Emily Zeliasko v. Abdulkareem M Al-Dorough ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
EMILY ZELIASKO, also known as EMILY UNPUBLISHED
ZELLIASKO, June 16, 2022
Plaintiff-Appellant,
v No. 357397
Kent Circuit Court
ABDULKAREEM M. AL-DOROUGH, and TJ LC No. 20-00640-NI
TRUCKING, LLC,
Defendants-Appellees.
Before: BORRELLO, P.J., and JANSEN and MURRAY, JJ.
PER CURIAM.
Plaintiff, Emily Zeliasko, appeals by right the trial court’s order granting summary
disposition to defendants, Abdulkareem M. Al-Dorough and TJ Trucking, LLC, pursuant to
MCR 2.116(C)(10). For the reasons set forth in this opinion, we vacate the trial court’s grant of
summary disposition and remand to the circuit court for further proceedings consistent with this
opinion.
I. BACKGROUND
This appeal arises from a motor vehicle collision that occurred on February 17, 2019. On
that date, while plaintiff was driving on I-96, she was struck in the rear by defendant when stopped
for a traffic backup in front of her. Defendant Abdulkareem Al-Dorough was driving the truck
owned by defendant TJ Trucking that struck plaintiff. The force from the rear collision forced
plaintiff into the vehicle in front of her.
Plaintiff was taken by ambulance to the hospital. At the hospital, plaintiff was diagnosed
with abrasions and a contusion of the chest wall. Over the course of the next several months,
plaintiff was seen a number of times by various doctors, underwent 40 sessions of physical therapy,
and had an MRI. The diagnosis from these doctor visits was generally “pain” in various areas,
including her left shoulder and back. The MRI was “unremarkable.” Approximately eight months
after the accident, plaintiff was examined by Dr. Braden Boji, who diagnosed plaintiff with back
spasms and an unstable left shoulder joint.
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Plaintiff also sought treatment for alleged psychological issues stemming from the accident
and was diagnosed with post-traumatic stress disorder. Plaintiff alleged that, as a result of the
injuries suffered in the accident, she was unable to engage in a number of activities that she
engaged in before the accident.
Plaintiff filed suit against defendants, alleging that Al-Dorough was negligent, causing
serious and grievous injuries to plaintiff that constituted a serious impairment of body function
that significantly affected her general ability to lead her normal life. As a result of these injuries,
plaintiff alleged that she suffered both economic and noneconomic damages. Plaintiff also alleged
that TJ Trucking, LLC, was liable for her injuries as owner of the truck driven by Al-Dorough.
Defendants moved for summary disposition pursuant to MCL 2.116(C)(10), arguing that
plaintiff could not establish a threshold injury pursuant to MCL 500.3135. Defendants alleged that
plaintiff had not shown that she suffered an objectively manifested impairment that impacted her
general ability to lead her normal life. Plaintiff responded, alleging that she had suffered an
objectively manifested impairment that affected her general ability to live her life. Plaintiff
attached exhibits, including medical records, to this response. Following a hearing, the trial court
granted defendants’ motion and dismissed the case. This appeal ensued.
II. ANALYSIS
A trial court’s summary disposition ruling is reviewed de novo on appeal. Latham v Barton
Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). Under MCR 2.116(C)(10), a motion for
summary disposition may be granted if “[e]xcept as to the amount of damages, there is no genuine
issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a
matter of law.” MCR 2.116(C)(10). “We review a motion brought under MCR 2.116(C)(10) by
considering the pleadings, admissions, and other evidence submitted by the parties in the light
most favorable to the nonmoving party.” Latham, 480 Mich at 111. “A genuine issue of material
fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves
open an issue upon which reasonable minds might differ.” West v Gen Motors Corp, 469 Mich
177, 183; 665 NW2d 468 (2003). Of consequence to this case, all reasonable inferences must be
drawn in favor of the nonmoving party. Dextrom v Wexford Co, 287 Mich App 406, 415-416; 789
NW2d 211 (2010).
Pursuant to the no-fault act, a “person remains subject to tort liability for noneconomic loss
caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person
has suffered . . . serious impairment of body function . . . .” MCL 500.3135(1);1 see also
McCormick, 487 Mich at 189-190. MCL 500.3135(5) provides:
(5) As used in this section, “serious impairment of body function” means an
impairment that satisfies all of the following requirements:
1
The other types of potential threshold injury listed in the statute are not at issue in this case.
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(a) It is objectively manifested, meaning it is observable or perceivable from
actual symptoms or conditions by someone other than the injured person.
(b) It is an impairment of an important body function, which is a body
function of great value, significance, or consequence to the injured person.
(c) It affects the injured person’s general ability to lead his or her normal
life, meaning it has had an influence on some of the person’s capacity to live in his
or her normal manner of living. Although temporal considerations may be relevant,
there is no temporal requirement for how long an impairment must last. This
examination is inherently fact and circumstance specific to each injured person,
must be conducted on a case-by-case basis, and requires comparison of the injured
person’s life before and after the incident.
Our Supreme Court held in McCormick that there are three prongs that must be established
to show a “serious impairment of body function”: “(1) an objectively manifested impairment
(observable or perceivable from actual symptoms or conditions) (2) of an important body function
(a body function of value, significance, or consequence to the injured person) that (3) affects the
person’s general ability to lead his or her normal life (influences some of the plaintiff’s capacity
to live in his or her normal manner of living).” McCormick, 487 Mich at 215.
Here, the trial court determined that plaintiff’s body soreness or tenderness did not rise to
the level of a serious impairment of a body function. Additionally, the trial court found that the
only evidence of any objectively manifested “aspects” of the accident were the superficial
abrasions that were short-term. Based on these findings, the trial court dismissed the case.
In determining the first prong of McCormick, our Supreme Court emphasized that this
inquiry looks at an objectively manifested impairment, not an objectively manifested injury. Id.
at 197. Our Supreme Court differentiated between “injury” and “impairment” by noting that
“while an injury is the actual damage or wound, an impairment generally relates to the effect of
that damage.” Id. “Accordingly, when considering an ‘impairment,’ the focus ‘is not on the
injuries themselves, but how the injuries affected a particular body function.’ ” Id., quoting
DiFranco v Pickard, 427 Mich 32, 67; 398 NW2d 896 (1986). Our Supreme Court relied on
dictionary definitions of “impaired,” which it found to mean “weakened, diminished, or damaged,”
or “functioning poorly or inadequately.” Id. “Although mere subjective complaints of pain and
suffering are insufficient to show impairment, evidence of a physical basis for that pain and
suffering may be introduced to show that the impairment is objectively manifested.” Patrick v
Turkelson, 322 Mich App 595, 607; 913 NW2d 369 (2018).
Such a physical basis exists in the records from an examination by Dr. Boji who noted that
plaintiff had an “unstable left shoulder Joint [sic] with likely recurring episodes of subluxation,”
and that plaintiff had periscapular muscle spasms. At the motion for summary disposition, plaintiff
argued that the doctor’s note that plaintiff’s left shoulder was tender was a physical basis for
plaintiff’s subjective complaint of pain. The trial court acknowledged there was objective evidence
of injuries suffered by plaintiff in the accident, but the trial court determined that the tenderness
experienced by plaintiff did not rise to the level of a serious impairment of body function. The
trial court emphasized that the relevant inquiry is whether there was objective manifestation of an
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impairment and that was missing in this case. The trial court did not refer, however, to the medical
records from Dr. Boji that found that plaintiff had an unstable left shoulder joint and back spasms.
However, our examination of the record leads us to differ with the trial court’s conclusions.
Contrary to the trial court’s determination, there is a genuine issue of material fact in this matter.
The medical records from plaintiff’s visit to Dr. Boji indicated muscle spasms and an unstable
shoulder joint, an objectively manifested impairment. We note that defendants caution us to be
skeptical of Dr. Boji’s diagnoses as it occurred eight months after the accident, and after plaintiff
had been examined by several other doctors who did not provide such a diagnosis. Additionally,
the medical record does not explicitly state that this impairment was a result of the vehicle accident.
But it is a reasonable inference that this impairment was a result of the accident when plaintiff
complained of left shoulder and back issues on a regular basis from the time of the accident to the
time of Dr. Boji’s examination. As previously noted, all reasonable inferences must be drawn in
favor of the nonmoving party. Dextrom, 287 Mich App at 415-416. When making all reasonable
inferences in plaintiff’s favor, we conclude there is a genuine issue of material fact whether the
left shoulder instability and back spasms noted by Dr. Boji were caused by the accident. Review
of the medical evidence reveals that plaintiff had been complaining of left shoulder pain since the
accident occurred. Accordingly, we conclude that the trial court erred in finding to the contrary.
Next, plaintiff argues on appeal that she presented a number of activities that she either
could not do as a result of the injuries sustained in the accident or that were negatively affected by
the collision. The trial court, having found there was no objectively manifested impairment of an
important body function that affected plaintiff’s general ability to lead her normal life, did not
reach this issue.2
If the injured person demonstrates that he or she has an objectively manifested impairment
of an important body function, the final prong is whether that objectively manifested impairment
affects the person’s general ability to lead his or her normal life. McCormick, 487 Mich at 195.
This analysis requires “a subjective, person- and fact-specific inquiry that must be decided on a
case-by-case basis.” Id. at 202. “Determining the effect or influence that the impairment has had
on a plaintiff’s ability to lead a normal life necessarily requires a comparison of the plaintiff’s life
before and after the incident.” Id. In this inquiry, the injured person’s general ability to lead his
or her normal life does not need to be “destroyed,” but merely affected. Id. “Thus, courts should
consider not only whether the impairment has led the person to completely cease a pre-incident
2
Because the trial court found that plaintiff could not establish an objectively manifested
impairment, it was unnecessary for the trial court to resolve this issue. If an impairment is not
objectively manifested, then it cannot qualify as a “serious impairment of body function,”
regardless of whether it affected the injured person’s ability to lead his or her normal life. MCL
500.3135(5) (requiring that all the listed requirements be met in order for an impairment to be
considered a “serious impairment of body function”).
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activity or lifestyle element, but also whether, although a person is able to lead his or her pre-
incident normal life, the person’s general ability to do so was nonetheless affected.” Id.
“[T]here is no quantitative minimum as to the percentage of a person’s normal manner of
living that must be affected.” Id. at 203. “[T]he statute does not create an express temporal
requirement as to how long an impairment must last in order to have an effect on ‘the person’s
general ability to live his or her normal life.’ ” Id. “[T]he plain text of the statute and these
definitions demonstrate that the common understanding of to ‘affect the person’s ability to lead
his or her normal life’ is to have an influence on some of the person’s capacity to live in his or her
normal manner of living.” Id. at 202.
Here, plaintiff testified that at work, she is unable to lift dogs or other items, or help with
cleaning. According to plaintiff, she is only able to drive short distances because of her back and
can only drive in ideal conditions because she is too anxious to drive in poor weather. Plaintiff
alleged that she has missed family vacations because she could not drive. Specifically, she said
that she missed a trip to Traverse City in January 2020 because she was scared to drive in the snow
because it reminded her of the conditions on the day of the accident. Plaintiff also testified that
she was unable to vacuum or sweep for several months following the accident. Further, plaintiff
testified that she could not sleep the same way she did before the accident.
Plaintiff also testified that there were recreational activities that she could no longer do as
a result of the accident. Plaintiff said that her shoulder pops out of place when she golfs, and she
now chooses not to golf to avoid the shoulder pain it causes. She also experiences pain in her
shoulder while skiing, and she has not cross-country skied since the accident because of her
shoulder. She is unable to engage in agility running with her dog. Plaintiff said that she cannot
participate in Zumba exercise classes. Finally, plaintiff testified that she has back pain if she sits
for too long and that lifting a backpack causes severe pain.
Defendants acknowledge that plaintiff’s life was affected at least somewhat and for some
time as a result of the accident. Defendants’ argument on this issue is based on their belief that
the effects to plaintiff’s life were not serious enough nor lasted long enough. Defendants
characterize the holding in McCormick to be that the plaintiff demonstrated that the impairment
affected his ability to lead his normal life because his life before the accident and after the accident
were “significantly” different. Although the life of the plaintiff in McCormick was significantly
different before and after the accident, we glean nothing in McCormick that requires a finding of
significant changes in pre- and post-accident life. See id. at 185. Rather, McCormick merely
requires some difference. See id. at 202-203. Defendants have cited no authority for the
proposition that plaintiff’s life must by substantially impacted.
Defendants additionally argue that even if plaintiff’s impairment had some effect on her
ability to complete certain activities, it was nevertheless proper for the trial court to determine as
a matter of law that plaintiff’s impairments did not affect her general ability to live her normal life.
Defendants’ contend that there is a certain temporal minimum that must be met to satisfy this prong
of the McCormick test, or some established minimum amount of effect on the injured person’s life.
But any such suggestion that, as a matter of law, there is a certain minimum period or minimum
amount of affect that must be met to satisfy the third prong of the McCormick analysis does not
have a basis in either McCormick or the language contained in MCL 500.3135. Rather,
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McCormick stands for the proposition that the impairment need only to have some effect on the
injured person’s ability to lead their normal life, which is measured by comparing the person’s
pre- and post-accident lives. See McCormick, 487 Mich at 202.
Contrary to defendants’ arguments, McCormick creates a case-by-case inquiry that requires
a subjective, person- and fact-specific analysis. See id. The impairment need only have some
effect on the person’s general ability to live their life, and there is no temporal limitation. See id.
at 202-203.
Viewing the evidence in the light most favorable to plaintiff, there is a genuine issue of
material fact whether her back and shoulder impairment affected her ability to complete tasks at
work. Although plaintiff was by all accounts still able to work, she testified that her work was
affected. As our Supreme Court has stated, plaintiff’s ability to engage in these activities need not
be destroyed, but merely affected. Id. at 202, and a reasonable trier of fact could find that plaintiff’s
impairments affected her general ability to live her normal life.
Vacated and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction. No costs are awarded. MCR 7.219(A).
/s/ Stephen L. Borrello
/s/ Kathleen Jansen
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