Circuit Court LC No. 15-006324-NI
Before: Meter, P.J., and Borrello and Boonstra, JJ.
automobile negligence action, plaintiffs, Lindsey Patrick and
Christian Patrick, appeal as of right the trial court's
order granting defendant Virginia Turkelson's motion for
summary disposition pursuant to MCR 2.116(C)(10) and
dismissing the action with respect to all
defendants. For the reasons set forth in this opinion,
we reverse the trial court's order and remand this matter
for further proceedings consistent with this opinion.
case arises out of a car accident that occurred on February
12, 2013. Lindsey was driving on a service road as she was
leaving a Spectrum Health parking lot when a vehicle driven
by Turkelson turned onto the road and struck the driver's
side of Lindsey's vehicle. Multiple airbags deployed
inside Lindsey's vehicle, and the side curtain airbag
above the driver's side door hit Lindsey on the side of
her face, her left ear, and the top of her head. Lindsey
referred to the deployment of the airbags as an
"explosion." After the accident, Spectrum Security
arrived at the scene, and Lindsey reported that the sound in
both of her ears was "very muffled" and that her
left ear was "ringing."
the accident, Lindsey was examined in the emergency room
where she reported experiencing sharp pain in her left ear,
ringing in both ears, and a headache. She also reported pain
in her left shoulder, lower back, left hip, and left rib
was subsequently referred to an audiologist, Pam Keenan at
MacDonald Audiology on February 21, 2013. Keenan noted in her
report that Lindsey's primary concern was sudden decrease
in hearing and bilateral tinnitus. An audiogram test
"revealed hearing to be within normal limits at
250-4000Hz with a slight dip at 6 and 8000Hz."
Lindsey's word recognition was "Excellent
bilaterally, " and her speech recognition was in
accordance with her other testing. The record reflects that
Lindsey was administered various hearing tests that measured
her ability to hear pure tones and speech. Keenan also noted
that there was no previous audiogram to provide a comparison.
Further testing at a March 19, 2013 visit to MacDonald
Audiology yielded similar results. According to Lindsey, she
was told by the audiologist that the airbag explosion caused
the ringing in her ears.
November 11, 2013, Lindsey visited the University of Michigan
Health System and was seen by Dr. Katherine Heidenreich, a
specialist in otology and neurotology who treated patients
with ear disorders and hearing loss. According to Dr.
Heidenreich's deposition testimony, Lindsey reported
experiencing symptoms of hearing loss and tinnitus. Dr.
Heidenreich explained tinnitus as being a "phantom sound
that somebody perceives, " which is "something that
is inside your head that you hear, not from the
environment." Dr. Heidenreich further explained that
people experiencing tinnitus symptoms may describe the sound
as ringing, a tone, or the sound of the ocean.
of Lindsey's examination that day, Dr. Heidenreich
conducted a physical examination, which typically includes
examining the patient's ears, nose, oral cavity, oral
pharynx, and the cranial nerve function. The exam was
"normal." Lindsey was also given an audiogram to
test her hearing, and Dr. Heidenreich reviewed these results
during the examination as well. Dr. Heidenreich testified
that components of an audiogram required a patient to
acknowledge whether or not the patient heard a sound that was
presented to the patient, and Dr. Heidenreich acknowledged
that this kind of testing relied on the patient
"subjectively reporting what they heard." However,
she testified that the testing also included "more
objective components as well such as the movement of the
eardrum and the acoustic reflexes." Based on the results
of the audiogram administered to Lindsey that day, Dr.
Heidenreich determined that Lindsey had "a mild high
frequency sensorineural hearing loss in both ears but with
excellent word recognition scores." Dr. Heidenreich
testified that sensorineural hearing loss suggests problems
with the inner ear or nerve. With respect to tinnitus, Dr.
Heidenreich explained that this is a symptom that is often
reported by people experiencing hearing loss and that there
typically are not objective measures that can verify the
existence of this symptom. Dr. Heidenreich also determined
that Lindsey had "an acoustic reflex abnormality."
The acoustic reflex "measures the contraction of the
stapedius muscle, " and abnormalities can be associated
with middle ear bone problems or tumors. According to Dr.
Heidenreich, an acoustic reflex abnormality might not cause
any symptoms, and this particular finding might not have had
any bearing on Lindsey's condition.
Heidenreich testified that the literature includes reports of
hearing loss and tinnitus following airbag deployment due to
the sound generated. According to Dr. Heidenreich, it is
possible for exposure to loud noises to cause hearing loss
and tinnitus, even if an individual does not suffer physical
trauma. Dr. Heidenreich opined that Lindsey's hearing
issues were related to the car accident based on
Lindsey's audiogram results and her history, which
included her reports of experiencing an immediate decline in
hearing, muffled hearing, and tinnitus right after the car
accident in which the airbags deployed. Dr. Heidenreich
opined that this history suggested that Lindsey had
experienced a negative change in her hearing as compared to
her pre-accident hearing capabilities and that Lindsey's
exposure to the loud sound from the airbags could have caused
her symptoms. However, Dr. Heidenreich acknowledged that
there was no audiogram for Lindsey from before the accident
for comparison and that hearing can deteriorate due to age.
Additionally, Dr. Heidenreich indicated that she did not know
the cause of the acoustic reflex abnormality.
testified at her deposition that the pain and muffling in her
ears started immediately after the automobile accident and
that she did not have any of these symptoms before the
automobile accident. At the time of her deposition, she no
longer suffered from muffled hearing, but she did still have
ringing or tingling in both of her ears. Lindsey indicated
that her hearing loss was in her left ear. Lindsey testified
that she generally did not have trouble hearing people
speaking during normal conversation unless there was a lot of
background noise, but she had trouble hearing whispering.
Lindsey was told by both the audiologist and Dr. Heidenreich
that the sound from the explosion of the airbag deploying
near her ear caused her hearing problems.
to Lindsey, her ear issues had a negative impact on her work
because she was required to spend a significant amount of
time in the car for work and the road noise made the ringing
in her ears worse. She also testified that the ringing
affected her ability to do her job because it was
"distracting" and made her "very
irritable." Places with large groups of people or loud
sounds also made the ringing worse. Before the accident,
Lindsey worked approximately 30 hours a week over the course
of three days each week. At the time of her deposition,
Lindsey was working one day a week for approximately eight
hours because it was "harder to do the driving" and
because she had small children.
also testified during her deposition that before the
accident, she had enjoyed outdoor activities such as
kayaking, hiking, and bike riding. She also had a busy social
life, enjoyed going to concerts, and liked to travel. Since
the accident, Lindsey had been to two concerts, and they made
the ringing in her ears worse. Lindsey also had not continued
hiking or kayaking since the accident because she had tried
these activities multiple times and found that it was
"too quiet in the woods, " which made the ringing
more noticeable. Lindsey further testified that her ear
problems had affected her ability to take care of her
children because she was less patient, more irritable, and
husband, Christian, testified at his deposition that he and
Lindsey had experienced difficulties communicating since the
accident because Lindsey would speak either too softly or too
loudly. Lindsey would also occasionally tell Christian that
she was having trouble hearing him. According to Christian,
he sometimes had to ask Lindsey to repeat herself because he
had a hard time understanding or hearing her, and she would
get frustrated during these interactions because she was
having a hard time knowing how loud she was talking.
Christian further testified that there were times when
Lindsey did not hear questions that their children asked her
or misheard a question and responded with an answer that was
unresponsive to the actual question. Christian also indicated
that Lindsey was "more irritable" than before the
car accident. Christian testified that Lindsey had indicated
that she could not go on road trips or go to concerts with
him because of her hearing issues. He also had to keep music
at a quieter volume inside the house. Lindsey could watch
television without a problem but going to movies gave her
filed this action on July 10, 2015. Lindsey specified in her
deposition that her claim of injury resulting from the
automobile accident involved her hearing loss and ringing in
her ears. Defendant Turkelson moved for summary disposition
under MCR 2.116(C)(10), arguing that Lindsey did not suffer a
serious impairment of body function and that any injury was
not caused by the car accident. Defendants Auto-Owners
Insurance Company and Home-Owners Insurance Company concurred
in Turkelson's motion.
trial court granted Turkelson's motion for summary
disposition and dismissed the action in its entirety with
respect to all defendants, ruling that there was no genuine
issue of material fact regarding whether Lindsey suffered a
serious impairment of body function. Specifically, the trial
court concluded that Lindsey had "not shown any
objective manifestation of her subjective complaints of
tinnitus or otherwise demonstrated any physical basis for
those complaints, " that her hearing loss was
"mild" and was "not a manifestation of or
physical basis for tinnitus, " and that there was
"no indication that plaintiff's general ability to
live her normal life is affected by that mild hearing
loss." As a result of its determination on the threshold
injury issue, the trial court specifically declined to make a
ruling regarding Turkelson's causation argument. The
trial court also stated that it would not address
plaintiffs' counter-motion for summary disposition
regarding the issue of fault "because summary
disposition is proper regardless of fault for the underlying
appeal, plaintiffs argue that the trial court erred by
concluding that her impairment was not objectively manifested
and granting summary disposition on the ground that a serious
impairment of body function had not been established.
STANDARD OF REVIEW
Court reviews de novo a trial court's decision on a
summary disposition motion to determine if the moving party
was entitled to judgment as a matter of law."
Bergman v Cotanche, 319 Mich.App. 10, 15; 899 N.W.2d
754 (2017). "In making this determination, the Court
reviews the entire record to determine whether defendant was
entitled to summary disposition." Maiden v
Rozwood, 461 Mich. 109, 118; 597 N.W.2d 817 (1999).
"Courts are liberal in finding a factual dispute
sufficient to withstand summary disposition."
Innovative Adult Foster Care, Inc v Ragin, 285
Mich.App. 466, 476; 776 N.W.2d 398 (2009).
motion for summary disposition brought pursuant to MCR
2.116(C)(10) tests the factual support for a claim."
Id. at 474-475. "Summary disposition is
appropriate under MCR 2.116(C)(10) if there is no genuine
issue regarding any material fact and the moving party is
entitled to judgment as a matter of law." West v Gen
Motors Corp, 469 Mich. 177, 183; 665 N.W.2d 468 (2003).
A motion pursuant to MCR 2.116(C)(10) is reviewed "by
considering the pleadings, admissions, and other evidence
submitted by the parties in the light most favorable to the
nonmoving party." Latham v Barton Malow Co, 480
Mich. 105, 111; 746 N.W.2d 868 (2008). "A genuine issue
of material fact exists when the record, giving the benefit
of reasonable doubt to the opposing party, leaves open an
issue upon which reasonable minds might differ."
West, 469 Mich. at 183. "[I]t is well settled
that the circuit court may not weigh the evidence or make
determinations of credibility when deciding a motion for
summary disposition." Innovative Adult Foster
Care, 285 Mich.App. at 480. Moreover, a court may not