United States District Court, E.D. Michigan, Southern Division
JOHN D. KELLY, III, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE.
matter is presently before the Court on defendant's
motion for summary judgment [docket entry 13]. Plaintiff has
not responded to this motion, and the time for him to do so
has expired. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court
shall decide this motion without a hearing.
alleges that on October 12, 2016, he was injured when a mail
carrier negligently backed a mail delivery truck into him,
causing him to fall onto the pavement. Plaintiff alleges that
his injuries “constitute a serious impairment of body
function” under Michigan's no-fault act. Compl.
¶ 15. He seeks damages and attorney fees from the United
States under the Federal Tort Claims Act
argues that it is entitled to summary judgment because
plaintiff did not suffer any injuries that are serious enough
to constitute a “serious impairment of body
function.” The Court recently stated the legal
standards applicable in such cases as follows:
Pursuant to Federal Rule of Civil Procedure 56, the Court
will grant summary judgment if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Pittman v. Cuyahoga County
Dep't of Children & Family Servs., 640 F.3d 716,
723 (6th Cir. 2011). A fact is material if it might affect
the outcome of the case under governing law. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
determining whether a genuine issue of material fact exists,
the Court assumes the truth of the non-moving party's
evidence and construes all reasonable inferences from that
evidence in the light most favorable to the non-moving party.
See Ciminillo v. Streicher, 434 F.3d 461, 464 (6th
Cir. 2006). In response to a summary judgment motion, the
opposing party may not rest on its pleadings, nor “rely
on the hope that the trier of fact will disbelieve the
movant's denial of a disputed fact but must make an
affirmative showing with proper evidence in order to defeat
the motion.” Alexander v. CareSource, 576 F.3d
551, 558 (6th Cir. 2009) (internal quotations omitted). When
considering the material facts on the record, a court must
bear in mind that “[t]he mere existence of a scintilla
of evidence in support of the plaintiff's position will
be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252.
[Plaintiff] seeks non-economic damages resulting from the car
accident under MCL 500.3135, the Michigan No. Fault Act.
Under the Federal Tort Claims Act, liability “is
usually determined by referencing state law.” Premo
v. United States, 599 F.3d 540, 545 (6th Cir. 2010).
Tort liability for non-economic loss under the Michigan
No-Fault Act is limited to cases in which an injured party
“has suffered death, serious impairment of body
function, or permanent serious disfigurement” that was
“caused by [the] ownership, maintenance, or use of a
motor vehicle.” MCL 500.3135(1). A “serious
impairment of body function” means “an
objectively manifested impairment of an important body
function that affects the person's general ability to
lead his or her normal life.” MCL 500.3135(5);
McCormick v. Carrier, 795 N.W.2d 517, 524 (2010).
“[T]he threshold question whether the person has
suffered a serious impairment of body function should be
determined by the court as a matter of law as long as there
is no factual dispute regarding ‘the nature and extent
of the person's injuries' that is material to
determining whether the threshold standards are met.”
Id. at 525 (citing MCL 500.3135(2)(a)).
To be “objectively manifested, ” the impairment
must be “evidenced by actual symptoms or conditions
that someone other than the injured person would observe or
perceive as impairing a body function.”
McCormick, 795 N.W.2d at 527. To satisfy the
“objective manifestation” prong, there must be a
physical basis to support the subjective complaints of pain
and suffering, which generally requires medical testimony.
See McCormick, 795 N.W.2d at 528; see also Reed
v. Jones, No. 2:16-CV-34, 2016 WL 6871183, at *1 (W.D.
Mich. Nov. 22, 2016).
Moreover, the plaintiff must “demonstrate a causal
relationship between his injury and the accident.”
Lopez-Garcia v. United States, 207 F.Supp.3d 753,
759 (E.D. Mich. 2016) (citing Mehdi v. Gardner, No.
319630, 2015 WL 1227710, at *2 (Mich. Ct. App. March 17,
Bayley v. United States, No. CV 17-11942, 2018 WL
4901153, at *2-3 (E.D. Mich. Oct. 9, 2018).
evidence in this matter plainly shows that plaintiff's
injuries from the October 12 accident were not serious enough
to be actionable under the no-fault act. And to the extent
plaintiff has impairments, he has not shown that they were
caused by the accident, as his medical records show that they
were preexisting, degenerative conditions.
the accident, plaintiff went home and took a nap. Def.'s
Ex. 4. Afterwards, he sought emergency room treatment for
pain in his elbows and right hip. Id. X-rays were
negative. Plaintiff was given a “[w]ork note for 2
days” and ibuprofen. The diagnosis was “[m]uscle
days after the accident, plaintiff saw his primary care
physician and “[c]omplain[ed] of low back pain, ”
which he described as “dull.” Def.'s Ex. 8.
Plaintiff was diagnosed with osteoarthritis, lumbago, and
muscle spasm of his back. Id. These are the same
complaints and diagnoses noted by this physician's office
from plaintiff's visits in June 2016, August 2016, and
September 2016. See Def.'s Exs. 5-7. Plaintiff
was advised to “[r]efrain from activities that
aggravate back pain.” Def.'s Ex. 8. The same
complaints and diagnoses were noted in February 2017.
See Def.'s Ex. 9.
weeks after the accident, plaintiff sought treatment at
Concentra Medical Centers, complaining of pain in his right
hip, both elbows, and lower back. Def.'s Ex. 10.
Plaintiff was diagnosed with contusion of his lower back,
strain of his lumbar region, and contusion and sprain in his
right hip. He was prescribed six physical therapy sessions
and advised to use heat and ice. Id.
six weeks after the accident, plaintiff received a
consultation from U.S. MedGroup. Def.'s Ex. 11. His
“chief complaint [was] radiating pain from the back
into the leg with numbness and tingling, onset of symptoms
was on 10/12/2016.” Id. The physician
suspected lumbar radiculopathy and ...