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### STATE OF MICHIGAN

COURT OF APPEALS

SANDRA MCCARTHY,

Plaintiff-Appellant, UNPUBLISHED August 11, 2016

v No. 326715
St. Clair Circuit Court DEBORAH LIPPS-CARBONE, LC No. 2014-000131-NI

Defendant-Appellee.

Before: R IORDAN , P.J., and S AAD and M. J. K ELLY , JJ.

P ER C URIAM

.

In this negligence action for the recovery of damages resultin g from an automobile accident, plaintiff appeals the trial court’s order that grante d summary disposition in favor of defendant. The trial court gran ted defendant’s motion for summ ary disposition because it determined that there was no question of fact that plaintiff’s injuries were not caused by defendant’s negligence. For th e reasons provided below, we aff irm.

This case arises from a 2013 automobile accident when defendan t rear-ended plaintiff while plaintiff sat in a line of traffic at a stop sign. Plain tiff filed a complaint against defendant in which she alleged that the accident exacerbated and aggravat ed her preexisting physical and psychological injuries sustained in a prior 2003 automobile acc ident. Defendant moved for summary disposition on the basis that plaintiff had not establi shed that defendant’s negligence caused her injuries and, had she established causation, plainti ff did not show that she suffered a serious impairment of body function under MCL 500.3135 of Michi gan’s no-fault act. After a hearing on defendant’s motion for summary disposition, the tria l court ruled that plaintiff failed to present any evidence that she sustained any physical injurie s as a result of the 2013 accident and granted defendant’s motion.

Plaintiff contends that the trial court erred when it granted defendant’s motion for summary disposition because a gen uine issue of material fact ex isted with respect to proximate cause. We disagree.

We review a trial court’s grant or denial of a summary disposi tion motion de novo.

Latham v Barton Malow Co , 480 Mich 105, 111; 746 NW2d 868 (2008). Although defendant sought summary disposition under MCR 2.116(C)(8) and MCR 2.116( C)(10), the trial court did not expressly identify the legal grounds on which it found summ ary disposition appropriate. However, because it is clear that the trial court considered ev idence beyond the pleadings, we-2- review the decision under the st andard of MCR 2.116(C)(10). Se e Besic v Citizens Ins Co of
Midwest , 290 Mich App 19, 23; 800 NW2d 93 (2010).

A motion under MCR 2.116(C)(10) tests the factual support for a claim, Walsh v Taylor

, 263 Mich App 618, 621; 689 NW2d 506 (2004), and should only be granted if there is no genuine issue of material fact a nd the moving party is entitled to judgment as a matter of law, Quinto v Cross & Peters Co , 451 Mich 358, 362; 547 NW2d 314 (1996). In reviewing a motio n under this subrule, “this Court considers the pleadings, admiss ions, affidavits, and other relevant documentary evidence of record in the light most favorable to t he nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial.” Walsh , 263 Mich App at

621.

“To establish a prima facie case of negligence, a plaintiff mu st prove the following elements: (1) the defendant owed the plaintiff a legal duty, ( 2) the defendant breached the legal duty, (3) the plaintiff suffered damages, and (4) the defendant ’s breach was a proximate cause of the plaintiff’s damages.” Loweke v Ann Arbor Ceiling & Partition Co, LLC , 489 Mich 157, 162; 809 NW2d 553 (2011). At issue in this case is the causation el ement. Causation includes two separate elements: “(1) cause i n fact and (2) legal or proxima te cause.” Lockridge v Oakwood Hosp , 285 Mich App 678, 684; 777 NW2d 511 (2009). “The cause in fa ct element generally requires showing that ‘but for’ the defendant’s actions, the pl aintiff’s injuries would not have
occurred.” Skinner v Square D Co , 445 Mich 153, 163; 516 NW2d 475 (1994). And “legal cause or ‘proximate cause’ normally involves examining the fore seeability of consequences, and
whether a defendant should be held l egally responsible for such consequences.” Id

.

Plaintiff bears the burden of setting forth specific facts tha t defendant caused plaintiff’s injuries—mere speculation is insufficient to support a finding of causation. Craig v Oakwood Hosp , 471 Mich 67, 87; 684 NW2d 296 (2004); Skinner , 445 Mich at 173. Here, plaintiff failed to present specific factual evidence that establishes “but for” defendant’s actions, plaintiff would not have been injured. It is undi sputed that plaintiff suffere d from preexisting physical and psychological conditions stemming from a 2003 automobile accide nt. Specifically, these conditions included neck, back, and psychiatric problems. A re view of plaintiff’s medical records—prior to the June 2, 2013, accident with defendant—reve als that following her 2003 accident, on November 25, 2003, plaintiff was diagnosed with de generative disc disease at “L4-5 and L5-S1 levels,” and on September 17, 2009, plaintiff was dia gnosed with a “mild disc disease at C5/6 and C6/7.” On March 21, 2012, plaintiff’s treating spi ne surgeon, Dr. Andres Munk, noted that plaintiff had a C5-6 small disc protrusion in her ne ck and chronic discogenic changes
at L4-5 and L5-S1. Further Dr. M unk noted that steroid treatme nt “did not help much,” and he prescribed a back brace for plaintiff.

On April 25, 2012, Dr. Munk noted that plaintiff’s updated x-r ays showed a collapse between C5-6 and C6-7, but otherwise she was “pretty much asymp tomatic.” Dr. Munk also noted that plaintiff’s MRI of her lumbar spine showed “discogen ic changes between L4-5 and L5-S1.” A couple months before the accident with defendant, on April 3, 2013, Dr. Munk noted that plaintiff was experiencing acute flare-up of her symptoms. Plaintiff complained that she was experiencing pain in her back because she had to do a lot o f bending and twisting at work. Dr. Munk’s impression was “L4-L5 and L5-S1 changes, Grade I spo ndylolisthesis, L5-S1, and
Sacroiliitis.”-3- Three days after the accident, on June 5, 2013, plaintiff visi ted Dr. Munk once again. This time, Dr. Munk took x-rays of plaintiff’s neck, prescribed a steroid pack, and ordered an MRI. Dr. Munk noted that there were “no acute changes” in plai ntiff’s neck and that, although there was narrowing between C5-6 and C6-7, there were no obviou s changes when compared to her previous x-rays. Dr. Munk’s impression was “[c]ervical str ain with some exacerbation of discogenic of both the cervical and lumbar spine.” On June 14, 2013, plaintiff saw Dr. Munk to go over the results of her June 7 MRI. Again, Dr. Munk noted t hat when he compared her results to her prior MRI, he did not s ee any significant changes.

In reviewing plaintiff’s medical history before and after acci dent, it appears that plaintiff suffered from the same symptoms as she did before the accident. It is true that “[r]egardless of the preexisting condition, recovery is allowed if the trauma caused by the accident triggered symptoms from that condition .” Wilkinson v Lee , 463 Mich 388, 395; 617 NW2d 305 (2000) (emphasis added). However, plai ntiff suffered from disc change s in her cervical and lumbar spine before the accident occurred, and the severity of plainti ff’s pain symptoms changed visit to visit. There is no evidence that the pain plaintiff experience d after the accident was actually caused by defendant’s actions. And there is no evidence that a ny of plaintiff’s treating physicians concluded that her problems were caused by the June 2, 2013, accident. Indeed, plaintiff failed to introduce any affidavits from her treating physicians that stated that, in their professional opinion, the accide nt exacerbated or aggravated he r existing symptoms . Instead, Dr. Stanley Lee, an independent medical examiner, concluded that an y treatment plaintiff received above and beyond a soft tissue strain could not be related to o r caused by defendant’s actions in the June 2 accident. Importan tly, plaintiff failed to introduc e any supporting evidence indicating that her treating physicians disagreed with Dr. Lee’s conclusio n. Thus, we hold that plaintiff failed to present sufficient evidence that defendant’s actions were a cause in fact of her injuries. Additionally, because plaintiff did not establish that defendan t was the cause in fact of her injuries, she also cannot demons trate how defendant’s actions w ere the proximate or legal cause of those injuries. See Craig , 471 Mich at 87 (“[This Court] must find that the defendant’s negligence was a cause in fact of the plaintiff’s injuries befo re it can hold that defendant’s negligence was the proximate or legal cause of those injuries.” ).

We note that plaintiff’s reliance on Wilkinson is misplaced. The issue in Wilkinson was whether the evidence sufficiently established that the accident was the proximate cause of the plaintiff’s injuries. Wilkinson , 463 Mich at 389. The plaintiff in Wilkinson was involved in a
rear-end collision that caused him to be thrown forward and the n backward with enough force to
break the seat. Id . The plaintiff was initially d iagnosed with a neck strain aft er the accident and missed two days of work. Id . at 389-390. The plaintiff’s sy mptoms worsened following the accident and included nausea, severe headaches, dizziness, doub le vision, and accelerating memory loss. Id . at 390. Later, the plaintiff was diagnosed with a brain tumo r. Id. The

Wilkinson Court found that the medical evidence clearly permitted the ju ry to find causation because two witnesses, a surgeon who removed the tumor and the defense medical expert, testified that the trauma to the plaintiff’s head from the acci dent could have precipitated or accelerated the plaintiff’s symptoms. Id . at 395-396. Wilkinson is distinguishable from this case. Unlike the plaintiff in Wilkinson , plaintiff herein was never d iagnosed with a new injury, and plaintiff never presented any medical evidence establishing that her physicians opined that the June 2, 2013, accident caused or aggravated her preexisting inj uries.-4- In sum, plaintiff failed to establish a genuine issue of mater ial fact as to whether defendant’s conduct caused her inju ries. As a result, the tria l court properly granted defendant’s motion for summary disposition. 1

Affirmed. Defendant, as the pr evailing party, may tax costs p ursuant to MCR 7.219.

/s/ Michael J. Riordan /s/ Henry William Saad

1 Defendant also alternatively argues that we should affirm the grant of summary disposition based on her contention that pla intiff’s suit nonetheless is ba rred because plaintiff failed to present evidence that she met the requirement under the no-faul t act that she suffered a “serious impairment of body function.” See MCL 500.3135(1) (“A person r emains subject to tort liability
for noneconomic loss . . . only if the injured person has suffered death, serious impairment o f body function, or permanent serious disfigurement.”) (emphasis added). Of course, if
defendant’s conduct was not the cau se in fact of plaintiff’s in juries, a fortiori , the accident did not cause plaintiff to suffer a “serious impairment of body fun ction.”