Richards v. Pierce
| Decision Date | 01 October 1987 |
| Docket Number | Docket No. 86283 |
| Citation | 162 Mich.App. 308,412 N.W.2d 725 |
| Parties | David M. RICHARDS, Plaintiff-Appellant, v. Scott PIERCE, Defendant-Appellee. 162 Mich.App. 308, 412 N.W.2d 725 |
| Court | Court of Appeal of Michigan — District of US |
Smith, Haughey, Rice & Roegge by Susan J. Bradley, Grand Rapids, for defendant-appellee.
Before WEAVER, P.J., and HOLBROOK and GILLESPIE *, JJ.
Plaintiff appeals as of right from a Kent Circuit Court judgment of no cause of action in favor of defendant. We affirm.
On May 20, 1982, plaintiff and his friend, the [162 MICHAPP 311] defendant herein, were preparing to leave a restaurant when plaintiff discovered that his car would not start. While plaintiff was trying to fix the car, he asked defendant to start the engine, but due to defendant's inexperience with manual transmission vehicles, the car lurched forward and knocked plaintiff over a concrete retaining wall. Although shaken, plaintiff declined defendant's suggestion to go to the hospital, whereupon the parties talked jovially and plaintiff drove defendant home.
However, due to pain in his shoulder and neck, two days after the accident plaintiff went to the hospital, where he was x-rayed and given a cervical collar and a prescription. A few days later plaintiff was also examined by neurosurgeon Dr. Lynn S. Hedeman, who ordered a myelogram for plaintiff's upper and lower back. After performance of the myelogram on June 14, 1982, because blood had been seen and because plaintiff suffered a spasm and severe pain during the process of dye removal, the radiologist was forced to leave the dye in plaintiff's spinal area.
Whereas plaintiff had experienced minor discomfort but had still been able to walk into the hospital before the myelogram was performed, he left the hospital in a wheelchair, unable to walk, and remained in this condition for approximately six months. At trial, Dr. Hedeman testified that in some people the dye could cause arachnoiditis, an inflammation of the spinal canal lining which might result in severe pain, disability, and objective damage.
Although plaintiff did not return to Dr. Hedeman after the myelogram, on Dr. Hedeman's recommendation plaintiff was examined by Dr. Walter M. Braunohler on June 22, 1982. Dr. Braunohler's examination revealed both arachnoiditis and [162 MICHAPP 312] deterioration of a lower back disc. Dr. Braunohler prescribed an anti-inflammatory medicine and recommended that plaintiff avoid any bending, lifting, twisting, or reaching.
The diagnosis of arachnoiditis was confirmed by another neurologist. Although plaintiff's condition improved during the time of his further visits to Dr. Braunohler between January of 1983 and March of 1984, plaintiff's continued experiencing of residual symptoms caused Dr. Braunohler to write a letter on March 5, 1986, declaring plaintiff permanently disabled from any occupation that required bending, stooping, or heavy lifting.
Prior to the accident on May 20, 1982, plaintiff had been involved in three other accidents in which he sustained injuries with residual effects. 1 Subsequent to his release from military service in 1969 and prior to the accident of May 20, 1982, plaintiff had been working at various jobs requiring strenuous physical exertion.
Plaintiff testified at trial that, as a result of the 1982 myelogram, he was unable to walk without the aid of crutches or a cane for approximately six months and that when his condition stabilized he [162 MICHAPP 313] was unable to climb ladders, carry heavy equipment, or do repetitive bending or stooping. At the time of trial, plaintiff had begun doing full-time light assembly work and also did bookkeeping and inventory.
The jury returned a judgment of no cause of action in favor of defendant. Plaintiff appeals as of right.
On appeal, plaintiff argues that, because it was not disputed that the myelogram caused plaintiff's arachnoiditis, the trial court should have determined pursuant to M.C.L. Sec. 500.3135; M.S.A. Sec. 24.13135, 2 as a matter of law, the existence of serious impairment of body function and that the court erred by allowing the jury to decide this issue instead. We disagree.
The guidelines for resolving this issue were recently set forth in DiFranco v. Pickard, 427 Mich. 32, 398 N.W.2d 896 (1986). DiFranco held that, even where evidentiary facts are undisputed, if reasonable minds might differ as to whether the plaintiff suffered a serious impairment of body function, the issue must be submitted to the jury. Id. at 58, 398 N.W.2d 896. 3
[162 MICHAPP 314] In this case, unrefuted testimony of two physicians clearly established that plaintiff's contraction of arachnoiditis resulted from the dye which remained in his spinal area subsequent to the myelogram. Since reasonable minds could only conclude that plaintiff's contraction of arachnoiditis resulted from the myelogram, there was no material factual dispute on this point. There was, however, disagreement concerning the nature and extent of plaintiff's other complained-of injuries. There was also disagreement as to whether plaintiff's disabilities, excluding his contraction of anachnoiditis, flowed from the 1982 accident or from prior injuries and their residual effects.
Because reasonable minds could differ as to the nature and extent of plaintiff's injuries other than arachnoiditis, there existed a material factual dispute on this point.
Therefore we pose the following questions to find out if reasonable minds could also differ about whether the impairment which is the subject of this litigation resulted from injuries other than arachnoiditis. If so, the trial court was correct in submitting to the jury the issue of serious impairment of body function.
First, which body function was impaired due to injuries sustained in the accident of May 20, 1982? Id. at 67, 398 N.W.2d 896. This question is answered by plaintiff's testimony that his ability to walk and move his back was impaired by the myelogram-induced arachnoiditis.
Second, was the impairment serious? Id. To qualify as serious, the impairment need not be of an important body function or of the entire body. Id. at 39-40, 398 N.W.2d 896. Nor need the impairment be permanent. Id. at 68, 398 N.W.2d 896. The paramount consideration is the effect of the injury on plaintiff's body functions, not the effect of the injury on plaintiff's life. Id. at 68-69, 398 N.W.2d 896. Factors to consider include "the extent of [162 MICHAPP 315] the impairment, the particular body function impaired, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors." Id. at 39-40, 398 N.W.2d 896. A plaintiff must introduce evidence, usually by medical testimony, which establishes a physical basis for subjective complaints of pain and suffering. Id. at 74-75, 398 N.W.2d 896.
Here, reasonable minds would agree that plaintiff's impairment lasted at least six months and did not require extensive treatment or hospitalization, since plaintiff needed no corrective surgery. Id. at 68, 398 N.W.2d 896. Reasonable minds would also agree that plaintiff's medical testimony established that the myelogram-induced arachnoiditis precluded him from occupations that required bending, stooping, or heavy lifting, thereby preventing his return to strenuous physical work.
However, the "relevant factor" of plaintiff's previous injuries might cause reasonable minds to disagree on the seriousness of the 1982 impairment. Testimony established that reasonable minds could differ as to whether and to what extent plaintiff's back problems were caused by the 1982 accident and to what extent they were caused by plaintiff's previous injuries. Because the trial court was required to view the evidence in a light most favorable to the nonmoving party and, if reasonable minds could differ, to let the jury decide whether there existed a serious impairment of body function, Id. at 69, 398 N.W.2d 896, the trial court did not err in submitting the impairment issue to the jury. 4
Raising the issue for the first time on appeal, plaintiff contends that foreseeability of the development of arachnoiditis was a legal and not a factual issue and hence the question of proximate cause was improperly submitted to the jury.
This Court will generally decline to consider issues raised for the first time on appeal. Trail Clinic, P.C. v. Bloch, 114 Mich.App. 700, 711, 319 N.W.2d 638 (1982), lv. den. 417 Mich. 959 (1983). However, review may be granted if failure to consider an issue would result in manifest injustice, if considering the issue is necessary to a proper determination of the case, or if the question is one of law concerning which the necessary facts have been presented. Deeb v. Berri, 118 Mich.App. 556, 562, 325 Causation in fact is one aspect of, and distinguishable from, legal or proximate cause. Moning v. Alfono, 400 Mich. 425, 438-439, 254 N.W.2d 759 (1977), reh. den. 401 Mich. 951 (1977), supplemental order 402 Mich. 958 (1978). The question of fact as to whether the defendant's conduct was a cause of the plaintiff's injury must be separated from the question as to whether the defendant should be legally responsible for the plaintiff's injury. Prosser[162 MICHAPP 317] & Keeton, Torts (5th ed), Sec. 42, pp. 272-273, 279. Legal cause is often stated in terms of foreseeability. See McMillan v. State Highway Comm., 426 Mich. 46, 61-62, 393 N.W.2d 332 (1986). 5
N.W.2d 493 (1982). Loper v. Cascade Twp., 135 Mich.App. 106, 111, 352 N.W.2d 357 (1984). We accept review of this question because the issue of proximate cause is necessary to a proper determination of the case.
If facts bearing upon aspects of proximate cause other than causation in fact are...
To continue reading
Request your trial
-
Charles Reinhart Co. v. Winiemko
...in terms of foreseeability. See McMillan v. State Highway Comm, 426 Mich. 46, 61-62, 393 N.W.2d 332 (1986)." Richards v. Pierce, 162 Mich.App. 308, 316-317, 412 N.W.2d 725 (1987).14 Defendants argue that cause in fact is proven if a plaintiff can show that the attorney acted negligently and......
-
Ykimoff v. Foote Mem. Hosp.
...the doctor's intervening negligent act constitutes a superseding proximate cause is a question for the jury." Richards v. Pierce, 162 Mich.App. 308, 317, 412 N.W.2d 725 (1987) (citation Judge BANDSTRA would hold, as this Court did in Martin, that a trial court must accept a physician's hypo......
-
Law Offices of Lawrence J. Stockler, P.C. v. Rose
...of which involves the question of whether the defendant should be held legally responsible for the injury. Richards v. Pierce, 162 Mich.App. 308, 315, 412 N.W.2d 725 (1987). Like the element of duty in a negligence action, 4 the legal concept of proximate causation depends in part on forese......
-
Poe v. City of Detroit
...matter that was not proved. Although legal or proximate causation is often stated in terms of foreseeability, Richards v. Pierce, 162 Mich.App. 308, 316-317, 412 N.W.2d 725 (1987), the question of whether there is proximate causation, like the question of duty, is essentially a problem of l......