Estate of Peterson v. Brannigan Bros Restaurants and Taverns LLC ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
HELEN KAYE MUELLER, Personal FOR PUBLICATION
Representative of the ESTATE OF TRAVIS LEE April 3, 2018
PETERSON, 9:05 A.M.
Plaintiff-Appellant,
v No. 335501
Ingham Circuit Court
BRANNIGAN BROTHERS RESTAURANTS LC No. 13-001379-NO
AND TAVERNS LLC, AUSTIN SMITH,
DONALD SUTTLE JR, MARK MCCLAIN, and
SHAFEEK KANAVEH1,
Defendants-Appellees,
and
API EDEN ROCK INC,
Defendant.
Before: RONAYNE KRAUSE, P.J., and FORT HOOD and O’BRIEN, JJ.
PER CURIAM.
Plaintiff Helen Kaye Mueller, the personal representative for the Estate of Travis
Peterson, appeals by right after a jury trial and entry of a verdict partially in her favor. This
matter arises out of the wrongful death of Peterson, who was killed after patronizing defendant
Brannigan Brothers bar. After being ejected from the bar, Peterson was chased and physically
beaten by bouncers who were then presently or previously employed by the bar.
Notwithstanding the judgment partially in her favor, plaintiff appeals by right two evidentiary
decisions and two partial grants of summary disposition. We affirm.
In broad strokes, with the exception of a few critical details, the facts are simple,
undisputed, and tragic. Peterson was a business invitee, or more colloquially a patron, of the
1
Also spelled “Kanazeh” in the lower court record.
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restaurant or bar owned and operated by Brannigan Brothers Restaurants and Taverns LLC
(Brannigan) in downtown Lansing, on January 1, 2012, in the early hours of the morning at
approximately 2:00 a.m. Some manner of dispute occurred, and Peterson was asked to leave the
premises. Peterson did so, and thereafter the individual defendants pursued Peterson and
attacked him, inflicting injuries that caused his death. None of the above facts are seriously
contested at this time, nor is it contested that the individual defendants had some kind of
employment history with the bar. Rather, the only factual issues are whether any of the
individual defendants were actually working for the bar at the time, were acting within the scope
of their employment, or were the actual cause of Peterson’s death. Brannigan was granted
summary disposition on the grounds that all individual defendants were “off the clock” in one
way or another.
Suttle was defaulted, Kanaveh settled partway through trial, the jury found McClain and
Kanaveh both to have not been negligent, and the jury found Smith to have been negligent but
not a proximate cause of Peterson’s death. The jury found Peterson’s own negligence to have
been 20% responsible for his death and Suttle’s negligence to have been 80% responsible for
Peterson’s death. Accordingly, the trial court entered judgment in favor of plaintiff and against
Suttle, and a judgment of no cause of action against Smith and McClain.2
A grant or denial of summary disposition is reviewed de novo on the basis of the entire
record to determine if the moving party is entitled to judgment as a matter of law. Maiden v
Rozwood, 461 Mich. 109, 118; 597 NW2d 817 (1999). When reviewing a motion under MCR
2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all
evidence submitted by the parties in the light most favorable to the non-moving party and grants
summary disposition only where the evidence fails to establish a genuine issue regarding any
material fact. Id. at 120. A motion brought under MCR 2.116(C)(8) should be granted only
where the complaint is so legally deficient that recovery would be impossible even if all well-
pleaded facts were true and construed in the light most favorable to the non-moving party. Id. at
119. Only the pleadings may be considered when deciding a motion under MCR 2.116(C)(8).
Id. at 119-120.
“The decision whether to admit evidence falls within a trial court’s discretion and will be
reversed only when there is an abuse of that discretion.” People v Duncan, 494 Mich. 713, 722;
835 NW2d 399 (2013). “A trial court abuses its discretion when its decision falls outside the
range of reasonable and principled outcomes.” Id. at 722-723. However, preliminary questions
of law, including the interpretation and application of statutes and legal doctrines, are reviewed
de novo, and the trial court necessarily commits an abuse of discretion if it makes an incorrect
legal determination. Id. at 723; Estes v Titus, 481 Mich. 573, 578-579; 751 NW2d 493 (2008).
This Court also “reviews a trial court’s rulings concerning the qualifications of proposed expert
2
Suttle was independently convicted of second degree murder arising out of the same events that
gave rise to the instant appeal. People v Suttle, unpublished opinion per curiam of the Court of
Appeals, Docket No. 314773 (issued June 3, 2014).
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witnesses to testify for an abuse of discretion.” Woodard v Custer, 476 Mich. 545, 557; 719
NW2d 842 (2006).
Plaintiff first argues that the trial court erred in granting summary disposition in favor of
Brannigan. We note that plaintiff alleged several counts against Brannigan, and the parties fail
to clearly distinguish the counts alleging vicarious liability from the counts alleging that
Brannigan committed torts in its own right. In particular, plaintiff alleged that Brannigan was
negligent in its hiring, retention, supervision, and training of its employees. This assertion does
superficially resemble vicarious liability, insofar as the conduct of the employees is relevant.
However, plaintiff correctly points out that the negligent hiring, retaining, training, or
supervising of an employee can be a direct tort committed by the employer itself, not matter of
vicarious liability. Hersh v Kentfield Builders, Inc, 385 Mich. 410, 412-413; 189 NW2d 286
(1971). We will address the distinct issues separately.
Regarding vicarious liability, plaintiff fairly summarizes the legal principles: broadly,
and in relevant part, an employer may be held liable for the tortious conduct of an employee so
long as that conduct was “committed in the course and within the scope of the employee’s
employment,” but not if the act was outside the employee’s authority or committed for the
employee’s own personal purposes. Bryant v Brannen, 180 Mich. App. 87, 98; 446 NW2d 847
(1989). “While the issue of whether the employee was acting within the scope of his
employment is generally for the trier of fact, the issue may be decided as a matter of law where it
is clear that the employee was acting to accomplish some purpose of his own.” Id.
Plaintiff accurately states that Suttle testified that he was working on the night of
Peterson’s beating. Critically, however, that is the only evidence plaintiff submits in support of
Suttle having been an employee; on the very same page of his deposition, Suttle also testified
that as of one minute after midnight, he was no longer an employee. Notably, he had not merely
quit for the night, but in fact had been fired. He testified that by the time of the incident, he had
left, and he returned to the bar only to retrieve his payment for the hours he had worked earlier.
Plaintiff’s argument that the trial court erred in finding no genuine question of fact that Suttle
was not employed on the night of the incident is technically correct but essentially pettifoggery
and substantively immaterial: even though he had been employed at some point on that evening,
Suttle was no longer employed at the time he participated in chasing and beating Peterson.
Consequently, the trial court correctly held that at the relevant time, Suttle was not in fact
employed by Brannigan, so Brannigan could not be vicariously liable for Suttle’s tortious
misconduct. Brannigan argued in the trial court that there was no dispute that Kanaveh was not
working on the night of the incident at all, and all of the testimony we have found supports that
assertion. Plaintiff has not cited any evidence or advanced any argument to the contrary.
Consequently, Brannigan could not be vicariously liable for any tortious misconduct engaged in
by Kanaveh.
Brannigan concedes that Smith and McClain were employed and working at the time of
the incident. Instead, Brannigan argues that they acted completely outside the scope of their
employment by chasing an ejected patron down the street and beating him savagely. Plaintiff
points out that Smith testified at his deposition that he had been a participant in the pursuit down
the street strictly because he was attempting to protect McClain and break up the fight, and that
he was therefore acting on behalf of Brannigan and within the scope of his employment, which
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he believed specifically entailed protecting employees. However, it is critical that Smith’s
testimony was based his version of events, which was that Peterson had assaulted McClain and
Smith was attempting to protect McClain or break up a fight, and he only punched Peterson
because Peterson attacked him and he was unable to retreat. Consequently, this testimony does
not support plaintiff’s argument to the effect that Smith believed pursuing and assaulting
Peterson would be conduct within the scope of his employment. Rather, Smith’s testimony that
he was acting within the scope of his employment is clearly dependent upon his interpretation of
what occurred, which differs critically from plaintiff’s interpretation of what occurred.
Essentially, it is incompatibly conditional.
Otherwise, plaintiff makes no argument that we can find to the effect that chasing an
ejected patron down the street, well off Brannigan’s premises, for the purpose of committing a
battery was authorized, was remotely similar to any authorized act, or was for any purpose
whatsoever that could reasonably be believed to benefit Brannigan. The trial court’s holding that
Brannigan could not be held vicariously liable for the misconduct of the individual defendants
was the only reasonable conclusion to draw on the evidence in this matter. Additionally, even if
the trial court had erred in finding that Brannigan had no vicarious liability for the conduct of
Smith and McClain, the jury’s findings of no negligence as to McClain and no proximate cause
as to Smith would render that finding irrelevant and harmless in any event.
However, neither the employees’ present employment status nor their departure from the
scope of their employment disposes of plaintiff’s claims of negligent hiring, retention, training,
or supervision. Furthermore, the fact that two of the individual defendants were not technically
working for Brannigan at the time of the incident is also not dispositive: the gravamen of
negligent hiring or retention is that the employer bears some responsibility for bringing an
employee into contact with a member of the public despite knowledge that doing so was likely to
end poorly. Hersh, 385 Mich. at 412-413. In other words, it is not a tort dependent upon
vicarious liability at all, but rather direct liability. Consequently, the fact that Brannigan
allegedly should have known that the bouncers it hired would commit a grievous assault could
proximately result in that assault, because it is the “but for” act that caused the bouncers and the
patron to be in the same place at the same time.
Nevertheless, a claim of negligent hiring or retention requires actual or constructive
knowledge by the employer that would make the specific wrongful conduct perpetrated by an
employee predictable. See Brown v Brown, 478 Mich. 545, 553-556; 739 NW2d 313 (2007). In
particular, employers are not expected to anticipate that their employees will engage in criminal
conduct without some particularized forewarning thereof. Id. at 555-556; Hamed v Wayne Co,
490 Mich. 1, 12-15; 803 NW2d 237 (2011). Thus, lewd and crude commentary is not enough to
put an employer on notice that an employee will commit a rape, although an actual threat to
commit a rape would. Brown, 478 Mich. at 555-556. A past history of generally aggressive and
irresponsible behavior is not enough to put an employer on notice that the employee would
engage in a violent sexual assault. Hamed, 490 Mich. at 16. Knowledge of having actually
committed another rape would justify anticipating that an employee would re-offend, if the
employer had good reason to know of the prior crime. Bradley v Stevens, 329 Mich. 556; 46
NW2d 382 (1951). Employers are not strictly liable for their employees’ misconduct that goes
beyond what would generate vicarious liability under respondeat superior. Zsigo v Hurley Med
Ctr, 475 Mich. 215, 226-227; 716 NW2d 220 (2006).
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Plaintiff argues that Smith was well known to be violent and short-tempered, and he had
been charged with assaulting a police officer. Strictly speaking, Smith had been convicted of
attempted assault on a police officer pursuant to a plea on March 31, 2003, contemporaneously
with an attempted unlawful use of a motor vehicle; an also-contemporaneous charge of larceny
was dismissed, and Smith served a total of nine days. It was therefore a decade-old
misdemeanor charge, and its predictive value to the incident at issue in this matter is
consequently rather poor.
Plaintiff argues that Suttle had a prior manslaughter conviction, but provides no criminal
docket sheet, and upon further analysis, the situation was considerably more bizarre. Suttle
testified that in fact it was second-degree murder and the crime occurred when he was fifteen.
Apparently, he was “playing with a firearm” that went off, and he was given the gun by his
“girlfriend,” who was 40 or 42 years old at the time and with whom he was having a sexual
relationship, in some kind of “almost like a suicide-type deal.” He testified that he entered a no
contest plea “just pretty much to hush everything[, y]ou know, wouldn’t have to get on the
stand.” Although a second-degree murder conviction sounds dramatic, the nature of the offense
does not seem to easily lend itself to predicting the kind of pursuit and assault that occurred here,
especially given the well-known propensity for teenagers to engage in dubious conduct they
regret as adults.
Plaintiff argues that Kanaveh had a criminal history of fighting and theft. We have found
no public record of any convictions. However, in his deposition Kanaveh did admit that he had
been charged criminally on the basis of a fight somewhere in Novi in 2005 or 2006, which he
described as “there was some sort of something going on where guys were arguing and fighting
and I was punched and then I defended myself and punched a guy back and that was pretty much
it from what I remember.” He stated that although he was arrested, charged, and ultimately did
go to court, the charge was dropped. He testified that he had also been arrested for attempting to
steal a golf cart along with Smith “probably over ten years ago,” but he did not recall what
ultimately happened beyond paying restitution and presumably having his record expunged
eventually. If Kanaveh even had a criminal record, nothing about it would suggest the kind of
pursuit and assault that occurred here.
Plaintiff has not argued that McClain had any kind of criminal history insofar as we can
find. We have reviewed McClain’s deposition testimony, and there is no mention anywhere
therein of any prior criminal history or history of violence otherwise. There is no public record
of Mark McClain being listed as either an active or inactive offender. Obviously, there is no
articulated negligent hiring claim based on McClain.
Consequently, the trial court properly disposed of plaintiff’s claim for negligent hiring.
Plaintiff’s claims of negligent retention, negligent training, and negligent supervision are not
necessarily disposed of merely because none of the individual defendants had particularly
egregious histories prior to their hiring. However, those claims do still depend on the particular
misconduct complained of being foreseeable. Taken at entirely face value, plaintiff argues that
there were frequently fights at the bar, employees received no training, the owner was drunk and
irresponsible, and the security staff had a tendency toward roughness and aggressiveness. We
accept for the sake of argument that Brannigan’s training and supervision were grossly
incompetent or nonexistent. That would strongly suggest that sooner or later a patron was going
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to get hurt fighting with the staff on-site or while being removed from the premises. That would
still not predict security staff chasing an ejected patron down the street and beating him fatally.
Such outrageous conduct and loss of self-control is such a radical departure from expected social
norms that we very much doubt businesses commonly perceive a need to craft rules and training
against that degree of blatantly obvious criminal misconduct.
Plaintiff finally argues that Brannigan should be held liable because its staff failed to
ensure that Suttle and Peterson left the bar at different times. The only staff member plaintiff
suggests should have done so is Pam Muzillo, who is not a named defendant. Additionally,
plaintiff concedes that Suttle was a non-employee at the time, so this is essentially an argument
that Brannigan had some obligation to control two unruly patrons after their ejection.
In any event, the cases upon which plaintiff relies are not helpful. In Mills v White Castle
Sys, Inc, 167 Mich. App. 202; 421 NW2d 631 (1988), this Court held that it was possible for a
restaurant to be negligent for failing to eject unruly patrons from its parking lot and failing to
summon police upon request after those unruly patrons attacked other customers and were
present for some considerable time. In Marcelletti v Bathani, 198 Mich. App. 655, 663-665; 500
NW2d 124 (1993), this Court noted the general rule that no one is under a duty to protect others
from the conduct of third persons, but that a “special relationship” could give rise to such a duty
in someone in a position of control to someone in a position of foreseeable danger, and that
“proprietor-patron” had been recognized as such a “special relationship.” In Taylor v Laban, 241
Mich. App. 449, 454-457; 616 NW2d 229 (2000), this Court mostly discussed licensees rather
than invitees, but observed that a social host is not under any obligation to control guests beyond
“refrain[ing] from willful and wanton misconduct that results in one guest injuring another
guest,” which is not established by a mere failure to act. Regarding invitees, the Taylor Court
merely referenced Williams v Cunningham Drug Stores, Inc, 429 Mich. 495, 502-503; 418 NW2d
381 (1988), in which our Supreme Court held that a merchant was not under a duty to provide
armed guards and “any duty we might impose on defendant to protect his invitees from the
criminal acts of third parties would be inevitably vague, given the nature of the harm involved.”
As discussed above, employers are generally not expected to anticipate criminal acts.
This issue is not as easily addressed as any of the parties suggest. However, the trial
court ultimately reached the correct decision. Brannigan could not be held vicariously liable
under respondeat superior because the individual defendants were either not working at the time
of the incident or were wholly deviating from the scope and authority of that employment for
their own purposes. Brannigan could not be held liable for negligent hiring because nothing in
the individual defendants’ backgrounds would have suggested any serious likelihood that they
would commit the complained-of acts in this matter. Brannigan could not be held liable for
negligent retention or supervision on these facts, because although it does appear that the bar was
poorly run, the history of its internal issues would not predict this particular kind of misconduct.
For analogous reasons, Brannigan cannot be held negligent simply because its staff ejected Suttle
and Peterson at the same time, if indeed that actually occurred.
Plaintiff next argues that the trial court erred in dismissing her “concert of action” claim
against the individual defendants. The parties all agree that “concert of action” was a viable
cause of action in 1994. Under that “traditional theory,” if a plaintiff “can establish that all
defendants acted tortiously pursuant to a common design, they will all be held liable for the
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entire result.” Abel v Eli Lilly and Co, 418 Mich. 311, 337-338; 343 NW2d 164 (1984).
However, the parties dispute whether that cause of action survived the enactment of MCL
600.2956, an issue that appears not to have been explicitly determined in literally so many words
by any published decision of the courts of this state. We hold that the issue has, however, been
determined, albeit somewhat less cleanly stated, and that “concert of action” is in fact no longer a
viable cause of action in Michigan.
Pursuant to MCL 600.2956:
Except as provided in section 6304, in an action based on tort or another legal
theory seeking damages for personal injury, property damage, or wrongful death,
the liability of each defendant for damages is several only and is not joint.
However, this section does not abolish an employer’s vicarious liability for an act
or omission of the employer’s employee.
The exception in MCL 600.6304 applies only in medical malpractice actions and is therefore
irrelevant here, and otherwise MCL 600.6304(4) specifically states that liability “is several only
and not joint.” Furthermore, MCL 600.2957(1) provides:
In an action based on tort or another legal theory seeking damages for personal
injury, property damage, or wrongful death, the liability of each person shall be
allocated under this section by the trier of fact and, subject to section 6304, in
direct proportion to the person’s percentage of fault. In assessing percentages of
fault under this subsection, the trier of fact shall consider the fault of each person,
regardless of whether the person is, or could have been, named as a party to the
action.
Plaintiff primarily advances the argument that by its own express terms, the statute
exempts vicarious liability theories, and because vicarious liability was still an issue at the time
the trial court decided the instant motion for summary disposition, concert of action was
therefore still also a viable claim. However, that is unambiguously a misreading of both the
statute and its entire framework, not to mention a very weak effort at bootstrapping, especially
because a plain reading of the complaint shows that the concert of action count was alleged only
against the individual defendants, not Brannigan. Vicarious liability is premised on agency and
the traditional doctrine that a master is responsible for the actions of the master’s servant even if
the master was not personally at fault. McClaine v Alger, 150 Mich. App. 306, 316-317; 388
NW2d 349 (1986). It has nothing to do with joint liability and is a narrow exemption left by the
Legislature. The significance is that Brannigan is not “off the hook” if any of its alleged
employees were found liable for committing a tort while in the scope of their employment, not
that all of the employees are liable if any of them are. The fact that there is an issue of
respondeat superior in the case does not render the statute inapplicable to defendants who are
not each others’ employers.
Plaintiff argues that this Court’s opinion of Urbain v Bierling, 301 Mich. App. 114, 132;
835 NW2d 455 (2013), establishes that “concert of action” remains a viable cause of action.
Plaintiff accurately notes that this Court described what the claim entails, relying on Abel, and
upheld the trial court’s grant of summary disposition in favor of the defendants because the
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plaintiff had failed to demonstrate an underlying tort rather than because concert of action was
not a viable claim. However, this Court did so in the context of discussing the plaintiff’s
assertion that the trial court had erred in disposing of both a concert of action and a civil
conspiracy claim, noting that both of them required an underlying tort that had not been
established, and explicitly approving of the trial court’s observation that “‘[b]oth claims are not
actionable torts, but rather require a separate tort before liability can attach[.]’” Id. at 131-132.
In other words, this Court was not called upon to determine whether “concert of action” was a
valid claim, but rather whether the trial court’s reasoning had been sound. Construing the
absence of an unnecessary pronouncement to be an outright holding to the contrary does not
even rise to the level of relying on dicta.
Plaintiff additionally relies on our Supreme Court’s decision in Gerling Konzern v
Lawson, 472 Mich. 44, 56; 693 NW2d 149 (2005). Plaintiff again correctly points out that our
Supreme Court stated that “a ‘common liability’ exists in situations in which multiple tortfeasors
are liable for the same injury to a person or property or for the same wrongful death,” further
stating that the “1995 tort reform legislation does not negate the existence of common liability
among such multiple tortfeasors.” Id. However, the case itself concerned the right of
contribution for a tortfeasor who settled for more than the jury ultimately found that tortfeasor
liable. The Court went on to observe that what tort reform did change is the possibility of a
single tortfeasor being liable for the entirety of a common liability and then required to seek
contribution from the other tortfeasors, whereas now “a tortfeasor need only pay a percentage of
the common liability that is proportionate to his fault.” Id. at 52-54, 56-57. The broader context
of the Court’s statement was the pronouncement that a settling tortfeasor had “a statutory right to
seek contribution from other responsible tortfeasors after having settled with the injured parties
in the underlying tort action, and tort reform legislation in 1995 does not alter this right.” Id. at
62-63. It expressly held that such contribution claims may well be of reduced necessity, but
remained permissible; otherwise, “the 1995 legislation eliminated joint and several liability in
certain tort actions, requires that the fact-finder in such actions allocate fault among all
responsible tortfeasors, and provides that each tortfeasor need not pay damages in an amount
greater than his allocated percentage of fault.” Id. at 51.
Plaintiff relies on an unpublished case that has no precedentially binding effect. MCR
7.215(C)(1). We think that the opinion itself engaged in a certain amount of somewhat
ambiguous semantic hair-splitting, and plaintiff’s interpretation thereof is at least not wholly
unreasonable on its face. However, that opinion relied on a published case holding that “[t]he
significance of [the tort reform] change is that each tortfeasor will pay only that portion of the
total damage award that reflects the tortfeasor’s percentage of fault” and “the trier of fact must
consider the fault of each person who contributed to the tort, not only those who are parties to the
litigation.” Smiley v Corrigan, 248 Mich. App. 51, 55-56; 638 NW2d 151 (2001). The opinion
certainly did not explicitly hold that “concert of action” remains a viable claim, and by inference
we do not believe any such holding had been intended, even if the case were binding on us.
Plaintiff argues that “if the jury was presented with the Plaintiff-Appellant’s concert of
action theory it could have reasonably found each of these individuals negligent and a proximate
cause of [Peterson’s] death.” The jury did, in fact, consider the fault of each of the defendants.
Pursuant to MCL 600.2956, none of the defendants in this matter may be found liable for the
entirety of an injury simply because of an undifferentiated contribution thereto, or be liable for
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any portion thereof without a specifically allocated percentage of fault. Irrespective of whether
any case to date has explicitly so held in so many words, we do so now: “concert of action” as a
cause of action is incompatible with MCL 600.2956.
Plaintiff next argues that the trial court erroneously prohibited her from impeaching
Smith with a prior conviction of attempted joyriding in violation of MCL 750.414, arguing that
this Court has held unlawful use of a motor vehicle to constitute a crime involving dishonesty.
Incredibly, plaintiff simply fails to address MRE 609(c), which states:
Time Limit. Evidence of a conviction under this rule is not admissible if a period
of more than ten years has elapsed since the date of the conviction or of the
release of the witness from the confinement imposed for that conviction,
whichever is the later date.
According to the criminal docket sheet plaintiff herself provided, Smith was convicted of
attempted unlawful use of a motor vehicle, MCL 750.414, by a plea on March 31, 2003, and he
was sentenced to nine days in jail. Ten years from the latest date would have elapsed by April
10, 2013. Although the tortious conduct in this matter occurred in 2012, this claim was not filed
until December 13, 2013. Consequently, the trial court correctly found the joyriding conviction
inadmissible irrespective of whether it contains an element of theft or dishonesty. We find
plaintiff’s argument devoid of even arguable legal merit and impossible to have been based on a
reasonable inquiry. MCR 2.114(D)(2). However, because of the trivial ease with which it could
be disposed and the fact that Smith is, as will be noted, a prevailing party and already entitled to
costs, MCR 7.219(A), we impose no sanctions because any such sanctions would only be
punitive. MCR 2.114(E).
Finally, plaintiff argues that the trial court erred in allowing Dr. Benjamin Mosher, an
emergency room doctor who treated Peterson, to testify regarding the low likelihood, in his
opinion, that Peterson’s skull fractures could have been caused by a fall from standing height.
We disagree.
Plaintiff stipulated to Dr. Mosher’s qualifications despite being offered an opportunity for
voir dire, and made a total of two objections during Dr. Mosher’s testimony. Plaintiff objected
to the relevance of how many out of Dr. Mosher’s 9,000 or so patients had presented with a
similar skull fracture, which the trial court apparently overruled or otherwise resolved off the
record. Plaintiff also objected to Dr. Mosher’s opinion that a fall from a greater distance would
be more likely to cause an injury like the one Peterson suffered, on the grounds that “he’s only
seen six of this nature,” which the trial court overruled. Giving plaintiff the very maximal
benefit of the doubt, the latter objection could reasonably be construed as a challenge to Dr.
Mosher’s practical expertise to render an opinion about how far of a fall would be necessary to
produce an injury similar to the skull fracture Peterson suffered. While minimal, appellate
consideration is not precluded merely because a party makes a more developed or sophisticated
argument on appeal. See Steward v Panek, 251 Mich. App. 546, 554; 652 NW2d 232 (2002). We
prefer to resolve issues on their merits where possible, so we will construe plaintiff’s objections
in her favor to the extent we can.
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However, plaintiff is limited to challenging Dr. Mosher’s practical and particular
expertise only. Plaintiff’s stipulation to Dr. Mosher’s formal or general expertise, and failure to
contend in the trial court that Dr. Mosher exceeded his field of expertise, precludes plaintiff from
making a challenge thereto at this time. Chapdelaine v Sochocki, 247 Mich. App. 167, 177; 635
NW2d 339 (2001). “[E]rror requiring reversal cannot be error to which the aggrieved party
contributed by plan or negligence.” Farm Credit Services of Michigan’s Heartland, PCA v
Weldon, 232 Mich. App. 662, 684 591 NW2d 438 (1998). Prior to admitting expert testimony, a
trial court must properly and thoroughly exercise its “gatekeeping” function under MRE 702 to
ensure that “each aspect” of the expert testimony is reliable. Gilbert v DaimlerChrysler Corp,
470 Mich. 749, 779-781; 685 NW2d 391 (2004). However, the trial court is simply not obligated
to do so sua sponte, but rather is only required to do so upon request, and failing to bring the
issue to the court’s attention waives it. See Craig v Oakwood Hosp, 471 Mich. 67, 82; 684
NW2d 296 (2004). Plaintiff has, quite simply, waived the issue.
Nevertheless, pursuant to giving plaintiff the benefit of the doubt, plaintiff did make a
specific objection to Dr. Mosher’s opinion testimony regarding the likelihood of any particular
fall causing Peterson’s injuries. Plaintiff objected that it called for speculation and conjecture
because Dr. Mosher had only seen six or so fractures of that nature. Michigan courts have a
time-honored tradition of looking to the substance of arguments rather than nomenclature, which,
of course, unambiguously furthers the cause of justice and fairness. See Hurtford v Holmes, 3
Mich. 460, 463 (1855); In re Traub Estate, 354 Mich. 263, 278-279; 92 NW2d 480 (1958);
Wilcox v Moore, 354 Mich. 499, 504; 93 NW2d 288 (1958); Norris v Lincoln Park Police
Officers, 292 Mich. App. 574, 582; 808 NW2d 578 (2011). With that in mind, we construe
plaintiff’s objection as essentially being an objection to foundation. The trial court overruled the
objection without any analysis or argument on the record. We think the issue may have
warranted somewhat more thoughtful consideration, but we ultimately conclude that the decision
was either correct or harmless.
Dr. Mosher was called as a witness by Smith. It was established initially that Dr. Mosher
had seen “maybe half a dozen” comparable basilar skull fractures like the one Peterson presented
with over the course of a career spanning some nine thousand patients. Dr. Mosher was asked,
with no objection, to explain how such a fracture could occur, to which Dr. Mosher explained
that it could happen from any number of mechanisms, like falling or being struck or being shot
or being involved in a car accident. He further explained that he had never seen a diffused, 11-
centimeter fracture like the one Peterson had. He further testified, again with no objection, that
skull fractures caused by falls from standing height were typically more local in shape, which
was inconsistent with the fracture Peterson had, particularly in combination with the coma level
Peterson was in and the internal bleeding he had. Dr. Mosher was asked whether it would make
a difference whether a person fell “from a standing height who is 6 foot 2 as opposed to 5 foot 2”
(in context, meaning a taller person falling to the ground), to which Dr. Mosher replied that he
would not expect one foot to make a meaningful difference. When asked about a ten-foot fall, he
opined that such a fall made a fracture like the one Peterson had “more likely than falling from 6
foot 2.”
Plaintiff objected when Smith’s attorney asked Dr. Mosher, “What about another 20
feet?” After the objection was overruled, Dr. Mosher agreed that another twenty feet would
indeed make such a fracture more likely. However, he then clarified that he was not saying that
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Peterson’s fracture necessarily required a fall from such a height, but rather only that a fall from
twenty to thirty feet was more likely to cause such a fracture than a fall from six feet. He
therefore concluded that it was “highly unlikely” that Peterson’s injuries were caused by a fall
from standing height and hitting his head on the ground, because he “just d[idn’t] think that that
mechanism would sustain the amount of force needed to fracture Mr. Peterson’s skull the way it
was and sustain the injury and having him be in a coma that he was,” and a punch to the mouth
was “unlikely” to have caused Peterson’s death. Plaintiff declined to ask Dr. Mosher any
questions at all.
Given Dr. Mosher’s stipulated-to expertise and his experience with not only other injuries
but such phenomena as comas and internal bleeding, we do not believe that it would have been
an abuse of discretion for the trial court to overrule an objection to foundation, nor did Dr.
Mosher engage in any inappropriate speculation or conjecture. Furthermore, the jury was made
aware that Dr. Mosher had little to no other experience with a similar injury. At no point did Dr.
Mosher opine that it was impossible for Peterson to have sustained the injury from a mere fall.
Plaintiff could have followed up on that lack of experience and highlighted it, but elected not to.
The mere fact that testimony is not advantageous, in this case because it presumably increased
the likelihood that the jury would believe only Suttle, who had a baton, could have inflicted a
fatal blow, does not make it improper. Even if the trial court’s decision had been erroneous, we
are not persuaded that it would have been sufficiently prejudicial to warrant our intervention.
MCR 2.613(A).
The trial court is affirmed. Brannigan, Smith, and McClain, being the prevailing parties
who actually participated in this appeal, may each tax costs. MCR 7.219(A).
/s/ Amy Ronayne Krause
/s/ Karen M. Fort Hood
/s/ Colleen A. O'Brien
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