Jonathan Johnson v. Liberty Mutual General Insurance Company ( 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
JONATHAN JOHNSON, UNPUBLISHED
March 10, 2022
Plaintiff-Appellant,
v No. 352983
Wayne Circuit Court
LIBERTY MUTUAL GENERAL INSURANCE LC No. 18-002217-NI
COMPANY,
Defendant,
and
MICHAEL AQUILINA,
Defendant-Appellee.
Before: BORRELLO, P.J., and JANSEN and BOONSTRA, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting summary disposition in favor of
defendant Michael Aquilina (defendant)1 under MCR 2.116(C)(10). For the reasons set forth in
this opinion, we reverse and remand for further proceedings consistent with this opinion.
I. BACKGROUND
This case arises out of a motor vehicle accident in Westland, Michigan on October 4, 2016.
Defendant was driving his vehicle in the far-right lane, traveling east. Plaintiff was in the left lane,
also traveling east. Immediately before the collision, plaintiff was stopped at a red light.
Defendant’s vehicle veered into the left eastbound lane, sideswiped another vehicle, and then hit
1
We use the singular term “defendant” to refer to Aquilina because plaintiff’s claim against
Liberty Mutual General Insurance Company was dismissed by stipulation and Liberty Mutual is
not a party to this appeal.
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the rear end of plaintiff’s vehicle. The collision caused plaintiff’s vehicle to collide with another
vehicle that was stopped in front of plaintiff’s vehicle. Defendant’s vehicle continued into the
oncoming traffic lanes and then off the road.
In his complaint, plaintiff alleged that the collision resulted from defendant’s negligent
driving and that the accident caused plaintiff to suffer injuries that included injuries to the cervical
and lumbar spine, as well as aggravation of pre-existing conditions.
In his answer to plaintiff’s complaint, defendant raised as affirmative defenses that
plaintiff’s claim was barred by the sudden-emergency doctrine, that plaintiff suffered from a pre-
existing condition that was not caused or aggravated by the subject accident, and that plaintiff did
not suffer a threshold injury for purposes of MCL 500.3135.
Defendant subsequently moved for summary disposition under MCR 2.116(C)(10),
arguing that plaintiff could not establish that his injuries were caused by the October 2016 accident,
that plaintiff could not demonstrate that he suffered an objectively manifested impairment of body
function as a result of the accident, and that any negligence attributable to defendant was excused
by the sudden-emergency doctrine because defendant suffered “a seizure” just before the accident.
Defendant argued that plaintiff’s medical records and Social Security disability records showed
that plaintiff had a long history of chronic neck and back pain, as well as degenerative spinal issues.
Consequently, defendant maintained that plaintiff’s post-accident medical treatment was
necessitated by pre-existing, chronic and degenerative conditions rather than any injury or
aggravation of these injuries caused by the 2016 accident. Defendant further argued that plaintiff
could not show that he suffered an objectively manifested impairment as a result of the accident
because his medical records only evidenced treatment for subjective complaints of pain and that
plaintiff could not demonstrate that his ability to lead his normal life was affected because there
was evidence that he had been totally disabled for six years preceding the accident.
With respect to the sudden-emergency doctrine, defendant submitted an affidavit2 in which
he averred, “Upon information and belief, I experienced a seizure while driving seconds prior to
the motor vehicle accident.” He further stated in the affidavit that he had “never experienced a
seizure or any type of similar event” before the day of the accident. Defendant argued that there
was no genuine issue of material fact that he was presented with a sudden emergency at the time
of the accident, thus excusing any alleged negligence in veering randomly to the left and striking
plaintiff’s vehicle.
Following a hearing, the trial court granted defendant’s motion for summary disposition
under MCR 2.116(C)(10) “for the reasons stated in Defendant’s Brief.” Plaintiff now appeals this
ruling.
II. ANALYSIS
2
Contrary to plaintiff’s assertion on appeal, the lower court record contains a signed, notarized
version of this affidavit.
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A. STANDARD OF REVIEW
We begin our analysis by noting that the trial court issued its ruling: “for the reasons stated
in Defendant’s Brief.” Such a ruling is of little value to this Court because we cannot discern from
such a broad statement whether the trial court agreed with every factual and legal argument
contained in defendant’s brief, some of the factual and legal arguments, and if so, which factual or
legal arguments. For purposes of our review, because the trial court failed to make any legal or
factual findings of its own, we must proceed on the presumption that the trial court found
convincing every factual and legal argument contained within defendant’s brief.
An appellate court “reviews the grant or denial of summary disposition de novo to
determine if the moving party is entitled to judgment as a matter of law.” Maiden v Rozwood, 461
Mich 109, 118; 597 NW2d 817 (1999). In evaluating a motion for summary disposition brought
under MCR 2.116(C)(10), a court must “consider[] affidavits, pleadings, depositions, admissions,
and other evidence submitted by the parties in the light most favorable to the party opposing the
motion.” Id. at 120 (citation omitted). “Summary disposition is appropriate under MCR
2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is
entitled to judgment as a matter of law. 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).
B. SUDDEN-EMERGENCY DOCTRINE
On appeal, plaintiff first argues that the trial court erred by granting summary disposition
on the ground that there was no genuine issue of fact that defendant’s negligence was excused
under the sudden-emergency doctrine. Defendant maintains that pursuant to the “sudden-
emergency doctrine,” he could not be negligent as a matter of law because there is no genuine
issue of material fact that he faced a sudden emergency not of his own making in the form of an
unexpected seizure at the time of the accident.
To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a
duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4)
damages.” Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). However, this
Court has previously observed that the “sudden-emergency doctrine is a judicially created
principle,” pursuant to which
[o]ne who suddenly finds himself in a place of danger, and is required to act without
time to consider the best means that may be adopted to avoid the impending danger
is not guilty of negligence if he fails to adopt what subsequently and upon reflection
may appear to have been a better method, unless the emergency in which he finds
himself is brought about by his own negligence. [Vsetula v Whitmyer, 187 Mich
App 675, 680-681; 468 NW2d 53 (1991) (quotation marks and citation omitted).]
“The sudden-emergency doctrine applies when a collision is shown to have occurred as the
result of a sudden emergency not of the defendants’ own making.” White v Taylor Distrib Co, Inc,
482 Mich 136, 139-140; 753 NW2d 591, 593 (2008) (quotation marks and citation omitted). Our
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Supreme Court has explained that application of the sudden-emergency doctrine requires “an
‘emergency’ within the meaning of that rule,” which “present[s] a situation that is ‘unusual or
unsuspected.’ ” Vander Laan v Miedema, 385 Mich 226, 231-232; 188 NW2d 564 (1971)
(citations omitted). For example, a “sudden, unexpected blackout” experienced by the defendant
while driving could potentially constitute such a sudden emergency if the blackout was “totally
unexpected.” White, 482 Mich at 140 (quotation marks and citation omitted).
Nonetheless, the sudden-emergency doctrine is not an affirmative defense. Szymborski v
Slatina, 386 Mich 339, 341; 192 NW2d 213 (1971). “In actuality, the doctrine of ‘sudden
emergency’ is nothing but a logical extension of the ‘reasonably prudent person’ rule. Baker v Alt,
374 Mich 492, 496; 132 NW2d 614 (1965). “[T]he test to be applied is what that hypothetical,
reasonably prudent person would have done under all the circumstances of the accident, whatever
they were.” Id. “A sudden emergency is simply one of the circumstances to be considered in
determining whether an act or conduct was negligent.” Woiknoris v Woirol, 70 Mich App 237,
240-241; 245 NW2d 579 (1976). Our Supreme Court has further explained:
The standard of care required of one suddenly confronted with an
emergency is a question frequently presented for consideration . . . . The degree of
care required in such situations, however, does not vary merely because of the
existence of the unusual circumstances. The standard is neither higher nor lower,
the inquiry remaining the same as to whether the one sought to be charged with
negligence acted as a reasonably prudent man would act under the same or similar
circumstances. [Triestram v Way, 286 Mich 13, 17; 281 NW 420 (1938) (emphasis
added).]
The duty of “reasonable” or “ordinary” care, which are terms that may be used
interchangeably, describes “the so-called ‘general standard of care’ applicable in negligence
cases.” Case, 463 Mich at 6-7, 6 n 7 (citation omitted). “Ordinary care means the care that a
reasonably careful person would use under the circumstances.” Id. at 7. “Negligence . . . consists
in a want of that reasonable care which would be exercised by a person of ordinary prudence under
all the existing circumstances, in view of the probable danger of injury[.]” Id. (quotation marks
and citation omitted; ellipsis in original). It is ordinarily the jury’s responsibility to determine
whether a defendant’s conduct breached, or “fell below,” the general standard of care. Id. Our
Supreme Court has also explained this concept as follows: “the jury usually decides the specific
standard of care that should have been exercised by a defendant in a given case.” Id.There is no fixed standard in the law by which a court is enabled to
arbitrarily say in every case what conduct shall be considered reasonable and
prudent, and what shall constitute ordinary care, under any and all circumstances.
The terms “ordinary care,” “reasonable prudence,” and such like terms, as applied
to the conduct and affairs of men, have a relative significance, and cannot be
arbitrarily defined. What may be deemed ordinary care in one case may, under
different surroundings and circumstances, be gross negligence. The policy of the
law has relegated the determination of such questions to the jury, under proper
instructions from the court. It is their province to note the special circumstances
and surroundings of each particular case, and then say whether the conduct of the
parties in that case was such as would be expected of reasonable, prudent men,
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under a similar state of affairs. [Id. at 10, quoting Grand Trunk R Co v Ives, 144
US 408, 417; 12 S Ct 679; 36 L Ed 485 (1892) (some quotation marks omitted).]
Applying these principles to the instant case, it is still a question of fact to be resolved by
the jury whether defendant breached the standard of care under all the circumstances, even
accepting as true his contention that he faced a sudden emergency when he suffered a seizure in
the moments before the accident, having never before suffered a seizure. Defendant argues, and
apparently the trial court accepted as true that experiencing a seizure while driving excuses him
from any alleged negligence related to the accident. In this way, defendant and the trial court
treated the sudden-emergency doctrine as an affirmative defense. Campbell v St John Hosp, 434
Mich 608, 615-616; 455 NW2d 695 (1990) (explaining that an affirmative defense does not
address the merits of the plaintiff’s claim but instead “seeks to foreclose the plaintiff from
continuing a civil action for reasons unrelated to the plaintiff’s prima facie case”).
However, the experience of a sudden emergency does not provide an affirmative defense
to a negligence claim, Szymborski, 386 Mich at 341, but is instead merely one of the factors to
consider in determining whether a person was negligent by failing to act as a reasonably prudent
person would have under all of the circumstances, Baker, 374 Mich at 496; Triestram, 286 Mich
at 17; Woiknoris, 70 Mich App at 240-241.
Additionally, defendant failed to support his sudden-emergency defense with competent
evidence. Here, defendant provided an affidavit, which states in relevant part:
2. Upon information and belief, I experienced a seizure while driving
seconds prior to the motor vehicle accident.
3. Prior to October 4, 2016, I had never experienced a seizure or any type
of similar event.
4. This affidavit is based on my personal knowledge.
“Affidavits . . . shall only be considered to the extent that the content or substance would
be admissible as evidence to establish or deny the grounds stated in the motion.” MCR
2.116(G)(6). An affidavit submitted in support of summary disposition is subject to the
requirements of MCR 2.119(B)(1), which provides that an affidavit must:
(a) be based on personal knowledge;
(b) state with particularity facts admissible as evidence establishing or
denying the grounds stated in the motion; and
(c) show affirmatively that the affiant, if sworn as a witness, can testify
competently to the facts stated in the affidavit.
Additionally, MRE 602 requires that witnesses have personal knowledge of the matters on which
they testify. The requirement of personal knowledge is not satisfied by an affidavit that is based
solely “on information and belief.” Durant v Stahlin, 375 Mich 628, 639; 135 NW2d 392 (1965).
If scientific or technical knowledge will assist the trier of fact in determining a fact in issue, “a
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witness qualified as an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion” that is “based on sufficient facts or data . . . .” MRE 702. A lay
witness’s testimony “in the form of opinions or inferences is limited to those opinions or inferences
which are (a) rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness’s testimony or the determination of a fact in issue.” MRE 701.
Defendant’s statement in his affidavit that he suffered a seizure did not satisfy these
requirements. His belief that he suffered a seizure was attributed to “information and belief.” He
did not claim to have personal knowledge that he suffered a seizure, or even explain what
information led him to believe that he had a seizure. Moreover, his statement that he had never
previously experienced a seizure or any type of similar event negated any inference that he was
experienced in recognizing the signs of a seizure or knew that a seizure had occurred. Lay
testimony about general medical conditions observed by a witness is ordinarily permitted. McPeak
v McPeak (On Remand), 233 Mich App 483, 493; 593 NW2d 180 (1999), lv den 461 Mich 926(1999). However, a first-time seizure is not a general condition that can be rationally based on the
perception or self-diagnosis of the person suffering the seizure, especially where the occurrence of
an alleged seizure is based on information and belief, rather than personal knowledge; therefore,
defendant’s belief that he had one was not permissible lay opinion testimony under MRE 701.
Defendant did not submit an affidavit by a medical expert, or any other evidence explaining the
basis for his information or belief that he actually experienced a seizure. He provided the police
report in which the author of the report attributed defendant’s loss of control of his vehicle to a
seizure, but there is no basis for concluding that the report author had any personal knowledge that
defendant had a seizure, and any statement by defendant to the officer to that effect would have
been inadmissible hearsay, MRE 801(c) (defining hearsay as an out-of-court statement “offered in
evidence to prove the truth of the matter asserted”); MRE 802 (hearsay is not admissible except as
otherwise provided by the rules of evidence). Accordingly, defendant did not satisfy his initial
burden of providing evidentiary support for the factual basis for his assertion of a sudden
emergency. Lockwood, 323 Mich App at 401. Thus, he was not entitled to summary disposition
on the basis of the sudden-emergency doctrine.
C. THRESHOLD INJURY
Plaintiff next argues that the trial court erred by granting summary disposition on the
ground that there was no genuine issue of material fact that plaintiff did not suffer a threshold
injury caused by the accident. Defendant argues that there was no factual dispute that plaintiff’s
conditions were pre-existing and not caused or aggravated by the accident. Defendant also argues
that plaintiff did not demonstrate an injury satisfying the threshold requirement in MCL
500.3135(1).
As we have already stated, causation is one of the elements that a plaintiff must prove in
asserting a negligence claim. Case, 463 Mich at 6. This requires the plaintiff to “prove that the
driver’s conduct was both a cause in fact and a legal cause of his injuries.” Wilkinson v Lee, 463
Mich 388, 391; 617 NW2d 305 (2000). Additionally, Michigan’s no-fault act, MCL 500.3101 et
seq., includes a requirement that a plaintiff establish that the accident caused a threshold injury
when seeking noneconomic damages: “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 death, serious impairment of body function, or permanent serious
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disfigurement.” MCL 500.3135(1) (emphasis added); see also McCormick v Carrier, 487 Mich
180, 189-190; 795 NW2d 517 (2010).
At issue in this case with respect to the threshold injury requirement is whether plaintiff
suffered a serious impairment of body function. 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:
(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.
As our Supreme Court stated in McCormick, there are three necessary prongs for
establishing 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.
In the trial court, defendant first argued that plaintiff could not establish that the October
2016 accident caused his alleged injuries because there was no question of material fact that
plaintiff’s conditions were pre-existing and degenerative in nature. Defendant relied on evidence
of defendant’s longstanding history of back and neck issues, evidence that defendant received
Social Security disability, and the report of a doctor who conducted an independent medical
examination of plaintiff. Notably, although defendant characterized the insurance medical
examiner’s opinion as stating broadly that plaintiff only suffered from degenerative conditions,
that characterization is not entirely accurate. The examiner actually opined that as of the time of
the examination, which was approximately five months after the accident, plaintiff had “Resolved
sprain of the neck and back,” as well as degenerative arthritis in the lumbar spine.
Furthermore, plaintiff’s post-accident medical records indicate that his treating doctor, Dr.
Eric Kovan, concluded that plaintiff had neck pain, cervical radiculopathy, cervical myositis,
whiplash, back pain, and lumbago with sciatica attributable to the motor vehicle accident and “all
exacerbated from previous injuries.” There is also record evidence that Kovan treated plaintiff for
at least some of his pre-existing conditions before the accident. Additionally, there is record
evidence of post-accident MRIs indicating that there were disc bulges and herniations compressing
the thecal sac in plaintiff’s cervical spine.
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Our Supreme Court has held that “[r]egardless of the preexisting condition, recovery is
allowed if the trauma caused by the accident triggered symptoms from that condition.” Wilkinson,
463 Mich at 395 (emphasis added). The record in this case contains conflicting evidence regarding
the nature and extent of plaintiff’s injuries and whether those injuries constituted aggravations of
his pre-existing conditions caused by the accident. The existence of such conflicting evidence on
these material issues makes summary disposition inappropriate. Patrick v Turkelson, 322 Mich
App 595, 605; 913 NW2d 369 (2018) (“[I]t is well settled that the circuit court may not weigh the
evidence or make determinations of credibility when deciding a motion for summary disposition.
Moreover, a court may not make findings of fact; if the evidence before it is conflicting, summary
disposition is improper.”) (quotation marks and citations omitted; alteration in original); MCL
500.3135(2)(a).3
Viewing the evidence in a light most favorable to plaintiff as the nonmoving party, as
required by the applicable standard of review, Maiden, 461 Mich at 120, a jury could reasonably
find from medical records submitted in this case that trauma from the accident caused exacerbated
symptoms from plaintiff’s pre-existing conditions, Wilkinson, 463 Mich at 395. The trial court
thus erred to the extent it relied on defendant’s argument that plaintiff had not established a
question of fact regarding whether there was an aggravation of plaintiff’s pre-existing conditions
caused by the accident.
Additionally, contrary to defendant’s argument, the medical records discussed above also
provide evidence of impairment that was “observable or perceivable from actual symptoms or
conditions” such that there is evidence from which a jury could reasonably conclude that the first
McCormick prong regarding an objective manifestation was satisfied. McCormick, 487 Mich at
196; MCL 500.3135(5)(a).
3
MCL 500.3135(2)(a) provides:
(2) For a cause of action for damages under subsection (1) or (3)(d), all of
the following apply:
(a) The issues of whether the 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 whether the
person has suffered a serious impairment of body function or permanent serious
disfigurement. However, for a closed-head injury, a question of fact for the jury is
created if a licensed allopathic or osteopathic physician who regularly diagnoses or
treats closed-head injuries testifies under oath that there may be a serious
neurological injury.
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There is also record evidence in the form of plaintiff’s deposition testimony that plaintiff
was unable to drive for a period of approximately five months following the accident, which
prevented him from being able to pick his grandson up from school as he had done previously.
Plaintiff further testified, “I can’t go out and throw a ball and play with my grandson anymore.”
Satisfying the third McCormick prong requires showing that the impairment had “an influence on
some of the person’s capacity to live in his or her normal manner of living.” McCormick, 487
Mich at 202; see also MCL 500.3135(5)(c). “[T]here is no temporal requirement for how long an
impairment must last.” MCL 500.3135(5)(c). “[T]he statute merely requires that a person’s
general ability to lead his or her normal life has been affected, not destroyed.” McCormick, 487
Mich at 202. Moreover, “the plain language of the statute only requires that some of the person’s
ability to live in his or her normal manner of living has been affected, not that some of the person’s
normal manner of living has itself been affected. Thus, while the extent to which a person’s
general ability to live his or her normal life is affected by an impairment is undoubtedly related to
what the person’s normal manner of living is, there is no quantitative minimum as to the percentage
of a person’s normal manner of living that must be affected.” Id. at 202-203. Applying these
principles to the instant case and viewing the evidence in the light most favorable to plaintiff as
the nonmoving party, a jury could reasonably conclude that the third McCormick prong was
satisfied. Id.
Accordingly, to the extent that the trial court relied on defendant’s argument below that
plaintiff could not satisfy the threshold injury requirement of MCL 500.3135(1) because there was
no evidence to create a question of fact on the first and third McCormick prongs, the trial court
also erred. West, 469 Mich at 183.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction. Plaintiff having prevailed in full may tax costs. MCR 7.219(A).
/s/ Stephen L. Borrello
/s/ Kathleen Jansen
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