Davis v Hurd, et al (COA – UNP 7/6/2023; RB #4605)
Michigan Court of Appeals; Docket #363168; Unpublished
Judges Hood, Shapiro, and Yates; 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)**]
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In this unanimous, unpublished, per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Robert Davis’s automobile negligence action against Defendant Jonathan Hurd. The Court of Appeals held that a question of fact existed as to whether Davis satisfied the third prong of the test for “serious impairment of body function” set forth in MCL 500.3135 and McCormick v Carrier, 487 Mich 180 (2010).
Robert Davis injured his back when his vehicle was rear-ended by a vehicle driven by Jonathan Hurd. Davis received treatment following the crash from a neurosurgeon and a chiropractor, both of whom attributed Davis’s injuries and associated, persistent impairments to the crash. Davis ultimately filed an automobile negligence action against Hurd, alleging that he, Davis, suffered impairments as a result of the crash which “affected his general ability to lead his normal life.” Hurd would eventually move for summary disposition, arguing that Davis failed to present sufficient evidence to create a question of fact as to whether he suffered a “serious impairment of body function”—specifically, that his impairments did not affect his general ability to lead his normal life. The trial court ultimately agreed with Hurd, finding that Davis failed to satisfy the “general ability” element of “serious impairment of body function” and stating on the record, ‘you can still do everything that you wanna do but you have pain when you do it.’
The Court of Appeals reversed the trial court’s summary disposition order, holding that Davis presented sufficient evidence to create a question of fact as to whether his impairments affected his general ability to lead his normal life. The Court noted that Davis’ testimony and the affidavits of his physicians confirmed that he could no longer play sports as a result of his injuries, that he could no perform ordinary household tasks without pain, and that he could no longer engage in sexual intercourse without pain. The Court of Appeals reasoned that this evidence was sufficient to create a question of fact as to whether Davis’s ‘general ability to lead his normal life’ was ‘influenced’ or ‘affected’ by his impairments. Furthermore, the Court held that the trial court erred in reasoning that Davis did not meet the threshold because he could do everything he wanted to but with pain. The Court explained that, in so reasoning, the trial court failed to appreciate that its task was to evaluate whether there was evidence that plaintiff’s general ability to live his normal life was influenced or affected by the impairment—not weigh the evidence in favor of one party or another.
“The trial court’s statement that plaintiff did not meet the threshold for serious impairment because ‘you can still do everything that you wanna do but you have pain when you do it’ indicated a failure to appreciate that its task was to evaluate whether there was evidence that plaintiff’s general ability to live his normal life was ‘influenced’ or ‘affected’ by the impairment.
Plaintiff offered some evidence that, after his injuries, his normal household activities were altered by the pain he experienced while performing them. Plaintiff plainly stated that that he ‘can’t do what like I used to,’ which indicated that his life was ‘influenced,’ or ‘affected,’ by the pain from his spinal injuries while performing household tasks. The trial court’s finding that plaintiff did not meet the serious impairment threshold because he retained the ability to continue his ordinary tasks was contrary to the instruction in McCormick, 487 Mich at 202, that courts ‘consider not only whether the impairment has led the person to completely cease a pre-incident activity or lifestyle element, but also whether, although a person is able to lead his or her pre- incident normal life, the person’s general ability to do so was nonetheless affected.’ As the Supreme Court noted, ‘the statute merely requires that a person’s general ability to lead his or her normal life has been affected, not destroyed.’ Id. ‘[T]he statute only requires that some of the person’s ability to live in his or her normal manner of living has been affected, not that some of the person’s normal manner of living has itself been affected.’ Id. The trial court should not ‘focus on how much the impairment affects a person’s life, instead of how much it affects the person’s ability to live his or her life.’ Id. at 204.
Plaintiff’s testimony, and the affidavits of his physicians, constituted substantial evidence that the spinal injuries from the accident that were causing him pain as he attempted ordinary tasks, to some extent, affected plaintiff’s ‘general ability to lead his . . . normal life.’”
