuch’s decision to reach down to grab his phone was negligent, but not evidence, in and of itself, of incompetence.
“The trial court erred in denying summary disposition because the elements of negligent entrustment are not established. First, there is no evidence Makuch was an ‘incompetent’ driver. According to the traffic crash report, Makuch ‘dropped his phone’ and was trying to ‘retrieve it from the floor of the vehicle which caused him to veer from the second lane and strike the parked vehicle . . . .’ While Makuch should not have been trying to retrieve his phone while driving, this fact alone does not establish that Makuch is an incompetent driver. And plaintiff provides us with no evidence of Makuch’s alleged incompetence other than the fact that the accident occurred.
Second, even if Makuch were deemed to be an incompetent driver, there is no evidence that Tibbits, the owner of the vehicle, knew Makuch was “incompetent or unqualified to operate the vehicle.’ Id. at 89 (quotation marks and citation omitted). In the alternative, plaintiff cannot establish that Tibbitts ‘had knowledge of such facts and circumstances as would imply knowledge on the part of the owner of such incompetency.’ Id. (Quotation marks and citation omitted). There is no evidence of any such facts and circumstances, and plaintiff has provided us with no reasoning or argument to suggest any pre-accident knowledge of Makuch’s alleged incompetency. Plaintiff asserts the ‘exotic’ nature of the Austin Healy should have alerted Tibbitts to the likelihood of an accident due to Makuch’s incompetency, but this claim is completely unfounded. It is entirely unclear how the nature of the vehicle could, or should, have led to the knowledge that Makuch was incompetent to drive.”
