EDDIE DANIELS V PAUL PETERSON
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STATE OF MICHIGAN
COURT OF APPEALS
EDDIE DANIELS and FAYE DANIELS,
Deceased,
UNPUBLISHED
September 14, 2001
Plaintiffs-Appellants,
v
No. 173275
Ingham Circuit Court
LC No. 93-74801-NO
PAUL PETERSON and DONALD RIEL,
Defendants-Appellees.
ON REMAND
ON REHEARING
Before: Saad, P.J., and Zahra and Collins, JJ.
SAAD, P.J. (dissenting)
I respectfully dissent. Plaintiffs’ complaint does not set forth a description of the events
immediately preceding Daniels’ collision. Therefore, based on the pleadings alone, the record is
insufficient to determine whether defendants’ conduct, or some other conduct or event may have
constituted the most efficient, direct cause of Daniels’ injuries. While I recognize that it is very
likely that defendants’ alleged failure to submit a report and order was simply too remote in time
and place to constitute “the proximate cause” of Daniels’ injuries, it would appear that there
should be a fuller record regarding what other events may have preceded the crash. Accordingly,
I would remand for development of facts on this issue that the trial court prematurely granted
defendants’ motion for summary disposition under MCR 2.116(C)(8).
However, my conclusion that the pleadings alone provide an insufficient basis for a grant
of summary disposition does not preclude the dismissal of plaintiffs’ complaint pursuant to MCR
2.116(C)(7) or MCR 2.116(C)(10), both of which require the court to consider, in addition to the
pleadings, affidavits and other documentary evidence. Barrow v Pritchard, 235 Mich App 478,
480; 597 NW2d 853 (1999). I am aware of this Court’s prerogative to review a motion for
summary disposition under the correct rule if the trial court improperly grants the motion under
the wrong rule. Spiek v Dep’t of Trans, 456 Mich 331, 338 n9 (1998). However, the
documentary evidence attached to the parties’ motion and response briefs does not reveal
sufficient facts regarding the events leading to the collision to determine the proximate cause of
plaintiff’s injuries. Therefore, I would find it necessary to remand this case for further
proceedings to establish a sufficient record to support the grant or denial of defendants’ motion.
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Accordingly, I would vacate the trial court’s order granting defendants’ motion for
summary disposition pursuant to MCR 2.116(C)(8) and remand for further proceedings of
defendants’ motion pursuant to MCR 2.116 (C)(7) and MCR 2.116(C)(10).1
/s/ Henry William Saad
1
I note that the trial court denied defendants’ motion as premature under MCR 2.116(C)(10)
because discovery was incomplete. The trial court may allow defendants to renew their motion
at the close of discovery, when discovery of the disputed issue is complete, or when there is
sufficient evidence showing “there is no reasonable chance that further discovery will result in
factual support for the nonmoving party.” Colista v Thomas, 241 Mich App 529, 537-538; 616
NW2d 249 (2000). Moreover, although defendants did not cite MCR 2.116(C)(7) as a basis for
dismissal, their brief specifically contends that plaintiff’s claim is barred because of immunity
granted by law.
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