KARIE CAMPBELL V STEVEN KOVICH
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STATE OF MICHIGAN
COURT OF APPEALS
KARIE CAMPBELL and DAVID CAMPBELL,
Individually and as Next Friends of ALLISON
CAMPBELL, a Minor, and CAITLIN
CAMPBELL, a Minor,
FOR PUBLICATION
December 14, 2006
9:00 a.m.
Plaintiffs-Appellants,
v
No. 269876
Oakland Circuit Court
LC No. 04-062067-NO
STEVEN KOVICH, JULIE KOVICH and
ASHTON MINISH,
Defendants-Appellees.
Official Reported Version
Before: Wilder, P.J., and Kelly and Borrello, JJ.
PER CURIAM.
Plaintiffs Karie Campbell and David Campbell, individually and as next friends of
plaintiffs Allison Campbell and Caitlin Campbell, minors, appeal as of right (1) an order granting
summary disposition to defendants Steven Kovich and Julie Kovich and (2) an order granting
summary disposition to defendant Ashton Minish. We affirm.
I
Karie was struck in the eye by an unknown, unrecovered object that she alleges was
ejected from a lawn mower being operated by Ashton, who was mowing the Koviches' lawn.
Plaintiffs' pleadings assert claims of negligence, negligent infliction of emotional distress, and
loss of consortium. All defendants moved for summary disposition under MCR 2.116(C)(10),
which the trial court granted.
II
A motion made under MCR 2.116(C)(10) tests the factual support for a claim, Dressel v
Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003), and should be granted when there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law,
Miller v Purcell, 246 Mich App 244, 246; 631 NW2d 760 (2001). When the burden of proof at
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trial would rest on the nonmoving party, the nonmovant may not rest on mere allegations or
denials in the pleadings, but must, by documentary evidence, set forth specific facts showing that
there is a genuine issue for trial. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d
314 (1996). A genuine issue of material fact exists when the record, drawing all reasonable
inferences in favor of the nonmoving party, leaves open an issue on which reasonable minds
could differ. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). When
deciding a motion for summary disposition under this rule, a court must consider in the light
most favorable to the nonmoving party the pleadings, affidavits, depositions, admissions, and
other documentary evidence then filed in the action or submitted by the parties. MCR
2.116(G)(5); Ritchie-Gamester v City of Berkley, 461 Mich 73, 76; 597 NW2d 517 (1999). But
such materials "shall only be considered to the extent that [they] would be admissible as
evidence . . . ." MCR 2.116(G)(6); see also Veenstra v Washtenaw Country Club, 466 Mich 155,
163; 645 NW2d 643 (2002).
III
A
Plaintiffs first argue that the trial court erroneously concluded that there was insufficient
evidence of causation in fact, i.e., that the object that struck Karie was ejected from the lawn
mower. Assuming but not holding that causation exists, we conclude that summary disposition
was nevertheless warranted because plaintiffs' arguments fail in other respects.
For example, plaintiffs contend that they presented sufficient evidence to establish that
Ashton breached duties he owed in this case. We disagree.
The elements of a prima facie case of negligence are (1) a duty, (2) a breach, (3) injury or
damages, and (4) causation. Brown v Brown, 270 Mich App 689, 693; 716 NW2d 626 (2006).
For the reasons explained later, plaintiffs fail to establish a genuine issue of material fact on the
element of breach. A genuine issue of material fact exists when the record, drawing all
reasonable inferences in favor of the nonmoving party, leaves open an issue on which reasonable
minds could differ. West, supra at 183.
The parties cite, and this Court has located, no Michigan authority specifically addressing
what degree of care a person mowing a lawn must exercise. In Gore v Ohio Dep't of
Transportation, 119 Ohio Misc 2d 138, 140; 774 NE2d 817 (Ohio Ct Cl, 2002),1 a limousine
passenger brought an action against the Ohio Department of Transportation (ODOT) as the
employer of an independent contractor that mowed grass on a highway median, alleging that
ODOT was liable for injuries she sustained when a piece of rubber thrown from a mower struck
1
This Court is not bound by foreign decisions. Mable Cleary Trust v Edward-Marlah Muzyl
Trust, 262 Mich App 485, 494 n 5; 686 NW2d 770 (2004).
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her in the head. On ODOT's motion for summary judgment, the court held that ODOT was not
liable for the independent contractor's negligence. Id. at 140-141. The court also reasoned that
"[r]emoving debris from the mower's path is a routine precaution, which any careful contractor
could be expected to take in the exercise of ordinary care." Id. at 141 (emphasis added). Thus,
Ohio authority persuasively suggests that inspecting a mower's path is what ordinary care
requires.
Adopting the Ohio requirement for ordinary care as our own, there is insufficient
evidence that Ashton failed to exercise reasonable care. On September 14, 2004, before mowing
the Koviches' lawn, Ashton inspected the lawn for a couple of minutes. Karie admitted that
while Ashton was mowing the lawn, he was not doing anything unusual, but was merely pushing
the lawn mower, and that he did not appear to be in a hurry and appeared to be watching where
he was walking. Before Karie was struck, Ashton was watching the area in front of him, and he
did not see anything in front of the lawn mower. Karie also acknowledged in her deposition that
Ashton never acknowledged that he had mowed over anything. Under these facts, there is no
genuine issue of material fact regarding whether Ashton exercised reasonable care in the
operation of the lawn mower.
We reject plaintiffs' arguments that summary disposition was inappropriate because to do
so would impose on Ashton a duty to exercise more care than is exercised by persons of ordinary
prudence. Ashton was not required to exercise extraordinary care. Case v Consumers Power
Co, 463 Mich 1, 5; 615 NW2d 17 (2000). Ordinarily prudent people, when mowing a lawn, do
not go to such extraordinary lengths that they do more than a brief inspection of the lawn before
mowing, avoid mowing altogether when other persons are within 75 feet, mow only under close
parental supervision, or look anywhere but ahead of where they are going while mowing. The
evidence suggests that Ashton exercised ordinary care, but an accident of unclear causation
occurred. Viewing the evidence in a light most favorable to plaintiffs, reasonable minds could
not disagree that Ashton exercised due care. Accordingly, the trial court did not err in granting
summary disposition to Ashton.
B
Plaintiffs next argue that the trial court erred in granting summary disposition of the
premises-liability claims against Steven and Julie Kovich because there was evidence of
independent acts of negligence. We disagree. Plaintiffs do not present evidence of independent
acts of negligence by the Koviches that had any causal connection to the accident.
"'Proximate cause' is a legal term of art that incorporates both cause in fact and legal (or
'proximate') cause." Craig v Oakwood Hosp, 471 Mich 67, 86; 684 NW2d 296 (2004).
Causation in fact requires a but-for standard. Wilkinson v Lee, 463 Mich 388, 396-397; 617
NW2d 305 (2000). In other words, it requires a showing that, but for the negligent conduct, the
injury would not have occurred. Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 496;
668 NW2d 402 (2003). Proximate cause "normally involves examining the foreseeability of
consequences, and whether a defendant should be held legally responsible for such
consequences." Skinner v Square D Co, 445 Mich 153, 163; 516 NW2d 475 (1994). Cause in
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fact requires more than a possibility of causation; while the evidence need not negate all other
possible causes, it must exclude other reasonable hypotheses with a fair amount of certainty.
Craig, supra at 87-88.
The fact that the Koviches knew nothing about Ashton before they hired him has not
been shown to have any causal connection to the accident. The fact that the Koviches knew
nothing about the lawn-mowing equipment Ashton would be using also has not been shown to
have any causal connection to the accident. By the same token, the fact that the Koviches did not
know how old Ashton was, or that he would be using a mower that the manufacturer
recommended should not be used by minors absent close parental supervision, are also facts that
have not been shown to have any causal connection to the accident. Therefore, we reject
plaintiffs' argument that the trial court erred in dismissing their premises liability claims based on
alleged independent acts of negligence.
C
Plaintiffs next argue that the trial court erroneously ruled as a matter of law that Ashton
was an independent contractor rather than an employee of the Koviches. We disagree.
"[A] premises owner who hires an independent contractor is generally not [vicariously]
liable for injuries that the contractor negligently causes . . . ." Ghaffari v Turner Constr Co, 473
Mich 16, 24; 699 NW2d 687 (2005). "The rationale for this rule is that an independent
contractor is not subject to the control of the employer, and therefore the employer should not be
held vicariously liable for actions outside its control." Janice v Hondzinski, 176 Mich App 49,
53; 439 NW2d 276 (1989).
The test for whether a worker is an independent contractor or an employee is whether the
worker has control over the method of his or her work: "If the employer of a person or business
ostensibly labeled an 'independent contractor' retains control over the method of the work, there
is in fact no contractee-contractor relationship, and the employer may be vicariously liable under
the principles of master and servant." Candelaria v B C Gen Contractors, Inc., 236 Mich App
67, 73; 600 NW2d 348 (1999). In other words: "'"An independent contractor is one who,
carrying on an independent business, contracts to do a piece of work according to his own
methods, and without being subject to control of his employer as to the means by which the
result is to be accomplished, but only as to the result of the work."'" Utley v Taylor & Gaskin,
Inc, 305 Mich 561, 570; 9 NW2d 842 (1943) (emphasis added; citations omitted).
There is insufficient evidence that the Koviches retained control over the method by
which Ashton would mow their lawn. Vince Minish, Ashton's father, testified that, if Steven
Kovich became displeased, he could require Ashton to work in any way Steven deemed fit.
However, this evidence only suggests that Steven could have dictated the methods of mowing
the lawn if he became displeased. In other words, Steven could have changed a contractorcontractee relationship into a master-servant (employer-employee) relationship if he became
displeased. There is no evidence that Steven became displeased and attempted to exercise
control over Ashton's mowing (i.e., changed to a master-servant relationship).
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There is no evidence that the Koviches actually exercised control over the method by
which Ashton mowed their lawn. Therefore, the trial court did not err in concluding as a matter
of law that Ashton was an independent contractor for whose negligence the Koviches could not
be held vicariously liable.
Plaintiffs further argue that the Koviches were independently negligent in their selection
of Ashton to mow their lawn. However, Michigan recognizes no cause of action for the
negligent hiring of an independent contractor. Reeves v Kmart Corp, 229 Mich App 466, 475476; 582 NW2d 841 (1998). ". . . Michigan has not recognized a duty requiring an employer to
exercise care in the selection and retention of an independent contractor. . . . [W]e hold that such
a duty does not exist." Id.
Plaintiffs further argue that the Koviches may be held liable for Ashton's negligence
under the retained-control doctrine because the activity was inherently dangerous, citing Reeves,
supra at 471. We disagree. Plaintiffs cite no authority that lawn mowing is inherently
dangerous. There is sister-state authority. In Gore, the court held that "mowing grass in a
median is not an inherently dangerous activity . . . ." Gore, supra at 141. Gore, similar on its
facts, is persuasive. Lawn mowing is not inherently dangerous.
D
Plaintiffs next argue that the trial court erred in concluding that the Koviches did not
breach a duty of ordinary care. Again, we disagree.
Michigan law classifies entrants onto property as trespassers, licensees, or invitees. Stitt
v Holland Abundant Life Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000). We agree with
the Koviches that, assuming that Karie was "on" the Koviches property (the servient estate by
using the public right-of-way over the sidewalk), Karie was a licensee because she was not there
for any activity affording any monetary benefit to the Koviches. Id. at 596-597. As noted in
Davis v Morton, 143 Mich App 236; 372 NW2d 517 (1984), in Woodworth v Brenner, 69 Mich
App 277; 244 NW2d 446 (1976), "the plaintiff, a licensee, fell on an icy sidewalk owned by the
adjacent property owners . . . ." Davis, supra at 242. Accordingly, Woodworth recognized that a
person walking on a sidewalk is a licensee in relation to the owner of the fee (the servient estate
under the sidewalk).
The duty owed to a licensee is limited.
A landowner owes a licensee a duty only to warn the licensee of any
hidden dangers the owner knows or has reason to know of, if the licensee does not
know or have reason to know of the dangers involved. The landowner owes no
duty of inspection or affirmative care to make the premises safe for the licensee's
visit. [Stitt, supra at 596.]
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Karie was allegedly injured not by a hidden danger, but by a danger the licensee had
reason to know of: the lawn mower. The lawn mower was not hidden. Karie admitted that she
was aware that lawn mowers can run over and eject objects:
Q. Were you aware before this incident . . . that things could be ejected from
under a lawn mower?
A. Yes.
* * *
Q. But you were aware that day walking down the sidewalk that things could
come out from under lawn mowers?
A. Yes.
Thus, the Koviches had no duty to warn Karie of this danger. Stitt, supra at 596-597. The
Koviches also had no duty to inspect the premises to determine whether there were hidden
objects that a lawn mower might eject. Id. Therefore, viewing the evidence in a light favorable
to plaintiffs, there is no genuine issue of material fact regarding whether the Koviches breached a
duty owed to Karie as a licensee.
IV
The trial court did not err in concluding that plaintiffs failed to present sufficient evidence
to establish that Ashton breached duties owed in this case or in granting summary disposition of
the plaintiffs' claims of independent acts of negligence by the Koviches. The trial court also did
not err in ruling as a matter of law that Ashton was an independent contractor and not an
employee of the Koviches, and the trial court also correctly held as a matter of law that the
Koviches did not breach any duty owed to Karie as a licensee on their property.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
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