Schram v. Chambers

79 Mich. App. 248 (1977) 261 N.W.2d 277

SCHRAM
v.
CHAMBERS

Docket No. 28966.

Michigan Court of Appeals.

Decided October 24, 1977.

Thomas Rasmusson, for plaintiff.

Fraser, Trebilcock, Davis & Foster (by Peter L. Dunlap), for Duane W. and Sharryn K. Chambers.

Before: DANHOF, C.J., and T.M. BURNS and A.E. KEYES,^[*] JJ.

A.E. KEYES, J.

Plaintiff appeals as of right from the entry on May 25, 1976, of a summary judgment in favor of defendants Chambers. In a complaint filed December 11, 1974, plaintiff had alleged that she sustained injuries when she fell after slipping on a piece of sheet-metal-like material in her backyard on December 19, 1971. Plaintiff alleged that the piece of metal was part of a shed belonging to either the Chambers or Woods which had blown down in a storm.

On December 17, 1975, the Chambers moved for summary judgment under GCR 1963, 117.2(3). This motion was supported by affidavits made by the Chambers. Plaintiff responded with an opposing affidavit.

In its opinion granting summary judgment the circuit court noted that defendants' motion rested on their claim that:

"Their affidavits simply assert that every piece of their shed which was blown away * * * was retrieved and disposed of so that, in effect, they could not have had any causal relationship to Plaintiff's injury * * *. In essence, the Chambers' motion and affidavits assert that there is lacking an essential element of Plaintiff's claim — causation — and that Plaintiff is unable to supply that missing element."

As this Court has recently pointed out in Schram v LaRowe, 74 Mich App 555, 556; 254 NW2d 333 (1977), another case involving this very incident:

"Plaintiff fell after slipping on a piece of metal she claims came from defendants' shed, which had fallen down some time before plaintiff's fall. Defendants claimed that the piece of metal did not and could not have come from their shed. The trial court agreed with the defendants.

"Factual and proximate causation are material facts in a negligence action. Plaintiff alleged that she slipped on a piece of metal that came from defendants' shed. Defendants denied that the piece of metal came from their shed. There was thus a genuine issue."

Based solely on the pleadings, therefore, a summary judgment would have been improper. When the moving party supports his motion under GCR 1963, 117.2(3) with affidavits, however, a different result may obtain. Durant v Stahlin, 375 Mich 628, 638; 135 NW2d 392 (1965) reads:

"The basic rule in summary judgment matters is simple. Its application is often difficult. When properly challenged, plaintiff must establish that he has a case on the law and that there are some evidentiary proofs to support his allegations as to any material fact.

"In a summary judgment proceeding, an affidavit is employed as a voluntary statement made ex parte. The function of affidavits by the defendant is to establish affirmatively under oath that there is no basis in fact to support plaintiff's claims. In the case of plaintiff's counter affidavits, they should establish that there is some evidence as to material facts upon which to proceed to trial. There is no question of the relative weight to be given the evidence. The party opposing the motion is given the benefit of all doubt. If he produces some evidence, the motion is denied. * * *.

"Using the language of GCR 1963, 117.3, the question is whether the affidavits ``together with the pleadings, depositions, admissions, and documentary evidence then filed in the action' present a genuine issue as to any material fact."

More recently, in Baker v City of Detroit, 73 Mich App 67, 72, 74-75; 250 NW2d 543 (1976), this Court stated:

"* * * two grounds * * * arguably support the grant of summary judgment below, * * * a judge, in ruling on either of the grounds, is not permitted to make factual findings. Thus, if fact-finding occurred, we must reverse.

* * *

"Decisional law imposes a duty on a judge hearing a motion for summary judgment grounded on the absence of a genuine issue of material fact to view the facts in a light according every reasonable doubt to the party opposing the motion."

Therefore, it is clearly improper for the trial court to resolve a disputed factual question in deciding a motion such as the one involved here. Nor is it the trial court's function to look at the credibility of the parties or to weigh the conflicting evidence.^[1] Only if no evidence putting the fact of causation into dispute was forthcoming from the plaintiff, in response to defendants' motion and affidavits, would the grant of summary judgment have been proper. Here the circuit court stated that:

"If the Court is satisfied, after considering Plaintiff's response to the motion and affidavits, that the proof of the missing element cannot be supplied by Plaintiff because she has not and cannot support her allegations with anything tending to connect the Chambers with her injury, then summary judgment is proper. This Court believes that such is, in fact, the case here. There is nothing in this record to indicate that anyone exists who can testify to any fact which would tend to link the Chambers to the piece of metal on which Plaintiff fell."

Both parties agree that the Chambers owned a shed which was damaged in a wind storm a few days prior to plaintiff's fall. Plaintiff's affidavit relies in part on the observations of Mrs. John M. LaRose as related in her deposition testimony. Plaintiff does not assert any personal knowledge of where the piece of material upon which she slipped came from. A fair reading of the LaRose deposition does not support an inference that the piece of material came from defendants' shed. Plaintiff has been unable to produce the piece of material upon which she slipped.

In our view plaintiff has not proffered any admissible evidence which puts causation into dispute, nothing from which a reasonable inference could be drawn supporting plaintiff's claim. This failure to produce any such evidence in response to defendants' motion under GCR 1963, 117.2(3) is fatal to the plaintiff, and the grant of summary judgment was proper.

Affirmed. Costs to defendants.

DANHOF, C.J., concurred.

T.M. BURNS, J. (dissenting).

The incident which is the subject of this suit is the same as that involved in Schram v LaRowe, 74 Mich App 555; 254 NW2d 333 (1977). In the LaRowe case we reversed a summary judgment granted upon the same grounds as the judgment the majority affirms here. Although the metal upon which plaintiff slipped could not have come from both sheds, and may not have come from either, summary judgment should not be entered where this fact is disputed.

Defendants offered affidavits claiming they had recovered all of the pieces to their shed which was admittedly destroyed in a windstorm. However, it does not appear that defendants attempted to reassemble the shed. Since the shed was not reassembled, the trial court necessarily indulged in fact-finding in concluding that the Chambers had recovered all pieces of their shed. I vote to follow my opinion in Schram v LaRowe, supra, and reverse.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] We note that in the lower court opinion quoted in Schram v LaRowe, supra, at 558, the court imposed a burden of showing negligence by a preponderance of the evidence in deciding on the summary judgment motion.