Pain and suffering includes emotional and psychological injuries
This week, I’ve been writing about Hunter v. Sisco, a case soon to be reviewed by the Michigan Supreme Court on the issues of whether pain and suffering, emotional and psychological injuries are compensable in car accidents with government employees.
The court in Hunter v. Sisco and in Wesche v. Mecosta County Road Commission wrote that unlike auto accident victims injured by at-fault civilian drivers, victims who are injured by negligent government-drivers cannot sue for pain and suffering and emotional and psychological injuries.
But why?
Generally speaking, all governmental entities and agencies have “governmental immunity,” in Michigan and in most other states, which means they’re immune from “tort liability,” i.e., liability for the damages caused by negligence:
“[A]governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.” (MCL 691.1407(1))
However, one of the exceptions to governmental immunity is what’s called the “motor vehicle exception”:
“Governmental agencies shall be 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 …” (MCL 691.1405)
Today I’d like to review the cases that have applied the motor vehicle exception to emotional and psychological injuries.
- In Hunter v. Sisco, the trial judge concluded that the motor-vehicle exception’s “limitation to recovery for bodily injury ‘embraces and encompasses pain and suffering associated with the bodily injury’ . . . .”
- In Conley v. Charter Township of Brownstown, the trial judge concluded that “bodily injury is anything that results from an injury, whether it’s psychological or otherwise.”
No recovery for dump truck crash victim: Hunter v. Sisco
In Hunter v. Sisco, the Michigan Court of Appeals ruled that Harold Hunter Jr.’s lawsuit for “shock and emotional damage” against the City of Flint Transportation Department should be dismissed because “emotional damages” are not recoverable under the motor-vehicle exception to governmental immunity:
“[W]e hold that such damages are precluded under MCL 691.1405 [the motor-vehicle exception] because a governmental agency may only be liable for ‘bodily injury’ …”
Citing a 2008 Michigan Supreme Court ruling, Wesche v. Mecosta County Road Commission, the Hunter court explained that governmental immunity “is waived [under the motor-vehicle exception] only for claims of ‘physical or corporeal injury to the body.’”
In so ruling, the Court of Appeals overruled the trial judge’s decision in Hunter’s favor:
The motor-vehicle exception’s “limitation to recovery for bodily injury ‘embraces and encompasses pain and suffering associated with the bodily injury’ . . . .”
In disagreeing with the trial judge’s ruling, the Court of Appeals said:
“Because ‘bodily injury’ encompasses only ‘a physical or corporeal injury to the body,’ … the trial court erroneously ruled that plaintiff may recover damages for pain and suffering and ‘shock and emotional damage.’ Such damages simply do not constitute physical injury to the body and do not fall within the motor vehicle exception.”
Notably, in Hunter, it was “undisputed” by the parties that the city’s employee “negligently operated the [city’s] dump truck in a manner that led to the collision with plaintiff’s vehicle.”
On May 21, 2013, the Court of Appeals denied Mr. Hunter’s motion for reconsideration, and on July 1, 2013, Mr. Hunter filed with the Michigan Supreme Court his application for leave to appeal.
The Supreme Court granted leave to appeal on March 21, 2014, directing the parties to address the following issue:
“[W]hether damages for pain and suffering and/or emotional distress may qualify as a “bodily injury” that permits a plaintiff to avoid the application of governmental immunity from tort liability under the motor vehicle exception to governmental immunity, MCL 691.1405 (see Wesche v. Mecosta Co Rd Comm, 480 Mich 75 (2008)).”
No recovery for police crash victim: Conley v. Charter Township of Brownstown
In Conley v. Charter Township of Brownstown in January 2014, the Michigan Court of Appeals ruled in favor of dismissing Mildred Conley’s lawsuit against the township for emotional and psychological injuries she suffered when a township police car collided with her vehicle.
Relying on the 2013 published Court of Appeals opinion in Hunter v. Sisco, the Court of Appeals concluded Ms. Conley couldn’t recover for “emotional and psychological injuries” because they are not “bodily” injuries and the motor-vehicle exception to governmental immunity only applies to “bodily injur[ies].”
In so ruling, the Court of Appeals reversed the trial court’s decision in Ms. Conley’s favor:
“[B]odily injury is anything that results from an injury, whether it’s psychological or otherwise.”
Leave to appeal to the Michigan Supreme Court was filed on February 27, 2014.
Our own case: Hannay v. Department of Transportation
Additionally, the Michigan Court of Appeals’ ruling in Hannay v. Department of Transportation, which is our own Michigan Auto Law case, suggests emotional and psychological injury damages are recoverable under the motor-vehicle exception because:
- They are “items of damages that arise from the bodily injury suffered by [the] plaintiff.”
In other words, under the rationale of Hannay, emotional and psychological injury damages should be recoverable under the motor-vehicle exception to the extent the injuries are directly related to the bodily injury that an auto accident victim sustained in a crash caused by a government employee’s “negligent operation” of a government-owned vehicle.
In Hannay, the specific issue was whether excess work loss and replacement services under MCL 500.3135(3)(c) were recoverable as “bodily injury” damages under the motor-vehicle exception.
Interpretation of “bodily injury” under the Governmental Tort Liability Act
Finally, it’s highly likely that judges have been erroneously applying an overly narrow interpretation of “bodily injury,” given that the terms “bodily injury” and “injury” are used interchangeably and synonymously throughout the Governmental Tort Liability Act.
In its March 21, 2014, order agreeing to review this issue, the Michigan Supreme Court said it was interested in the following “limited” issue:
“[W]hether damages for pain and suffering and/or emotional distress may qualify as a “bodily injury” that permits a plaintiff to avoid the application of governmental immunity from tort liability under the motor vehicle exception to governmental immunity …”
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