            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



JAMES WILLIAM PELC and ANNA MARIE                                    UNPUBLISHED
PELC,                                                                February 21, 2019

               Plaintiffs-Appellants,

v                                                                    No. 339635
                                                                     Wayne Circuit Court
NORTH STAR RANCH, INC. and RICHARD                                   LC No. 15-015352-NI
ALLAN VANDERMOLEN,

               Defendants-Appellees.


Before: CAVANAGH, P.J., and BORRELLO and REDFORD, JJ.

PER CURIAM.

        Plaintiffs, James and Anna Pelc, appeal as of right the trial court’s order granting
defendants’ motion for summary disposition and dismissing their auto negligence case with
prejudice on the ground that plaintiffs failed and could not establish that James suffered an
objectively manifested impairment as required under MCL 500.3135(5). We reverse.

                                        I. BACKGROUND

        While driving a semi tractor trailer belonging to his employer, defendant, North Star
Ranch, Inc., defendant, Richard Vandermolen, rear-ended James on I-96 on April 25, 2015.
Plaintiffs sued defendants alleging that James suffered serious injuries to his cervical spine, back,
and head attributable to the accident. Defendants denied liability and after discovery moved for
summary disposition on the ground that James’s injuries failed to meet Michigan’s no-fault
insurance act’s, MCL 500.3101 et seq., threshold injury requirement and specifically argued that
plaintiffs could not prove that James suffered an objectively manifested impairment as required
under MCL 500.3135(5). Defendants argued to the trial court that James suffered from
preexisting conditions for which he received treatment for the same ailments he contended were
caused by the accident. Defendants also contended that James falsely reported to his treating
physician after the accident that he was asymptomatic before it occurred. The trial court ruled in
favor of defendants and this appeal followed.
       Plaintiffs first argue that the trial court erred by concluding that plaintiffs, as a matter of
law, could not establish that James suffered an objectively manifested impairment as required
under MCL 500.3135(5). Plaintiffs assert that the proofs presented to the trial court met the
standard to establish that James suffered an objectively manifested impairment as a result of the
April 2015 accident. We agree.

                                  II. STANDARD OF REVIEW

        We review de novo a trial court’s decision on a summary disposition motion and consider
the entire record to determine whether defendant established entitlement to summary disposition.
Patrick v Turkelson, 322 Mich App 595, 605; 913 NW2d 369 (2018). In Patrick, this Court
stated the applicable standard of review:

                A motion for summary disposition brought pursuant to MCR 2.116(C)(10)
       tests the factual support for a claim. Summary disposition is appropriate under
       MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the
       moving party is entitled to judgment as a matter of law. A motion pursuant to
       MCR 2.116(C)(10) is reviewed by considering the pleadings, admissions, and
       other evidence submitted by the parties in the light most favorable to the
       nonmoving party. A genuine issue of material fact exists when the record, giving
       the benefit of reasonable doubt to the opposing party, leaves open an issue upon
       which reasonable minds might differ. It is well settled that the circuit court may
       not weigh the evidence or make determinations of credibility when deciding a
       motion for summary disposition. Moreover, a court may not make findings of
       fact; if the evidence before it is conflicting, summary disposition is improper. [Id.
       at 605-606 (quotation marks and citations omitted).]

                                          III. ANALYSIS

        This case requires us to determine whether plaintiffs established that James suffered an
objectively manifested impairment or at least the existence of a genuine issue of fact in that
regard. MCL 500.3135 provides in relevant part as follows:

               (1) A person remains subject to tort liability for noneconomic loss caused
       by his or her ownership, maintenance, or use of a motor vehicle only if the injured
       person has suffered death, serious impairment of body function, or permanent
       serious disfigurement.

               (2) For a cause of action for damages pursuant to subsection (1) filed on
       or after July 26, 1996, all of the following apply:

               (a) The issues of whether the injured person has suffered serious
       impairment of body function or permanent serious disfigurement are questions of
       law for the court if the court finds either of the following:

              (i) There is no factual dispute concerning the nature and extent of the
       person’s injuries.


                                                 -2-
               (ii) There is a factual dispute concerning the nature and extent of the
       person’s injuries, but the dispute is not material to the determination whether the
       person has suffered a serious impairment of body function or permanent serious
       disfigurement. However, for a closed-head injury, a question of fact for the jury
       is created if a licensed allopathic or osteopathic physician who regularly
       diagnoses or treats closed-head injuries testifies under oath that there may be a
       serious neurological injury.

                                              * * *

               (5) As used in this section, “serious impairment of body function” means
       an objectively manifested impairment of an important body function that affects
       the person’s general ability to lead his or her normal life.

        In McCormick v Carrier, 487 Mich 180, 193; 795 NW2d 517 (2010) (quotation marks
and citations omitted), our Supreme Court explained that the plain language of MCL 500.3135
required trial courts to determine as a matter of law the question whether the plaintiff suffered a
serious impairment of body function “as long as there is no factual dispute regarding the nature
and extent of the person’s injuries that is material to determining whether the threshold standards
are met.” The Court instructed that, if “there is a material factual dispute regarding the nature
and extent of the person’s injuries, the court should not decide this issue as a matter of law.” Id.
at 194. The Court explained further regarding MCL 500.31351 that:

       On its face, the statutory language provides three prongs that are necessary to
       establish a “serious impairment of body function”: (1) an objectively manifested
       impairment (2) of an important body function that (3) affects the person’s general
       ability to lead his or her normal life. [Id. at 195.]

                                              * * *

              Under the first prong, it must be established that the injured person has
       suffered an objectively manifested impairment of body function. The common
       meaning of “an objectively manifested impairment” is apparent from the
       unambiguous statutory language, with aid from a dictionary, and is consistent
       with the judicial interpretation of “objectively manifested” in Cassidy and
       DiFranco. [Id. at 195-196.]

                                              * * *

               [T]he common meaning of “objectively manifested” in MCL 500.3135[5]
       is an impairment that is evidenced by actual symptoms or conditions that someone


1
  When our Supreme Court decided McCormick, the definition of “serious impairment of body
function” appeared in MCL 500.3135(7) which the Legislature redesigned pursuant to 2012 PA
158 as MCL 500.3135(5).


                                                -3-
       other than the injured person would observe or perceive as impairing a body
       function. In other words, an “objectively manifested” impairment is commonly
       understood as one observable or perceivable from actual symptoms or conditions.
       [Id. at 196.]

               Notably, MCL 500.3135[5] does not contain the word “injury,” and, under
       the plain language of the statute, the proper inquiry is whether the impairment is
       objectively manifested, not the injury or its symptoms. This distinction is
       important because “injury” and “impairment” have different meanings. An
       “injury” is “1. Damage of or to a person . . . 2. A wound or other specific
       damage.” The American Heritage Dictionary, Second College Edition (1982).
       “Impairment” is the “state of being impaired,” Webster’s Third New International
       Dictionary (1966), and to be “impaired” means being “weakened, diminished, or
       damaged” or “functioning poorly or inadequately.” Random House Webster’s
       Unabridged Dictionary (1998). These definitions show that while an injury is the
       actual damage or wound, an impairment generally relates to the effect of that
       damage. Accordingly, when considering an “impairment,” the focus “is not on
       the injuries themselves, but how the injuries affected a particular body function.”
       DiFranco, 427 Mich at 67, 398 NW2d 896. [Id. at 197.]

        Further, in Fisher v Blankenship, 286 Mich App 54, 64; 777 NW2d 469 (2009), this
Court instructed that “the aggravation or triggering of a preexisting condition can constitute a
compensable injury.” Therefore, preexisting conditions and a history of treatment of such
conditions does not require granting summary disposition and dismissal of a lawsuit brought by a
plaintiff following a motor vehicle accident.

        In this case, defendants moved for a ruling that plaintiffs failed and could not establish
that James suffered “an objectively manifested impairment” as a matter of law because he had
preexisting conditions for which he received treatment before the April 2015 accident.
Defendants relied on selective evidence from James’s medical records and offered their
generalized interpretation to show that James had preexisting conditions respecting his neck,
back, shoulder and arm. They argued that James falsely claimed after the April 2015 accident
that he was asymptomatic before the accident. Plaintiffs countered with James’s medical records
and his post-accident surgeon’s testimony. Plaintiffs argued that a complete analysis of James’s
medical records established that James suffered “an objectively manifested impairment” as a
result of the April 2015 accident and that he never made false statements regarding his pre-
accident condition.

        De novo review of the entire record indicates that a genuine issue of material fact exists
regarding whether James suffered an objectively manifested impairment as a result of the April
2015 accident. Significantly, James’s family physician’s pre-accident treatment records,
particularly the March 20, 2015 office visit notes, reported that James presented without back,
neck, shoulder, arm, or head pain complaints. The portion of the document defendants
referenced reported past complaints, not the reason for James’s March 20, 2015 office visit. The
doctor’s pre-accident medical records indicated that James’s office visit pertained to benign
essential hypertension, not for the same or similar conditions he complained about after the April
2015 accident.

                                               -4-
        The record reflects that James also made an office visit to see his doctor on February 18,
2015. That visit concerned left eye drainage. The doctor’s pre-accident records for February
2015 and March 2015, the last two months before the April 2015 accident, reflect that James did
not complain of eye pain, blurry vision, ear pain, hearing loss, numbness, weakness, tingling,
headache, or dizziness. Although the records reflected that James had previously complained of
chronic pain, his doctor’s February and March 2015 records made no mention of neck or back
pain, or any of the conditions about which he complained after the accident.

        We conclude that James’s family doctor’s two pre-accident records established James’s
baseline condition for the two months before the April 2015 accident. Those records indicate
that James was asymptomatic regarding the post-accident conditions about which he complained
after the accident. We do not find on the record before us evidence that undermines the
conclusion that James, in fact, was asymptomatic before the accident. The record does not
reflect that James falsely informed his surgeon after the accident regarding his pre-accident
condition. After the April 2015 accident, James experienced severe persistent pain in his neck,
shoulders, and arms, as well as other conditions. These conditions were not present during
February and March 2015.

        The record reflects that James presented to his surgeon after the April 2015 accident with
actual symptoms and conditions that the surgeon could observe and perceive as impairing
James’s neck and other body functions. The record reflects that the surgeon considered James’s
accident event, his post-accident symptoms, ordered tests, reviewed the MRIs, and observed in
the MRI taken of James’s neck that a herniated disc at the C3-4 level existed. The surgeon
reasoned that the disc herniation caused an impingement of a nerve root. That objectively
manifested impairment explained the symptoms about which James complained regarding his
persistent and severe neck and arm pain after the accident. The MRI of James’s lumbar spine
showed herniated discs that were not previously observed or diagnosed. The record reflects that
James’s surgeon opined, based on all the evidence before him, that the April 2015 accident
caused new objectively verifiable physical conditions or worsened James’s preexisting
conditions. Reviewing the evidence of record in the light most favorable to the nonmoving
party, plaintiffs have produced evidence, which if believed by the finder of fact, could establish
James’s baseline condition just before the April 2015 accident.

        Applying the analysis set forth in McCormick, we hold that plaintiffs established through
admissible evidence the existence of a genuine issue of material fact whether James suffered
objectively manifested impairments as required under MCL 500.3135(5). Accordingly, the trial
court erred by granting defendants’ summary disposition.

        Plaintiffs also argue that the trial court erred to the extent it granted defendants’ summary
disposition on the ground that plaintiffs could not prove the causation element of their negligence
claim. We find that the evidence presented to the trial court established the existence of a
genuine issue of material fact in that regard.




                                                -5-
       In Patrick, 322 Mich App at 616-618, this Court summarized the legal principles for
determination of causation as follows:

              Proximate causation is a required element of a negligence claim.
       Causation is an issue that is typically reserved for the trier of fact unless there is
       no dispute of material fact.

              To establish proximate cause, the plaintiff must prove the existence of
       both cause in fact and legal cause. While the term “proximate cause” is also a
       term of art for the concept of legal causation, Michigan courts have historically
       used the term proximate cause both as a broader term referring to factual
       causation and legal causation together and as a narrower term referring only to
       legal causation. . . . [A] court must find that the defendant’s negligence was a
       cause in fact of the plaintiff’s injuries before it can hold that the defendant’s
       negligence was the proximate or legal cause of those injuries.

                                              * * *

               Establishing cause in fact requires the plaintiff to present substantial
       evidence from which a jury may conclude that more likely than not, but for the
       defendant’s conduct, the plaintiff’s injuries would not have occurred. Although
       causation cannot be established by mere speculation, a plaintiff’s evidence of
       causation is sufficient at the summary disposition stage to create a question of fact
       for the jury if it establishes a logical sequence of cause and effect,
       notwithstanding the existence of other plausible theories, although other plausible
       theories may also have evidentiary support[.]

               To establish legal cause, the plaintiff must show that it was foreseeable
       that the defendant’s conduct may create a risk of harm to the victim, and that the
       result of that conduct and intervening causes were foreseeable. Our inquiry
       normally involves examining the foreseeability of consequences, and whether a
       defendant should be held legally responsible for such consequences. . . . When
       judging the foreseeability of a risk of harm, it is not necessary that the manner in
       which a person might suffer injury should be foreseen or anticipated in specific
       detail. In other words, where an act is negligent, to render it the proximate cause,
       it is not necessary that the one committing it might have foreseen the particular
       consequence or injury, or the particular manner in which it occurred, if by the
       exercise of reasonable care it might have been anticipated that some injury might
       occur. [Quotation marks and citations omitted.]

       In this case, the record reflects that plaintiffs submitted substantial evidence in response
to defendants’ motion from which a jury may conclude that, more likely than not, but for
defendants’ conduct, plaintiff’s injuries would not have occurred. The parties do not dispute that
the April 2015 accident happened or the severity of it. The record reflects that plaintiffs
submitted evidence establishing a logical sequence of cause and effect showing that the rear-end
crash inflicted injuries on James’s cervical spine, lumbar spine, and head. James’s medical
records and his surgeon’s testimony supported their contention that, but for the rear-end accident,

                                                -6-
more likely than not, James would not have experienced the severity of his symptoms. The
surgeon testified that James’s injuries were consistent with the type of injuries suffered by
persons who had rear-end motor vehicle accidents, and based on James’s medical history, the
accident event, and James’s post-accident problems, he concluded that the April 2015 accident
caused new injuries or exacerbated any preexisting conditions. We conclude that the evidence
plaintiffs presented established a genuine issue of fact whether defendants’ conduct served as the
cause in fact of James’s injuries.

        Further, the record reflects that plaintiffs presented evidence that established a genuine
issue of material fact whether defendants’ conduct served as a proximate cause of James’s
injuries. Plaintiffs presented evidence regarding the foreseeability of the consequences of
defendants’ conduct that required the exercise of reasonable care. The evidence in the record
does not establish, as a matter of law, that plaintiffs cannot prove causation. We hold that
plaintiffs established through admissible evidence the existence of a genuine issue of material
fact regarding causation. Accordingly, the trial court erred by granting defendants summary
disposition.

       Reversed and remanded. We do not retain jurisdiction.

                                                            /s/ Mark J. Cavanagh
                                                            /s/ Stephen L. Borrello
                                                            /s/ James Robert Redford




                                               -7-
