Auto negligence; “Serious impairment of body function”; MCL 500.3135(5); McCormick v Carrier; Effect of conflicting evidence; Patrick v Turkelson; Motion for summary disposition under MCR 2.116(C)(10); MCR 2.116(G)(4) & (5); Barnard Mfg Co, Inc v Gates Performance Eng’g, Inc; Causation

The court held that there was evidence allowing a reasonable trier of fact to find “that plaintiff suffered an objectively manifested impairment that was observable or perceivable by someone other than plaintiff in the cervical and thoracic spine MRIs.” Further, there were questions of fact as to causation, and evidence creating a genuine issue of material fact whether her “general ability to lead her normal life was affected.” Thus, the court vacated the order granting defendant-Pawlitz summary disposition and remanded. It concluded that the trial court’s decision “was based on its own findings of fact after it improperly weighed the conflicting evidence.” The court noted evidence was presented “that certain medical treatment providers found plaintiff to have bulging, herniated, and protruding discs in her neck and upper back (where she reported pain) after the accident. There was also evidence that plaintiff showed signs of degenerative conditions in her cervical spine and that she had been treated for lower back pain in 2013 and neck stiffness in 2016. A subsequent medical record from 2016 when plaintiff was treated for a headache indicates that she was negative for back and neck pain at that time.” But the trial court elected to disregard this and instead only credit evidence that she “had degenerative conditions. There was conflicting evidence about the nature of plaintiff’s neck and upper back impairments, which is clearly a material fact in this case. . . . By resolving this material factual dispute on summary disposition through resort to weighing the evidence and making findings of fact, the trial court erred.” The court further found that while “the trial court was likely stymied in its review of the evidence by plaintiff’s failure to make her evidence in support of her position easier to locate[,]” she nonetheless specifically referred to the evidence of a “cervical spine MRI report finding a bulged disc and a herniated disc” and submitted it into the record. Although the trial court was not obligated “to scour the record for evidence to support plaintiff’s position about which [it] was unaware and that might show a question of fact, . . . the trial court could not willfully ignore such evidence having been made aware it[.]” As to causation, a trier of fact could reasonably infer from plaintiff’s evidence that she “suffered either new back and neck impairments or an aggravation of preexisting conditions” due to the accident.