BADGER MUTUAL INSURANCE CO V CONSUMERS ENERGY CO
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STATE OF MICHIGAN
COURT OF APPEALS
BADGER MUTUAL INSURANCE COMPANY,
as Subrogee of BOULEVARD LOUNGE, d/b/a
BOULEVARD LOUNGE,
UNPUBLISHED
March 23, 2004
Plaintiff-Appellant,
v
No. 243769
Midland Circuit Court
LC No. 01-004352-NZ
CONSUMERS ENERGY COMPANY,
Defendant-Appellee.
Before: Zahra, P.J., and Cavanagh and Cooper, JJ.
PER CURIAM.
In this negligence action, plaintiff Badger Mutual Insurance Co., as subrogee of
Boulevard Lounge, appeals as of right from the trial court’s order granting summary disposition
in favor of defendant, Consumers Energy Co., pursuant to MCR 2.116(C)(10). We reverse and
remand for further proceedings.
On June 13, 2001, two electrical power lines controlled by defendant fell onto the roof of
the Boulevard Lounge and started a fire which resulted in property damage. As its property
insurer, plaintiff paid Boulevard Lounge in excess of $60,000. Thereafter, plaintiff filed a
negligence claim against defendant. Defendant moved for summary disposition pursuant to
MCR 2.116(C)(10), arguing that plaintiff could not establish breach of duty or causation where
there was no evidence that the power lines were overloaded at the time of the incident. The trial
court granted defendant's motion.
On appeal, plaintiff argues that the trial court erred because it established genuine issues
of material fact with regard to both the breach of duty and causation elements. We agree. We
review a trial court’s decision on a motion for summary disposition de novo to determine
whether the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461
Mich 109, 118; 597 NW2d 817 (1999). A motion for summary disposition under MCR
2.116(C)(10) tests the factual sufficiency of a claim. Id. at 120. The court should consider the
documentary evidence submitted by the parties in the light most favorable to the party opposing
the motion. Id. The court may not assess credibility or determine facts. Skinner v Square D Co,
445 Mich 153, 161; 516 NW3d 475 (1994). If the evidence offered fails to establish a genuine
issue of any material fact, the moving party is entitled to judgment as a matter of law. MCR
2.116(C)(10), (G)(4); Maiden, supra.
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We conclude that, when viewed in the light most favorable to plaintiff, the evidence
plaintiff submitted in response to defendant's motion for summary disposition was sufficient to
demonstrate genuine issues of material fact regarding the breach of duty and causation elements
of its negligence claim. In brief, plaintiff submitted expert testimony from William Kirchmeier
that the power lines that fell were in a deteriorated condition, contained a number of splices, and
could not carry whatever load they were carrying at the time of the incident. He further opined
that splices can cause power lines to fail under high voltage stress. As circumstantial evidence
that the lines were under such stress on the day of the fire, plaintiff submitted evidence that the
lines were serving 1,395 consumers, including an ice arena, and the temperature outside was
almost eighty-five degrees with fifty percent humidity. In addition, Kirchmeier testified that
defendant could have avoided this accident by having fewer splices in the lines and by
conducting appropriate load studies. Kirchmeier also noted the existence of numerous splices in
close proximity to the burned areas of the power lines. Further, plaintiff submitted a statement
from one of defendant’s supervisors which indicated that “the cause of the burning wire might
have been the load placed on the wire due to the hot weather conditions and power usage, or a
deteriorated wire.”1 Plaintiff also submitted evidence refuting other possible causes of the line
failure.
We conclude that plaintiff’s evidence was sufficient for a jury to reasonably find that
defendant breached its duty to exercise reasonable care to reduce potential hazards and to
reasonably inspect and repair the wires. See Schultz v Consumers Power Co, 443 Mich 445,
451; 506 NW2d 175 (1993). Contrary to the dissenting opinion, we conclude that regardless of
when these power lines were last inspected by defendant their deteriorated state and general
condition (multiple splices) were sufficient to, at least, create a genuine issue of material fact as
to whether the maintenance on such lines was “reasonable.” In the case relied on by the dissent,
Citizens Ins Co v Detroit Edison, unpublished opinion per curiam of the Court of Appeals, issued
May 15, 2001 (Docket No. 215510), no such obvious potential defects were present in the power
lines at issue. Further, when viewed in the light most favorable to plaintiff, plaintiff's evidence
“support[s] a reasonable inference of a logical sequence of cause and effect.” Skinner, supra at
174. Accordingly, plaintiff’s evidence was sufficient to create a genuine issue of material fact
with respect to the breach of duty and causation elements of its negligence claims and the trial
court erred in granting summary disposition in favor of defendant under MCR 2.116(C)(10).
Reversed and remanded for further proceedings. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Jessica R. Cooper
1
We recognize that this statement constitutes hearsay within hearsay as it was contained in an
incident report but the incident report is a public record, MRE 803(8), and the statement was a
party admission under MRE 801(d)(2)(D).
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