JOHN W GRANT V SEPTIC TANK SYSTEMS CO
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STATE OF MICHIGAN
COURT OF APPEALS
JOHN W. GRANT,
UNPUBLISHED
December 14, 2001
Plaintiff-Appellant,
v
No. 226792
Allegan Circuit Court
LC No. 98-021855-NO
SEPTIC TANK SYSTEMS CO.,
Defendant-Appellee.
Before: Wilder, P.J., and Griffin and Smolenski, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s order granting defendant’s motion for
summary disposition under MCR 2.116(C)(10). The trial court concluded that plaintiff had
failed to show a causal connection between defendant’s alleged acts or omissions and plaintiff’s
injury. We affirm.
Plaintiff obtained a number of metal storage tanks for use in his scrap metal business.
Defendant initially provided the tanks to Lonnie Holtsclaw, who later delivered them to
plaintiff.1 After accepting delivery, plaintiff allowed the tanks to sit on his property for
approximately eight or nine months. When plaintiff finally attempted to dismantle one of the
tanks with a welding torch, the resultant explosion caused plaintiff severe injuries. Plaintiff sued
defendant, arguing that defendant had failed to empty the tanks of combustible or flammable
materials before giving them to Holtsclaw. Plaintiff also argued that defendant had made
material misrepresentations about the prior use of the tanks and that plaintiff would never have
accepted the tanks if he had known that they had previously contained hazardous materials.
Defendant filed a motion for summary disposition under MCR 2.116(C)(10), arguing that
plaintiff had failed to present sufficient facts to show that defendant’s actions or inactions caused
plaintiff’s injuries. The trial court agreed and granted defendant’s motion.
We review de novo a trial court’s order granting a party’s motion for summary
disposition under MCR 2.116(C)(10). Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572
NW2d 201 (1998). A motion brought under that rule tests the factual support for a plaintiff’s
claim. Id. “The court considers the affidavits, pleadings, depositions, admissions, and other
1
Plaintiff does not argue that he entered into a direct business relationship with defendant.
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documentary evidence submitted or filed in the action to determine whether a genuine issue of
any material fact exists to warrant a trial.” Id. Further, “[t]he court is not permitted to assess
credibility, or to determine facts on a motion for summary judgment. Instead, the court’s task is
to review the record evidence, and all reasonable inferences therefrom, and decide whether a
genuine issue of any material fact exists to warrant a trial.” Skinner v Square D Co, 445 Mich
153, 161; 516 NW2d 475 (1994) (citations omitted).
Plaintiff argues that the following evidence sufficiently proved the issue of causation: (1)
defendant previously owned the tanks in question, (2) defendant took no efforts to purge, clean,
or otherwise prepare the tanks for transport, (3) plaintiff observed flame erupt from the tank once
he applied the welding torch, and (4) the Michigan State Police hazardous materials inspector
concluded that the tank probably exploded because it contained combustible or flammable
materials.
In Skinner, supra at 164-165, our Supreme Court explained the causation proofs
necessary to defeat a defendant’s motion for summary disposition:
[A]t a minimum, a causation theory must have some basis in established fact.
However, a basis in only slight evidence is not enough. Nor is it sufficient to
submit a causation theory that, while factually supported, is, at best, just as
possible as another theory. Rather, the plaintiff must present substantial evidence
from which a jury may conclude that more likely than not, but for the defendant’s
conduct, the plaintiff’s injuries would not have occurred. [Footnote omitted.]
We conclude that the evidence relied on by plaintiff does not constitute substantial evidence
from which a reasonable jury could conclude that more likely than not, but for defendant’s
actions or inactions, plaintiff would not have been injured.
First, plaintiff failed to present evidence that the storage tanks contained flammable or
combustible liquids or vapors, while the tanks were in defendant’s possession. Holtsclaw
testified that none of the tanks that he removed from defendant’s premises contained any liquid,
and that he failed to smell any type of fuel in those tanks. Further, Holtsclaw testified that he
inquired about the tanks’ prior use and defendant told him that the tanks had been used to hold
grease.2 Plaintiff did not present any evidence regarding how or when defendant obtained the
tank that exploded, and did not present any evidence regarding the actual contents of that tank.
Second, plaintiff failed to present evidence that the storage tanks contained flammable or
combustible liquids or vapors, when the explosion occurred. Plaintiff admitted that he failed to
check whether the tank was empty when he started to apply the welding torch, and that he failed
to check for the smell of flammable materials. After the accident, the investigating State Police
officer determined that the tank in question was “completely dry inside with no evidence of any
combustible or flammable material.” Further, the officer’s examination of the other tanks
received from defendant failed to turn up any evidence of flammable liquids or vapors. The
officer did opine that “some sort of a flammable or combustible material” caused the tank to
2
Yet, according to plaintiff, Holtsclaw told him that the tanks had been used to hold water.
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explode. Yet, the officer could not rule out the possibility that such a substance was added to the
tank after it arrived at plaintiff’s property:
From a criminal standpoint, the problem I had is there’s no chain of custody on
the tanks, per se. I couldn’t—for example, if an attorney should ask me the
question: Could I say that the local kids didn’t dump a flammable material inside
of [the tanks] or something like that, from a criminal standpoint, I could not
testify to that. They’re in a more or less open area that was accessible by
trespassers and I couldn’t determine that.
The officer’s testimony coincided with plaintiff’s admissions that the tanks were not kept in a
secure location and that the occupants of the twelve homes on his property would have been able
to access the tanks.
Although it is possible that defendant left some combustible substance in the tank that
ultimately exploded, it is equally possible that someone introduced flammable or combustible
materials to the tank in question during the eight or nine months that plaintiff stored the tanks on
his property. “[C]ausation theories that are mere possibilities or, at most, equally as probable as
other theories do not justify denying defendant’s motion for summary judgment.” Skinner, supra
at 172-173. Plaintiff’s causation theory is based on mere speculation or conjecture, and not on
evidence. “‘The mere possibility that a defendant’s negligence may have been the cause, either
theoretical or conjectural, of an accident is not sufficient to establish a causal link between the
two.’” Id. at 165-166, quoting Jordan v Whiting Corp, 396 Mich 145, 151; 240 NW2d 468
(1976). We conclude that the trial court properly granted defendant’s motion for summary
disposition for failure to demonstrate causation.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Richard Allen Griffin
/s/ Michael R. Smolenski
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