DEBBIE HENLEY V NORMAN LEE TYLER
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STATE OF MICHIGAN
COURT OF APPEALS
DEBBIE HENLEY,
UNPUBLISHED
August 27, 1999
Plaintiff-Appellee,
v
No. 204538
Wayne Circuit Court
LC No. 95-507799 NI
NORMAN LEE TYLER,
Defendant-Appellant.
Before: Hoekstra, P.J., and O’Connell and R. J. Danhof*, JJ.
MEMORANDUM.
In this automobile negligence action, defendant appeals as of right from a $5,000 judgment for
plaintiff entered following a jury trial on the question of damages. Defendant challenges the trial court’s
order granting plaintiff ’s motion for summary disposition pursuant to MCR 2.116(C)(10) on the
threshold issue whether plaintiff suffered a serious impairment of body function within the meaning of
MCL 500.3135(1); MSA 24.13135(1). We reverse and remand.
We review the trial court’s summary disposition ruling de novo. Morales v Auto-Owners Ins
Co, 458 Mich 288, 294; 582 NW2d 776 (1998). The question whether a plaintiff has suffered a
serious impairment of body function must be submitted to the trier of fact whenever the evidence,
viewed in the light most favorable to the nonmoving party, could cause reasonable minds to differ
regarding the answer. DiFranco v Pickard, 427 Mich 32, 69; 398 NW2d 896 (1986).1
In this case, when viewed in the light most favorable to defendant, the evidence was such that
reasonable minds could differ with regard to whether plaintiff sustained a serious impairment of body
function. The medical evidence before the trial court offered conflicting opinions regarding the
seriousness of the injury to plaintiff ’s neck muscles and her headaches. The evidence suggested that the
restriction of her neck movement was limited and was caused by muscle inflammation. Although an
initial CT scan revealed a possible disk herniation, follow-up tests were not performed because an
electromyograph showed normal results. Plaintiff was erratic in seeking treatment and frequently failed
to attend scheduled physical therapy sessions. Different doctors offered varying opinions regarding
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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whether plaintiff suffered from a serious impairment. The evidence did demonstrate that plaintiff had
some lingering pain when she did not follow a prescribed course of treatment. However, reasonable
minds could differ in determining whether plaintiff’s discomfort constituted a serious impairment, and
summary disposition was therefore inappropriate. Accordingly, we reverse and remand for a new trial
in which the threshold issue of serious impairment is to be submitted to a jury.
Reversed and remanded. We do not retain jurisdiction.
/s/ Joel P. Hoekstra
/s/ Peter D. O’Connell
/s/ Robert J. Danhof
1
We note that MCL 500.3135(2); MSA 24.13135(2), as amended by 1995 PA 222, effective March
28, 1996, sets forth specific instances in which the question of serious impairment is to be determined
by the trial court as a matter of law. However, the amendment took effect after this action was filed and
is therefore inapplicable here.
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