Michigan Court of Appeals; Docket #360350; Unpublished
Judges Rick, Shapiro, and O’Brien; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXIN
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)**]
Causation Issues [§3135]
TOPICAL INDEXING:
Motor-Vehicle Exception to Governmental Tort Liability Act
SUMMARY:
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s denial of Defendant Charter Township of Plymouth’s (“Plymouth Township” or “the Township”) motion for summary disposition, in which it sought dismissal of Plaintiff Austin Laskos’s automobile negligence action brought under the “motor vehicle exception” to the Governmental Tort Liability Act. The Court of Appeals held, first, that a question of fact existed as to whether Jeffery Mark Maples, a police officer for Plymouth Township, acted negligently when his police cruiser crashed into Laskos, a bicyclist. The Court held, second, that a question of fact existed as to whether Laskos’s injuries were caused by the collision with Maples’s police cruiser or were entirely pre-existing. The Court held, third, that a question of fact existed as to whether Laskos’s alleged impairments satisfied the first and third prongs of the test for “serious impairment of body function” under MCL 500.3135 and McCormick v Carrier, 487 Mich 180 (2010).
Austin Laskos was riding his bicycle to work when either he crashed into Plymouth Township police officer Jeffery Mark Maples’s police cruiser, or Maples crashed his police cruiser into Laskos. In Laskos’s subsequent automobile negligence action against Plymouth Township, Laskos testified that he was riding his bicycle to work on the sidewalk when he entered what he believed to be an unobstructed intersection. After entering the intersection, he testified that Maples crashed into him on his left side. Maples, meanwhile, testified that he was stopped a stop sign, working on the computer in his police cruiser, when he began to crawl forward in his cruiser to see around a building obstructing his view of oncoming traffic to his left. He testified that before he was able to check for oncoming traffic to his right—which would have included Laskos—Laskos crashed into the front right side of his cruiser. Subsequent dash camera footage captured Maples telling his sergeant, Todd Seipenko, that the crash was totally his fault and further stating, ‘I’m either looking at the screen or something else and then there he was.’
Laskos declined medical treatment at the scene of the collision, but he went to the hospital later that night with complaints of pain in his left femur, hip and knee, as well as his neck, back, and abdomen. Approximately one-and-a-half months after the collision, Laskos underwent an MRI of his lumbar spine which revealed a disc herniation at L5-S1, and he thereafter treated with a spine specialist, Dr. Rakesh Ramakrishnan, who recommended that Laskos undergo a fusion surgery. Dr. Ramakrishnan would later execute an affidavit in which he testified that it was his medical opinion—based on his understanding of the collision, his treatment of Laskos, and his review of Laskos’s pre-collision medical records—that Laskos sustained injuries at L5-S1 and C3-C4 as a direct result of the crash, and that Laskos’s need for ongoing treatment was a direct result of the crash.
Plymouth Township ultimately moved for summary disposition in Laskos’s action on two bases: (1) that there was no question of fact that Maples was not negligent, or, alternatively, that there was no question of fact that Laskos was more than 50% at fault for the collision; and (2) that there was no question of fact that Maples sustained no serious impairment of body function as a result of the collision, and that all his medical treatment thereafter was attributable to pre-existing conditions. Notably, Laskos had received treatment—including chiropractic treatment—for neck and back pain prior to the collision, but not in the 14-month period immediately preceding the collision. Ultimately, the trial court denied the Township’s motion for summary disposition, ruling that there were questions of fact regarding negligence and Laskos’s injuries.
The Court of Appeals affirmed the trial court’s summary disposition order, holding, first, that a question of fact existed as to whether Maples was more than 50% at-fault for the collision. Maples, himself, admitted that he was more than 50% at fault for the collision in a recorded conversation thereafter, and the Court determined that the rest of the evidence was sufficient to create a question of fact as to whether Laskos was already in the crosswalk when Maples began encroaching upon it, in violation of his statutory duty under MCL 257.660c.
“The foregoing evidence clearly establishes a question of fact with respect to whether Maples was negligent in the operation of the SUV. Viewing the evidence in a light most favorable to plaintiff, a trier of fact could find that Maples was distracted and not paying attention to the roadway as he proceeded into the intersection. Some evidence substantiates that plaintiff fully occupied the crosswalk at the time Maples moved forward with the intent to make a right turn. Thus, based on the evidence presented, a reasonable trier of fact could conclude that Maples failed to yield the right-of-way to plaintiff, and that Maples violated his duty to maintain a reasonable lookout for bicyclists crossing in a location where he should have expected to see them. By contrast, based on Maples’s testimony that plaintiff’s bike struck the side of the SUV, a trier of fact could find that plaintiff left the curb and entered the unmarked crosswalk after Maples was already moving forward in the intersection to prepare to make his right turn.
The submitted evidence gave rise to at least three triable issues: (1) whether Maples’s actions were reasonable under the circumstances, (2) whether plaintiff’s actions were reasonable, and (3) if both were negligent, the percentage of fault attributable to each. Because Maples and plaintiff gave differing versions of the accident, the resolution of these questions depends largely on the credibility of the witnesses. Issues of witness credibility and the weight to assign a witness’s testimony are typically issues for the fact-finder to resolve. Barnes v 21st Century Premier Ins Co, 334 Mich App 531, 540; 965 NW2d 121 (2020). Moreover, plaintiff presented evidence that Maples made statements on the day of the accident admitting that the accident was totally his fault. Maples agreed with the findings in his written reprimand, which found him at fault for the accident. This evidence supports the trial court’s finding that there were questions of fact regarding whether Maples was negligent and whether he was more than 50% at fault for the accident. Accordingly, the Township has failed to demonstrate that it was entitled to summary disposition.”
The Court of Appeals held, second, that a question of fact existed as to whether Laskos’s cervical spine, leg, and back injuries were caused by the collision. The Court based its holding on the affidavit from Dr. Ramakrishnan and the fact that Laskos had not received any treatment for his neck or back at any point in the 14-month period before the collision. As for the Township’s argument that Dr. Ramakrishnan’s affidavit was deficient because it did not provide the scientific or medical basis for his opinion regarding causation, the Court noted that that argument “go[es] to the weight of Dr. Ramakrishnan’s opinion, not its admissibility.”
“Viewing the record evidence in the light most favorable to plaintiff, a jury could reasonably conclude that even if plaintiff had some degree of a preexisting condition in the lumbar region of his spine before the accident, the condition had stabilized. A jury could also reasonably conclude that, after the June 2019 accident, the condition worsened, causing plaintiff severe pain requiring medical treatment and, eventually, surgery. That plaintiff did not appear injured at the time of the accident is not dispositive, and that he began to experience significant pain later in the day showed a ‘logical sequence of cause and effect,’ rather than a mere coincidental relationship. See Patrick, 322 Mich App at 620. Considering the submitted evidence, a reasonable jury could conclude that it was more likely than not that plaintiff would not have suffered injuries to his left leg or any aggravation to a preexisting lower back condition if not for Maples’s conduct. Accordingly, the trial court correctly found that questions of fact remained, and therefore did not err when it denied the Township’s motion for summary disposition.”
The Court of Appeals held, third, that Laskos presented sufficient evidence to satisfy the first and the third prongs for the test for “serious impairment of body function.” As for the first prong—objective manifestation—the Court noted that Plaintiff presented evidence of a physical basis for his pain, including medical records documenting muscle spasms, swelling, and impaired range of motion, all in addition to imaging studies which showed herniated and bulging discs. As for the third prong—an effect on his general ability to lead his normal life—the Court noted that Plaintiff was 100% disabled following his back surgery, could no longer ride a bike, needed a cane to get up, no longer dated, and needed his mother to prepare his meals and be his ‘at-home nurse.’
“The available record suggests that a question of fact exists regarding whether plaintiff’s alleged injuries rose to the level of a serious impairment of an important body function. Regarding the first McCormick prong, in Patrick, 322 Mich App at 607, this Court explained: ‘Although mere subjective complaints of pain and suffering are insufficient to show impairment, evidence of a physical basis for that pain and suffering may be introduced to show that the impairment is objectively manifested.’ Here, plaintiff presented evidence of a physical basis for his pain. Plaintiff provided (1) medical records documenting muscle spasms, swelling, impaired range of motion, and (2) radiographic studies that revealed herniated and bulging discs. In addition, in his June 11, 2020 operative report, Dr. Ramakrishnan noted that plaintiff had intractable low back pain and radiculopathy (nerve damage) following injuries he sustained in a motor vehicle accident. He further explained that the pathology seen on MRI at L5-S1, i.e., the large herniated disc, was correlated with plaintiff’s examination and history. Dr. Ramakrishnan’s operative note described a physical basis for plaintiff’s complaints of pain. Thus, at the very least, plaintiff established that a question of fact exists regarding whether his impairment was objectively manifested.
Plaintiff also put forth sufficient evidence to support a claim that his injuries following the accident impacted his ability to lead his normal life. In order to determine that the impaired person’s ability to lead his normal life has been affected, this Court compares the person’s life before and after the injury. Nelson v Dubose, 291 Mich App 496, 499; 806 NW2d 333 (2011). Plaintiff testified that before the accident he was working at the Plymouth Pub. For the several weeks preceding the accident, plaintiff was riding a bike the 12 miles to and from work. Plaintiff explained that as a result of the accident, he sustained injury to his back, neck, hip, and a permanent indentation of his left femur. Nerve damage related to the herniated disc has caused him to experience constant muscle spasms. Before June 21, 2019, plaintiff had never experienced these spasms. Plaintiff admitted that the spasms have calmed down since the surgery, but that they were still triggered when going from a sitting to a standing position. Plaintiff was not able to work and had been, at that moment, deemed 100% disabled. Plaintiff’s mobility was restricted, he was not able to ride a bike any longer, and he used a cane to get himself up. Although he dated casually in the past, plaintiff no longer dated. At the time of his deposition, plaintiff lived with his mother, who had ‘practically been an at-home nurse for him.’ She prepared meals and helped him get dressed, which she had not done in the past. Plaintiff testified that he went from being an active person to now someone who had to rewrite his life. This testimony created a question of fact whether plaintiff’s injuries affected his general ability to lead his normal life. Whether plaintiff’s injuries amounted to a serious impairment of a body function was a question of fact that remained to be litigated.”
