WILLIAM JOHN NEILL IV V STEEL MASTER TRANSFER INC
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STATE OF MICHIGAN
COURT OF APPEALS
GWENDOLYN NEILL, Personal Representative
of the Estate of WILLIAM JOHN NEILL, IV,
UNPUBLISHED
October 21, 2008
Plaintiff-Appellant,
v
No. 279122
Macomb Circuit Court
LC No. 06-000744-NO
STEEL MASTER TRANSFER, INC.,
Defendant-Appellee,
and
ROZAFA TRANSPORT, INC., and GJERGI
RROGOMI,
Defendants.
GWENDOLYN NEILL, Personal Representative
of the Estate of WILLIAM JOHN NEILL, IV,
Plaintiff-Appellee,
v
No. 281057
Macomb Circuit Court
LC No. 06-000744-NO
STEEL MASTER TRANSFER, INC.,
Defendant,
and
ROZAFA TRANSPORT, INC., and GJERGI
RROGOMI,
Defendants-Appellants.
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Before: Meter, P.J., and Talbot and Murray, JJ.
PER CURIAM.
In Docket No. 279122, plaintiff appeals by leave granted an order granting defendant,
Steel Master Transfer, Inc.’s (“Steel Master’s”) motion for summary disposition. In Docket No.
281057, defendant, Rozafa Transport, Inc. (“Rozafa”), and Gjergi Rrogomi appeal by leave
granted an order granting plaintiff’s motion to dismiss their notice of nonparty at fault. We
affirm in Docket No. 279122 and reverse in Docket No. 281057.
This case arises out of the death of William John Neill, IV (“Neill”), that occurred on
February 2, 2006, when an 816-pound piece of machinery that he was unloading from a trailer
fell from the trailer and crushed him. On appeal, plaintiff first argues that there exist issues of
fact concerning whether Steel Master negligently prepared and loaded the machinery onto the
trailer. We disagree.
The Court reviews de novo an appeal from an order granting summary disposition
pursuant to MCR 2.116(C)(10). Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151
(2003). A motion for summary disposition pursuant to MCR 2.116(C)(10) should be granted
when the moving party is entitled to judgment as a matter of law because there is no genuine
issue of material fact. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). “A
genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to
the opposing party, leaves open an issue upon which reasonable minds might differ.” West v
Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). In reviewing this issue, we must
consider the pleadings, affidavits, depositions, admissions, and other documentary evidence and
construe them in the light most favorable to the nonmoving party. Corley v Detroit Bd of Ed,
470 Mich 274, 278; 681 NW2d 342 (2004). If the nonmoving party would bear the burden of
proof at trial, that party must show the existence of a genuine issue of material fact by setting
forth documentary evidence. Karbel v Comerica Bank, 247 Mich App 90, 97; 635 NW2d 69
(2001). A plaintiff may not oppose summary disposition on the basis of unsupported
speculation. Id.
As a preliminary matter, we note that plaintiff’s first amended complaint failed to allege
negligent preparation and loading. Therefore, the complaint failed on its face to satisfy MCR
2.111(B)(1) regarding this claim.1 While plaintiff contends that the depositions served as notice
to Steel Master that her claims pertained to negligent preparation and loading, plaintiff has cited
no authority for the proposition that discovery may trump the rules of notice pleading. It is not
this Court’s responsibility to search for authority to sustain a party’s position. Wilson v Taylor,
457 Mich 232, 243; 577 NW2d 100 (1998). Therefore, this argument is without merit.
1
MCR 2.111(B)(1) requires a complaint to contain “[a] statement of the facts, without repetition,
on which the pleader relies in stating the cause of action, with the specific allegations necessary
reasonably to inform the adverse party of the nature of the claims the adverse party is called on
to defend . . . .”
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Even if plaintiff’s first amended complaint had sufficiently alleged negligent preparation
and loading, Steel Master was not liable in accordance with the ruling in United States v Savage
Truck Line, Inc, 209 F2d 442, 445 (CA 4, 1953). In MCL 480.11a, Michigan adopted the federal
Motor Carrier Safety regulations contained in 49 CFR 392.9. DOT v Initial Transport, Inc, 276
Mich App 318, 323; 740 NW2d 720 (2007), rev’d in part on other grounds 481 Mich 862 (2008).
This regulation provides, in relevant part, that a driver may not operate a commercial motor
vehicle unless the vehicle’s cargo is properly distributed and adequately secured and requires the
driver to ensure compliance with this requirement. 49 CFR 392.9(a)(1) and (b)(1). The United
States Court of Appeals for the Sixth Circuit has held that “[w]hile not dispositive, [CFR
392.9(b)] is indicative of the proper allocation of duty as between a common carrier and a
shipper for the proper loading of goods.” Rector v Gen Motors Corp, 963 F2d 144, 147 (CA 6,
1992).2
The United States Court of Appeals for the Fourth Circuit, however, in Savage
enunciated the “shipper exception” to this regulation:
The primary duty as to the safe loading of property is therefore upon the carrier
[here, Rozafa and Rrogomi]. When the shipper [here, Steel Master] assumes the
responsibility of loading, the general rule is that he becomes liable for the defects
which are latent and concealed and cannot be discerned by ordinary observation
by the agents of the carrier; but if the improper loading is apparent, the carrier will
be liable notwithstanding the negligence of the shipper. This rule is not only
followed in cases arising under the federal statutes by decisions of the federal
courts but also for the most part by the decisions of the state courts. [Savage
Truck Line, Inc, supra at 445.]
Although Michigan has not formally adopted the Savage rule, the Maine Supreme Court
in Decker v New England Pub Warehouse, Inc, 2000 ME 76; 749 A2d 762, 767 (Me, 2000),
noted that, as recently as 2000, the majority of state courts have adopted Savage. See, e.g.,
Smart v American Welding & Tank Co, 149 NH 536; 826 A2d 570 (2003); Brashear v Liebert
Corp, 2007 Ohio 296 (Ohio Ct App 2007); WJ Casey Trucking & Rigging Co v Gen Electric Co,
151 NJ Super 151; 376 A2d 603 (1977). Although cases from foreign jurisdictions are not
binding, they may be persuasive. Hiner v Mojica, 271 Mich App 604, 612; 722 NW2d 914
(2006).
Assuming without deciding that Savage is applicable, Steel Master is not liable for
preparing and loading the conveyor parts onto the trailer. The elements of negligence are 1)
duty; 2) breach of that duty; 3) causation; and 4) damages. Kosmalski v St. John’s Lutheran
Church, 261 Mich App 56, 60; 680 NW2d 50 (2004). Despite plaintiff’s claim to the contrary,
it was undisputed below that Steel Master did not exclusively assume responsibility for loading
the conveyor parts. On the contrary, Arthur Nash, a Steel Master employee, explained that
loading decisions were made between both himself and Rrogomi. Although Steel Master’s
2
Although not binding, this Court may consider federal precedents persuasive. Rasheed v
Chrysler Corp, 445 Mich 109, 124 n 20; 517 NW2d 19 (1994).
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employees loaded the conveyor parts using a hi-lo, Rrogomi strapped the conveyor parts and
monitored weight distribution on the trailer. Thus, in accordance with Savage, Steel Master was
not liable for defects in the loading process.
Plaintiff next contends that the trial court abused its discretion in denying her motion to
file a second amended complaint because a causal link existed between Steel Master’s
negligence and Neill’s death. We disagree. Where summary disposition is based on MCR
2.116(C)(8), (9), or (10), a trial court should freely provide the nonprevailing party the
opportunity to amend its complaint unless such would not be justified. MCR 2.116(I)(5). “We
will not reverse a trial court’s decision to deny leave to amend pleadings unless it constituted an
abuse of discretion.” Ormsby v Capital Welding, Inc, 471 Mich 45, 53; 684 NW2d 320 (2004)
(internal citation omitted). A trial court abuses its discretion when its decision is outside the
range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388;
719 NW2d 809 (2006).
“A motion to amend ordinarily should be granted, and should be denied only for the
following particularized reasons: [1] undue delay, [2] bad faith or dilatory motive on the part of
the movant, [3] repeated failure to cure deficiencies by amendments previously allowed, [4]
undue prejudice to the opposing party by virtue of allowance of the amendment, [and 5] futility .
. . .” Weymers v Khera, 454 Mich 639, 658; 563 NW2d 647 (1997) (quotation and citation
omitted).
Allowing plaintiff to file a second amended complaint to include allegations that Steel
Master failed to “prepare, palletize, load [and] ship” the conveyor parts and failed to warn of the
“defective method of loading, shipping . . . [or] inadequacies of the preparation for transport”
would have been futile. Indeed, as noted supra, even if plaintiff’s first amended complaint
properly placed Steel Master on notice of plaintiff’s theories of recovery, Steel Master was not
liable under Savage because it did not assume sole responsibility for loading the conveyor parts.
Consequently, the trial court did not abuse its discretion in denying plaintiff’s motion to file a
second amended complaint.
We note that the trial court characterized plaintiff’s allegations in the proposed second
amended complaint as a product liability action and denied plaintiff’s motion on these grounds;3
plaintiff, however, contested this characterization both below and does so on appeal. “This
Court is not bound by a party’s choice of labels for his or her action because this would put form
over substance.” Kostyu v Dep’t of Treasury, 170 Mich App 123, 130; 427 NW2d 566 (1988).
Under the product liability statute, MCL 600.2945(h), “‘Product liability action’ means
an action based on a legal or equitable theory of liability brought for the death of a person or for
injury to a person or damage to property caused by or resulting from the production of a
product.” “[P]roduction” as defined by the product liability statute includes preparation and
3
Plaintiff’s first amended complaint failed to include allegations of negligent design and
manufacture as alleged in the original complaint.
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packaging of a product. MCL 600.2945(i). Plaintiff’s expert,4 Paul Singh, testified that Steel
Master manufactured and sold a “product-packaged system that consisted of [its] product, the
conveyor, and the use of wooden materials to form a structure that was sold and is at issue in this
case.” This is consistent with plaintiff’s allegation in her proposed second amended complaint
that defendant failed to properly prepare the conveyor parts. In light of this, plaintiff’s
allegations in her proposed second amended complaint amounted to a product liability claim.
Had plaintiff filed her proposed second amended complaint, Steel Master would arguably
have suffered prejudice. “[A] trial court may find prejudice when the moving party seeks to add
a new claim or a new theory of recovery on the basis of the same set of facts, after discovery is
closed, just before trial, and the opposing party shows that he did not have reasonable notice,
from any source, that the moving party would rely on the new claim or theory at trial.”
Weymers, supra at 659-660 (footnote omitted). Plaintiff sought the amendment at issue after the
close of discovery. Despite Singh’s testimony, Steel Master was not on notice that plaintiff
would pursue a product liability claim. On the contrary, the crux of plaintiff’s questioning
during the depositions was to elicit evidence of negligence and not product liability, per se.
Consequently, the court properly denied plaintiff’s motion to amend the complaint on these
grounds.
In Docket No. 281057, Rozafa and Rrogomi contend that the trial court erred in granting
plaintiff’s motion to dismiss their notice naming Steel Master as a nonparty at fault. We agree.
Although the trial court characterized the notice of nonparty at fault as a motion for
reconsideration of the order granting Steel Master’s motion for summary disposition under MCR
2.119(F), the notice actually sought a legal determination regarding whether fault may be
apportioned to Steel Master. This Court’s review of questions of law, including whether a party
owes another a duty in a negligence action, and issues of statutory interpretation is de novo.
Devillers v Auto Club Ins Ass’n, 473 Mich 562, 566; 702 NW2d 539 (2005); Fultz v UnionCommerce Assoc, 470 Mich 460, 463; 683 NW2d 587 (2004).
Michigan’s 1995 tort reform legislation abolished joint and several liability except in
certain, very specific instances. Smiley v Corrigan, 248 Mich App 51, 53; 638 NW2d 151
(2001). Regarding the allocation of fault under a comparative fault scheme of several liability,
MCL 600.2957 provides, in relevant part:
(1) In an action based on tort or another legal theory seeking damages for
personal injury, property damage, or wrongful death, the liability of each person
shall be allocated under this section by the trier of fact and, subject to section
6304, in direct proportion to the person’s percentage of fault. In assessing
4
Steel Master contends that plaintiff improperly relied on her expert witnesses’ depositions
because the court entered a protective order restricting those depositions to discovery only.
Although MCR 2.302(C)(7) permits a trial court to issue a protective order providing “that a
deposition shall be taken only for the purpose of discovery and shall not be admissible in
evidence except for the purpose of impeachment,” the order at issue did not expressly limit the
depositions to impeachment purposes. Therefore, this argument fails.
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percentages of fault under this subsection, the trier of fact shall consider the fault
of each person, regardless of whether the person is, or could have been, named as
a party to the action.
***
(3) . . . Assessments of percentages of fault for nonparties are used only to
accurately determine the fault of named parties. If fault is assessed against a
nonparty, a finding of fault does not subject the nonparty to liability in that action
and shall not be introduced as evidence of liability in another action.
Similarly, MCL 600.6304(1)(b) provides that in personal injury and wrongful death
actions involving the fault of more than one person, the trial court must instruct the jury to
answer special interrogatories regarding the percentage of total fault of all persons that
contributed to the death or injury “regardless of whether the person was or could have been
named as a party to the action.” Under MCL 600.6304(8), “‘fault’ includes an act, an omission,
conduct, including intentional conduct, a breach of warranty or a breach of a legal duty, or any
conduct that could give rise to the imposition of strict liability, that is a proximate cause of
damage sustained by a party.” Jones v Enertel, Inc, 254 Mich App 432, 436; 656 NW2d 870
(2002). In accordance with Jones, “a duty must first be proved before the issue of fault or
proximate cause can be considered.” Id. at 437.5
In granting Steel Master’s motion for summary disposition, the trial court did not make a
determination on the issue of Steel Master’s fault. Rather, the court only found that there was no
genuine issue of material fact regarding Steel Master’s liability based on plaintiff’s asserted
theories of recovery. Specifically, the court determined that: Steel Master was not liable for
negligent transportation and delivery because Rozafa was the carrier responsible for transporting
and delivering the conveyor parts to Visteon; Steel Master was not liable for Rrogomi’s actions
because Steel Master was not Rrogomi’s employer; plaintiff failed to establish an issue of fact
regarding whether Steel Master negligently packaged and loaded the trailer; and Steel Master did
not breach a duty to warn given James Borelli’s testimony that both he and Neill assessed the
conveyor parts’ stability before unloading the trailer.
Because “a duty must first be proved before the issue of fault or proximate cause can be
considered . . . . [A] party adjudicated to be without fault may not have fault allocated to him
under the guise of the doctrine of several liability.” Jones, supra at 437-438. Notably absent
5
We note that our Supreme Court has recently vacated its opinion in Romain v Frankenmuth Ins
Co, ___ Mich ___; 754 NW2d 257 (2008), which affirmed that Jones v Enertel, Inc, 254 Mich
App 432; 656 NW2d 870 (2002), served as the controlling precedent by requiring proof of a duty
before the allocation and apportionment of liability under MCL 600.6304. Romain v
Frankenmuth Ins Co, ___ Mich ___; ___ NW2d ___ (Docket No. 135546, issued September 24,
2008). In vacating their earlier opinion, the Supreme Court is reconsidering, in addition to other
issues, “whether the Legislature intended to impose a legal duty requirement as a precondition
for allocating fault under . . . MCL 600.6304.” Id.
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from the trial court’s opinion and order was any finding that Steel Master owed plaintiff a duty
regarding packaging and loading of the trailer/shipment. Rather, the trial court determined that
there existed no issue of fact that Steel Master did not breach a duty under plaintiff’s asserted
theories of recovery. Therefore, given that the trial court’s ruling was not based on the absence
of a duty, a determination was not made regarding Steel Master’s fault. Because that issue was
not resolved, the trial court erred in dismissing Rozafa’s and Rrogomi’s notice of nonparty at
fault.
Plaintiff contends that this Court’s analysis in Jones precludes Rozafa and Rrogomi from
naming Steel Master a nonparty at fault. However, unlike Jones, in which this Court found that
application of the open and obvious doctrine precluded any duty owed by the defendant, the trial
court in the instant case did not find the absence of a duty owed by Steel Master. Thus,
application of this Court’s reasoning in Jones, supports the conclusion that it was permissible to
name Steel Master as a nonparty at fault.
We note that Rozafa and Rrogomi assert that although their position prevails under Jones,
that case was wrongly decided because it “equated ‘fault’ with ‘negligence’” and failed to
apprehend that “duty focuses on the relationship between the parties [whereas] proximate cause
focuses on the relationship between the conduct and the injury.” Although MCL 600.6304(8)
defines fault in terms of proximate cause, Rozafa’s and Rrogomi’s attempt to isolate duty from
proximate cause is misplaced. As our Supreme Court explained in Moning v Alfono, 400 Mich
425, 439; 254 NW2d 759 (1977):
The questions of duty and proximate cause are inter-related because the question
whether there is the requisite relationship, giving rise to a duty, and the question
whether the cause is so significant and important to be regarded a proximate cause
both depend on foreseeability - whether it is foreseeable that the actor’s conduct
may create a risk of harm to the victim, and whether the result of that conduct and
intervening causes were foreseeable.
Consequently, Jones’s reliance on the determination of fault based on the existence of a duty is
correct and Rozafa’s and Rrogomi’s argument on this point fails.
We affirm the trial court’s order granting Steel Master’s motion for summary disposition
and denying plaintiff’s motion to file a second amended complaint, but reverse the trial court’s
order granting plaintiff’s motion to dismiss Rozafa’s and Rrogomi’s notice of nonparty at fault.
/s/ Patrick M. Meter
/s/ Michael J. Talbot
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