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STATE OF MICHIGAN
COURT OF APPEALS


ANTHONY DUBS, Personal Representative of the Estate of BRADLEY THOMAS TALASKI, Deceased, Plaintiff-Appellant, v CLASSIC STONE, LLC, d/b/a CLASSIC GRINDSTONE, and DANIEL DAVID MUSLOFF, Defendants-Appellees.

UNPUBLISHED July 10, 2007

No. 275127 Huron Circuit Court LC No. 05-002801-NO

Before: Bandstra, P.J., and Zahra and Fort Hood, JJ. PER CURIAM. Plaintiff appeals as of right from the trial court's order granting defendants' motions for summary disposition. We affirm. Plaintiff's decedent was killed in a tragic accident that occurred on October 30, 2003. The decedent was employed by defendant Classic Stone, LLC, and was the supervisor of defendant Daniel David Musloff ("Musloff"), an employee of the company.1 The company operated a rock quarry, and Musloff estimated that the size of the quarry was approximately eighty acres. Musloff was hired to work as a mechanic, but ultimately found that he operated the equipment seventy percent of the time, and only acted as a mechanic for the other thirty percent. Approximately a week and a half before the accident, Musloff learned that the decedent and a friend had set two fox traps "on the facility," but he did not know why the two men were attempting to trap foxes. Musloff had never seen foxes on the work premises. Nonetheless, Musloff was told by decedent to check the traps. The traps were located on "either side of the

1

In his deposition testimony, Musloff identified the date of the accident as October 30, 2002. However, the investigation and other documents indicate that the accident occurred on October 30, 2003.

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quarry." Thus, if Musloff went to the east or west side of the quarry to "perform a job," he was instructed to check the traps. On the day of the accident, Musloff reported to work at 6:55 a.m., and sat in the trailer located on the premises near the heater. After twenty minutes, he got in the pay loader2 and drove to the west side of the property to load a truck with gravel for driver Doug Plester. It took Musloff approximately five minutes to load Plester's truck. After he finished, Musloff left the trail where the pile of gravel was and traveled a different trail to check the fox trap. It only took thirty seconds to arrive at the trap because the trail was only two hundred feet in length. Musloff was familiar with the pay loader because he had driven it before. The machine was equipped with brakes, back up alarm, and four mirrors. He testified that all of the equipment was functioning properly that day. Musloff testified that the loader involved in the accident was manufactured by Kawasaki, was one of three loaders on the premises, and estimated that it arrived approximately one month before the accident in used condition. However, he did not have to perform any maintenance on the loader with possibly the exception of an oil change. The loader was only used approximately two hours a day. On the day of the accident, Musloff filled the truck with rock and saw Plester travel toward the quarry exit. He did not see Plester actually leave the yard because of hills in the quarry. He saw the truck as it went behind a hill. Then, Musloff traveled two hundred feet up a different trail to check the fox trap. He did not need to exit the loader because the fox trap was visible to him from the loader. The fox trap was located to the left of the loader near the side of a small hill. Upon seeing that the trap was empty, Musloff placed the loader in reverse. Although he could not specifically recall looking in the mirror before he backed up the loader, it was something that he had "done ever since [he] drove loaders." Prior to working for defendant company, Musloff was employed at a farm, and he was required to operate loaders at the farm. Although there were four mirrors on the loader, he testified that a vehicle parked behind the loader would not be visible if it was parked close. He noted that loaders contained warning stickers advising to stay fifty feet behind the loader because of visibility issues. After examining the fox trap, Musloff began to back up the loader. He traveled approximately ten feet at a speed of two miles per hour when he felt the end of the loader raise up. He never heard the sound of an impact nor did he hear a vehicle honking a horn. Unbeknownst to Musloff, the decedent had driven his personal vehicle to the locale of the fox trap, parked it behind the loader, and was in his own vehicle when the loader backed up. Musloff pulled the loader forward, realized what had happened, and called for emergency services. The decedent did not survive his injuries from the impact with the loader. There was an investigation into the accident by the United States Department of Labor Mine Safety and Health Administration (MSHA). A report was prepared and MSHA concluded as follows:

2

In the record, the equipment at issue is also identified as an end loader.

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Location of the Accident The accident occurred on a dead end, single lane, dirt mine road located in a field at the northwest corner of the pit. The road was approximately 20-30 feet wide and 100 yards long. The weather conditions at the time of the accident were clear and dry. Front-end Loader The 1988 Kawasaki wheel loader, Model 110Z2, had an articulated frame and was powered by a six-cylinder, 425 horsepower, Cummins, Model KT19C, turbocharged diesel engine. The operating weight of the loader was approximately 94,000 pounds. The transmission had three forward and three reverse speeds, and a neutral position. No defects were found with the headlights, horn, and front and rear wipers. The throttle system was evaluated and no defects were found. Brakes The loader was equipped with air-over-hydraulic, caliper-disc service brakes on all four wheels. The service brake could be applied using either of two pedals, one on each side of the steering column. Pushing the left side pedal also engaged the transmission in neutral. The parking brake consisted of a spring applied, pneumatically released, driveline drum brake. All the service brake discs were clean. Service brake and parking brake tests were conducted on a grade with a fully loaded machine. The service brake stopped and held the loader when either the brake pedal or brake/neutralizer pedal was pushed. The parking brake also held the loader. Back-up Alarm

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