                           STATE OF MICHIGAN

                            COURT OF APPEALS



SANDRA MCCARTHY,                                                      UNPUBLISHED
                                                                      August 11, 2016
               Plaintiff-Appellant,

v                                                                     No. 326715
                                                                      St. Clair Circuit Court
DEBORAH LIPPS-CARBONE,                                                LC No. 2014-000131-NI

               Defendant-Appellee.


Before: RIORDAN, P.J., and SAAD and M. J. KELLY, JJ.

PER CURIAM.

       In this negligence action for the recovery of damages resulting from an automobile
accident, plaintiff appeals the trial court’s order that granted summary disposition in favor of
defendant. The trial court granted defendant’s motion for summary disposition because it
determined that there was no question of fact that plaintiff’s injuries were not caused by
defendant’s negligence. For the reasons provided below, we affirm.

        This case arises from a 2013 automobile accident when defendant rear-ended plaintiff
while plaintiff sat in a line of traffic at a stop sign. Plaintiff filed a complaint against defendant
in which she alleged that the accident exacerbated and aggravated her preexisting physical and
psychological injuries sustained in a prior 2003 automobile accident. Defendant moved for
summary disposition on the basis that plaintiff had not established that defendant’s negligence
caused her injuries and, had she established causation, plaintiff did not show that she suffered a
serious impairment of body function under MCL 500.3135 of Michigan’s no-fault act. After a
hearing on defendant’s motion for summary disposition, the trial court ruled that plaintiff failed
to present any evidence that she sustained any physical injuries as a result of the 2013 accident
and granted defendant’s motion.

       Plaintiff contends that the trial court erred when it granted defendant’s motion for
summary disposition because a genuine issue of material fact existed with respect to proximate
cause. We disagree.

       We review a trial court’s grant or denial of a summary disposition motion de novo.
Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). Although defendant
sought summary disposition under MCR 2.116(C)(8) and MCR 2.116(C)(10), the trial court did
not expressly identify the legal grounds on which it found summary disposition appropriate.
However, because it is clear that the trial court considered evidence beyond the pleadings, we
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review the decision under the standard of MCR 2.116(C)(10). See Besic v Citizens Ins Co of
Midwest, 290 Mich App 19, 23; 800 NW2d 93 (2010).

       A motion under MCR 2.116(C)(10) tests the factual support for a claim, Walsh v Taylor,
263 Mich App 618, 621; 689 NW2d 506 (2004), and should only be granted if there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law,
Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). In reviewing a motion
under this subrule, “this Court considers the pleadings, admissions, affidavits, and other relevant
documentary evidence of record in the light most favorable to the nonmoving party to determine
whether any genuine issue of material fact exists to warrant a trial.” Walsh, 263 Mich App at
621.

        “To establish a prima facie case of negligence, a plaintiff must prove the following
elements: (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the legal
duty, (3) the plaintiff suffered damages, and (4) the defendant’s breach was a proximate cause of
the plaintiff’s damages.” Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162;
809 NW2d 553 (2011). At issue in this case is the causation element. Causation includes two
separate elements: “(1) cause in fact and (2) legal or proximate cause.” Lockridge v Oakwood
Hosp, 285 Mich App 678, 684; 777 NW2d 511 (2009). “The cause in fact element generally
requires showing that ‘but for’ the defendant’s actions, the plaintiff’s injuries would not have
occurred.” Skinner v Square D Co, 445 Mich 153, 163; 516 NW2d 475 (1994). And “legal
cause or ‘proximate cause’ normally involves examining the foreseeability of consequences, and
whether a defendant should be held legally responsible for such consequences.” Id.

        Plaintiff bears the burden of setting forth specific facts that defendant caused plaintiff’s
injuries—mere speculation is insufficient to support a finding of causation. Craig v Oakwood
Hosp, 471 Mich 67, 87; 684 NW2d 296 (2004); Skinner, 445 Mich at 173. Here, plaintiff failed
to present specific factual evidence that establishes “but for” defendant’s actions, plaintiff would
not have been injured. It is undisputed that plaintiff suffered from preexisting physical and
psychological conditions stemming from a 2003 automobile accident. Specifically, these
conditions included neck, back, and psychiatric problems. A review of plaintiff’s medical
records—prior to the June 2, 2013, accident with defendant—reveals that following her 2003
accident, on November 25, 2003, plaintiff was diagnosed with degenerative disc disease at “L4-5
and L5-S1 levels,” and on September 17, 2009, plaintiff was diagnosed with a “mild disc disease
at C5/6 and C6/7.” On March 21, 2012, plaintiff’s treating spine surgeon, Dr. Andres Munk,
noted that plaintiff had a C5-6 small disc protrusion in her neck and chronic discogenic changes
at L4-5 and L5-S1. Further Dr. Munk noted that steroid treatment “did not help much,” and he
prescribed a back brace for plaintiff.

        On April 25, 2012, Dr. Munk noted that plaintiff’s updated x-rays showed a collapse
between C5-6 and C6-7, but otherwise she was “pretty much asymptomatic.” Dr. Munk also
noted that plaintiff’s MRI of her lumbar spine showed “discogenic changes between L4-5 and
L5-S1.” A couple months before the accident with defendant, on April 3, 2013, Dr. Munk noted
that plaintiff was experiencing acute flare-up of her symptoms. Plaintiff complained that she
was experiencing pain in her back because she had to do a lot of bending and twisting at work.
Dr. Munk’s impression was “L4-L5 and L5-S1 changes, Grade I spondylolisthesis, L5-S1, and
Sacroiliitis.”

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        Three days after the accident, on June 5, 2013, plaintiff visited Dr. Munk once again.
This time, Dr. Munk took x-rays of plaintiff’s neck, prescribed a steroid pack, and ordered an
MRI. Dr. Munk noted that there were “no acute changes” in plaintiff’s neck and that, although
there was narrowing between C5-6 and C6-7, there were no obvious changes when compared to
her previous x-rays. Dr. Munk’s impression was “[c]ervical strain with some exacerbation of
discogenic of both the cervical and lumbar spine.” On June 14, 2013, plaintiff saw Dr. Munk to
go over the results of her June 7 MRI. Again, Dr. Munk noted that when he compared her results
to her prior MRI, he did not see any significant changes.

        In reviewing plaintiff’s medical history before and after accident, it appears that plaintiff
suffered from the same symptoms as she did before the accident. It is true that “[r]egardless of
the preexisting condition, recovery is allowed if the trauma caused by the accident triggered
symptoms from that condition.” Wilkinson v Lee, 463 Mich 388, 395; 617 NW2d 305 (2000)
(emphasis added). However, plaintiff suffered from disc changes in her cervical and lumbar
spine before the accident occurred, and the severity of plaintiff’s pain symptoms changed visit to
visit. There is no evidence that the pain plaintiff experienced after the accident was actually
caused by defendant’s actions. And there is no evidence that any of plaintiff’s treating
physicians concluded that her problems were caused by the June 2, 2013, accident. Indeed,
plaintiff failed to introduce any affidavits from her treating physicians that stated that, in their
professional opinion, the accident exacerbated or aggravated her existing symptoms. Instead, Dr.
Stanley Lee, an independent medical examiner, concluded that any treatment plaintiff received
above and beyond a soft tissue strain could not be related to or caused by defendant’s actions in
the June 2 accident. Importantly, plaintiff failed to introduce any supporting evidence indicating
that her treating physicians disagreed with Dr. Lee’s conclusion. Thus, we hold that plaintiff
failed to present sufficient evidence that defendant’s actions were a cause in fact of her injuries.
Additionally, because plaintiff did not establish that defendant was the cause in fact of her
injuries, she also cannot demonstrate how defendant’s actions were the proximate or legal cause
of those injuries. See Craig, 471 Mich at 87 (“[This Court] must find that the defendant’s
negligence was a cause in fact of the plaintiff’s injuries before it can hold that defendant’s
negligence was the proximate or legal cause of those injuries.”).

         We note that plaintiff’s reliance on Wilkinson is misplaced. The issue in Wilkinson was
whether the evidence sufficiently established that the accident was the proximate cause of the
plaintiff’s injuries. Wilkinson, 463 Mich at 389. The plaintiff in Wilkinson was involved in a
rear-end collision that caused him to be thrown forward and then backward with enough force to
break the seat. Id. The plaintiff was initially diagnosed with a neck strain after the accident and
missed two days of work. Id. at 389-390. The plaintiff’s symptoms worsened following the
accident and included nausea, severe headaches, dizziness, double vision, and accelerating
memory loss. Id. at 390. Later, the plaintiff was diagnosed with a brain tumor. Id. The
Wilkinson Court found that the medical evidence clearly permitted the jury to find causation
because two witnesses, a surgeon who removed the tumor and the defense medical expert,
testified that the trauma to the plaintiff’s head from the accident could have precipitated or
accelerated the plaintiff’s symptoms. Id. at 395-396. Wilkinson is distinguishable from this case.
Unlike the plaintiff in Wilkinson, plaintiff herein was never diagnosed with a new injury, and
plaintiff never presented any medical evidence establishing that her physicians opined that the
June 2, 2013, accident caused or aggravated her preexisting injuries.


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       In sum, plaintiff failed to establish a genuine issue of material fact as to whether
defendant’s conduct caused her injuries. As a result, the trial court properly granted defendant’s
motion for summary disposition.1

       Affirmed. Defendant, as the prevailing party, may tax costs pursuant to MCR 7.219.



                                                            /s/ Michael J. Riordan
                                                            /s/ Henry William Saad




1
  Defendant also alternatively argues that we should affirm the grant of summary disposition
based on her contention that plaintiff’s suit nonetheless is barred because plaintiff failed to
present evidence that she met the requirement under the no-fault act that she suffered a “serious
impairment of body function.” See MCL 500.3135(1) (“A person remains subject to tort liability
for noneconomic loss . . . only if the injured person has suffered death, serious impairment of
body function, or permanent serious disfigurement.”) (emphasis added). Of course, if
defendant’s conduct was not the cause in fact of plaintiff’s injuries, a fortiori, the accident did
not cause plaintiff to suffer a “serious impairment of body function.”


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