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Beam v. Genesee County Road Commission5/10/2005
UNPUBLISHED
Before: Griffin, P.J., and Bandstra and Hoekstra, JJ.
In this wrongful death action alleging governmental liability for negligent maintenance of a roadway, defendant appeals as of right the trial court's order granting in part and denying in part its motion for summary disposition pursuant to MCR 2.116(C)(7) and 2.116(C)(10). We affirm.
Defendant first argues that the trial court improperly denied its motion for summary disposition because plaintiffs failed to establish a genuine issue of material fact regarding whether defendant's actions caused decedent's death. We disagree. This Court reviews de novo a trial court's decision on a motion for summary disposition under MCR 2.116(C)(10). Wilson v Alpena Co Rd Comm, 263 Mich App 141, 144; 687 NW2d 380 (2004). A court reviewing a motion brought under MCR 2.116(C)(10) must consider the pleadings, affidavits, depositions, and other documentary evidence in a light most favorable to the nonmoving party and determine whether the moving party was entitled to judgment as a matter of law. Id.
Generally, causation is a question for the jury to decide. Holton v A+ Ins Assoc, Inc, 255 Mich App 318, 326; 661 NW2d 248 (2003). However, if there is no issue of material fact, the question of causation may be decided by the court as a matter of law. Id. 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, supra at 150. Causation may be established by circumstantial evidence, but such proof must be subject to reasonable inferences and not mere speculation. Skinner v Square D Co, 445 Mich 153, 163-164; 516 NW2d 475 (1994).
Here, plaintiffs presented sufficient evidence for a jury to conclude that, more likely than not, but for the potholes in the road, decedent would not have died. Plaintiffs alleged that the pickup truck in which decedent was riding hit several potholes encroaching into the westbound driving lane on Davison Road, causing the driver to lose control of the truck, cross the centerline, hit a guardrail and become airborne. The truck came to rest on its side in a creek. Decedent drowned as a result of losing consciousness with his head under water that had flooded the truck.
Whether the potholes caused the accident, and therefore, decedent's death, is not mere speculation. The driver testified at deposition that just before the accident the truck pulled to the right, and she felt a jolt. Plaintiffs' accident reconstruction expert analyzed the accident and determined that the reconstruction comported with plaintiffs' allegations. Plaintiffs also presented deposition testimony from other drivers who had recently lost control of their cars and crossed the centerline after hitting the same series of potholes. Taken in a light most favorable to plaintiffs, the evidence presented supports a conclusion that the potholes caused the accident that resulted in decedent's death. Because this conclusion is deducible from the evidence presented and is sufficient to create a genuine issue of material fact, the trial court did not err in denying defendant's motion for summary disposition pursuant to MCR 2.116(C)(10). See Wilson, supra.
In reaching this conclusion we reject defendant's assertion that the trial court erred in relying on the testimony of drivers who have hit the potholes as evidence creating a material issue of fact regarding causation. Although defendant is correct that our Supreme Court in Freed v Simon, 370 Mich 473, 475; 122 NW2d 813 (1963), found that such evidence of prior similar occu
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