Neal's Estate v. Friendship Manor Nursing Home

• Decision Date: 04 May 1982
• Docket Number: Docket No. 52880
• Citation: 113 Mich.App. 759,318 N.W.2d 594
• Parties: ESTATE OF Leamon NEAL, Deceased, by Jo Anne Neal, Administratrix, Plaintiff- Appellee, v. FRIENDSHIP MANOR NURSING HOME, Defendant-Appellant. 113 Mich.App. 759, 318 N.W.2d 594
• Court: Court of Appeal of Michigan — District of US

Page 594

318 N.W.2d 594

ESTATE OF Leamon NEAL, Deceased, by Jo Anne Neal Administratrix, Plaintiff- Appellee, v. FRIENDSHIP MANOR NURSING HOME, Defendant-Appellant.

Docket No. 52880.

113 Mich.App. 759, 318 N.W.2d 594

Court of Appeals of Michigan.

Submitted Dec. 14, 1981.

Decided March 3, 1982.

Released for Publication May 4, 1982.

[113 MICHAPP 762] Rifkin, Kingsley & Rhodes, P. C., Detroit, for plaintiff-appellee.

Buchanan, Ogne & Jinks, P. C., Troy, for defendant-appellant.

Before KAUFMAN, P. J., and BASHARA and COOPER ^*, JJ.

KAUFMAN, Presiding Judge.

This is an appeal from a wrongful death action resulting in a jury verdict for the plaintiff, Jo Anne Neal, for $250,000. The decedent, Leamon Neal, was 13 1/2 months old at the time of his death on March 7, 1976. He was mentally retarded and was a patient at defendant, Friendship Manor Nursing Home. It was undisputed at trial that on January 10, 1976, Leamon was burned by the placing of a hot water bottle on his bare abdomen by an agent of the defendant. Leamon died on March 7, 1976, from respiratory arrest and pulmonary congestion. At trial there was conflicting evidence whether the previous burn had precipitated Leamon's death.

Prior to trial, plaintiff moved for summary judgment under GCR 1963, 117.2(3) on the issue of defendant's negligence. Plaintiff contended that there was no genuine issue of material fact as to the contention that one of defendant's nurses placed the hot water bottle on the decedent. Plaintiff theorized that negligence was clear inasmuch as the hot water bottle caused second-degree burns on the child's abdomen. The trial court granted plaintiff's motion at a hearing on January 12, 1979, but preserved for trial the issues of proximate causation and damages.

On appeal, defendant challenges the granting of [113 MICHAPP 763] summary judgment, contending that the trial court made findings of fact in lieu of determining whether an issue of material fact existed. The standard to be utilized in ruling on a motion for summary judgment under GCR 1963, 117.2(3) was reiterated in Partrich v. Muscat, 84 Mich.App. 724, 730-731, 270 N.W.2d 506 (1978):

"When passing upon a motion under this subrule, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence then available to it. Rizzo v. Kretschmer 389 Mich. 363, 207 N.W.2d 316 (1973). Before the judgment may properly be granted the court must be satisfied that it is impossible for the claim asserted to be supported by the evidence at trial. Rizzo v. Kretschmer, supra. The motion has the limited function of determining whether material issues of fact exist. The trial court must carefully avoid making findings of fact under the guise of determining that no issues of material fact exist." (Footnote omitted.)

Pertinent to this case is the Partrich Court's elaboration of the concept of "an issue of material fact":

" 'The material fact to which reference is made in the rule is the ultimate fact issue upon which a jury's verdict must be based. For example, in a contract case the material fact, or ultimate fact, as distinguished from the evidentiary fact, is the meeting of the minds, rather than merely that the parties conferred; the payment and receipt of consideration, not just that money passed hands; the breach of a material condition, rather than just that defendant delivered the goods on a day after the date promised. For further example, in a negligence case the material fact, or ultimate fact, as distinguished from the evidentiary fact, is that plaintiff was within a zone of foreseeable danger, rather than merely that plaintiff was walking along the road on which defendant's car was traveling; that defendant's negligence, if found, was the proximate cause of the collision, not just that there was an impact [113 MICHAPP 764] between plaintiff and defendant's car; that plaintiff was contributorily negligent, rather than just that he was walking on the paved portion of the highway. In short, the difference between the evidentiary fact and material fact, or ultimate fact, is the difference between the raw data admissible in evidence and the inferences or conclusions of fact essential to the claim or defense which properly may be drawn or reached by a jury from such data.' Simerka v. Pridemore, 380 Mich. 250, 275, 156 N.W.2d 509 (1968) (opinion of SOURIS, J.)" 84 Mich.App. 724, 730-731, fn. 3, 270 N.W.2d 506. (Emphasis added.)

In the instant case, the trial court granted plaintiff's motion on a res ipsa loquitur type of theory, stating:

"We have circumstantial evidence which makes necessary an inference that a failure to use ordinary care occurred here. I'm going to grant the motion for partial summary judgment as to the question of negligence only, leaving for trial the issue of proximate causation and the issue of damages." (Emphasis added.)

Although Michigan has not formally adopted the doctrine of res ipsa loquitur, the underlying concepts of the doctrine, which are circumstantial evidence and negligence concepts, have been applied here. Wilson v. Stilwill, 411 Mich. 587, 607, fn.5, 309 N.W.2d 898 (1981); Gadde v. Michigan Consolidated Gas Co., 377 Mich. 117, 139 N.W.2d 722 (1966). Four conditions must exist to allow application of the doctrine:

"1. The event must be of a kind which ordinarily does not occur in the absence of someone's negligence.

"2. The event must have been caused by an agency or instrumentality within the exclusive control of the defendant.

"3. The event must not have been due to any voluntary action or contribution on the part of the plaintiff.

[113 MICHAPP 765] "4. Evidence of the true explanation of the event must be more readily accessible to the defendant than to the plaintiff." Gadde v. Michigan Consolidated Gas Co., supra, 124, 139 N.W.2d 722.

When the doctrine of res ipsa loquitur is applied, while it raises an inference of negligence, a defendant may "attempt to explain away or avoid, if he can," that inference. The question of whether the inference of negligence is avoided requires a weighing of the proofs and must be left for the trier of fact. Moncrief v. Detroit, 398 Mich. 181, 192-193, 247 N.W.2d 783 (1976); Mitcham v. Detroit, 355 Mich. 182, 192, 94 N.W.2d 388 (1959).

It is apparent here that the four conditions for application of the res ipsa loquitur doctrine were met and that an inference of negligence could therefore be drawn. However, the trial court's conclusion that such an inference was necessary resulted in error. In essence, the trial court failed to distinguish between evidentiary facts and the inferences or conclusions to be drawn from those facts. Partrich v. Muscat, supra. By making the inference of defendant's negligence a conclusive one, the trial court usurped the fact-finding role of the jury ultimately impaneled. Consequently, we must reverse and remand for new trial with regard to the issue of defendant's breach of duty. Because we find defendant's remaining appellate claims to be without merit, we affirm the trial court's judgment with regard to proximate causation and damages.

Defendant argues that the manner in which the grant of summary judgment was phrased deprived the nursing home of a fair trial on the remaining issues of proximate causation and damages. Defendant points out...