Galli v. Reutter

• Decision Date: 04 April 1986
• Docket Number: Docket No. 80778
• Citation: Galli v. Reutter, 384 N.W.2d 43, 148 Mich.App. 313 (Mich. App. 1986)
• Parties: Gertrude GALLI, Plaintiff-Appellee, v. George REUTTER, Defendant-Appellant.
• Court: Court of Appeal of Michigan

Page 43

384 N.W.2d 43

148 Mich.App. 313

Gertrude GALLI, Plaintiff-Appellee, v. George REUTTER, Defendant-Appellant.

Docket No. 80778.

Court of Appeals of Michigan.

Submitted Aug. 21, 1985.

Decided Dec. 6, 1985.

Released for Publication April 4, 1986.

Sam Serra, Warren, for plaintiff-appellee.

Glime, Daoust, Wilds, Rusing & Le Duc by Lawrence Schloss, Mount Clemens, for defendant-appellant.

Before MacKENZIE, P.J., and CYNAR and DEMING ^*, JJ.

PER CURIAM.

This case involves a tort claim for injuries plaintiff allegedly sustained as a result of an automobile accident. Following a trial, the jury returned a special verdict finding that plaintiff's injuries amounted to a serious impairment of an important body function and awarded plaintiff $45,000. Defendant unsuccessfully moved for a new trial or, in the alternative, remittitur. Defendant appeals as of right. We affirm.

At the close of plaintiff's case, defendant moved for "summary judgment as a matter of law"; at the close of proofs, defendant "renewed" his motion for a directed verdict on the question of whether plaintiff had suffered a serious impairment of body function. Defendant contends that the trial court erred in denying both motions and submitting the case to the jury.

In Cassidy v. McGovern, 415 Mich. 483, 502, 330 N.W.2d 22 (1982), the Court stated:

"We hold that when there is no factual dispute regarding the nature and extent of a plaintiff's injuries, the question of serious impairment of body function shall be decided as a matter of law by the court. Likewise, if there is a factual dispute as to the nature and extent of a plaintiff's injuries, but the dispute is not material to the determination whether plaintiff has suffered a serious impairment of body function, the court shall rule as a matter of law whether the threshold requirement of MCL 500.3135; MSA 24.13135 has been met."

The standard of review to be used in our review of the lower court's rulings is unclear. Some panels of this Court have viewed the evidence in a light most favorable to the nonmoving party. See Van Every v. SEMTA, 142 Mich.App. 256, 369 N.W.2d 875 (1985), Argenta v. Shahan, 135 Mich.App. 477, 354 N.W.2d 796 (1984), lv. gtd. 421 Mich. 858 (1985). The "clearly erroneous" standard has also been used. See Kelleher v. Kuchta, 138 Mich.App. 45, 47, 359 N.W.2d 224 (1984). We find that regardless of which standard is applied in this case the trial court did not err in denying the defendant's motions since there existed a factual dispute regarding the nature and extent of plaintiff's injuries which was material to the determination of whether plaintiff suffered a serious impairment of body function. See Cassidy, supra, 415 Mich. p. 502, 330 N.W.2d 22.

Plaintiff testified that her injuries have significantly interfered with her normal lifestyle. She has had trouble walking since the accident, needing the use of a cane or walker. Other physical activities have been substantially reduced. She cannot sleep for extended periods of time. She can only drive short distances.

According to Dr. Edward Maxim, an orthopedic surgeon, plaintiff exhibits a right-sided limp and lower neck and trapezius muscle tenderness. He performed active and passive range-of-motion tests on plaintiff's neck, observing considerable restriction of movement. Plaintiff's neck and cervical spine were x-rayed, and Dr. Maxim also reviewed x-rays of plaintiff's lumbar spine region which had been taken a month before. He diagnosed a degenerative C-5 intervertebral disk and degenerative L-4 disk, with nerve root compression. In his opinion, the degeneration of C-5 was pre-existing but had been asymptomatic; as a result of the automobile accident the degeneration of the disk accelerated and became symptomatic. He was also of the opinion that the accident aggravated plaintiff's lumbar condition. His prognosis was that the damage to her disks was permanent and would worsen. On cross-examination Dr. Maxim admitted the possibility that plaintiff's disks degenerated spontaneously without any trauma sustained in the accident.

The deposition of William H. Salot, an orthopedic surgeon, was read into evidence. In his opinion, plaintiff's pain and injuries would not resolve completely under any treatment. On cross-examination, he testified that plaintiff's pre-existing degenerative disk disease may have caused the pain she was experiencing and could be related to aging and arthritis.

The deposition of Dr. Michael Haas, a family practitioner who had treated plaintiff since 1969, was also read to the jury. His examination of plaintiff 14 days after the accident revealed a severe contusion and strain of the cervical and lumbrosacral spine and the abdomen with post-traumatic radiculitis. He testified that he had treated plaintiff's arthritis prior to the accident with better results than after the accident, since the accident severely aggravated her pre-existing arthritis. He also testified that all plaintiff's movements were limited.

The video deposition of Dr. Jarlath Quinn was offered by defendant. He found that plaintiff had full range of motion in her neck and diagnosed her condition as degenerative osteoarthritis which antedated the automobile accident. In his opinion, whatever soft tissue injuries plaintiff may have sustained in the accident had been resolved and such injuries did not aggravate her arthritic condition. He concluded that plaintiff did not suffer severe injury in the accident, and that the accident had no effect on plaintiff's prior health problems.

Based upon the foregoing, we conclude that it was proper for the trial court to submit this case to the jury. The testimony of plaintiff and Drs. Maxim, Salot, and Haas demonstrated that plaintiff's injuries were objectively manifested through x-rays and passive movement tests, see Williams v. Payne, 131 Mich.App. 403, 346 N.W.2d 564 (1984), Salim v. Shepler, 142 Mich.App. 145, 369 N.W.2d 282 (1985), Argenta, supra, and substantially affected her ability to lead a normal life, see Braden v. Lee, 133 Mich.App. 215, 348 N.W.2d 63 (1984). Nevertheless, the testimony of defendant's expert, Dr. Quinn, and defense counsel's cross-examination of plaintiff's experts created a question as to whether the accident...