WESLEY N SCHMIDT V WESLEY L SCHMIDT
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STATE OF MICHIGAN
COURT OF APPEALS
WESLEY N. SCHMIDT,
UNPUBLISHED
November 25, 2003
Plaintiff-Appellant,
No. 241790
Calhoun Circuit Court
LC No. 01-002970-NO
v
WESLEY L. SCHMIDT and PATRICIA N.
SCHMIDT,
Defendants-Appellees.
Before: Cooper, P.J., and Markey and Meter, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting defendants’ motion for
summary disposition. We affirm. This appeal is being decided without oral argument pursuant
to MCR 7.214(E).
This cases arises out of injuries plaintiff sustained while helping his father, defendant
Wesley L. Schmidt, trim trees at his parent’s home. Plaintiff fell out of a bucket that was
attached to a tractor. Defendant Wesley L. Schmidt was operating the tractor. Plaintiff filed suit
alleging that the accident occurred because defendant Wesley L. Schmidt operated the tractor in
a negligent manner. He also alleged that as a business invitee, defendants owed him a duty to
use reasonable care to protect him from a dangerous condition on the land.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that
no genuine issue of fact existed as to whether defendant Wesley L. Schmidt acted in a negligent
manner. Specifically, defendants contended that plaintiff’s assertion in his deposition testimony
that the bucket “had to have” jumped was based on inadmissible speculation. In granting
defendants’ motion for summary disposition, the trial court held that no basis existed for a
premises liability claim because plaintiff failed to allege that he was injured due to the existence
of a dangerous condition on the land. The trial court further found that the evidence did not
create a genuine issue of fact as to whether defendant Wesley L. Schmidt acted in a negligent
manner by causing the tractor or bucket to jump.
-1-
On appeal, plaintiff argues that a question of fact remained regarding whether defendant
Wesley L. Schmidt caused the tractor to jump. We disagree. A trial court’s decision on a
motion for summary disposition is reviewed de novo.1
“To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a
duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4)
damages.”2 Legitimate inferences can establish a negligence claim provided that sufficient
evidence is produced to take the inferences “out of the realm of conjecture.”3
Causation requires proof that the defendant’s breach of duty more likely than not caused
the injury.4 Here, plaintiff stated in his deposition that the tractor or bucket must have jumped,
but that he could not be certain that was what happened. In a subsequent affidavit, however,
plaintiff alleged that the tractor and bucket jumped. A party cannot create an issue of fact by
submitting an affidavit that contradicts prior testimony.5 The possibility that a breach of duty by
defendant Wesley L. Schmidt caused plaintiff to sustain injuries is insufficient to establish
causation.6 Accordingly, plaintiff failed to make out a prima facie case of negligence.
The trial court also properly held that this case did not present a premises liability claim
because plaintiff failed to assert that his injuries occurred due to the presence of a dangerous
condition on the land. A premises liability claim requires proof of an injury due to the existence
of a dangerous condition on the land, and not due to an activity conducted on the land.7
Affirmed.
/s/ Jessica R. Cooper
/s/ Jane E. Markey
/s/ Patrick M. Meter
1
Auto Club Group Ins Co v Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2001).
2
Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000).
3
Ritter v Meijer, Inc, 128 Mich App 783, 786; 341 NW2d 220 (1983).
4
Skinner v Square D Co, 445 Mich 153, 165-166; 516 NW2d 475 (1994).
5
Kaufman & Payton, PC v Nikkila, 200 Mich App 250, 256-257; 503 NW2d 728 (1993).
6
Stefan v White, 76 Mich App 654, 661; 257 NW2d 206 (1977).
7
See James v Alberts, 464 Mich 12, 18-19; 626 NW2d 158 (2001).
-2-
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