United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
F. Cox, United States District Judge.
filed this action against Defendant United States of America,
under the Federal Tort Claims Act, after she was hit by a
United States Postal Service truck. In order to be able to
recover noneconomic damages under Michigan's No-Fault
Act, Plaintiff has to show that she suffered a serious
impairment of a body function. After the close of discovery,
Defendant filed this motion for summary judgment, asserting
that Plaintiff cannot make the required threshold showing
because Plaintiff is currently, several years after the
accident, able to live her normal life. The Michigan Supreme
Court has held that a serious impairment of body function
does not need to be permanent in order to meet the threshold
and that there is no 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. As explained below, this Court concludes that,
construing the evidence in the light most favorable to
Plaintiff, she has created a genuine issue of fact as to the
disputed prong of whether the impairment affects the
person's general ability to lead his or her normal life.
As such, the Court shall DENY Defendant's Motion for
Summary Judgment and this matter shall proceed to trial.
22, 2016, Plaintiff Sandra Collins (“Plaintiff”
or “Collins”) filed this action against Defendant
United States of America (“Defendant”) under the
Federal Tort Claims Act, 28 U.S.C. § 2671 et
seq. Plaintiff asserts one count: “Count I:
Federal Tort Claims Act - Negligence” that stems from
an accident that occurred on November 19, 2013, when
Plaintiff was struck by a U.S. Postal Service truck.
the close of discovery, on August 2, 2017, Defendant filed a
Motion for Summary Judgment.
Court's practice guidelines, which are expressly included
in the Scheduling Order issued in this case, provide,
consistent with Fed.R.Civ.P. 56 (c) and (e), that:
a. The moving party's papers shall include a separate
document entitled Statement of Material Facts Not in Dispute.
The statement shall list in separately numbered paragraphs
concise statements of each undisputed material fact,
supported by appropriate citations to the record. . .
b. In response, the opposing party shall file a separate
document entitled Counter-Statement of Disputed Facts. The
counter-statement shall list in separately numbered
paragraphs following the order or the movant's statement,
whether each of the facts asserted by the moving party is
admitted or denied and shall also be supported by appropriate
citations to the record. The Counter-Statement shall also
include, in a separate section, a list of each issue of
material fact as to which it is contended there is a genuine
issue for trial.
c. All material facts as set forth in the Statement of
Material Facts Not in Dispute shall be deemed admitted unless
controverted in the Counter-Statement of Disputed Facts.
(D.E. No. 7 at 2-3).
compliance with this Court's guidelines, in support of
its Motion for Summary Judgment, Defendant filed a
“Statement of Material Facts Not In Dispute”
(“Def.'s Stmt.). In response to that submission,
Plaintiff filed a “Counter-Statement of Disputed
Facts” (Pl.'s Stmt.”).
following material facts are gleaned from the evidence
submitted by the parties, viewed in the light most
favorable to Plaintiff, the non-moving party.
Is Undisputed That Plaintiff Was Hit By A USPS Truck On
November 19, 2013.
Sandra Collins is a 75-year-old widowed retiree who resides
at 26241 Meadowbrook Way, Lathrup Village, Michigan.
Plaintiff brought suit under the Federal Tort Claims Act,
asserting that a United States Postal Service
(“USPS”) vehicle struck her on November 19, 2013,
at approximately 5:19 p.m., while she was waiting to collect
her neighbor's mail. USPS letter carrier Peter Flannery
was driving a standard mail truck known as a Long Life
Vehicle or LLV. Flannery was a federal employee acting in the
course and scope of his employment and therefore, pursuant to
the FTCA, the United States is the proper defendant in this
matter. 28 U.S.C. § 2679(b)(1); 28 U.S.C. §
1346(b). Flannery, now 59 and retired, had delivered mail on
Meadowbrook Way for 32 years prior to the accident and had
known Plaintiff and her family for decades. (Def.'s &
Pl.'s Stmts. at ¶¶ 1-5).
date of the accident, Plaintiff was standing at the end of
her driveway at 26241 Meadowbrook Way, waiting for the mail
as Flannery delivered his route. Flannery stopped parallel to
Plaintiff and handed her mail to her. Flannery was able to
hand the mail directly to Plaintiff because the mail truck is
a right-hand drive vehicle. Flannery then drove to the next
mailbox, which served Plaintiff' next-door neighbor at
26231 Meadowbrook Way. Flannery stopped at the box, sorted
the mail for 26231 Meadowbrook Way and put in the box.
(Def.'s & Pl.'s Stmts. at ¶¶ 6-10).
Flannery was delivering the mail to 26231 Meadowbrook Way,
Plaintiff decided to pick up the mail for her neighbor who
lived at 26223 Meadowbrook Way. Plaintiff had previously
agreed to pick up the mail. Rather than walking on the
sidewalk, Plaintiff then walked up the middle of the street,
on the left-hand side of the mail truck. (Def.'s &
Pl.'s Stmts. at ¶¶ 11-13).
he completed delivering the mail to 26231 Meadowbrook Way,
Flannery began driving up the street to deliver mail to 26223
Meadowbrook Way. (Id. at ¶¶ 15-16).
undisputed that Flannery's truck then struck Plaintiff.
Because the parties agree that there are genuine issues of
fact for trial as liability and allocation of fault for the
accident, it is not necessary for the Court to address the
various facts relating to how the accident happened. For
purposes of the pending motion, what matters is what happened
after the accident.
Was Hospitalized For 12 Days After The Accident.
Southfield Fire Department EMS transported Plaintiff to
Beaumont Royal Oak Hospital, where she arrived at the
Emergency Room at approximately 6:08 p.m. and was evaluated
for her injuries. Examinations and medical imaging, including
X-rays and CT scans, showed the following injuries: 1)
Fracture of the right superior and inferior pubic ramus
(fractured pelvis) 2) Right distal fibula fracture (fractured
right leg); 3) Left scapular fracture (fractured left
scapula); 4) Fifth metacarpal fracture (fractured right
hand); 5) Fractures of the 8th through 11th ribs (four
fractured ribs); 6) Right nondisplaced sacral fracture; 7)
Right transverse process fracture; and 8) Abrasions on her
right knee. (Def.'s & Pl.'s Stmts. at
also had three superficial facial lacerations that were
closed with stitches: a 1 centimeter laceration on her left
lip (two sutures, left infra labial), a .5 millimeter
laceration on her right lip (one suture, right infra labial),
and a 1 centimeter laceration over her left eye (two sutures,
left lateral supraorbital ridge). Plaintiff was also
prescribed various pain medications. Her right wrist and
right leg were placed in casts. (Def.'s & Pl.'s
Stmts. at ¶¶ 38-39).
hospital records noted that Plaintiff “is widowed with
no local family, previously fully independent, social work
consult recommended.” (Pl.'s Ex. B at Pg ID 297).
days after admission, November 22, 2013, Plaintiff was
evaluated for, and began, physical therapy at the hospital.
Plaintiff was discharged to a rehabilitation center on
December 2, 2013. (Def.'s & Pl.'s Stmts. at
Approximately A Month Plaintiff Then Remained Bed-Ridden In A
discharge from the hospital, Plaintiff received case
management services from Feinberg Consulting to coordinate
her ongoing medical care. Plaintiff was transferred to the
West Bloomfield Nursing Center on December 2, 2013, for
additional recovery and physical and occupational therapy.
Her right wrist and right leg remained in casts. Plaintiff
had the cast on her right leg removed during an orthopedic
appointment on December 17, 2013, after which she returned to
the nursing center. (Def.'s & Pl.'s Stmts. at
testified that she was bedridden the entire time that she was
hospitalized and in the rehabilitation facility, and had to
use a bedpan. (Pl.'s Dep. at 50-51).
was discharged to her home upon her request on December 28,
2013, despite a recommendation from the rehabilitation center
staff that she stay an additional week for physical therapy.
(Id. at ¶ 46).
Also Had Hand Surgery That Required A Surgical Pin And
examining Plaintiff on December 17, 2013, orthopedist Dr.
Jason Sadowski concluded that the fifth metacarpal fracture
was not healing and scheduled surgical repair of the
fracture. Plaintiff returned to Beaumont Royal Oak Hospital
on December 23, 2013, where outpatient surgery was
successfully performed by Dr. Sadowski to insert a surgical
pin and wire to stabilize and repair the fifth metacarpal
fracture. Dr. Sadowski used a fluoroscope to confirm
alignment of the fracture, good position of the implant and
no complications of the implant. The surgical pin was removed
on January 21, 2014. (Def.'s & Pl.'s Stmts. at
She Returned Home, Plaintiff Required At-Home Care, At-Home
Physical And Occupational Therapy, Transportation Services,
And Other Services, That Were Managed By Feinberg Consulting
Until July 23, 2014.
Plaintiff returned home, Feinberg Consulting, Inc. oversaw
her care. A Feinberg Consulting case manager attended many of
Plaintiff's medical appointments, coordinated payments
for physician services and medical equipment, and documented
her recovery after discharge to her home. (Def.'s &
Pl.'s Stmts. at ¶ 51).
January 8, 2014 report, Feinberg Consulting stated that
Plaintiff was living at home alone and was using a walker
with a right arm platform. (Id. at 52; Def.;s Ex. 9
at Pg ID 196). It also noted that Plaintiff was receiving
both occupational therapy and physical therapy and that she
‘has 3 hours of attendant care 2x/week to supervise and
assist her with her activities of daily living. Mrs.
Plaintiff is unable to drive at this time and transportation
has been arranged for her to get to her doctor's
February 7, 2014 report, Feinberg Consulting stated that
Plaintiff was “no longer receiving caregiving services,
per her request, ” because she “is able to
complete all of her activities of daily living.”
(Def.'s & Pl.'s Stmts. at ¶ 54; Def.'s
Ex. 9). It also noted that Plaintiff was “transitioning
from her walker to independent ambulation, ” and stated
she was “walking in her home 50% with her walker and
50% independently, ” and was still receiving physical
therapy for her lower extremities as well as her right hand.
It noted that Plaintiff had requested a “bedside
commode that she wants to place over her master bathroom