                            STATE OF MICHIGAN

                            COURT OF APPEALS



TRINA TURNER,                                                       UNPUBLISHED
                                                                    September 12, 2017
               Plaintiff-Appellant,

and

NINA SMITH,

               Plaintiff,

v                                                                   No. 332333
                                                                    Wayne Circuit Court
KENNETH JOHNSON,                                                    LC No. 14-009571-NI

               Defendant-Appellee,

and

ESURANCE INSURANCE COMPANY,

               Defendant.


Before: TALBOT, C.J., and SAWYER and STEPHENS, JJ.

STEPHENS, J. (dissenting)

        Accepting the legal standards as cited by the majority, I respectfully dissent. In reaching
their conclusion the majority accepts the analysis of the trial court which based summary
disposition on the third prong of McCormick v Carrier, 487 Mich 180; 795 NW2d 517 (2010),
which states that a plaintiff must show that they have suffered an impairment that affects the
person’s general ability to lead a normal life. As to the third prong the Court noted:

       Relative to Ms. Turner, the Court notes, as has been outlined in the brief, that she
       continued to drive. She missed only one day of work. In terms of her
       employment, she’s highly successful in her career, continues to be highly
       successful in her career. Her other interest of the ministry, she continued to do
       that. There are no restrictions placed on her. Taking the evidence in a light most
       favorable to a non-moving party, the Court feels that this is--it does fall short of
       that which is needed to take it to a jury, in that her ability to lead a normal--her

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       general ability to lead a normal life has not been shown to be impacted, to the
       extent that would rise to a serious impairment of a body function.

A review of pages 84-97 of plaintiff’s deposition reveals the following manifestations of change
in the plaintiff’s life since the motor vehicle accident:

       1. Change in household duties- hired maintenance service to do both the lawn
          and the snow and no longer vacuums or cleans the tub.
       2. Change in recreational life- no longer bowls, limits attendance at movies and
          no longer dances.
       3. Change in her religious practice – restrained in worship.
       4. Continues to use a back brace.

         The guidance in McCormick and its progeny is to look to the plaintiff’s pre and post-
accident life to determine if the general ability to lead the injured party’s normal life has been
affected. Nothing in the case law creates a bright line as to what construes a normal life. An
impairment affects a person’s general ability to lead a normal life if it has “an influence on some
of the person’s capacity to live in his or her normal manner of living.” Id. at 202. In order to
determine whether the impairment in question has affected a person’s ability to lead a normal life
requires a comparison of the person’s life before and after the incident in question. Id. This is a
subjective, case specific inquiry, which does not require a specific temporal showing or a
“quantitative minimum as to the percentage of a person’s normal manner of living that must be
affected.” Id. at 203. Rather, there must be evidence presented showing “some of the person’s
ability to live in his or her normal manner of living has been affected, not that some of the
person’s normal manner of living has itself been affected.” Id. at 202. This showing merely
requires that the “person’s general ability to lead his or her life has been affected, not destroyed.”
Id.
         It is inherently subjective. The significance of diminution of an activity depends on the
significance of that activity to the person so diminished. An elder who was wheelchair bound
before an accident but whose injury makes it difficult to sit in that wheelchair has had an effect
on her normal life. This plaintiff stated that her faith practice, her home life and social life were
important to her. I believe that reasonable minds could differ on whether this plaintiff’s altered
lifestyle supports a finding that it affected her general ability to lead her normal life and
therefore, it is appropriate to leave such decisions to a jury. See, e.g., Lima Twp v Bateson, 302
Mich App 483, 492; 838 NW2d 898 (2013) (“A court is not permitted to assess credibility, or to
determine facts on a motion for summary disposition.”) (quotations and citations omitted).

        I note the trial court and the majority indicate that her restrictions are self-imposed. Dr.
Qadir’s records manifested several reports restricting plaintiff’s activities that required liberal
movements, such as lifting, twisting, standing for long periods of time, and the like. Dr. Qadir
also provided plaintiff with certificates of disability addressing such restrictions. To the extent
that the physician also, acknowledged the patient as a partner in her own care and afforded her
the caution to avoid activities that caused pain it is also a soft restriction. Considering that both
the plaintiff’s physician and the IME examiners agreed that no further formal treatment was
going to render a better result, the prospective caution is reasonable and prudent. While the trial
court may not have agreed with the doctor’s instructions and deemed them unnecessary, it is not
the role of a trial court to engage in fact-finding when ruling on a motion for summary

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disposition. Rather, if reasonable minds could differ on a point of fact, it is appropriate to leave
such decisions to a jury. Id. Similarly, that defendant points out that the independent medical
examination (IME) yielded different findings than those of plaintiff’s doctor, in that Dr. Steven
Arbit suggested that plaintiff’s complaints were merely subjective and unsupported, does not
alter this writer’s conclusion. Again, if contentions of material fact exist in the record, case law
dictates that those questions are best resolved by a jury.




                                                             /s/ Cynthia Diane Stephens




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