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Collins v. United States

United States District Court, E.D. Michigan, Southern Division

December 11, 2017

Sandra Collins, Plaintiff,
v.
United States of America, Defendant.

          OPINION & ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          Sean F. Cox, United States District Judge.

         Plaintiff 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.

         BACKGROUND

         On June 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.

         Following the close of discovery, on August 2, 2017, Defendant filed a Motion for Summary Judgment.

         This 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).

         In 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.”).

         The following material facts are gleaned from the evidence submitted by the parties, viewed in the light most favorable to Plaintiff, the non-moving party.

         It Is Undisputed That Plaintiff Was Hit By A USPS Truck On November 19, 2013.

         Plaintiff 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).

         On the 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).

         While 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).

         After 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).

         It is 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.

         Plaintiff Was Hospitalized For 12 Days After The Accident.

         The 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 ¶¶ 36-37).

         Plaintiff 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).

         The 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).

         Four 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 ¶¶ 40-41).

         For Approximately A Month Plaintiff Then Remained Bed-Ridden In A Rehabilitation Facility.

         Upon 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 ¶¶ 42-45).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff Also Had Hand Surgery That Required A Surgical Pin And Wire.

         After 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 ¶¶ 47-50).

         After 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.

         After 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).

         In a 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 appointments.” (Id.).

         In a 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 toilet ...


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