20231130_C364465_37_364465.Opn.Pdf ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PHYLLIS JOANN LAKES, UNPUBLISHED
November 30, 2023
Plaintiff-Appellee,
v No. 364465
Wayne Circuit Court
ALLSTATE FIRE AND CASUALTY INSURANCE LC No. 21-009447-NI
COMPANY and RICKY ALLEN SOWARDS,
Defendants,
and
CITY OF WESTLAND,
Defendant-Appellant.
Before: O’BRIEN, P.J., and K. F. KELLY and M. J. KELLY, JJ.
PER CURIAM.
Defendant-appellant, city of Westland,1 appeals as of right the trial court’s order granting
in part and denying in part its motion for summary disposition under MCR 2.116(C)(7) and (10).
We reverse in part and remand for the trial court to enter an order granting Westland’s motion for
summary disposition in full.
I. BACKGROUND
This case arises from a May 24, 2021 motor vehicle accident involving plaintiff and
Westland’s employee, defendant Ricky Allen Sowards. The accident occurred at the intersection
1
In the trial court, defendant Rick Allen Sowards moved for summary disposition, and the trial
court granted the motion and dismissed Sowards from the case. That ruling is not at issue in this
appeal. The parties also stipulated to dismiss defendant Allstate Fire and Casualty Insurance
Company. Neither Sowards nor Allstate has filed a brief in this Court.
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of Wayne Road and Sims Road. Shortly before the accident, plaintiff was stopped at a red light
on Wayne Road. Sowards—who was driving a truck towing a trailer loaded with heavy lawn
equipment—was stopped at a different red light on Wayne Road about 300 feet behind plaintiff.
When Sowards light turned green, he proceeded through. When plaintiff’s light turned green, the
vehicle in front of plaintiff did not proceed through the intersection. As a result, when Sowards
approached the intersection of Wayne Road and Sims Road, the light was green but plaintiff and
the vehicle in front of plaintiff were not moving. Sowards did not see plaintiff’s stopped vehicle
until it was too late; even though Sowards applied the truck’s brakes, he was unable to bring the
truck carrying the trailer to a full stop and rear-ended plaintiff’s vehicle. A biomechanical analysis
of the crash estimated that Sowards “closing speed . . . was between 8 and 10 mph.”
Following the accident, plaintiff declined any medical attention. She began experiencing
back pain after the accident, however, and went to see her primary care physician, Dr. Letacia
Thomas, M.D., roughly two weeks after the accident on June 4, 2021. Dr. Thomas took x-rays of
plaintiff’s spine but found “[n]o [c]ompression fracture deformity or significant disc [sic]
narrowing,” and “[n]o other significant finding.” Plaintiff continued experiencing pain, however,
so she went to Dr. William Gonte, M.D., on July 12, 2021. Dr. Gonte did not note any potential
causes for plaintiff’s back pain but nevertheless ordered an MRI. The results of plaintiff’s MRI
found a loss of disk-space height between multiple vertebrae and small disk protrusions, which
were labeled “[d]egenerative.” At a follow-up appointment with Dr. Thomas on September 17,
2021, Dr. Thomas confirmed that the July 2021 MRI showed “small disc [sic] herniation” due to
“degeneration.” Plaintiff continued experiencing back pain, however, and attended multiple
physical-therapy sessions to address the pain.
On August 3, 2021, plaintiff filed the complaint giving rise to this action. As relevant to
this appeal, plaintiff’s complaint alleged that Sowards negligently operated his motor vehicle and
Westland was vicariously liable for Sowards’ negligence under the motor vehicle exception to
governmental immunity in MCL 691.1405. Westland eventually moved for summary disposition,
arguing in relevant part that plaintiff did not suffer any bodily injury that resulted from the May
2021 accident. In support of its motion, Westland argued that there was nothing in plaintiff’s
medical records to support that she suffered a bodily injury as a result of the May 2021 accident.
Westland also produced a report authored by Dr. Stanley S. Lee, M.D., in which Dr. Lee opined
that, based plaintiff’s medical records, “there were mild, expected changes of aging, including disk
bulges, disk dehydration and height loss, and bone spurs,” but “there were no objective findings
of spinal pathology.”
In response, plaintiff asserted that there was a question of fact whether she suffered a bodily
injury, and that any conclusion otherwise would require the trial court to make a credibility
determination. In support of this argument, however, plaintiff merely asserted, “Plaintiff has
submitted medical records which show the injuries she suffered in this matter,” and cited this
proposition to “Exhibit C,” which was 150 pages of medical records.
At the hearing on Westland’s motion, the trial court criticized this portion of plaintiff’s
briefing, saying, “I don’t have time to go through [one] hundred and fifty pages of medical[]
[records], to find, you know, your, your support.” The trial court later asked plaintiff’s counsel to
“refer [the court] specifically to a medical record that indicates [plaintiff’s] spinal injury is, or her
back injury is related to this accident,” and plaintiff’s counsel referred the court to the record of
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plaintiff’s June 4, 2021 visit to Dr. Thomas. Plaintiff contended that this record showed that
plaintiff first started complaining about back pain following the May 24, 2021 accident with
Sowards. Apparently satisfied with this argument, the trial court denied Westland’s motion,
reasoning there was a question of fact whether plaintiff’s “low level, uh, disk herniation” was
“from this accident.”
This appeal followed.
II. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). Defendant
moved for summary disposition under MCR 2.116(C)(7) and (C)(10). “MCR 2.116(C)(7)
provides that a motion for summary disposition may be raised on the ground that a claim is barred
because of immunity granted by law.” Dextrom v Wexford Co, 287 Mich App 406, 428; 789
NW2d 211 (2010). As this Court has explained:
When reviewing a motion under MCR 2.116(C)(7), this Court must accept
all well-pleaded factual allegations as true and construe them in favor of the
plaintiff, unless other evidence contradicts them. If any affidavits, depositions,
admissions, or other documentary evidence are submitted, the court must consider
them to determine whether there is a genuine issue of material fact. If no facts are
in dispute, and if reasonable minds could not differ regarding the legal effect of
those facts, the question whether the claim is barred is an issue of law for the court.
However, if a question of fact exists to the extent that factual development could
provide a basis for recovery, dismissal is appropriate. [Id. at 428-429 (footnotes
omitted).]
Summary disposition is appropriate under MCR 2.116(C)(10) if, “[e]xcept as to the amount
of damages, there is no genuine issue as to any material fact, and the moving party is entitled to
judgment or partial judgment as a matter of law.” The moving party “must specifically identify
the issues as to which the moving party believes there is no genuine issue as to any material fact”
and support its motion with documentary evidence. Maiden v Rozwood, 461 Mich 109, 120; 597
NW2d 817 (1999), citing MCR 2.116(G)(4). A court reviewing a motion under MCR
2.116(C)(10) must consider the substantively admissible evidence offered in opposition to the
motion. Maiden, 461 Mich at 121. To survive summary disposition, the opposing party must set
forth specific facts establishing a genuine issue of material fact for trial. Id. at 120. A genuine
issue of material fact exists when the evidence presented “leave[s] open an issue upon which
reasonable minds might differ.” Debano-Griffin v Lake Co, 493 Mich 167, 175; 828 NW2d 634(2013) (quotation marks and citation omitted).
The initial burden in a motion under MCR 2.116(C)(10) rests with the moving party, who
can satisfy its burden by either (1) submitting “affirmative evidence that negates an essential
element of the nonmoving party’s claim” or (2) demonstrating “that the nonmoving party’s
evidence is insufficient to establish an essential element of the nonmoving party’s claim.” Quinto
v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996) (quotation marks and citation
omitted). In response to a properly supported motion under MCR 2.116(C)(10), the nonmoving
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party cannot “rest on mere allegations or denials in the pleadings, but must, by documentary
evidence, set forth specific facts showing that there is a genuine issue for trial.” Campbell v
Kovich, 273 Mich App 227, 229; 731 NW2d 112 (2006).
III. ANALYSIS
Under the governmental tort liability act, MCL 691.1401 et seq., governmental agencies
and their employees are generally immune from tort liability when they are engaged in the exercise
or discharge of a governmental function, absent an exception. Ray v Swager, 501 Mich 52, 62;
903 NW2d 366 (2017). One such exception is the motor vehicle exception in MCL 691.1405,
which provides:
Governmental agencies shall be liable for bodily injury and property
damage resulting from the negligent operation by an officer, agent, or employee of
the governmental agency, of a motor vehicle of which the governmental agency is
owner, as defined in Act No. 300 of the Public Acts of 1949, as amended, being
sections 257.1 to 257.923 of the Compiled Laws of 1948.
“[T]he statute says the injuries or property damage must result from the negligent operation of a
motor vehicle.” Robinson v City of Detroit, 462 Mich 439, 457 n 14; 613 NW2d 307 (2000).
“Bodily injury” as used in the statute means “a physical or corporeal injury to the body.” Hannay
v Dep’t of Transp, 497 Mich 45, 63; 860 NW2d 67 (2014) (emphasis omitted).
In her complaint, plaintiff alleged that she “sustained accidental bodily injuries” as a result
of the May 24, 2021 accident, but she did not identify any specific injuries in her complaint. In
her initial disclosures, plaintiff identified her injuries as “cervical disc [sic] herniation and small
central disc [sic] protrusion.”
In its motion for summary disposition, Westland argued that there was no evidence that
plaintiff’s claimed bodily injuries resulted from the May 2021 accident. In support of this
argument, Westland cited to plaintiff’s medical records. Westland first highlighted the medical
record from plaintiff’s June 2021 visit with Dr. Thomas, which stated that Dr. Thomas reviewed
x-rays of plaintiff’s spine but found “[n]o [c]ompression fracture deformity or significant disc [sic]
narrowing,” and “[n]o other significant finding.” Westland also pointed to the results of plaintiff’s
July 2021 MRI. Those results noted disk protrusions and herniations, but suggested that they were
degenerative. In addition, Westland highlighted the record from plaintiff’s September 2021 visit
with Dr. Thomas, which reflected that the July 2021 MRI showed “small disc [sic] herniation” due
to “degeneration.” Finally, Westland submitted the report authored by Dr. Lee in which Dr. Lee
confirmed that, based on his review of plaintiff’s medical records, “there were mild, expected
changes of aging, including disk bulges, disk dehydration and height loss, and bone spurs,” but
“there were no objective findings of spinal pathology.” This evidence all supported Westland’s
argument that the bodily injuries identified by plaintiff were degenerative and did not result from
the May 2021 accident with Sowards.
In response to this properly-pleaded motion for summary disposition, plaintiff could not
rest on mere allegations or denials, but had to produce documentary evidence setting forth a
genuine issue of material fact for trial. Campbell, 273 Mich App at 229. In response to Westland’s
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motion, plaintiff merely asserted that she “has submitted medical records which show the injuries
she suffered in this matter,” and cited this proposition to 150 pages of medical records. This was
plainly inadequate; trial courts are not research assistants, and it is the responsibility of each
party—not the court—to present the party’s argument. Walters v Nadell, 481 Mich 377, 388; 751
NW2d 431 (2008). The trial court clearly felt the same way; it told plaintiff’s counsel that it did
not have time to comb through plaintiff’s medical records to find support for plaintiff’s argument.
Despite the inadequacy of plaintiff’s response, the trial court gave plaintiff an opportunity
to identify which documents in her medical records tended to establish that she suffered a bodily
injury that resulted from the May 2021 accident. Plaintiff referred the court to the record from
plaintiff’s June 2021 visit with Dr. Thomas, specifically the portion of the record in which plaintiff
reported her symptoms to Dr. Thomas. Problematically, none of plaintiff’s self-reported
symptoms established that her claimed bodily injuries—such as the cervical disk herniations and
small disk protrusions—were caused by the May 2021 accident. At best, the record from plaintiff’s
June 2021 visit with Dr. Thomas established that plaintiff began experiencing back pain following
the May 2021 accident. This in turn does not tend to establish that plaintiff’s claimed bodily
injuries were caused by the May 2021 accident, particularly in light of (1) the fact that, at the same
visit, Dr. Thomas took x-rays of plaintiff’s spine and found no injuries that could be causing
plaintiff’s pain and (2) Westland’s unrebutted evidence that the cervical disk herniations and small
central disk protrusions identified by plaintiff’s July 2021 MRI were degenerative.
On appeal, plaintiff does not offer any additional argument in support of her position.
Rather, plaintiff merely reiterates her contention from the trial court that “Defendants have a
credibility argument for the jury, not a legal causation question.” Plaintiff does not point to any
evidence tending to establish that she suffered a bodily injury “resulting from” the May 2021
accident, so her argument that defendant is asking this Court to make a credibility determination
is simply incorrect.2 See Quinto, 451 Mich at 362 (explaining that it is proper for a court to grant
summary disposition if the nonmoving party’s evidence is insufficient to establish an essential
element of the nonmoving party’s claim).
To summarize, to avail herself of the exception to governmental immunity in MCL
691.1405, plaintiff needed to establish that she suffered a “bodily injury . . . resulting from”
Sowards’ negligent operation of Westland’s motor vehicle. Westland moved for summary
disposition, arguing that plaintiff could not establish that her claimed bodily injuries—the cervical
disk herniations and small central disk protrusions—resulted from the May 2021 motor vehicle
accident. In response to Westland’s properly-supported motion, plaintiff was required to submit
documentary evidence creating a question of fact whether her claimed bodily injuries resulted from
2
Unlike in the trial court, plaintiff’s only apparent argument on appeal relies on the temporal
relationship between the accident and plaintiff’s complaints of pain. Plaintiff asserts, “The
Plaintiff did not have a mobility issues or pain issues before Mr. Soward[s] rear-ended her. Then
she did.” As our Supreme Court has explained, however, “Relying merely on a temporal
relationship is a form of engaging in the logical fallacy of post hoc ergo propter hoc (after this,
therefore in consequence of this) reasoning.” West v Gen Motors Corp, 469 Mich 177, 186 n 12;
665 NW2d 468 (2003).
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Sowards’ negligent operation of Westland’s motor vehicle. As explained, plaintiff has repeatedly
failed to do so. Accordingly, the trial court should have granted Westland’s motion for summary
disposition in full.
Reversed and remanded for the trial court to enter an order granting Westland’s motion for
summary disposition in full. We do not retain jurisdiction.
/s/ Colleen A. O’Brien
/s/ Kirsten Frank Kelly
/s/ Michael J. Kelly
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