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UNPUBLISHED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.
Before: Meter, P.J., and Talbot and Murray, JJ.
-1-
MURRAY, J. (concurring in part, dissenting in part).
I fully concur with the majority opinion affirming the granting of defendant Steel Master
Transfer’s motion for summary disposition in Docket No. 279122. In Docket No. 281057,
however, I dissent from the reversal of the order granting plaintiff’s motion to dismiss
defendants Rozafa Transport, Inc., and Gjergi Rrogomi’s notice of nonparty at fault.
In my view, because Steel Master was dismissed for lack of a breach of duty, it cannot be
a nonparty at fault. This conclusion is consistent with the clear text of the controlling statute.
MCL 600.6304(8) defines “fault” in part as the “breach of a legal duty…that is a proximate
cause of damage” sustained, in this case, by plaintiff. Hence, to be potentially considered at
“fault” by the jury, one must (amongst other possible ways not relevant here) have breached a
legal duty that was also a proximate cause of the injury. And, as our Court noted in Jones v
Enertel, Inc, 254 Mich App 432, 437; 656 NW2d 870 (2002),1 this “breach of duty” element is
also required to prove a general negligence claim. Because the trial court properly ruled that
Steel Master did not breach a legal duty to the plaintiff, it’s actions could not be a proximate
cause of plaintiff’s decedent’s injury, and Steel Master cannot be a nonparty at fault.2
/s/ Christopher M. Murray
1
Although the majority is correct in stating that Jones was a case involving a finding of no duty,
this does not mean that in only those cases where there is a finding of no duty can the nonparty at
fault be dismissed. Such a conclusion seems to me to be inconsistent with the definition of fault,
which explicitly includes “breach of a legal duty.”
2
Defendants’ argument that they should be allowed to pursue other theories of fault other than
those brought by plaintiff is consistent with the statute, as it allows a party to assert a nonparty is
at fault so long as it can be established that the nonparty’s act or omission falls within the fault
definition found in MCL 600.6304(8). Here, however, defendant’s notice of nonparty at fault
only contained allegations of negligence, and as noted above, pursuant to Jones and the statute,
Steel Master cannot be at fault for any injury on a negligence theory.
-2-
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