Opinion
Case No. 99-CV-74928-DT
September 13, 2000
OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court on plaintiff's Motion for Partial Summary Judgment pursuant to Fed.R.Civ.P.56. Defendants responded and plaintiff replied. The Court finds that the parties have adequately set forth the relevant law and facts and oral argument would not aid in the disposition of the instant motion. See E.D. Mich. L.R. 7.1(e)(2). Accordingly, the Court ORDERS that the motion be decided on the briefs submitted. For the reasons set forth below, plaintiff's Motion for Partial Summary Judgment is GRANTED in part and DENIED in part.
II. BACKGROUND
The present case arises out of an accident that occurred on the Detroit side of the Detroit-Windsor Tunnel on July 18, 1997. Plaintiff Melissa Jackson, was working as atoll collector in one of the booths as the tunnel and defendant Albert P. Leblond (defendant Leblond) was driving one of defendant Van De Hogen Cartage, Ltd's (defendant Van De Hogen) (nicks on that day. As defendant Leblond drove a truck past the toll booth in which Jackson was working, part of the truck struck the toll booth. Leblond testified that a ratchet attached to the rear passenger side of the truck came into contact with the glass portion of the toll booth, shattering the glass. Defendants' brief states that this ratchet was a component of the truck's tarp kit.
As the glass on Jackson's toll booth shattered, Jackson jumped back, hitting her arm on the heating vent inside the toll booth. During her deposition, plaintiff was questioned extensively about the nature of her injuries from the accident. She stated that the only injury caused by this accident was to her above her right wrist. There was an abrasion in this area, however, there was no scarring.
After the accident, plaintiff continued to work. During her deposition, plaintiff testified that from July 1997 to October 1998, she would occasionally miss a couple of days of work for medical care, but other than these instances, she worked continuously.
In January of 1998, approximately six months after the accident at the toll booth, plaintiff slipped and fell on snow and ice, landing on her buttocks and elbows. However, as stated above, plaintiff continued to work at her job until October or 1998.
On September 26, 1998, plaintiff went to the Harper Hospital Emergency Room. The medical records report states that plaintiff's "chief complaint" was "shooting pain right shoulder and hand." Further the history section of plaintiff's medical records report gave the following "history of present illness":
Forty-one-year-old black female with history of motor vehicle collision while standing in a toll booth doing her job. She was hit by a semi-truck at that time. It caused her to bang her medial wrist. Since then she has had persistent right arm pain and swelling. Has undergone x-rays. MRIs, nerve stimulation studies, steroid injections and arteriogram without results. Pt suddenly developed burning pain into right shoulder radiating into right thumb and index finger two days ago especially when turning her neck left. She denies any neck injury, recurrent trauma, paralysis. chest pain shortness of breath, cough, sputum, fever. Headache was noted transiently four days ago immediately after the arteriogram, cleared with three aspirin. Pt denies any visual change or loss of consciousness.
Finally, the medical records report stated that a CT scan revealed "moderate degenerative disease of the C spine with bulging discs of C4 and C5 with mild cord compression as interpreted by radiology."
Plaintiff filed the present lawsuit against defendants in Wayne County Circuit Court. The case was removed to this Court on October 8, 1999. Plaintiff has filed a motion for summary judgment on three separate grounds. First, plaintiff argues that there is no genuine issue of material fact as to defendants' liability. Second, plaintiff argues that summary judgment should be granted as to the issue of whether she suffered a serious impairment of a bodily function. Third, plaintiff argues that there is no legal basis for finding non-parties at fault.
Although defendants do not deny that the truck driven by defendant Leblond came into contact with the toll booth in which plaintiff was working, defendants argue that their actions are not the proximate cause of plaintiff's injuries. Further, defendants argue that the tarp and ratchet mechanism on the truck driven by defendant Leblond was in violation or state law because it was too wide.
III. LEGAL STANDARDS
Summary judgment is appropriate only if the answers to interrogatories, depositions, admissions and pleadings combined with the affidavits in support show that no genuine issue as to any material fact remains and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P.56(c). A genuine issue of material fact exists when there is "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citations omitted). In application of this summary judgment standard, the Court must view all materials supplied, including all pleadings, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio corp., 475 U.S. 574, 587 (1986). "If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
The moving party bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record that establish the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving party must go beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324. The non-moving party must do more than show that there is some metaphysical doubt as to the material facts. It must present significant probative evidence in support of its opposition to the motion for summary judgment in order to defeat the motion for summary judgment. Moore v. Philip Morris Co., 8 F.3d 335, 339-40 (6th Cir. 1993).
Finally, because this is a diversity action, Michigan law governs. See Eric v. Tompkins, 304 U.S. 64, 78 (1938); see also Jandro v. 0hio Edison Co., 167 F.3d 309, 313 (6th Cir. 1999).
IV. ANALYSIS
A. Liability of Defendants
In the first part of plaintiff's motion for summary judgment, she states "[t]here is no genuine issue of material fact regarding Defendants' liability and partial summary judgment must be entered accordingly, leaving the issues of proximate cause and damages to the trier or fact." In support of this contention, plaintiff specifically points to a statement made by defendants in a request for admission by plaintiff. Defendants were asked whether they admitted negligence, to which they responded:
Defendants admit only that they are partially responsible for the subject incident and preserve and reaffirm their right, under MCLA 600.2957, to have the jury apportion the responsibility for the incident among each party and non-party, including but not limited to Verduyn Tarps Inc. and Detroit and Canada Tunnel Corporation, in direct proportion to the party's or non-party's percentage of fault. Defendants further deny that any of their acts and/or omissions are the proximate cause of the injuries that Plaintiff alleges are the result of the subject incident.
Under Michigan law, "[t]o establish a prima fade case of negligence, a plaintiff must introduce evidence sufficient to establish that (1) the defendant owed a duty to the plaintiff, (2) the defendant breached that duty, (3) the defendant's breach was a proximate cause of the plaintiff's injuries, and (4)the plaintiff suffered damages." Latham v. National Car Rental Systems, Inc., 239 Mich. App. 330, 340 (2000). However, "[l]iability for negligence does not attach unless the plaintiff establishes that the injury in question was proximately caused by the defendant's actions." Helmus v. Michigan Dept. of Transp., 238 Mich. App. 250, 255 (1999).
In the present case, plaintiff asks the Court to enter a judgment finding defendants liable white admitting that there is a genuine issue of material fact as to the issue of proximate cause. Under Michigan law, such a result cannot occur. The Court cannot find that defendants are liable and then leave the issue of proximate cause to the jury. In order to enter a finding that defendants are liable, the elements of a negligence claim must first be established. However, in her brief, plaintiff Plainly states that the issue of proximate cause is still open and therefore should be submitted to the jury. Consequently, plaintiff's motion for partial summary judgment as to the liability of defendants is denied.
B. Serious Impairment of Body Function
In the second portion of plaintiff's motion for partial summary judgment, she argues that the Court should find there is no genuine issue of material fact as to whether she has suffered a serious impairment of bodily function. Under Michigan law. "[a] person remains subject to tort liability for noneconomic toss 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 disfigurementf M.C.L. § 500.3135(1). The statute goes on to provide the following:
(2) for a cause of action for damages pursuant to subsection (1). . . all of the following apply: (a) The issues of whether an 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. (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 as to whether the person has suffered a serious impairment of body function or permanent serious disfigurement,
M.C.L. § 500.3135(2). Further, the term "serious impairment of body function" is defined as "an objectively man tested impairment of an important body function that affects the person's general ability to lead his or her normal life." M.C.L. § 500.3135(7). Consequently, the Court can determine, as a matter of law, whether plaintiff has suffered a serious impairment of body function under two circumstances. First, if there is no dispute as to the nature and extent of plaintiff's injuries, the Court may find as a matter of law that plaintiff has suffered a serious impairment of body function. Second, if there is a dispute as to the nature and extent of plaintiff's injuries, the Court may still find as a matter of law that plaintiff has suffered a serious impairment of body function if the factual dispute is not material to whether plaintiff has in fact suffered a serious impairment of body function.
Plaintiff argues that she has two types of injuries which amount to a serious impairment of body function. She claims that she has injuries on her right arm as well as neck injuries. The Court will examine each of these injuries in turn. As to plaintiff's arm injuries, she claims that due to defendants' negligence, she has injured her right hand, arm, and wrist. Plaintifffs brief is replete with citations to medical records, which were prepared by several doctors, concerning the nature of her arm injury, The dates of the medical records begin on July 21, 1997, which was a few days after the accident, and run until September of 1998. The medical records describe the problems that plaintiff was having with her hand, including numbness in her fingertips, pain from her elbow to her shoulder, shooting pain, radiating pain, and tingling. Plaintiff also described the restrictions placed on her due to her hand injury, including light duty restrictions and wearing a brace that immobilized her thumb. Finally, plaintiff stated that she was unable to count money because of the pain in her hand.
In response to plaintiff's medical records, defendants refer the Court to the deposition testimony of Dr. Mervin G. Wolff. Dr. Wolff saw plaintiff for the first time on May 13, 1997 for a routine physical examination, which was approximately two months prior to the accident at the tunnel. Dr. Wolff also saw plaintiff on October 27, 1997. Defendants' counsel asked Dr. Wolff the following questions concerning this visit:
Q. What are you reading off of?
A. October 27, 1997, my notes.
Q. If [plantiff] testified that she sustained a blunt injury to her wrist as opposed to her hand, does that change your opinion?
Mr. Alpert Objection, foundation.
A. No, it doesn't change my opinion.
By [defendants' counsel]:
Q. Why?
A. Because a hand, a blunt injury to the wrist can eventually lead to a problem with the hand.
Q. Well —
A. She had blunt trauma to the hand.
Q. To the hand according to your note?
A. Right. There is no mention in my note, and she didn't complaint to me about the wrist. Q. And to hear her testimony —
A. Well let me take that back. I examined the wrist. Complete range of motion, no loose areas, grip was strong. My assessment was that blunt injury, trauma to the right hand, and tendonitis of the wrist, the hand and the forearm.
Further, defendants also point to a letter from Dr. Robert S. Barbosa in which he describes tests he performed on plaintiff November 4, 1997. In the letter, dated November 10, 1997, Dr. Barbosa states that "[t]here is no focal area that would lead one to believe that she is experiencing a problem in her right wrist or forearm." Defendants provide several other reports from doctors which essentially state that plaintiff's right hand and arm were normal and note plaintiff's deposition testimony in which she testified that from July 1997 to October 1998, she would occasionally miss a couple of days of work for medical care, but other than these instances, she worked continuously.
After reviewing the relevant medical history concerning plaintiff's wrist, arm, and hand, the Court finds that there is a factual dispute as to the nature and extent of plaintiff's injuries because the parties have presented conflicting views as to the extent of plaintiff's injuries. Consequently, M.C.L. § 500.3135(2)(a)(i) does not apply to the present case. As to M.C.L. § 500.3135(2)(a)(ii), the Court finds that this section is also inapplicable. The Court finds that there is a factual dispute, and further, that it is material to the determination of whether plaintiff has suffered a serious impairment of; body function, This is because the Court has been presented with conflicting medical evidence, and this evidence bears directly upon whether plaintiff has in fact suffered a serious impairment of body function.
Turning to plaintiff's back injury, the Court finds that this question should also be left to the trier of fact. Plaintiff's brief is replete with citations to medical records detailing her back and neck injury. The first time plaintiff mentions the pain in her neck is on July 28, 1997, when she informed a doctor that it "hurt up into the neck." The brief also notes that plaintiff had pain in her shoulder on July 30 and August 5 of 1997. However, the next mention in plaintiff's brief of pain in her shoulder is on September 26, 1998. Plaintiff then had an MRI performed on October 17, 1998 which revealed two herniate discs that were subsequently operated upon.
Given the record before the Court, the Court finds that there is a factual dispute concerning the nature and extent of plaintiff's back and neck injury. First, the Court points to the deposition testimony of Dr. Wolff in which he testified that on May 13, 1997, two months prior to the toll booth accident, plaintiff said she was suffering from joint and back pain. Second, the fact that plaintiff makes no mention of pain in her shoulder for almost fourteen months demonstrates that there is a dispute as to the nature and extent of her injuries. Third, plaintiff testified in her deposition that from July 1997 to October 1998, she would occasionally miss a couple of days of work for medical care, but other than these instances, she worked continuously. Finally, plaintiff also testified in her deposition that the only injury she knew of from the toll booth accident was on her arm above her right wrist. Consequently, the Court finds that under M.C.L. § 500.3135(2)(a)(i), there is a factual dispute as to the nature and extent of plaintiff's injuries.
Turning to M.C.L. § 500.3135(2)(a)(ii), the Court finds that the factual dispute is material to the determination of whether plaintiff has suffered a serious impairment of body function. The fact that plaintiff reported no pain in her back, neck, or shoulder for approximately fourteen months certainly is relevant to the determination of whether plaintiff's injuries rise to the level of a serious impairment of body function. Further, plaintiff continued to work for a substantial period of time after the accident, approximately fourteen months. Given this record, the Court cannot find as a matter of law that plaintiff has suffered a serious impairment of body function. Therefore, M.C.L. § 500.3135(2)(a)(ii) has not been satisfied, and plaintiff's motion for partial summary judgment as to serious impairment of body function is denied.
C. Non-Existence of Fault for Non.Parties
Finally, plaintiff requests that the Court grant her motion for partial summary judgment because there is no legal basis for finding non-parties at fault in the present case. M.C.L. § 600.2957 states as follows:
(1) In a action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each person shall be allocated under this section by the trier of fact and, subject to section 6304, in direct proportion to the person's percentage of fault. In assessing percentages of fault under this subsection, the trier of fact shall consider the fault of each person, regardless of whether the person is or could have been, named as a party to the action.
* * *
(3) Sections 2956 to 2960 do not eliminate or diminish a defense or immunity that currently exists, except as expressly provided in those sections. Assessments of percentages of fault for nonparties are used only to accurately determine the fault of named parties. If fault is assessed against a nonparty, a finding of fault does not subject the nonparty to liability in that action and shall not be introduced as evidence of liability in another action.
Consequently, Michigan law clearly provides for a legal basis for finding non-parties at fault.
Further, in her brief, it appears that plaintiff is also arguing that there is no genuine issue of material fact as to whether non-parties were liable in the present case. Plaintiff cites to numerous portions of the record, but her argument is essentially that;
Inasmuch us [defendant] Leblond was solely responsible for operating Defendant's vehicle at the date and time of the incident, and had operated the same vehicle through the same toll booth on numerous occasions in the past without incident, and was travelling [sic] at only one mile per hour, any claim that any other party is at fault is nothing other than an attempt to create [a] sham fact issue.
Plaintiff directs the Court to numerous portions of defendant Leblond's deposition testimony to demonstrate that he was the only party responsible for the accident at the toll booth and that neither Verduyn Tarps nor Detroit and Canada Tunnel Corporation is liable. The Court finds that plaintiff has satisfied her burden as to summary judgment.
In response, defendants rely upon M.C.L. § 257.717, which sets forth the maximum allowable width of a tractor trailer, and the deposition testimony of Joseph Leightizer, in which he testified that the width of the tractor from ratchet to ratchet was 116 inches. Defendants contend that the width of the tarp and ratchets on the tractor trailer exceed the maximum allowable width as provided for by statute, Consequently, defendants contend that the manufacturer of the tarp and ratchets, Verduyn Tarps, is responsible for the accident at the tunnel.
The Court finds that defendants have met their burden on summary judgment as to non-party Verduyn Tarps, However, defendants have presented no facts as to the potential liability of nonparty Detroit and Canada Tunnel Corporation. Consequently, they have failed to satisfy their burden on summary judgment as to non-party Detroit and Canada Tunnel Corporation, and plaintiff's motion for summary judgment as to this non-party is granted. See Fed.R.Civ.P.56(e); Celotex, 477 U.S. at 324 (the nonmoving party must go beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine issue (or trial).
V. CONCLUSION
For the reasons discussed above, plaintiff's Motion for Summary Judgment is GRANTED in part and DENIED in part. Plaintiff's motion as to non-party Detroit and Canada Tunnel Corporation is GRANTED. Plaintiff's motion is DENIED in all other respects.
IT IS SO ORDERED.