Dillon v. Tamminga

• Decision Date: 11 September 1975
• Docket Number: Docket No. 22258
• Citation: Dillon v. Tamminga, 236 N.W.2d 718, 64 Mich.App. 305 (Mich. App. 1975)
• Parties: Darlene K. DILLON, Plaintiff-Appellant, v. Raymond L. TAMMINGA et al., Defendants, and Phillip Carl Woltersom, Defendant-Appellee. 64 Mich.App. 305, 236 N.W.2d 718
• Court: Court of Appeal of Michigan

Page 718

236 N.W.2d 718

Darlene K. DILLON, Plaintiff-Appellant, v. Raymond L. TAMMINGA et al., Defendants and Phillip Carl Woltersom, Defendant-Appellee.

Docket No. 22258.

64 Mich.App. 305, 236 N.W.2d 718

Court of Appeals of Michigan.

Sept. 11, 1975.

Released for Publication Dec. 16, 1975.

[64 MICHAPP 306] Randolph McCarthy, Jr., Kalamazoo, for plaintiff-appellant.

Calvin R. Danhof, Grand Rapids, for Tamminga.

John W. Mitzel, Kalamazoo, for Brinkert.

David S. York, Kalamazoo, for Hancox, Amsbury, Sisak.

J. William Dark, Kalamazoo, for Woltersom.

Arthur Staton, Jr., Kalamazoo, for Slager, Carroll.

James F. Bishop, Kalamazoo, for city.

Harold West in pro. per.

Before McGREGOR, P.J., and D. E. HOLBROOK and 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 that date, defendant was involved in a drag race on South Park Street [64 MICHAPP 307] 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 N.W.2d 369 (1975); Crowther v. Ross Chemical and Mfg. Co., 42 Mich.App. 426, 202 N.W.2d 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 N.W.2d 530 (1975); Martin v. Fowler, 36 Mich.App. 725, 194 N.W.2d 524 (1971). A summary judgment motion must be denied if the pleadings state a legally valid claim and raise triable issues of [64 MICHAPP 308] fact. Blades v. Genesee County Drain Dist. No. 2, 375 Mich. 683, 135 N.W.2d 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 N.W.2d 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 N.W.2d 841 (1972); Price v. Manistique Area Public Schools, 54 Mich.App. 127, 220 N.W.2d 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:

[64 MICHAPP 309] '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, 180 N.W.2d 11 at 13.

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....