Dillon v. TAMMINGA 2

64 Mich. App. 305 (1975) 236 N.W.2d 718

DILLON
v.
TAMMINGA #2

Docket No. 22258.

Michigan Court of Appeals.

Decided September 11, 1975.

Randolph McCarthy, Jr., for plaintiff.

James, Dark & Craig, for defendant Phillip C. Woltersom.

Before: McGREGOR, P.J., and D.E. HOLBROOK and N.J. KAUFMAN, JJ.

PER CURIAM.

Plaintiff appeals from an October 21, 1974 order of the Kalamazoo County Circuit Court which granted summary judgment against her. The order was granted in favor of defendant Woltersom pursuant to defendant's claim under GCR 1963, 117.2(1), that plaintiff had "failed to state a claim upon which relief can be granted". We reverse and remand for trial.

There is little factual dispute involved here. According to plaintiff's complaint and to defendant's admissions at the hearing for the purpose of the summary judgment motion, defendant's allegedly negligent act occurred on September 3, 1971. At about 10:20 p.m. on the date, defendant was involved in a drag race on South Park Street in Kalamazoo with another defendant, who is not involved in this appeal. Plaintiff alleged that defendant's negligence caused defendant to lose control of his automobile which then collided with a parked vehicle. This collision destroyed the stop sign controlling traffic on westbound West Walnut Street at the West Walnut-South Park intersection. This sign was not replaced by the City of Kalamazoo until September 5, two days later.

In the interim, at 9:28 p.m. on September 4, about 23 hours after defendant had destroyed the stop sign, plaintiff was a passenger in a vehicle operated by another defendant who is also not part of this appeal. This vehicle was traveling west on West Walnut, and, when it came to the place where the stop sign had been located, it continued into the intersection without stopping or yielding the right of way. As a result, the car in which plaintiff was riding collided with a car driven by another nonappealing defendant, and plaintiff suffered severe injuries. Plaintiff also sued the City of Kalamazoo for negligently having failed to repair the stop sign. That suit is not involved here.

A motion for summary judgment under GCR 1963, 117.2(1) tests only the legal, not the factual, sufficiency of the pleadings. Van Liere v State Highway Dept, 59 Mich. App. 133; 229 NW2d 369 (1975), Crowther v Ross Chemical and Mfg Co, 42 Mich. App. 426; 202 NW2d 577 (1972). An appellate review accepts as true all of plaintiff's factual allegations as well as any reasonable inferences which may be drawn from the allegations. Hoag v Paul C Chapman & Sons, Inc, 62 Mich. App. 290; 233 NW2d 530 (1975), Martin v Fowler, 36 Mich. App. 725; 194 NW2d 524 (1971). A summary judgment motion must be denied if the pleadings state a legally valid claim and raise triable issues of fact. Blades v Genesee County Drain Dist No 2, 375 Mich. 683; 135 NW2d 420 (1965).

In granting summary judgment here, the court stated:

"How in the world you can say an accident 24 hours later was the natural and probable result of a drag racing incident the night before * * *. It seems clear to me there was an intervening cause [i.e., the city's failure to replace the sign]."

We find the case of Davis v Thornton, 384 Mich. 138; 180 NW2d 11 (1970), to be cogent authority for our review here, both for its specific holding and for its general policy. In Davis, supra, the Supreme Court held that a summary judgment had been improvidently granted where plaintiff was suing for injuries incurred in an accident with some "joyriders" who had stolen a car in which one of defendant's employees had left the ignition key. The question in Davis, as here, was one of proximate cause between defendant's acts and plaintiff's injuries. A proximate cause is one that is a "natural and probable consequence" of one's conduct, a consequence that an ordinary, prudent person ought to have foreseen. Luck v Gregory, 257 Mich. 562, 569; 241 N.W. 862, 864 (1932), Clumfoot v St Clair Tunnel Co, 221 Mich. 113; 190 N.W. 759 (1922); see also Michigan Standard Jury Instruction 15.01. There may be more than one proximate cause to an injury, and a defendant's negligence need not be the sole cause. McKine v Sydor, 387 Mich. 82; 194 NW2d 841 (1972), Price v Manistique Area Public Schools, 54 Mich. App. 127; 220 NW2d 325 (1974), lv den 393 Mich. 753 (1974); see also Michigan Standard Jury Instruction 15.03. The Court in Davis, supra, propounded a standard for summary judgment motions in such cases:

"A judgment for the defendant, in an action such as this, can properly be made only upon a determination * * * that the injury caused plaintiff was too insignificantly connected to or too remotely effected by the defendant's negligence.

"For a proper grant of summary judgment for the defendant, a trial judge must rule that all reasonable men would agree on the conclusion [that defendant's negligence did not proximately cause plaintiff's injuries]." (Emphasis supplied.) 384 Mich. 138 at 142.

The ruling of the trial court in the instant case could be interpreted to represent one of two holdings: (1) that defendant's alleged negligence was not, as a matter of law, a proximate cause of plaintiff's injuries or (2) that defendant's alleged negligence could have been a proximate cause but the negligence of the city was an independent, intervening cause which severed the link between defendant's negligence and plaintiff's injuries. Foreseeability of consequences is crucial to both questions, and remoteness is vital to a determination of foreseeability.

We stress, as did the Davis Court, the longstanding Michigan policy that "[t]he determination of remoteness, however, should seldom, if ever, be summarily determined". (Citation omitted.) Davis, supra, at 147. See also Miller v Detroit Cab Co, 392 Mich. 480; 221 NW2d 342 (1974), Howard v Golden State Mutual Life Insurance Co, 60 Mich. App. 469; 231 NW2d 655 (1975). In Davis, the Court reversed summary determinations as to both "whether leaving the keys in the ignition was too remote a cause of the resulting collision" and, if not, "whether the theft was an independent cause which severed the causal relationship". 384 Mich. 138 at 146.

Turning to the instant case, we also find that the summary disposition of the remoteness and intervening cause questions was in error. First, we conclude that a reasonable person could find that plaintiff's injuries were a direct and probable result of defendant's alleged negligence. The logical link between a negligent driver colliding with a roadside object and that object resulting in a hazard to other drivers using the road is not so attenuated as to be unreasonable.

Second, we hold that a reasonable man could find that the city's failure to replace the stop sign was not an intervening cause which cut off defendant's liability. The intervening negligence of a third party is not a superseding cause of harm which cuts off a defendant's liability if:

"``(a) [defendant] at the time of his negligent conduct should have realized that a third person might so act, or

"``(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted.'"

Davis v Thornton, supra, at 149, quoting 2 Restatement, Torts, § 447, p 1196. We make no holding as to whether the city's delay in replacing the stop sign was negligent. Assuming arguendo that it was, we conclude that a reasonable person in defendant's position should have realized that the sign might not be replaced for two days. This question, as is the question of remoteness of causation, is a question more appropriate for determination by the finder of fact than by the judge.

Reversed and remanded for trial.