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Brown v Debassige (COA – UNP; 12/22/2020; RB #4201)

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Michigan Court of Appeals; Docket # 350972
Judges O’Brien, M. J. Kelly, and Redford
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


A. Disposition:
In this unanimous per curiam unpublished opinion, summary disposition for defendant was REVERSED on the issue of serious impairment of body function because the plaintiff presented sufficient evidence from which a jury can conclude that his claimed injuries affected his general ability to lead his normal life.

B. Nature of Injury/Disability:
The plaintiff in this case was injured when defendant’s vehicle drove through the front of plaintiff’s house, causing the front door to dislodge and land on top of her. As a result, plaintiff suffered a neck strain and contusions of her hip, foot, and shoulder. Following the accident, plaintiff was unable to perform some of her “usual janitorial tasks” at her job because she had problems with her left arm and shoulder. Further, “plaintiff went camping less frequently, and when she did camp, she could no longer walk around or serve food like she used to do. She also testified that since the accident she has been completely unable to ride on a motorcycle, walk her dog, take walks without experiencing leg problems, or swim.”

C. Medical Treatment:
On the day of the accident, plaintiff was seen at the emergency room for a neck sprain and contusions of her hip, rib, foot, and shoulder. She then attended physical therapy for two months and had significant improvement. Over a year after the accident, however, plaintiff was still seeking unspecified medical treatment for “severe lower back and shoulder pain.”

D. Element #1 – Objective Manifestation:
The Court of Appeals did not discuss or analyze this element. The Court merely noted that the trial court concluded that genuine issues of material fact existed on this element. The Court, however, did not review the correctness of this conclusion, and it does not appear that either party challenged this finding.

E. Element #2 – Important Body Function:
The Court did not discuss this element.

F. Element #3 – General Ability:
In concluding that a question of fact existed on this element, the Court noted that plaintiff offered testimonial and documentary evidence confirming that her injuries affected her ability to work, engage in recreational activities, perform household chores, and engage in activities of normal daily living. In this regard, the Court recognized that:

In this case, viewing the evidence in the light most favorable to plaintiff,4 the trial court erred by concluding that plaintiff’s injuries did not affect her general ability to lead her normal life. Over a year and a half after the accident, plaintiff testified during her deposition that, before the accident, she spent her time working, riding on the back of a motorcycle, walking her dog, camping at a trailer she owned, and swimming. Plaintiff testified that her injuries prevented her from performing some of her usual janitorial tasks that required her to use both arms because she had problems with her left arm and shoulder. Although her employer accommodated her physical needs by limiting her use of certain machinery that required both arms for operation, respondent never returned to her preaccident physical condition. Further, after the accident, plaintiff went camping less frequently, and when she did camp, she could no longer walk around or serve food like she used to do. She also testified that since the accident she has been completely unable to ride on a motorcycle, walk her dog, take walks without experiencing leg problems, or swim.

Plaintiff’s medical records reported that she experienced “a loss of motion,” “a loss of sensation,” and pain that became “worse with activity.” Plaintiff’s physical therapy records from 2019 indicate that her injuries limited her ability to wash herself, dress herself, and perform tasks around her house without assistance. The records also indicate that she was unable to walk, sit, or stand for more than a brief amount of time. The medical records describe significant effects on plaintiff’s social life and ability to sleep. While a May 2019 evaluation revealed improvement in several areas, it still described limitations on plaintiff’s social life, ability to perform household tasks such as lifting objects and vacuuming, and ability to sleep. Plaintiff testified at her deposition to such limitations. On June 21, 2019, one of plaintiff’s doctors signed an Attendant Care Disability Certificate. This certificate stated that plaintiff needed help with at least some of the activities of daily life every day for at least two hours a day, and described her as “disabled and in need of attendant care.”

Based on the foregoing evidence, the Court found that summary disposition on the general ability element was improperly granted below.

G. Additional Comments:
Notably, in reaching its holding in this case, the Court of Appeals emphasized that the McCormick general ability prong does not require a plaintiff to establish that his or her life has been destroyed. Rather, it only requires that the plaintiff’s life be “affected.” In this regard, the Court stated, “The trial court ruled that plaintiff failed to prove ‘a true general inability to lead’ her normal life. It is worth emphasizing that plaintiff need only show that her general ability to lead 'her normal life has been affected, not destroyed.' McCormick, 487 Mich at 202. In this case, plaintiff presented evidence that established that a genuine issue of material fact existed regarding whether her injuries affected her general ability to lead her normal life establishing a serious impairment of bodily function. Therefore, the trial court erred by granting summary disposition in favor of defendant.”

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