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Ludwig v. Dick Martin Sports11/20/2003
UNPUBLISHED
Plaintiffs appeal by right the trial court's order granting summary disposition for defendant Dimmer-Warren Enterprises, Inc, pursuant to MCR 2.116(C)(8) and (C)(10), and defendants Cheryl Beebe and Richard Wilson pursuant to MCR 2.116(C)(7) and (C)(10). We reverse and remand.
I. Facts
This case arose when Jacqueline Ludwig, a middle school student, suffered a serious eye injury while jumping rope with two other students during an open gym period at school. Jacqueline's friends, defendants Jessica Korth and Catherine Jewell, were twirling the jump rope while Jacqueline was preparing to enter the arc of the rope. When Jacqueline turned around to face the rope, Jessica's end of the rope flew loose and the rope struck Jacqueline in the eye.
Jacqueline was transported to the hospital and treated for an ocular laceration and severe ocular trauma, necessitating the removal of the lens of the eye. She has a permanent loss of vision in the eye. Subsequent inspection of the jump rope indicated that it was composed of plastic segments strung on nylon rope that had been knotted together, and numerous segments were cracked or broken. Evidence indicated that the damage to Jacqueline's eye was likely caused by one of the broken pieces on the jump rope.
Plaintiffs filed this action against several companies involved in the manufacture, distribution or sale of the jump rope, the two other students involved, the school, and school personnel. This appeal involves the grant of summary disposition in favor defendant DimmerWarren, the seller of the jump rope, and defendants Beebe and Wilson, physical education teachers at Imlay Community School District Middle School, where the injury occurred.
II. Standard of Review
This Court reviews de novo a trial court's decision on a motion for summary disposition. Pusakulich v City of Ironwood, 247 Mich App 80, 83; 635 NW2d 323 (2001); Boumelhem v BIC Corp, 211 Mich App 175, 178; 535 NW2d 574, (1995).
III. Plaintiffs' claim against defendant Dimmer-Warren
A.
A summary disposition motion under MCR 2.116(C)(8) tests the legal sufficiency of a plaintiff's claim on the pleadings alone. Boumelhem, supra at 178. "The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery." Id.
A summary disposition motion under MCR 2.116(C)(10) tests the factual support of a plaintiff's claim. Spiek v Dep't of Transportation , 456 Mich 331, 337; 572 NW2d 201 (1998). When reviewing a motion for summary disposition pursuant to 2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the parties in the light most favorable to the nonmoving party. Quinto v Cross & Peters Co , 451 Mich 358, 362; 547 NW2d 314 (1996).
Where the trial court grants summary disposition pursuant to both MCR 2.116(C)(8) and (10), and it is clear that motion involved matters beyond the pleadings, we will treat the motion as having been decided under MCR 2.116(C)(10), which tests whether there is factual support for a claim. Pippin v Atallah, 245 Mich App 136, 141; 626 NW2d 911 (2001); Sharp v City of Lansing, 238 Mich App 515, 518; 606 NW2d 424 (1999), rev'd in part on other grds 464 Mich 792 (2001).
B.
In its opinion granting summary disposition for Dimmer-Warren, the trial court framed plaintiffs' claim as a design defect claim "that the ropes were made from breakable plastic segments, which made them dangerous to use when the segments become splintered." Th
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