Michigan Court of Appeals; Docket No. 300933; Unpublished
Judges Kelly, Saad, and O’Connell; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable, Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (McCormick Era: 2010 – present) [§3135(7)]
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(7)]
Important Body Function Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(7)]
Determining Serious Impairment of Body Function As a Matter of Law (McCormick Era: 2010 – present) [§3135(7)]
Liability for Intentionally Caused Harm [§3135(3)(a)]
TOPICAL INDEXING:
Not Applicable
CASE SAUMMARY:
In this unpublished unanimous per curiam opinion regarding the plaintiff’s threshold claims for non-economic under 500.3135(1), and plaintiff’s intentionally-caused harm claims under 500.3135(3), the Court of Appeals affirmed the trial court’s grant of summary disposition in favor of defendant on both claims because “the record present[ed] no material factual issues regarding whether the incident at issue caused the alleged serious impairment or regarding whether defendant intentionally harmed plaintiff.”
In this case, the plaintiff and the defendant had been at a party consuming alcohol, when the defendant had an altercation with plaintiff’s girlfriend. Subsequently, the plaintiff and his girlfriend left the party and went to the plaintiff’s home. The defendant then drove to the plaintiff’s home, and when she arrived there, the altercation between her and the plaintiff’s girlfriend “reignited.” The plaintiff then attempted to separate the two and demanded that defendant leave. The defendant then got into her car and “floored the accelerator with the car in reverse.” While doing so, she backed into the plaintiff and caught his leg between her car and another parked car.
Following the accident, the plaintiff went to the emergency room and reported “significant pain in his lower left leg.” However, medical personnel found no broken bones and advised plaintiff to use crutches and see his personal physician for a follow up. During the next year, plaintiff continued to have leg pain.
Eventually, the plaintiff brought suit alleging both that the defendant intentionally caused harm under MCL 500. 3135(3)(a), and that his leg pain constituted a threshold injury under MCL 500.3135(1). Thereafter, the defendant produced medical records that prior to this incident, the plaintiff had sustained two significant injuries that caused him suffer leg and back pain. The trial court granted summary disposition in favor of the defendant as to both claims.
This appeal followed, and the plaintiff argued that a genuine factual issues precluded summary disposition as to both claims. However, the Court of Appeals disagreed and affirmed trial court’s decision grant of summary disposition as to both claims, finding as a matter of law that the plaintiff failed to produce sufficient evidence of defendant’s intent to cause the harm, and that the plaintiff failed to produce sufficient evidence that his alleged serious impairment was related to the accident.
In finding that there was no genuine issue of material fact regarding defendant’s alleged intent to cause the harm, the Court found that the statements from the plaintiff and his girlfriend declaring that defendant deliberately struck the plaintiff with the car did not create a question of fact from which to infer anything about the defendant’s intent to injure the plaintiff. In this regard the Court explained:
“The record contains two reports relevant to this determination: the emergency room report and the police report. Both reports present statements in which plaintiff and his girlfriend declared that defendant deliberately struck plaintiff with her car. We need not decide whether the reports are admissible evidence, because plaintiff’s subsequent sworn deposition testimony neutralizes any questions of fact created by the reports. Plaintiff expressly testified in deposition that he did not know whether defendant intentionally struck him. Given plaintiff’s sworn deposition testimony, we conclude that his prior unsworn statements are insufficient to create a question of fact regarding defendant’s intent.”
In finding no evidence from which to infer defendant’s intent, the Court further explained that “there was no testimony that defendant aimed her car at plaintiff.” Therefore, this case was distinguishable from the decision of People v Wardlaw, 190 Mich App 318 (1991), where the court affirmed a felonious assault conviction based on evidence that the defendant there aimed the vehicle at the victim.
With regard to plaintiff’s threshold claims under 3135(1), the Court found that plaintiff failed to present evidence as required under MCR 2.116(G)(4) “to create a question of fact regarding whether defendant’s conduct caused plaintiff’s alleged serious impairment.” In this regard, the court explained:
“Plaintiff presented no admissible evidence to establish that his current condition resulted from the incident at issue. He offered deposition testimony from a physiatrist, but the physiatrist testified that she did not identify the source of plaintiff’s injuries, and that she could not relate plaintiff’s condition to any particular incident. Plaintiff contends that the trial court disregarded the evidence of his condition and that the court erroneously concluded plaintiff had no leg pain. This contention does not require reversal of the summary disposition. Although the trial court appears to have made a misstatement regarding plaintiff’s leg pain, the court was definitive in its finding that plaintiff had not demonstrated a causal relationship between his condition and the incident at issue. Accordingly, the trial court properly concluded that plaintiff had failed to present sufficient evidence to create a question of fact as to whether the incident caused his alleged impairment.”
