DANIEL W FISCHER V RIVERWOODS LDHA
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STATE OF MICHIGAN
COURT OF APPEALS
DANIEL W. FISCHER,
UNPUBLISHED
Plaintiff-Appellant,
v
RIVERWOODS L.D.H.A., also known as
AMURCON CORP, doing business as HICKORY
WOODS APARTMENT COMPLEX,
No. 190631
Ingham Circuit Court
LC No. 95-079557 NO
Defendant-Appellee.
Before: Murhpy, P.J., and Gribbs and Gage, JJ.
GAGE, J. (dissenting).
I respectfully dissent. I would affirm the trial court’s grant of summary disposition to defendant
in light of plaintiff’s failure to establish beyond mere conjecture that he was injured on defendant’s
property.
The trial court properly granted defendant summary disposition because plaintiff cannot prove
that any action or failure to act by defendant caused his injury, and thus cannot establish a prima facie
case of negligence Schultz v Consumers Power Co, 443 Mich 445, 449; 506 NW2d 175 (1993).
Even assuming that defendant owed plaintiff a duty of reasonable care and that the question whether
defendant breached this duty should go to a jury, plaintiff must still establish proximate cause, which
includes both cause in fact and legal or proximate cause, between the allegedly negligent act of
defendant and his injury. Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994).
Plaintiff has merely speculated regarding the cause in fact element.
While a plaintiff may establish causation circumstantially, the mere happening of an unwitnessed
mishap neither eliminates nor reduces a plaintiff’s duty to effectively demonstrate causation. Id. A
plaintiff may prove cause in fact through the introduction of circumstantial evidence, but his
circumstantial proof must facilitate reasonable inferences of causation, not mere speculation. Id. at 164.
It is insufficient to submit a causation theory that, while factually supported, is, at best, just as possible as
another theory. Id.
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The plaintiff must introduce evidence which affords a reasonable basis for the
conclusion that it is more likely than not that the conduct of the defendant was a cause in
fact of the result. A mere possibility of such causation is not enough; and when the
matter remains one of pure speculation or conjecture, or the probabilities are at best
evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.
[Id. at 165 (citations omitted).]
Plaintiff alleged several times in a deposition and in response to interrogatories that he fell on
multiple occasions on a sidewalk within defendant’s apartment complex. However, plaintiff also
testified in his deposition that he had fallen even before he reached the apartment complex sidewalk.
Furthermore, plaintiff testified more than once that he did not know during which of his falls he had
injured his wrist. Plaintiff’s statements illustrate that he does not know specifically either where or when
he fell, or where or when he injured his wrist. According to plaintiff’s own statements, it is just as
probable that he slipped and injured his wrist before he reached the apartment complex sidewalk as it is
that he fell and injured his wrist within the complex.
I conclude that plaintiff’s testimony that he fell several times within the apartment complex does
not exclude with a fair amount of certainty the reasonable hypothesis that plaintiff fell and injured his
wrist outside the complex. Id. at 166. To permit plaintiff to proceed to the jury on his negligence claim
would improperly invite the jury to guess regarding when and where plaintiff fell and when and where
plaintiff injured his wrist. Id.
I would affirm.
/s/ Hilda R. Gage
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