Hunter v. Sisco

Decision Date02 April 2013
Docket NumberDocket No. 306018.
Citation300 Mich.App. 229,832 N.W.2d 753
PartiesHUNTER v. SISCO.
CourtCourt of Appeal of Michigan — District of US

OPINION TEXT STARTS HERE

Allan Falk, P.C., Okemos (by Allan Falk), and Weiner & Associates, P.C., Southfield (by Cyril V. Weiner), for Harold Hunter, Jr.

John Postulka, Assistant City Attorney, for the city of Flint Transportation Department.

Before: SAWYER, P.J., and SAAD and METER, JJ.

SAAD, J.

The city of Flint Transportation Department (hereafter defendant) appeals the trial court's denial of its motion for summary disposition. For the reasons set forth below, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. FACTS AND PROCEEDINGS

This case arises out of an automobile accident that occurred July 20, 2009. Plaintiff's vehicle was sideswiped by a dump truck owned by defendant and driven by defendant's employee, defendant David Sisco. Plaintiff testified that he and Sisco were traveling at approximately 10 to 15 miles an hour when the accident occurred. At the time, plaintiff was covered under an auto insurance policy issued by defendant Auto Club Insurance Association (ACIA). A police officer determined that Sisco was at fault for the accident. Plaintiff asked Sisco to call an ambulance and medical personnel subsequently examined plaintiff and then left the scene. Thereafter, plaintiff's mother drove plaintiff to Hurley Medical Center. The hospital discharged plaintiff the same day with a final diagnosis of lower back pain and a doctor prescribed ibuprofen and a muscle relaxant for him. The discharge instructions directed plaintiff to increase his activity “as tolerated” and to follow up with his primary-care doctor.

Plaintiff did not seek further treatment until October 10, 2009. Plaintiff testified that his back pain made it more and more difficult to get out of bed in the morning so, on the advice of a friend, he went to the Mundy Pain Clinic for physical therapy. Thereafter, on February 12, 2010, plaintiff went to the clinic, complaining of neck and back pain, spasms, and weakness. He underwent a nerve-conduction study and an electromyography (EMG) test and the results were normal. However, the doctor noted that plaintiff appeared to have bilateral sacroiliac joint inflammation.

Later, on March 13, 2010, an MRI showed no injury to plaintiff's sacroiliac joints, but showed a herniated disc in plaintiff's lumbar spine. An EMG performed on April 15, 2010, showed that plaintiff had a pinched nerve at the same place on his lumbar spine. Plaintiff alleges that, because of the accident, he was unable to work at his job as a custodian at a barber shop. He further claims that he was unable to perform chores around the house, he could not sit or stand for long periods, he was unable drive, bend, or lift more than 5 to 10 pounds, and he could no longer play softball or basketball with his son and the young people he mentored.

Defendant filed a motion for summary disposition and argued that, under the motor vehicle exception to governmental immunity, MCL 691.1405, plaintiff may only recover for bodily injury and property damage and that plaintiff's no-fault insurer, ACIA, is liable for his economic damages, including medical expenses. Defendant maintained that plaintiff's claims for emotional damages are not contemplated in the motor vehicle exception. Moreover, defendant argued that it is not liable for any damages because plaintiff failed to establish a serious impairment of body function. In response, plaintiff argued that he is seeking bodily injury and emotional damages from defendant and is legally entitled to both. Plaintiff asserted that he sustained an objectively manifested injury to his back and that the evidence shows that the injury affected his ability to live his normal life because it prevented him from working and participating in his prior recreational activities.

The trial court denied defendant's motion for summary disposition on the ground that genuine issues of material fact remained in dispute about whether the auto accident caused plaintiff's injuries and whether plaintiff suffered a serious impairment of a body function. The court also ruled that, should he prove his claim, plaintiff is entitled to recover damages for pain and suffering from defendant because the limitation to recovery for bodily injury “embraces and encompasses pain and suffering associated with the bodily injury ....” Defendant appeals that ruling.

II. DISCUSSION
A. STANDARDS OF REVIEW AND APPLICABLE LAW

Defendant filed its motion for summary disposition pursuant to MCR 2.116(C)(7) and (10). “A trial court's ruling on a motion for summary disposition is reviewed de novo.” Burise v. City of Pontiac, 282 Mich.App. 646, 650, 766 N.W.2d 311 (2009). “A trial court properly grants summary disposition under MCR 2.116(C)(7) when a claim is barred because of immunity granted by law.” Petipren v. Jaskowski, 294 Mich.App. 419, 424, 812 N.W.2d 17 (2011). “When reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a court must examine the documentary evidence presented and, drawing all reasonable inferences in favor of the nonmoving party, determine whether a genuine issue of material fact exists.” Dextrom v. Wexford Co., 287 Mich.App. 406, 415–416, 789 N.W.2d 211 (2010). Further, [t]he applicability of governmental immunity and the statutory exceptions to immunity are also reviewed de novo on appeal.” Moraccini v. Sterling Hts., 296 Mich.App. 387, 391, 822 N.W.2d 799 (2012). 1

Under the governmental tort liability act (GTLA), MCL 691.1407(1), [e]xcept as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.” As this Court explained in Petipren, 294 Mich.App. at 425, 812 N.W.2d 17:

“The existence and scope of governmental immunity was solely a creation of the courts until the Legislature enacted the GTLA in 1964, which codified several exceptions to governmental immunity that permit a plaintiff to pursue a claim against a governmental agency.” Duffy v. Dep't of Natural Resources, 490 Mich. 198, 204, 805 N.W.2d 399 (2011). The statutory exceptions must be narrowly construed. Maskery v. Univ. of Mich. Bd. of Regents, 468 Mich. 609, 614, 664 N.W.2d 165 (2003). A plaintiff bringing suit against the government must plead in avoidance of governmental immunity. Odom [ v. Wayne Co., 482 Mich. 459, 478–479, 760 N.W.2d 217 (2008) ].

This case requires our interpretation of the motor vehicle exception to governmental immunity, MCL 691.1405, which provides: “Governmental agencies shall be liable for bodily injury and property damage resulting from the negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner ....” As our Supreme Court explained in Lash v. Traverse City, 479 Mich. 180, 187, 735 N.W.2d 628 (2007):

When interpreting a statute, our primary obligation is to ascertain and effectuate the intent of the Legislature. To do so, we begin with the language of the statute, ascertaining the intent that may reasonably be inferred from its language. When the language of a statute is unambiguous, the Legislature's intent is clear and judicial construction is neither necessary nor permitted.

It is undisputed that David Sisco worked for defendant and that the trial court ruled that he negligently operated the dump truck in a manner that led to the collision with plaintiff's vehicle, though the parties dispute whether the collision caused plaintiff's pinched nerve and herniated disc.

B. EMOTIONAL INJURIES

In his complaint, plaintiff claimed he sustained injuries from “shock and emotional damage” as well as pain and suffering. Plaintiff also testified that he felt stress and disappointment that he cannotprovide for his son as he had in the past and could not participate in certain activities he did before his injury. As discussed below, we hold that such damages are precluded under MCL 691.1405 because a governmental agency may only be liable for “bodily injury” and “property damage.”

The trial court ruled that “bodily injury” encompasses emotional damages of the kind claimed by plaintiff. Thus, at issue is the scope and meaning of “bodily injury” in MCL 691.1405. As our Supreme Court explained in Wesche v. Mecosta Co. Rd. Comm., 480 Mich. 75, 84, 746 N.W.2d 847 (2008): “This [statute] is clear: it imposes liability for “bodily injury” and “property damage” resulting from a governmental employee's negligent operation of a government-owned motor vehicle. The waiver of immunity is limited to two categories of damage: bodily injury and property damage.” In Wesche, our Supreme Court considered the meaning of “bodily injury” for purposes of the motor vehicle exception and opined:

Although the GTLA does not define “bodily injury,” the term is not difficult to understand. When considering the meaning of a nonlegal word or phrase that is not defined in a statute, resort to a lay dictionary is appropriate. Horace v. City of Pontiac, 456 Mich. 744, 756, 575 N.W.2d 762 (1998). The word “bodily” means “of or pertaining to the body” or “corporeal or material, as contrasted with spiritual or mental.” Random House Webster's College Dictionary (2000). The word “injury” refers to “harm or damage done or sustained, [especially] bodily harm.” Id. Thus, “bodily injury” simply means a physical or corporeal injury to the body. [Wesche, 480 Mich. at 84–85, 746 N.W.2d 847.]

Thus, under Wesche, defendant's immunity is waived only for claims of “physical or corporeal injury to the body.” Id. at 85, 746 N.W.2d 847. And the Court in Wesche made clear that the limitation on the waiver of immunity with regard to “bodily injury” pertains even if a plaintiff seeks damages for other injuries after also meeting the requirement of proving a ...

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6 cases
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