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### STATE OF MICHIGAN

COURT OF APPEALS

JONATHAN HALL,

Plaintiff-Appellant, UNPUBLISHED February 14, 2017

v No. 329494 Genesee Circuit Court SHAWN EDWIN BALL and CHARTER TOWNSHIP OF GENESEE, LC No. 14-103922-NI

Defendants-Appellees.

Before: S ERVITTO , P.J., and S TEPHENS and R ONAYNE K RAUSE , JJ.

P ER C URIAM

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Plaintiff appeals as of right an order granting defendants’ mo tion for summary disposition under MCR 2.116(C)(7) and (C)(10). Plaintiff was injured when his truck was struck from behind by a police cruiser driven by defendant Shawn Edwin Ball , an employee of defendant Charter Township of Genesee. Plaintiff had been in the process of attempting to make a left turn, and apparently was properly using his turn signal, when B all, who had been following plaintiff, attempted to pass plai ntiff on the left. Defendants moved for summary disposition, arguing that plaintiff did not sustain a serious impairment of body function that affects his general ability to live his normal life and that defendant Ball ’s conduct did not amount to gross negligence. The trial court agreed. We reverse and remand.

A grant or denial of summary disposition is reviewed de novo o n the basis of the entire record 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). When reviewing a mot ion under MCR 2.116(C)(10), which tests the factual sufficiency of the compla int, this Court considers all evidence submitted by the parties in the light most favorable t o the non-moving party and grants summary disposition only where the evidence fails to establish a genuine issue regarding any material fact. Id . at 120. Under MCR 2.116(C)(7), where the claim is allegedly barred, the trial court must accept as true the contents of the complaint, unless they are contradicted by documentary evidence submitted by the moving party. Id . at 119.

As an initial matter, we find the trial court’s conclusion tha t Ball was not grossly negligent to be incredible. In relevant part, Ball would be im mune to tort liability unless his conduct “amount[ed] to gross negligence that is the proximate c ause of the injury or damage.” MCL 691.1407(2). Ball claimed that he believed plaintiff was p ulling off the road to the right,-2- whereas plaintiff claimed he had properly activated his left tu rn signal. This is unambiguously a
critical question of fact. Had Ball in fact attempted to pass a car on the left , on a two-lane road, while that car was obviously turning left , we cannot conceive of how defendants have the chutzpah to contend that Ball’s conduct was anything but so bla tantly reckless as to “demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a). This would not be not mere incompetent driv ing; it would border on intenti onally causing a crash. Of course, the factual question must be resolved by the trier of f act. Tallman v Markstron , 180 Mich App 141; 446 NW2d 618 (1989). We express no opinion, and none should be implied, as to whether Ball actually engaged in such egregious conduct. However, summary dispositi on on the grounds that Ball was not gro ssly negligent was entirely im proper. The Township’s liability would be premised on MCL 619.1405, which requires only ordinary negligence, so summary disposition would be imprope r as to both defendants.

Plaintiff also suffered the requisite level of injury for this case to proceed. Under the nofault insurance act, MCL 500.3101 et seq ., tort liability for non-economic loss is only available, in relevant part, “‘if the injured person has suffered death, s erious impairment of body function or permanent serious disfigurement.’” McCormick v Carrier , 487 Mich 180, 189-190; 795 NW2d 517 (2010), quoting MCL 500.3135(1). MCL 500.3135(5) defi nes “serious impairment of body function” as “an objectively manifested impairment of a n important body function that affects the person’s general ability to lead his or her normal life.” In the absence of a material factual dispute regarding the na ture and extent of the person’s injuries, the courts determine whether the injured person has suffered a serious impairment of body function or permanent serious disfigurement as a matter of law. McCormick , 487 Mich at 193.

An “objectively manifested impairment” means “evidenced by act ual symptoms or conditions that someone other than the injured person would obs erve or perceive as impairing a body function.” McCormick , 487 Mich at 196. The focus of this inquiry is how the injuri es affected a particular body function as opposed to the injuries themselves. Id. at 197. Whether the body function is “important” is highly subjective; what any particular person deems important may be idiosyncratic and will depend on that specific individual’s life and how the function affects that life. Id . at 198-199. Whether the impairment affects the person’s gene ral ability to lead their normal life entails comparing the plainti ff’s life before and after the accident.
Id . at 200-202. The no-fault statut e simply requires that a plai ntiff show that his or her general ability to lead a “normal life has been affected , not destroyed,” and “that some of the person’s ability to live in his or her normal manner of living has been affecte d, not that some of the person’s normal manner of living has itself been affected.” Id. at 202 (emphasis in original). The impairment does not have to be permanent. Id. at 203.

Defendants rely on one statement by plaintiff th at at present there is little he technically is incapable of doing that he could do prior to the accident and d oing so simply causes him pain. This is one statement and it is taken out of context. Generall y, “pain and suffering alone” is insufficient without evidence sh owing some objectively observab le cause for that pain, McCormick, 487 Mich at 197-198; see also Schubot v Thayer , 156 Mich App 545, 548-549; 402 NW2d 2 (1986), or a restriction ordered by a doctor on the basi s of that pain. See McDanield v Hemker , 268 Mich App 269, 282-283; 707 NW2d 211 (2005). However, as a general matter, parties are entitled to judgments and decisions based on the ev idence, notwithstanding any expression of opinion they may have made inconsistent with that evidence to their own-3- detriment. See Ortega v Lenderink , 382 Mich 218, 222-223; 169 NW2d 470 (1969). The record proves that plaintiff in fact refrains from some activities he enjoyed prior to the accident, ranging from playing hockey to playing with his child, so we cannot con clude that his life was unaffected. Plaintiff also complained that he developed debili tating, severe floaters in his vision, which are hardly subjective; such phenomena are well known to b e caused by physically detectable objects, usually detached cells from the inside of t he eye, literally floating through the vitreous in the eye. More importantly, plaintiff also suffered from serious muscle spasms in his lower back, which clearly w ere objectively manifested.

We therefore conclude that summary disposition was premature. Reversed and remanded. We do not retain jurisdiction.

/s/ Deborah A. Servitto /s/ Cynthia Diane Stephens /s/ Amy Ronayne Krause