ROLAND E ELLIS V YALE STEEL INC
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STATE OF MICHIGAN
COURT OF APPEALS
ROLAND E. ELLIS,
UNPUBLISHED
May 19, 2005
Plaintiff-Appellant,
V
No. 260513
St. Clair Circuit Court
LC No. 03-001812-NO
YALE STEEL, INC.,
Defendant-Appellee.
Before: Murphy, P.J., and White and Smolenski, JJ.
PER CURIAM.
Plaintiff appeals as of right from the circuit court’s order granting defendant’s motion for
summary disposition. We affirm. This case is being decided without oral argument pursuant to
MCR 7.214(E).
Plaintiff, defendant’s residential tenant, complained three or four times that the pilot light
on his furnace had gone out. In response, defendant sent service personnel to the residence to
relight it. After the last such instance, one of the repair persons advised plaintiff that relighting
the pilot light was a simple procedure that he could do himself. On December 31, 2002, the pilot
light again went out. Plaintiff attempted to relight it, but in the process there was an explosion of
excess gas, causing injuries to plaintiff’s face and arm.
Plaintiff brought suit, asserting that a valve had malfunctioned so as to cause propane to
leak. Plaintiff alleged that defendant thus negligently failed to keep the premises in reasonable
repair, and maintained a nuisance. Defendant sought summary disposition, arguing that a
housing inspection from May 2002 turned up no problems, and that defendant had no cause to
understand that a defective condition existed. The court agreed and granted the motion, stating
that plaintiff would need an expert to prove his theory of liability, but had offered none.
Plaintiff’s sole issue on appeal is “[w]hether the trial court erred in its conclusion that
[plaintiff] must secure an expert to prove the negligence of [defendant] for instructing his tenant
to engage in a hazardous activity, an activity that was the duty of the landlord . . . .” Plaintiff
has shifted his emphasis; his amended complaint charges defendant with negligent failure to
maintain the furnace, nowhere specifically asserting that encouraging plaintiff to try relighting
the pilot himself was negligence. The distinction matters little, however, because the question of
whether defendant’s agent was negligent in encouraging plaintiff to attempt the normally simple
and nonhazardous endeavor of lighting a pilot light is itself a function of whether the furnace, as
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plaintiff came to it, was in a dangerous state of disrepair in violation of defendant’s duty to
maintain it.1
A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual
support of a claim. Decker v Flood, 248 Mich App 75, 81; 638 NW2d 163 (2001). The court
considers the pleadings, affidavits, and other evidence filed in the action or submitted by the
parties in the light most favorable to the nonmoving party. Id. “The court should grant the
motion only if the affidavits or other documentary evidence show that there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law.” Id.
There is no dispute that defendant had a general duty to maintain plaintiff’s premises in
reasonably safe condition. See MCL 554.139. Nor is there any dispute that maintenance of the
furnace was part of that duty. See MCL 125.471. The question is whether defendant offered
sufficient evidence to prove that the furnace was defective, and that defendant knew or
reasonably should have known of any such defect. See Raatikka v Jones, 81 Mich App 428,
430-431; 265 NW2d 360 (1978).
Mere theory, or speculation, linking a defendant’s action or inaction to a plaintiff’s injury
is insufficient to support a claim for damages. See Skinner v Square D Co, 445 Mich 153, 165166; 516 NW2d 475 (1994). “Something more should be offered the jury than a situation which,
by ingenious interpretation, suggests the mere possibility of defendant’s negligence being the
cause of the injury.” Id. at 166 (internal quotation marks and citation omitted).
Although the trial court opined that plaintiff needed an expert to prove his case, the legal
basis for its ruling was that plaintiff failed to offer sufficient evidence, expert or otherwise, to
support his claim. Plaintiff argues that three or four service calls due to an extinguished pilot
light provided defendant with knowledge of a dangerous defect in the furnace. However,
plaintiff cites no authority that stands for the proposition that such occurrences of that
commonplace annoyance, even in relatively close proximity, constitute notice of a dangerous
defect. Nor does plaintiff cite any authority for the proposition that encouraging a tenant to
relight a pilot light himself, in the absence of a known dangerous condition, constitutes
negligence. Further, it is impossible to discount the possibility that plaintiff’s own negligence in
the matter may have caused the explosion. Indeed, speculation or guesswork are required to
conclude from such scanty evidence that the explosion was the result of plaintiff’s specific
theory of a faulty valve.2
1
Moreover, we note that, in deposition testimony reproduced and appended to plaintiff’s brief on
appeal, plaintiff did not allege that defendant refused to relight the pilot light again and
demanded that plaintiff instead take his own chances in the matter, but only that defendant’s
agent presented the task as one plaintiff could do himself.
2
In fact, plaintiff himself, perhaps inadvertently, admits to some question over whether the valve
was faulty, having stated in his statement of facts that the pilot light kept going out “due to a
possible faulty valve” (emphasis added).
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Plaintiff complains that defendant’s decision to repair the furnace, apparently resulting in
the destruction of the suspect valve, shortly after the mishap frustrated his ability to prove the
existence of a defective condition. Although this is undoubtedly true, plaintiff asserts only that
defendant might have supposed that legal action would follow from the accident, nowhere
suggesting that defendant acted in the face of formal or informal requests not to disturb the
evidence. Subsequent remedial repairs are not admissible to prove negligence. MRE 407. Nor
is a landlord bound to refrain from making such repairs when events occur that might signal
impending legal action. For these reasons, we reject plaintiff’s assertion that there was anything
pernicious about defendant’s decision to repair the furnace.
Affirmed.
/s/ William B. Murphy
/s/ Helene N. White
/s/ Michael R. Smolenski
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