Denise Carrecker v. Seth Berry Gold ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
DENISE CARREKER, UNPUBLISHED
October 27, 2016
Plaintiff-Appellant,
v No. 328276
Oakland Circuit Court
SETH BERRY GOLD AND ERICA TONYA LC No. 2014-138798-NI
BANKS,
Defendants-Appellees.
Before: FORT HOOD, P.J., and GLEICHER and O’BRIEN, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting defendant’s motion for summary
disposition. On appeal, plaintiff argues that the trial court erred in finding that there was no
genuine issue of material fact whether defendant, Seth Gold,1 caused her injuries, and that the
trial court relied on inadmissible evidence in making its decision. We reverse and remand for
further proceedings consistent with this opinion.
This case arises from a motor vehicle accident that occurred on January 21, 2012. On
that date, it is undisputed that defendant rear-ended plaintiff. However, defendant argues that he
was not at fault, as the incident was part of a “chain reaction,” and he was hit by another vehicle.
The trial court agreed, granting defendant’s motion on the basis that plaintiff failed to establish a
question of fact whether defendant caused the accident.
We review de novo the trial court’s decision on a motion for summary disposition.
Johnson v Recca, 492 Mich. 169, 173; 821 NW2d 520 (2012). “[A] motion under MCR
2.116(C)(10) tests the factual sufficiency of the complaint[.]” Joseph v Auto Club Ins Ass’n, 491
Mich. 200, 206; 815 NW2d 412 (2012). Summary disposition under MCR 2.116(C)(10) is
proper when “[e]xcept as to the amount of damages, there is no genuine issue as to any material
fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” We
review the pleadings, affidavits, depositions, admissions, and other evidence submitted by the
1
Defendant Erica Tonya Banks is not a party to this appeal, having settled her dispute with
plaintiff prior to these proceedings. While Banks is referenced in this opinion as a witness to the
events, her participation in the case is not discussed further. Thus, we refer to Gold as defendant.
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parties in a light most favorable to the nonmoving party. Maiden v Rozwood, 461 Mich. 109,
120; 597 NW2d 817 (1999).
To establish a prima facie claim of negligence, plaintiff must show proof that: (1)
defendant owed plaintiff a duty, (2) defendant breached that duty, (3) the breach was the
proximate cause of plaintiff’s injury, and (4) plaintiff suffered damages. Loweke v Ann Arbor
Ceiling & Partition Co, 489 Mich. 157, 162; 809 NW2d 553 (2011). Here, the trial court held
that plaintiff had failed to establish that defendants’ alleged negligence was the proximate cause
of plaintiff’s injury.
“Proximate cause incorporates two separate elements: (1) cause in fact and (2) legal or
proximate cause.” Lockridge v Oakwood Hosp, 285 Mich. App. 678, 684; 777 NW2d 511 (2009).
The cause in fact element generally requires showing that “but for” the
defendant’s actions, the plaintiff’s injury would not have occurred. On the other
hand, legal cause or “proximate cause” normally involves examining the
foreseeability of consequences, and whether a defendant should be held legally
responsible for such consequences. Craig v Oakwood Hosp, 471 Mich. 67, 86-87;
684 NW2d 296 (2004), citing Skinner v Square D Co, 445 Mich. 153, 163; 516
NW2d 475 (1994).
“As a matter of logic, a court must find that the defendant’s negligence was a cause in fact of the
plaintiff’s injuries before it can hold that the defendant’s negligence was the proximate or legal
cause of those injuries.” Craig, 471 Mich. at 87 (citation omitted). Here, the trial court held that
plaintiff failed to establish cause in fact.
“Cause in fact requires that the harmful result would not have come about but for the
negligent conduct.” Haliw v Sterling Hts, 464 Mich. 297, 310; 627 NW2d 581 (2001). Cause in
fact may be established by circumstantial evidence, but such proof must be subject to reasonable
inferences and not mere speculation. Skinner, 445 Mich. at 164. Evidence of causation is
sufficient if the jury may conclude that, more likely than not, but for the defendant’s conduct the
plaintiff’s injuries would not have occurred, even if other plausible theories have evidentiary
support. Wilson v Alpena County Rd Comm, 263 Mich. App. 141, 150; 687 NW2d 380 (2004),
aff’d 474 Mich. 161 (2006). “Normally, the existence of cause in fact is a question for the jury to
decide, but if there is no issue of material fact, the question may be decided by the court.”
Genna v Jackson, 286 Mich. App. 413, 418; 781 NW2d 124 (2009). The defendant does not have
to be the sole cause of the plaintiff’s harm—there can be more than one proximate cause.
O’Neal v St John Hosp, 487 Mich. 485, 496-497; 791 NW2d 853 (2010). When a number of
factors contribute to producing an injury, one actor’s negligence can still be a proximate cause if
it was a substantial factor in bringing about the injury. Skinner, 445 Mich. at 165 n 8.
Here, we agree with defendant and the trial court that plaintiff cannot dispute that
defendant was, at some point, rear-ended by Banks. Plaintiff herself admits that she cannot
contradict this fact, and both defendant and Banks testified that Banks rear-ended defendant.
However, plaintiff also testified that she witnessed defendant driving recklessly. While
defendant relies on his own testimony that he came to a complete stop behind plaintiff, plaintiff
testified in contrast to defendant’s claim. Plaintiff stated that she witnessed defendant cross two
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lanes of traffic in order to avoid slowed traffic before reaching her vehicle in the shoulder.
Plaintiff testified:
I was looking out my rearview mirror, because I was sitting against up the wall
and I was already afraid they had accidents up here and I was looking back to
make sure there’s no accidents coming in behind me, and I seen [sic] him getting
over. I was like, "I hope he don’t hit me," and he ran right into the back of me.
Because the lane—the third lane had slowed down, so when he was getting over
here to the third lane, they had slowed down, so he had to get over or he was
going to run into the back of somebody else.
Plaintiff also explained that: “I just happened to look in my rearview mirror and I seen [sic]
traffic still going fast, and they’re not realizing that traffic has slowed up front there. And the
next thing I know [defendant] ran into the back of my car.” While plaintiff never specifically
testified how fast defendant was driving, it can be inferred from plaintiff’s collective statements
that defendant did not realize traffic had slowed and was travelling too fast for the conditions.
Again, at the summary disposition stage, we view all evidence in a light most favorable to
plaintiff. Maiden, 461 Mich. at 120. Thus, plaintiff’s testimony was sufficient to establish a
question of fact whether defendant’s actions contributed to the accident. Moreover, even if the
evidence established that defendant’s vehicle came to a stop behind plaintiff before Banks hit
defendant, plaintiff’s testimony minimally establishes a question of fact whether defendant left
sufficient space between his and plaintiff’s vehicle. See MCL 257.627. While plaintiff’s
testimony in this case may seem incredible based on the circumstances surrounding the accident,
“courts may not resolve factual disputes or determine credibility in ruling on a summary
disposition motion.” White v Taylor Distrib Co, Inc, 275 Mich. App. 615, 624-625; 739 NW2d
132 (2007) (citations and internal quotation marks omitted). Accordingly, the trial court erred.
Plaintiff also asserts that defendant presented inadmissible evidence to the trial court in
his motion for summary disposition. Defendant appears to concede that this evidence was
indeed inadmissible. However, defendant correctly points out that the trial court did not rely on
this evidence in making its decision. On remand, we caution defendant against using evidence
he agrees would be inadmissible.
Defendant presents an alternate ground for affirming the trial court’s order—his motion
for summary disposition based on plaintiff’s failure to establish a question of fact whether she
suffered an injury constituting the serious impairment of a bodily injury. An appellee may argue
alternative grounds for affirmance that do not enhance the decision for the appellee beyond that
rendered by the trial court. Vanslembrouck v Halperin, 277 Mich. App. 558, 565; 747 NW2d 311
(2008). However, this issue was not properly preserved because it was not addressed by the trial
court. Hines v Volkswagen of America, Inc, 265 Mich. App. 432, 443; 695 NW2d 84 (2005). An
appellate court is obligated to review only issues that are properly raised and preserved. Mich Ed
Ass'n v Secretary of State, 280 Mich. App. 477, 488; 761 NW2d 234 (2008), aff’d 489 Mich. 194
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(2011). Based on our review of the record, we decline to review this issue at this time as it was
unpreserved.2
Reversed and remanded for further proceedings consistent with this opinion.
/s/ Karen M. Fort Hood
/s/ Elizabeth L. Gleicher
2
We note that, based on the evidence presented, we would be inclined to hold that factual
disputes regarding defendant’s alternative grounds for affirmance exist. However, we decline to
address the issue so that defendant may reassert his motion in the trial court, perhaps after further
discovery has been conducted.
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