Michigan Court of Appeals; Docket #358646; Unpublished
Judges Hood, Swartzle, and Redford; 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)**]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this unanimous, unpublished, per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Michelle Orvis’s automobile negligence action against Defendant Thomas Allen Moore. The Court of Appeals held that a question of fact existed as to whether Orvis satisfied the first and third prongs of the test for ‘serious impairment of body function’ set forth in McCormick v Carrier, 487 Mich 180 (2010): the first prong being whether Orvis suffered an objectively manifested impairment as a result of the subject crash, and the third prong being whether any such impairment affected Orvis's general ability to lead her normal life.
Michelle Orvis was involved in a rear-end crash, but denied medical treatment at the scene. She did not know whether she hit her head during the crash but, three days afterward, she sought medical treatment for head, neck, and back pain. She continued to complain of head, neck, and back pain for many months thereafter, and received treatment from multiple specialists, at least two of which diagnosed her with a closed-head injury as a result of the crash. Orvis eventually filed an auto negligence against the driver who crashed into her, Thomas Allen Moore, and Moore moved for summary disposition, arguing that Orvis failed to establish the first and third prongs of the McCormick test for ‘serious impairment.’ In support of his motion, Moore presented medical records and evaluations which asserted that “no evidence supported the claim that plaintiff suffered from a concussion or traumatic brain injury [as a result of the crash].” Moore also argued that Orvis’s alleged injuries had no effect on her general ability to lead her normal life, despite testimony from Orvis’s family that, after the crash, Orvis could no longer cook, go to her children’s sporting events, or vacation, and that Orvis would shut herself in her room for days straight because of her symptoms. The trial court ultimately granted summary disposition in Moore’s favor, finding that, although a question of fact existed as to whether Orvis’s injuries affected her general ability to lead her normal life, Orvis failed to present sufficient evidence as to whether she suffered an objectively manifested impairment as a result of the crash.
The Court of Appeals reversed the trial court’s summary disposition order, holding that a question of fact existed as to both the first and third prongs of the McCormick test for ‘serious impairment.’ The Court found that the multiple diagnoses of a closed-head injury as a result of the crash were sufficient to create a question of fact as to the first prong, and that resolution of any conflict between those diagnoses and the opinions of Moore’s examiners should be left to the trier of fact. With respect to the third prong, the Court held that the testimony from Orvis’s family members was sufficient to create a question of fact as to whether her injuries affected her general ability to lead her normal life.
“The record contains conflicting evidence that also indicates that factual disputes exist regarding the extent of plaintiff’s head injury. See Patrick v Turkelson, 322 Mich App 595, 605; 913 NW2d 369 (2018). Plaintiff argues that the trial court ignored the opinions of several doctors who diagnosed plaintiff with a closed-head injury. Because one of these reports was not presented to the trial court below, that report cannot be considered on appeal. A party may not expand the record on appeal, and this Court may only consider the record established by the trial court. Wolfenbarger v Wright, 336 Mich App 1, 27; 969 NW2d 518 (2021). The other reports, however, sufficed to demonstrate the existence of a factual dispute. One psychologist diagnosed plaintiff with a concussion as a result of the accident and concluded that she suffered from a mild neurocognitive disorder because of her concussion. Another report stated that plaintiff suffered from a concussion as a result of the accident and the doctor diagnosed her with a closed-head injury. Defendant presented medical records and medical evaluations that stated that no evidence supported the claim that plaintiff suffered from a concussion or a traumatic brain injury. The conflicting evidence presented to the trial court demonstrated the existence of at least a question of fact regarding the nature and extent of plaintiff’s head injury.
. . .
The record indicates that plaintiff demonstrated the existence of at least a question of fact regarding whether her injuries impacted her ability to lead her normal life. Testimony from plaintiff’s family demonstrated that before her accident, plaintiff performed household chores, cooked, went to her children’s sporting events, went on vacation, and spent time with her family. After the November 23, 2015 accident, however, plaintiff did not perform household chores or cook for the family, did not go to her children’s sporting events because of the loud noise, experienced changes in her personality, memory loss and speech impediments, did not go on vacations to the same degree as before, and frequently shut herself in her room for days straight because of the level of pain she experienced. This evidence established at least a genuine issue of material fact regarding whether her injuries impacted her ability to lead her normal life. Therefore, because questions of fact exist regarding whether plaintiff suffered a threshold injury, the trial court erred by granting defendant summary disposition.”
