Angell Cyars-Williams v. Thomas Skender

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

ANGELL CYARS-WILLIAMS, UNPUBLISHED

April 27, 2023

Plaintiff-Appellee,

v No. 359254

Wayne Circuit Court

THOMAS SKENDER and CITY OF DETROIT, LC No. 18-013365-NO

Defendants-Appellants.

Before: M. J. KELLY, P.J., and SWARTZLE and FEENEY, JJ.

PER CURIAM.

In this action to recover noneconomic damages under the no-fault act, MCL 500.3101 et

seq., defendants Thomas Skender and the city of Detroit appeal as of right a judgment of

$1,171,275.70 in favor of plaintiff, Angell Cyars-Williams, following a jury trial. For the reasons

stated in this opinion, we affirm.

I. BASIC FACTS

On June 29, 2018, Skender, a police officer for the City of Detroit, received a call that an

officer in the field required assistance at a secured scene. Skender, who was driving, did not turn

on the vehicle’s lights or siren. Further, because he and his partner had difficulty accessing their

patrol vehicle’s GPS, Skender attempted to manually enter their destination into his cellular

telephone’s GPS application. After a few minutes of attempting to navigate the GPS directions on

his cellular telephone, Skender rear-ended Cyars-Williams’ vehicle while she was stopped at a red

light. A body-cam video of the incident clearly shows Skender’s continued use of his cellular

telephone in the minutes leading up to the rear-end collision. Additionally, over a defense

objection, Cyars-Williams’s husband, a retired police officer, was permitted to testify that the

traffic crash report, commonly referred to as a UD-10, stated that Cyars-Williams was at fault for

the crash. He claimed that as a result, their insurance premiums were increased and eventually

cancelled. He further testified that he only got the UD-10 corrected by contacting “internal

affairs.”

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Cyars-Williams asserted that, as a result of the collision, she was diagnosed with a

concussion and sustained injuries to her knee and leg. At trial, she testified that after the crash,

she suffered from near-constant headaches. She was also unable to efficiently engage in her work

as a court reporter and could no longer assist her paraplegic father with his accounting business.

She also struggled to be “present” and “hands-on” with her children. Similarly, her husband

testified that Cyars-Williams’s demeanor changed after the crash. She became extremely irritable,

had frequent headaches, was listless, was unable to engage in family vacations, had difficulty

sitting in a vehicle, was depressed, had crying spells, and developed a negative relationship with

their children. Finally, one of Cyars-Williams’s co-workers testified that before the crash, she was

able to rely on Cyars-Williams to complete her work. Afterward, however, Cyars-Williams’s work

product became unreliable. She added that Cyars-Williams became more withdrawn, complained

frequently about pain, and stopped engaging in her normal leisure activities.

Cyars-Williams also presented testimony from Dr. Suleiman Kojan, a neurologist, who

testified that the day after the crash Cyars-Williams was diagnosed with concussion syndrome. He

stated that a concussion is “practically” a traumatic brain injury. Approximately five months after

the crash, he evaluated Cyars-Williams due to her complaints of impaired memory, slowed

thinking, forgetfulness, frequent headaches, neck pain, and intermittent tingling in her left hand.

Dr. Kojan administered a mental status examination, which showed that Cyars-Williams’s

cognitive functioning was in the borderline to normal range. Subsequent testing indicated that

there was some decreased sensation in her left arm and face. Some of her symptoms improved

while she was treating with Dr. Kojan. However, some of Cyars-Williams’s reported symptoms

persisted past the expected timeframe associated with her diagnosis, so Dr. Kogan referred Cyars-

Williams to Dr. Destiny Peterson, a neuropsychologist, for more in depth testing.

Dr. Peterson testified that she administered a neuropsychology assessment. She

determined that, although Cyars-Williams was not “significantly impaired,” she fell below

expectations in a few areas, including higher order attention and processing speed. In her written

report, Dr. Peterson opined:

The results of the current neuropsychological testing suggest primary evidence of

mild-to-moderate impairments related to the immediate and delayed recall for

verbally presented information, and impairments in balance and gross motor

coordination. These finding occur in the context of overall average performance

on assessment of attention, language, and executive functioning. This pattern of

cognitive performance suggests likely continued impairments secondary to the

injuries sustained during her motor vehicle accident. [Emphasis added.]

Dr. Peterson explained that the impairments were objectively manifested because they were based

on standardized measurements “where we have a reference point of where a person should be

following” and because each test was “administered in the same way.” Dr. Peterson also

performed symptom validity testing to assess whether Cyars-Williams was malingering. Based

on that testing, Dr. Peterson opined that Cyars-Williams was not exaggerating, intentionally

performing lower, or malingering. Dr. Peterson recommended that Cyars-Williams begin

psychotherapy and behavior pain management. Thereafter, Cyars-Williams began treating with

Dr. Peterson.

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Defendants moved for a directed verdict under MCR 2.516. Relevant to the issues raised

on appeal, they argued that Cyars-Williams failed to prove that she sustained a threshold

impairment under MCL 500.3135. In particular, they argued that there was insufficient evidence

that any impairment was affecting her general ability to lead her normal life because both before

and after the accident she was able to work. And, although she presented evidence regarding the

impact on her recreational activities and family life, the testimony was “very vague.” Defendants

also asserted that there was no objectively manifested impairment and that, even if there was an

impairment, it was not serious. The court denied the motion.

Thereafter, defendants presented testimony from the emergency medical technician (EMT)

that responded to the crash. The EMT testified that Cyars-Williams’s vitals were stable and that

she scored a 15 on the Glasgow Coma Scale, which was used to measure her alertness and mental

status. He offered to transport Cyars-Williams to the hospital, but she declined. Instead, she

transported herself to Sinai-Grace Hospital with complaints of head pain and, because she

continued to feel unwell the next day, she drove herself to Beaumont Hospital. And, as indicated

above, she was diagnosed with concussion syndrome, received treatment for her concussion from

Dr. Kojan, and was referred to Dr. Peterson for additional neurological testing.

Following the presentation of defendants’ proofs, the jury found that defendants were

negligent, that Skender was grossly negligent, and that their actions were a proximate cause of

Cyars-Williams’ injuries. Further, the jury found that Cyars-Williams’ injuries resulted in a

serious impairment of a bodily function that affects her ability to lead a normal life. The jury

awarded $750,000 in damages for pain and suffering and $250,000 in damages for future pain and

suffering. Defendants moved for judgment notwithstanding the verdict or a new trial under MCR

2.610 and MCR 2.611, arguing errors of law had denied them the right to a fair trial. The trial

court denied defendants’ motion and entered a final judgment in favor of Cyars-Williams. This

appeal follows.

II. INADMISSIBLE EVIDENCE

A. STANDARD OF REVIEW

Defendants first argue that the trial court abused its discretion by permitting Cyars-

Williams’s husband to testify regarding the contents of the UD-10 report prepared in connection

with the collision. They argue that the UD-10 was inadmissible under MCL 257.624(1). Further,

they assert that Cyars-Williams’s testimony regarding what the report said was inadmissible

hearsay, was irrelevant, and—even if it were relevant—the testimony should have been excluded

under MRE 403’s balancing test because the probative value of the evidence was substantially

outweighed by the danger of unfair prejudice. “The admission of evidence is reviewed for an

abuse of discretion.” Rock v Crocker, 499 Mich 247, 255; 884 NW2d 227 (2016). “A trial court

abuses its discretion when its decision falls outside the range of principled and reasonable

outcomes.” Crego v Edward W Sparrow Hosp Ass’n, 327 Mich App 525, 531; 937 NW2d 380

(2019).

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B. ANALYSIS

MCL 257.624(1) provides that a UD-10 report “shall not be available for use in a court

action[.]” Thus, the UD-10 itself is “not admissible in evidence.” Germiquet v Hubbard, 327

Mich 225, 233; 41 NW2d 531 (1950). In this case, Cyars-Williams’s husband testified that the

UD-10 indicated that Cyars-Williams was at fault for the crash, but no physical copy of the report

was admitted. The absence of the physical version of the UD-10 is not dispositive, however. As

explained by the Court in Germiquet, it is impermissible for a witness to read the substance of a

UD-10 report to the jury because such testimony actually results “in placing a part of the report in

evidence before the jury.” Id. Indeed, the Germiquet Court stressed that the “obvious purpose of

the legislature is defeated” if “the report, or any part of it, can be put in evidence by reading it to

the jury.” Id. Here, although Cyars-Williams’s husband did not read from the report, he testified

as to the substance of the report, thereby placing part of the report before the jury in violation of

MCL 257.624. By permitting the admission of evidence that is inadmissible as a matter of law,

the trial court necessarily abused its discretion. See Craig v Oakwood Hosp, 471 Mich 67, 76; 684

NW2d 296 (2004) (“A court necessarily abuses its discretion when it admits evidence that is

inadmissible as a matter of law.”) (quotation marks and citation omitted).1

Reversal is not required, however, because the admission of the evidence was harmless

error. This Court will not modify a decision of the trial court on the basis of a harmless error.

MCR 2.613(A). An error is harmless if it was not decisive to the outcome of the case. Ellison v

Dep’t of State, 320 Mich App 169, 179; 906 NW2d 221 (2017). In this case, the improperly

admitted testimony resulted in the jury learning that an unidentified police officer—who had not

witnessed the crash—had assigned fault for the crash to Cyars-Williams. Moreover, Cyars-

Williams’s husband testified that because of the assignment of fault, their insurance premiums

were raised and their policy was eventually cancelled. He also testified regarding his efforts with

“internal affairs” to set it right. Finally, during closing argument, Cyars-Williams’s lawyer

highlighted the UD-10, asking the jury to consider that the police report was an attempt by the

police department to “c.y.a.” Although the words “cover up” were not expressly used, CYA is an

acronym for “cover your ass.” Accordingly, it is clear that Cyars-Williams was asking the jury to

consider the fact that the UD-10 report assigned fault to her so that the police department could

cover-up Skender’s fault in causing the crash.

On appeal, defendants have not shown that the impact of the improper testimony affected

the outcome of the trial. Defendants suggest that the jury was inflamed by the improper admission

of the UD-10 report and the implication of a cover-up. However, we cannot ignore the fact the

video of the crash was played to the jury. That footage showed Skender driving while

1

Because admission of the testimony was improper under MCL 257.624, we do not address

defendants’ additional arguments regarding the admissibility of Cyars-Williams’s husband’s

testimony regarding the substance of the UD-10 report. However, we note that the UD-10 was

prepared by an officer who was not present at the time of the collision, nor does the record reflect

that the officer is a qualified accident reconstructionist. As a result, the officer’s opinion that

Cyars-Williams was at fault for the collision was not admissible under MRE 701. See Miller v

Hensley, 244 Mich App 528, 531; 624 NW2d 582 (2001).

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simultaneously typing searches into his cellular telephone before eventually striking the rear of the

Cyars-Williams’s vehicle while it was legally stopped at a red light. In the video, Skender can

clearly be heard cursing and saying that he “rear-ended” Cyars-Williams. He also made multiple

statements acknowledging his fault in causing the crash, including that he “bumped into her,” that

he did not hit her vehicle hard, that the crash was “my bad” because he had been using the GPS on

his cellular telephone, that he “tapped her bumper,” and that “obviously, [the crash] was my fault.”

Skender also indicated that he believed Cyars-Williams was pretending to be injured. He stated

that Cyars-Williams had said “her head hurts” but had also told them that EMS did not need to be

called. Skender told other officers at the scene that he had “called medics here for cya.” Later, he

repeated that “we did it for cya.” As a whole, notwithstanding that the body-cam video depicts a

plain violation of the law, defendants never conceded negligence and argued against it to the very

end. Had they conceded negligence and the UD-10 came in as described above, it would be easier

to conclude that the report played a role in the jury’s verdict. But the implication from defendants’

argument is that the jury rendered a verdict finding negligence and gross negligence as well as a

far higher-than-reasonable damages award because they were inflamed by the admission of the

UD-10 report assigning fault to Cyars-Williams. Yet it is just as easy to conclude that, if the jury

was inflamed at all, it was because they were incensed—outraged even—at defendants’ refusal to

accept responsibility for the collision. This was true irrespective of any mention of the UD-10.

Accordingly, we cannot accept the argument that the improper admitting of the UD-10 requires

the reversal of the verdict.

III. DIRECTED VERDICT

A. STANDARD OF REVIEW

Defendants also argue that the trial court erred by denying their motion for a directed

verdict because Cyars-Williams’s alleged injuries do not meet the threshold for a third-party claim

under MCL 500.3135. “This Court reviews de novo a trial court’s grant or denial of a directed

verdict. In doing so, we view the evidence in the light most favorable to the nonmoving party.”

Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 491; 668 NW2d 402 (2003) (citations

omitted).

B. ANALYSIS

“A person remains subject to 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.” MCL 500.3135(1).

Whether a person has suffered a serious impairment of body function is a matter of law for the

court to decide if the court finds:

(i) There is no factual dispute concerning the nature and extent of the

person’s injuries.

(ii) There is a factual dispute concerning the nature and extent of the

person’s injuries, but the dispute is not material to the determination whether the

person has suffered a serious impairment of body function or permanent serious

disfigurement. However, for a closed-head injury, a question of fact for the jury is

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created if a licensed allopathic or osteopathic physician who regularly diagnoses or

treats closed-head injuries testifies under oath that there may be a serious

neurological injury. [MCL 500.3135(2)(a).]

Defendants first argue that the closed-injury exception, which is stated in the last sentence

in MCL 500.3135(2)(a)(ii), does not apply because Dr. Peterson is not a qualified physician and

because Dr. Kojan did not testify that Cyars-Williams may have a serious neurological injury. We

agree. Dr. Peterson is not a licensed allopathic or osteopathic physician, so her testimony cannot

satisfy the closed-head exception stated in MCL 500.3135(2)(a)(ii). Moreover, Dr. Kojan’s

testimony did not establish Cyars-Williams had a serious neurological injury. Instead, he stated

that she had borderline to normal neurological examinations. Thus, his testimony is also

insufficient to meet the closed-head exception.

Cyars-Williams’s failure to satisfy the requirements of MCL 500.3135(2)(a)(ii), however,

is not the end of the inquiry. Instead, as explained by this Court in Churchman v Rickerson, 240

Mich App 223, 232; 611 NW2d 333 (2000), in cases where a plaintiff cannot satisfy the closed-

head exception in MCL 500.3135(2)(ii), a plaintiff may nevertheless “establish a factual question

under the broader language set forth in subsection 3135(2)(a)(i) and (ii), which, as noted above,

provide that whether an injured person has suffered serious impairment of a body function is a

question for the court unless the court finds that ‘[t]here is no factual dispute concerning the nature

and extent of the person’s injuries,’ or, if the court finds that there is such a factual dispute, that

‘dispute is not material to the determination as to whether the person has suffered a serious

impairment of body function . . . .’ ”

MCL 500.3135(5) defines a “serious impairment of a body function,” stating:

As used in this section, “serious impairment of body function” means an

impairment that satisfies all of the following requirements:

(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.

(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.

On appeal, defendants suggest that Cyars-Williams only suffered a minor injury and her

condition was improving, she was not seriously impaired. They point out that Cyars-Williams did

not treat with Dr. Kogan until five months after the crash, and she did not see Dr. Peterson until

over a year and a half after the crash. Dr. Kogan testified that a minor injury would be expected

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from a low-speed crash, and Dr. Peterson referred to Cyars-Williams’s injury as a “mild traumatic

brain injury.” Testing performed by Dr. Kogan showed that the neurological examination of

Cyars-Williams showed she was normal to borderline, and Dr. Peterson stated that Cyars-Williams

was not “significantly impaired.” Both doctors also described that Cyars-Williams had shown

improvement as a result of treatment. Defendants suggest, therefore, that Cyars-Williams is unable

to meet the statutory threshold because she did not immediately receive treatment from Dr. Kogan

and Dr. Peterson, they did not describe the injury as “serious,” and Cyars-Williams was improving.

Defendants’ argument, however, incorrectly focused on the extent of Cyars-Williams’s

injury. MCL 500.3135(5)(a), which defines what constitutes a “serious impairment of body

function,” does not require Cyars-Williams’s doctors to diagnose her with a serious or significant

brain injury, rather, she is only required to prove that any impairment is observable or perceivable

from actual symptoms or conditions. See id. An “objectively manifested impairment” is an

impairment “observable or perceivable from actual symptoms or conditions.” McCormick v

Carrier, 487 Mich 180, 196; 795 NW2d 517 (2010).2 “[W]hen considering an ‘impairment,’ the

focus is not on the injuries themselves, but how the injuries affected a particular body function.”

Id. at 197 (quotations marks and citation omitted). “[P]laintiffs must introduce evidence

establishing that there is a physical basis for their subjective complaints of pain and suffering and

that showing an impairment generally requires medical testimony.” Id. at 198 (quotation marks

and citation omitted). Here, Dr. Kojan testified that, although the majority of Cyars-Williams’s

examination results were normal, she was diagnosed with concussion syndrome and showed

decreased sensation in her left arm and the left side of her face. In turn, Dr. Peterson testified,

based on objective testing measures, Cyars-Williams’s cognitive functioning fell below her

expected level of functioning, specifically in terms of her memory, attention, sequencing, problem

solving, balance, and gross motor coordination. Consequently, even though Cyars-Williams was

not significantly impaired based on her examination results, Cyars-Williams’s doctors were able

to objectively observe and measure her reported neurological symptoms and conditions. As a

result, Cyars-Williams showed that there was a material question of fact as to whether she satisfied

the requirement in MCL 500.3135(5)(a).

Next, the brain is undeniably an important body function for any plaintiff. See Allen v

Bloomfield Hills Sch Dist, 281 Mich App 49, 57; 760 NW2d 811 (2008) (“Although the brain is

the organ responsible for our thoughts and emotions, it is also the organ that controls all our

physical functions.”). Here, Cyars-Williams suffered an injury to her brain that resulted in

headaches, cognitive issues, and motor functioning problems. Because her impairments are related

to the function of her brain, she has created, at the very least, a question of material fact whether

she reasonably met MCL 500.3135(5)(b).

Finally, Cyars-Williams also showed that there was a material question of fact as to

whether the impairment affected her general ability to lead her normal life. Our Supreme Court

has explained that MCL 500.3135(5)(c) “merely requires that a person’s general ability to lead his

2

At the time McCormick was decided, MCL 500.3135(5) was codified as MCL 500.3135(7). As

a result of legislative amendments in 2012, see 2012 PA 158, MCL 500.3135(7) was renumbered

to MCL 500.3135(5), but the substance of the statutory text remained the same.

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or her normal life has been affected, not destroyed.” McCormick, 487 Mich at 202-203. “Thus,

courts should consider not only whether the impairment has led the person to completely cease a

pre-incident activity or lifestyle element, but also whether, although a person is able to lead his or

her pre-incident normal life, the person’s general ability to do so was nonetheless affected.” Id. at

203.

Cyars-Williams’s husband testified that, after the accident, Cyars-Williams experienced

regular headaches, was irritable, tired, listless, and struggled to sit in cars for long periods of time

during their family’s regular road trips. Cyars-Williams friend and coworker testified, after the

crash, Cyars-Williams’s work suffered because she significantly slowed in her production and was

often late in submitting her work. She also stated Cyars-Williams often complained of headaches

and withdrew from recreational activities they used to frequently do together. Further, Cyars-

Williams testified that she could no longer assist her paraplegic father with his business or be a

hands-on mother for her children because of the constant pain from her headaches. Dr. Peterson

stated Cyars-Williams struggled with higher order cognitive functions and gross motor

coordination. Dr. Peterson also testified that Cyars-Williams reported struggling with work, her

family, and having the physical energy to engage in her day-to-day life. Dr. Peterson added that

Cyars-Williams is not 100% back to her level of functioning that she was at before the crash. This

testimony is sufficient to show that Cyars-Williams’s general ability to lead her normal life has

been affected.

In sum, evaluating the evidence in the light most favorable to Cyars-Williams, the evidence

presented has sufficiently created a question of fact whether all three prongs of MCL 500.3135(5),

which defines the phrase “serious impairment of a body function,” have been satisfied.

Consequently, the trial court did not err in denying defendants’ motion for a directed verdict. The

matter was properly submitted to the jury.

Affirmed. Cyars-Williams, as the prevailing party, may tax costs. MCR 7.219(A).

/s/ Michael J. Kelly

/s/ Brock A. Swartzle

/s/ Kathleen A. Feeney

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