The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JACOB STEWART and JULIUS WHITSON JR., UNPUBLISHED
September 19, 2025
Plaintiffs-Appellees, 9:46 AM
v No. 371613
Macomb Circuit Court
MACOMB INTERMEDIATE SCHOOL DISTRICT, LC No. 2023-001838-NI
Defendant-Appellant,
and
AUDREY SZYMBORSKI, PROGRESSIVE
MICHIGAN INSURANCE COMPANY, and
FARMERS INSURANCE EXCHANGE,
Defendants.
Before: PATEL, P.J., and RIORDAN and SWARTZLE, JJ.
PER CURIAM.
Plaintiffs were in a vehicle that was rear-ended by a Macomb Intermediate School District
(ISD) school bus. The trial court determined that Macomb ISD was not entitled to summary
disposition. We affirm.
I. BACKGROUND
In October 2022, plaintiff Jacob Stewart was driving to work, with plaintiff Julius Whitson
Jr. riding in the front passenger seat. A school bus rear-ended plaintiffs’ vehicle. Both plaintiffs
went to the hospital following the crash and, in the subsequent months, engaged in various
treatments, including chiropractic care and physical therapy, and they received injections. Imaging
showed that Whitson had disc bulging and disc herniation. Whitson reported experiencing head,
neck, and back pain, as well as impacts to his mental health. Medical providers observed Whitson
to experience muscle spasms and decreased ranges of motion. Imaging showed that Stewart also
had disc bulging and disc herniation. Stewart reported experiencing head, neck, and back pain.
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Medical providers observed Stewart to experience symptoms that included decreased range of
motion and muscle spasms.
At the time of the crash, plaintiffs were working for a landscaping company. The lower
court record demonstrates that Dr. Todd Kleinstein restricted Stewart from working for one week.
Stewart briefly returned to work, but stopped working in December 2022 when “it was too much
on [his] back.” Dr. Kleinstein issued Whitson disability certificates from October 2022 through
July 2023. Stewart reported being unable to participate in the same social and recreational
activities that he had before the crash, including playing sports with friends, because standing or
sitting for too long caused him pain. Whitson reported being unable to attend as many family
functions and activities as he had before the crash, and he had issues with prolonged standing.
Plaintiffs sued defendants in June 2023. Macomb ISD and defendant Audrey Szymborski,
the bus driver, moved for summary disposition in April 2024 under MCR 2.116(C)(7) and (C)(10),
arguing that plaintiffs could not demonstrate that Szymborski had been grossly negligent, so she
was entitled to governmental immunity. Further, plaintiffs could not establish a serious
impairment of body function under MCL 500.3135, and accordingly, the motor-vehicle exception
to governmental immunity did not apply, and Macomb ISD was entitled to governmental
immunity.
In response, plaintiffs argued that Szymborski had been grossly negligent and that plaintiffs
had suffered serious impairments of important body functions. Plaintiffs attached depositions,
various medical records, and documentation that included disability certificates for Whitson. In a
September 2023 record, Dr. Ratnesh Mehra noted that Whitson had “sustained traumatic injuries
to the cervical and lumbar spines during his motor vehicle accident.” Similarly, Dr. Mehra stated
that Stewart had “sustained traumatic injuries to the cervical and lumbar spines during a motor
vehicle accident.”
After defendants replied, plaintiffs filed a supplemental response brief, attaching proposed
affidavits from Dr. Nabil Hodroj, arguing that the affidavits demonstrated the objective nature of
plaintiffs’ injuries, connected the injuries to the crash, and described plaintiffs’ impairments and
disabilities. Defendants objected to plaintiffs’ supplemental response, noting that the affidavits
were nearly identical, unnotarized, and untimely. Defendants requested that the trial court
disregard the affidavits and strike them from the record.
During a hearing on the motion, the trial court stated that it had not reviewed plaintiffs’
supplemental brief or defendants’ objection. The trial court subsequently issued an opinion and
order, granting defendants’ motion as it related to Szymborski, but denying summary disposition
as it related to Macomb ISD. The trial court determined that there was a genuine question of fact
about whether plaintiffs suffered objective impairments that affected their abilities to lead their
normal lives. The trial court referred to various exhibits, including Dr. Hodroj’s affidavits, in
support of plaintiffs’ arguments.
Macomb ISD now appeals.
II. ANALYSIS
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“We review de novo a trial court’s decision to grant or deny a motion for summary
disposition.” Sherman v City of St Joseph, 332 Mich App 626, 632; 957 NW2d 838 (2020). “When
deciding a motion for summary disposition under MCR 2.116(C)(10), we consider the evidence
submitted in a light most favorable to the nonmoving party.” Payne v Payne, 338 Mich App 265,
274; 979 NW2d 706 (2021). Summary disposition is appropriate if there is no genuine question
of material fact and the moving party is entitled to judgment as a matter of law. Id. In reviewing
a trial court’s decision under MCR 2.116(C)(7), we consider the record evidence to determine
whether the defendant is entitled to immunity. Poppen v Tovey, 256 Mich App 351, 353-354; 664
NW2d 269 (2003). We review de novo questions of statutory interpretation. Sherman, 332 Mich
App at 632.
Macomb ISD first argues that the trial court erred by considering the proposed affidavits
because they were unnotarized and untimely. Unless a trial court sets a different date, a party must
file a response to a motion for summary disposition, including briefs and affidavits, at least seven
days before a hearing. MCR 2.116(G)(1)(a)(ii). “[N]o additional or supplemental briefs may be
filed without leave of the court.” MCR 2.116(G)(1)(a)(iv). Documentary evidence, including
affidavits, “shall only be considered to the extent that the content or substance would be admissible
as evidence.” MCR 2.116(G)(6). An affidavit filed with a court “must be verified by oath or
affirmation.” MCR 1.109(D)(1)(f). A trial court may not consider unsworn, unsigned affidavits
when reviewing a motion for summary disposition. Gorman v American Honda Motor Co, Inc,
302 Mich App 113, 120; 839 NW2d 223 (2013).
Plaintiffs were, therefore, required to file their response to defendants’ motion for summary
disposition more than seven days before the hearing and were not permitted to file supplemental
briefing without leave of the court, which plaintiffs did not seek or obtain. Moreover, MCR
1.109(D)(1)(f) provides that affidavits “must be verified by oath or affirmation,” and Dr. Hodroj’s
affidavits were not notarized. Accordingly, it was error for the trial court to consider the affidavits.
Plaintiffs argue that the trial court did not rely on information from the affidavits that were
not otherwise available in the record. The trial court’s order clearly, however, refers to the
affidavits. To the extent that the trial court relied on information solely provided in the proposed
affidavits, the trial court erred, and this Court will not consider the affidavits. Similarly, we will
not consider the documents that plaintiffs have submitted with their brief on appeal that were not
introduced in the lower court record. See Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56;
649 NW2d 783 (2002).
Regardless, plaintiffs raised a genuine question of material fact about whether they suffered
serious impairments of body function. MCL 500.3135(1) provides for “tort liability for
noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if
the injured person has suffered death, serious impairment of body function, or permanent serious
disfigurement.” An impairment is a “serious impairment of body function” if:
(a) It is objectively manifested, meaning it is observable or perceivable from actual
symptoms or conditions by someone other than the injured person.
(b) It is an impairment of an important body function, which is a body function of
great value, significance, or consequence to the injured person.
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(c) It affects the injured person’s general ability to lead his or her normal life,
meaning it has had an influence on some of the person’s capacity to live in his or
her normal manner of living. Although temporal considerations may be relevant,
there is no temporal requirement for how long an impairment must last. This
examination is inherently fact and circumstance specific to each injured person,
must be conducted on a case-by-case basis, and requires comparison of the injured
person’s life before and after the incident. [MCL 500.3135(5).]
See also McCormick v Carrier, 487 Mich 180, 195; 795 NW2d 517 (2010).
Stewart raised a genuine question of material fact about whether he suffered an objectively
manifested impairment of body function by presenting evidence that he was experiencing muscle
spasms and reduced range of motion. Likewise, Whitson presented evidence of muscle spasms
and reduced ranges of motion. In McCormick, 487 Mich at 218, our Supreme Court held that the
plaintiff presented evidence of a broken ankle and symptoms that were perceivable as impairing
body functions, including “ankle pain and a reduced range of motion.”
Macomb ISD also argues that plaintiffs could not establish a causal relationship between
the crash and the diagnostic testing results. Plaintiffs’ records, however, demonstrate a question
of fact about whether the disc bulges and herniations, and plaintiffs’ impairments, were caused by
the crash. Plaintiffs provided records from the hospital directly following the crash, at which time
they complained of pain, along with their subsequent chiropractic, pain-management, and
diagnostic-scan records, and there is no evidence that plaintiffs suffered from these injuries or
impairments before the crash. Although “a temporal relationship, standing alone, does not
demonstrate a causal connection,” West v General Motors Corp, 469 Mich 177, 186; 665 NW2d
468 (2003), in this case, in the light most favorable to plaintiffs, plaintiffs raised questions of fact
through their testimonies and medical records, including Dr. Mehra’s notes that related plaintiffs’
injuries to the crash.
Macomb ISD did not contest in the lower court or on appeal that important body functions
were at-issue in this case. Accordingly, the next consideration is whether plaintiffs demonstrated
a genuine question of material fact about whether the impairments affected plaintiffs’ general
abilities to lead their lives. This is a subjective inquiry that “requires a comparison of the plaintiff’s
life before and after the incident.” McCormick, 487 Mich at 202. “[T]he statute merely requires
that a person’s general ability to lead his or her normal life has been affected, not destroyed.” Id.
Here, neither Stewart nor Whitson have been working, which they attribute to their injuries.
Macomb ISD acknowledges on appeal that Dr. Kleinstein disabled Stewart from working for one
week, and Stewart testified about Dr. Kleinstein giving him restrictions and about being unable to
work due to pain. There is no temporal requirement for an impairment to affect a person’s general
ability to lead their life. McCormick, 487 Mich at 203. Plaintiffs properly presented disability
certificates to the trial court regarding Whitson, who also testified about being unable to work
since the crash. Despite Macomb ISD’s argument on appeal, plaintiffs’ restrictions were not solely
self-imposed. Accordingly, there is a question of fact about whether the impairments affected
plaintiffs’ ability to engage in their employment.
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Stewart additionally testified about the impairments affecting his ability to engage in sports
and socialization. Although, as Macomb ISD argues, Stewart testified about not engaging in some
of those activities for some time before the crash, his testimony overall raises a genuine question
of material fact about whether the impairments affected his ability to lead his normal life.
Likewise, Whitson testified that he had visited some relatives since the crash, but also that his
impairments affected his ability to engage in family gatherings and other recreation. Moreover,
he testified about mental health impacts from the crash. “[T]here is no quantitative minimum as
to the percentage of a person’s normal manner of living that must be affected.” McCormick, 487
Mich at 203. Plaintiffs, therefore, raised genuine questions of material fact.
Next, Macomb ISD argues that it was entitled to governmental immunity because plaintiffs
could not establish the bodily injury requirement of MCL 691.1405. Under MCL 691.1405, a
governmental agency is “liable for bodily injury and property damage resulting from the negligent
operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of
which the governmental agency is owner.” Accordingly, the government waives its immunity, as
to bodily injury “once a threshold of ‘bodily injury’ has been met.” Wesche v Mecosta Co Road
Comm, 480 Mich 75, 85-86; 746 NW2d 847 (2008). Because plaintiffs have raised questions of
fact about their bodily injuries, the trial court did not err by determining that Macomb ISD was not
entitled to governmental immunity.
Affirmed.
/s/ Sima G. Patel
/s/ Michael J. Riordan
/s/ Brock A. Swartzle
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