BEVERLY HEIKKILA V NORTH STAR TRUCKING INC
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STATE OF MICHIGAN
COURT OF APPEALS
BEVERLY HEIKKILA, as Personal
Representative of the ESTATE OF SHERI L.
WILLIAMS,
UNPUBLISHED
December 7, 2004
Plaintiff-Appellant,
No. 246761
Monroe Circuit Court
LC No. 00-011135-NI
v
NORTH STAR TRUCKING, INC.,
Defendant,
and
MARC ROLLAND SEVIGNY and J. R. PHILLIPS
TRUCKING, LTD.,
Defendants-Appellees,
and
NORTH STAR STEEL CO.,
Defendant/Cross-Plaintiff-Appellee,
v
INTERNATIONAL MILL SERVICE, INC.,
Defendant/Cross-DefendantAppellee.
Before: Smolenski, P.J., and White and Kelly, JJ.
KELLY, J. (Concurring in part and dissenting in part.)
I respectfully dissent from the majority’s conclusion that the trial erred in granting
summary disposition in favor of defendants. I concur in all other respects.
I. Generally Applicable Law
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We review de novo a trial court’s decision to grant summary disposition pursuant to
MCR 2.116(C)(10) to determine whether, when the evidence is considered in the light most
favorable to the nonmoving party, there is a genuine issue of material fact. Ritchie-Gamester v
City of Berkley, 461 Mich 73, 76; 597 NW2d 517 (1999).
To establish a prima facie case of negligence, a plaintiff must prove: (1) that the
defendant owed a duty to the plaintiff; (2) that the defendant breached the duty; (3) that the
breach of duty proximately caused the plaintiff’s injuries; and (4) that the plaintiff suffered
damages. Haliw v City of Sterling Heights, 464 Mich 297, 309-310; 627 NW2d 581 (2001).
II. Causation
“[P]roving proximate cause . . . entails proof of two separate elements: (1) cause in fact,
and (2) legal cause, also known as proximate cause.” Skinner v Square D Co, 445 Mich 153,
162-163; 516 NW2d 475 (1994). Cause in fact requires a showing that “but for” the defendant’s
actions, the alleged injury would not have occurred. Id. at 163. Proximate cause involves the
foreseeability of consequences, and whether a defendant should be held legally responsible for
them. Id. Cause in fact must be established before proximate cause is an issue. Id. In granting
summary disposition in defendants’ favor, the trial court ruled that plaintiff could not establish
that defendants’ actions were the “proximate cause” of decedent’s injuries:
In the case at bar, there lacks adequate evidence for a reasonable trier of fact to
conclude Defendants proximately caused Plaintiff’s injury. The object has never
been discovered. Test results report the object was comprised of ubiquitous
materials: iron and paint. Plaintiffs’ [sic] expert witnesses’ testimony conclude
and speculate with regard to their theories that proffer no basis in fact for the
source of the object linked to Defendants’ premises or actions. Plaintiffs’ [sic]
allegations lack the requisite linkage. While Plaintiffs’ [sic] theory may be
conceivably true, Michigan law does not permit a jury to speculate between a
couple or more coequally supposable causes of injury.
The trial court correctly determined that plaintiff failed to establish a link between the
decedent’s death and any action on the part of North Star Co. (North Star) or International Mill
Service, Inc. (IMS). Because plaintiff failed to establish that either of these defendants’ actions
caused plaintiff’s death, the trial court properly granted summary disposition to defendants.
Plaintiff offers only circumstantial evidence of causation. While a plaintiff may prove
causation with circumstantial evidence, she must effectively demonstrate causation:
To be adequate, a plaintiff’s circumstantial proof must facilitate
reasonable inferences of causation, not mere speculation. In Kaminski v Grand
Trunk W R Co, 347 Mich 417, 422; 79 NW2d 899 (1956), this Court highlighted
the basic legal distinction between a reasonable inference and impermissible
conjecture with regard to causal proof:
“As a theory of causation, a conjecture is simply an
explanation consistent with known facts or conditions, but not
deducible from them as a reasonable inference. There may be 2 or
more plausible explanations as to how an event happened or what
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produced it; yet, if the evidence is without selective application to
any 1 of them, they remain conjectures only. On the other hand, if
there is evidence which points to any 1 theory of causation,
indicating a logical sequence of cause and effect, then there is a
juridical basis for such a determination, notwithstanding the
existence of other plausible theories with or without support in the
evidence.” [Skinner, supra at 163-164.]
Applying these principles to this case, plaintiff did not satisfy her burden of presenting
“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.” Id. at 164-165. Plaintiff
argues that the link between defendants and the decedent’s injury is the slag that was picked up
by Sevigny’s truck. But plaintiff has failed to create a genuine issue of fact as to whether the
object that caused the decedent’s death was slag. The object that caused the injury has not been
recovered. Plaintiff’s expert, Scott Stoeffler, merely opined “that more likely than not, the object
that went through [the decedent’s] vehicle was composed primarily of carbon or alloy steel and
was not a rock, stone or piece of concrete.” While this opinion may bolster plaintiff’s assertion
that the object was not the concrete found at the scene, it does not demonstrate that the object
was slag. Stoeffler did not, and could not, opine that the material was slag; rather, his opinion
merely established that the object was something of a metallic nature. Even if the evidence
demonstrates that the object may have been slag, the evidence, to an equal or greater extent,
establishes that the object may have been any number of other things such as corroded steel, a
scrap steel of unknown origin, or any broken part of a truck or car.
In granting summary disposition, the trial court relied on Moody v Chevron Chemical Co,
201 Mich App 232; 505 NW2d 900 (1993), in which the decedent died of allergic reaction after
sustaining a bee sting. The plaintiff alleged that the bee that stung the decedent came from a
hive that had been sprayed with the defendant’s pesticide. In affirming the trial court’s grant of
summary disposition, this Court held:
[O]ur review of the record discloses that the trial court found that, as a matter of
law, plaintiff could not prove proximate causation. That is, because the stinging
bee was not recovered, plaintiff could not prove that the bee that stung his son
came from the nest that was sprayed, that it came in contact with the pesticide, or
that its behavior was caused by exposure to the pesticide. Therefore, the causal
sequence of events posited by plaintiff, although conceivably true, was not based
on any evidence and was instead wholly speculative. Summary disposition was
proper under MCR. 2.116(C)(10) because plaintiff failed to create an issue of
material fact regarding causation. [Id. at 238.]
Here, just as in Moody, plaintiff can only speculate that the object causing the decedent’s
injury came from North Star and IMS’s operations. At most, the evidence establishes that an
object of unknown origin was picked up on the apron of the driveway leading to Front Street
where the fresh gouge marks started. There is no evidence demonstrating where, when, or how
the unidentified object came to be there. It could have been dropped by Sevigny’s co-worker
Dean Rioux’s truck which, also carrying a truckload of slag, immediately preceded Sevigny onto
Front Street. It could also have come from myriad other sources. The evidence demonstrates
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that Front Street is located in an industrial area heavily traveled by trucks and other industrial
traffic.
The evidence is without selective application to plaintiff’s theory or any one of North
Star’s alternative theories. It is insufficient to submit a causation theory that, “while factually
supported, is, at best, just as possible as another theory.” Plaintiff has not presented substantial
evidence from which a jury could conclude more likely than not that but for defendants’ conduct,
the decedent’s injuries would not have occurred. Skinner, supra at 164-165.
Therefore, I agree with the trial court that plaintiff failed to create a genuine issue of
factual causation. Instead, plaintiff “posited a causation theory premised on mere conjecture and
possibilities.” Id. at 174.
III. Duty
Although I agree with the majority that plaintiff produced sufficient evidence to create a
genuine issue of fact as to whether the object that caused decedent’s death was propelled by the
truck driven by defendant Marc Sevigny and owned by defendant J. R. Phillips Trucking Ltd.
(Phillips), I believe that the trial court correctly determined as a matter of law Sevigny and
Phillips owed no duty to the decedent to detect and remove that object.1
Generally, there is no duty obligating one person to aid or protect another unless there is
a special relationship between them or some special circumstance, Beaudrie v Henderson, 465
Mich 124, 141; 631 NW2d 308 (2001) and the protected party is readily identifiable as
foreseeably endangered. Murdock v Higgins, 208 Mich App 210, 214-215; 527 NW2d 1 (1994).
In determining whether a duty exists, a court must consider the foreseeability of the harm, the
relationship between the parties, the degree of certainty of injury, the closeness of the connection
between the conduct and the injury, any moral blame attached to the conduct, any policy of
preventing future harm, and the consequences of imposing a duty and the resulting liability for
breach. Krass v Tri-County Security, Inc, 233 Mich App 661, 667-669; 593 NW2d 578 (1999).
Whether a duty exists is a question of law for the court. But if the determination of duty depends
on factual findings, the jury must make those findings. Holland v Liedel, 197 Mich App 60, 65;
1
Plaintiff additionally alleged that IMS had a contractual duty to keep its premises “clean and
free” from debris, i.e. slag. But our Supreme Court recently held in Fultz v Union-Commerce
Associates, 470 Mich 460, 460; 683 NW2d 587 (2004):
[L]ower courts should analyze tort actions based on a contract and brought by a
plaintiff who is not a party to that counteract by using a “separate and distinct”
mode of analysis. Specifically, the threshold question is whether the defendant
owed a duty to the plaintiff that is separate and distinct from the defendant’s
contractual obligations. If no independent duty exists, no tort action based upon
that contract will lie.
Plaintiff failed to show any such independent duty on the part of IMS.
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494 NW2d 772 (1992). If there is no duty, summary disposition is proper. Howe v Detroit Free
Press, Inc, 219 Mich App 150, 156; 555 NW2d 738 (1996).
As recognized by the majority, the “facts developed during discovery were directed
primarily at the issue of foreseeability.” Yet, the legal determination of duty does not rely on
foreseeability alone, but implicates several other factors. Plaintiffs have not produced any
evidence that would support the finding of a relationship between the decedent and defendants,
special circumstances, the degree of certainty of injury, any connection between defendant’s
conduct and the decedent’s injury, moral blame attached to defendants’ conduct, or the burdens
and consequences of imposing a duty under these circumstances. Beaudrie, supra at 124; Krass,
supra at 667-669. As a matter of law, plaintiff points to no case or statute establishing a special
relationship or circumstance. Plaintiff also cites no regulation or industry standard imposing a
duty of inspection before entering onto a public roadway. On this record, no genuine issues of
fact exist regarding “what characteristics giving rise to a duty are present.” Howe, supra at 156.
The trial court did not err in concluding, as a matter of law, that Sevigny and Philips owed no
duty to the decedent.
Yet I would point out that even assuming an on-going duty to inspect tires and further
assuming Sevigny’s tires picked up an object after his last inspection, the evidence does not
establish that Sevigny breached the alleged duty to inspect tires before leaving North Star
premises. There is no evidence that Sevigny’s truck picked up any object before leaving the
North Star, the point at which plaintiff alleges that Sevigny had a duty to inspect. The gouge
marks relied on by plaintiff indicate that an object was picked up, at the earliest, as the truck
drove over the apron abutting Front Street, which would have been after the point in time
plaintiff alleges Sevigny should have inspected the tire. Thus, the fact that the object was picked
up by the truck, does not create a genuine issue of fact as to whether Sevigny inspected the tires
before he left North Star as plaintiff alleged he should have.
IV. Expert Witnesses
I do agree with the majority that the trial court did not abuse its discretion in excluding
plaintiff’s expert witnesses. After review of the record, there is a total absence of any evidence
establishing that these witnesses are qualified to offer expert opinions. As the majority notes,
“Plaintiff’s brief merely includes a conclusory statement that “plaintiff’s experts were clearly
qualified to testify and were versed in a recognized discipline” and “No evidence was presented
to establish that this testimony would provide “recognized scientific, technical or other
specialized knowledge,” as is required under MRE 702.” Because plaintiff fails to articulate and
identify any supportive evidence of the experts’ qualifications and basis for the expert opinions, I
agree that on this record, the trial court properly excluded the proffered experts.
/s/ Kirsten Frank Kelly
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