Michigan Court of Appeals; Docket #359588; Unpublished
Judges Gleicher, Hood, and Maldonado; 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)**]
Important Body Function 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In this unanimous, unpublished, per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Tawanda Harris’s automobile negligence action against Defendant Arnold Alson. The Court of Appeals held that Harris presented sufficient evidence to create a question of fact regarding all three prongs of the test for “serious impairment of body function” set forth in MCL 500.3135 and McCormick v Carrier, 487 Mich 180 (2010).
Tawanda Harris was driving through an intersection when Arnold Alson blew threw a red light and t-boned her vehicle. Harris complained of neck and shoulder pain at the scene of the crash and was transported to the hospital, although an x-ray of her left shoulder and a CT scan of her cervical spine revealed no acute injuries. Harris followed up with primary care physician three days after the crash, and her physician noted that Harris had tenderness in her neck and left shoulder. Harris was disabled from work for eight days due to the collision, and when her pain persisted, her primary care physician referred her for physical therapy and for further treatment with a physical medicine and rehabilitation specialist. At her physical therapy initial evaluation, Dr. Michael Daneshvar diagnosed Harris with ‘flattening of cervical lordotic curve,’ decreased range of motion ‘at her cervical spine secondary to pain and muscle stiffness,’ and an elevated left shoulder ‘as a result of muscle spasm at upper trapezius muscle.’ Harris then treated with physical medicine and rehabilitation specialist Dr. Hussain Huraibi, who diagnosed Harris with a sprain of cervical spine ligaments and traumatic spondylopathy, before disabling her from housework for one and a half months. Harris eventually filed an automobile negligence action against Alson, alleging that Alson’s negligence caused her to sustain a serious impairment of body function which caused her to miss work, prevent her from doing housework, and impeded her ability to engage in recreational activities such as bowling, playing softball, and walking for extended periods of time. Alson then moved for summary disposition, arguing that Harris failed to demonstrate an objectively manifested impairment of a body function, and that Harris failed to demonstrate that her injuries affected her general ability to lead her normal life. The trial court agreed with Alson and granted his motion.
The Court of Appeals reversed the trial court’s summary disposition order, holding that Harris presented sufficient evidence to create a question of fact as to all three prongs of the test for “serious impairment of body function” set forth in MCL 500.3135 and McCormick. As for the first prong, the Court determined that there was a question of fact regarding whether Harris suffered an objectively manifested impairment based on her diagnosis from Dr. Huraibi of traumatic spondylopathy and Dr. Daneshvar’s findings that she had a flattening of her cervical lordotic curve, decreased range of motion, and an elevated left shoulder as a result of muscle spasm.
“Record evidence supports that plaintiff sustained objectively manifested impairments to her back, neck, and shoulder caused by the accident. Defendant argues plaintiff failed to present medical testimony or documentation evidencing a physical basis for her subjective complaints of impairment as a result of the accident. However, Dr. Huraibi’s records show that he detected ‘traumatic spondylopathy’ in plaintiff’s cervical region, and Dr. Daneshvar indicated that plaintiff had a flattening of her cervical lordotic curve, decreased range of motion, and an elevated left shoulder as a result of muscle spasm. Therefore, plaintiff presented evidence of objectively manifested impairments.”
As for the second prong, the Court of Appeals determined that there was a question of fact regarding whether Harris’s impairments were of important body functions based on her deposition testimony in which she stated that her pain impacted her ability to walk, participate in recreational activities, and perform physical tasks at work.
“Turning to the second prong, ‘[w]hether a body function has great ‘value,’ ‘significance,’ or ‘consequence’ will vary depending on the person. Therefore, this prong is an inherently subjective inquiry that must be decided on a case-by-case basis . . . .’ McCormick, 487 Mich at 199. Historically, this Court has recognized: ‘The ability to move one’s back is an important body function.’ Chumley v Chrysler Corp, 156 Mich App 474, 481; 401 NW2d 879 (1986) (citations omitted). In this case, the evidence suggests that the impaired body functions were important to plaintiff. Plaintiff’s deposition testimony established her pain impacted her ability to walk, participate in recreational activities, and perform certain physical tasks at work.”
As for the third prong, the Court of Appeals determined that there was a question of fact regarding whether Harris’s impairments affected her general ability to lead her normal life based on the evidence that she was disabled from work and housework following the collision, as well as her testimony that she could no longer participate in recreational activities due to her symptoms.
“Turning to the third prong, plaintiff presented evidence these impairments affected her general ability to live her normal life. Evidence was presented that plaintiff missed eight days of work because of the accident, and Dr. Huraibi disabled plaintiff from housework from April 3, 2019 until May 15, 2019, after the accident. Additionally, plaintiff testified she could no longer bowl or play softball, which were activities she participated in regularly before the accident. Importantly, as the McCormick Court explained: ‘[t]he statute merely requires that a person’s general ability to lead his or her normal life has been affected, not destroyed.’”
Notably, the Court of Appeals explicitly rejected Alson’s argument that Harris alleged only soft tissue injuries and that soft tissue injuries do not rise to the level of “serious impairment of body function.” The Court noted that “neither the case law nor MCL 500.3135 render persistent ‘soft tissue injuries’ nonrecoverable, and here, [Harris] met her burden of establishing the existence of genuine issues of disputed fact material to a determination of whether she suffered a serious impairment.”
