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STATE OF MICHIGAN COURT OF APPEALS

MARCY HILL, PATRICIA HILL and CHRISTOPHER HILL, Plaintiffs-Appellees/CrossAppellees, v SEARS ROEBUCK & CO. and SEARS LOGISTIC SERVICES, INC., Defendants-Cross-Appellants, and EXEL DIRECT, INC. and MERCHANT DELIVERY, INC., Defendants-Appellees/CrossAppellants, and MARK PRITCHARD and TIMOTHY DAMERON, Defendants-Appellants, and CHARLES R. LINDSEY, ORALIA J. LINDSEY and ALBERT KIMPE, Defendants.

UNPUBLISHED May 24, 2011

No. 295071 Macomb Circuit Court LC No. 2007-003755-NO

Before: MURPHY, C.J., and STEPHENS and M. J. KELLY, JJ. PER CURIAM. Defendants Mark Pritchard and Timothy Dameron appeal by way of leave granted the trial court's denial of their motion for summary disposition. On appeal, defendants assert that -1-

the trial court erred in concluding that there was a genuine issue of material fact relating to whether they owed a duty to plaintiffs. Additionally, defendants-cross-appellants Exel Direct, Inc. ("Exel)", Merchant Delivery, Inc. ("Merchant"), Sears Roebuck & Co. ("Sears") and Sears Logistic Services, Inc. ("Sears Logistic") cross-appeal the trial court's denial of their motions for summary disposition. Defendants-cross-appellants assert that the trial court failed to address each of their theories in favor of summary disposition and that the court further erred in denying their motions for reconsideration. We affirm. Defendants and defendants-cross-appellants each assert that the trial court erred in denying their motions for summary disposition where plaintiffs failed to demonstrate that any duty was owed in this instance. We disagree. This Court reviews a trial court's decision regarding summary disposition pursuant to MCR 2.116(C)(10) de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). Summary disposition is proper when, upon examining the affidavits, depositions, pleadings, admissions and other documentary evidence, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Quinto v Cross and Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1997). Where summary disposition is sought pursuant to MCR 2.116(C)(8), "the motion tests whether the complaint states a claim as a matter of law, and the motion should be granted if no factual development could possibly justify recovery." Feyz v Mercy Mem Hosp, 475 Mich 663, 672; 719 NW2d 1 (2006). "[A]ll well-pleaded allegations are accepted as true, and construed most favorably to the nonmoving party." Wade v Dep't of Corrections, 439 Mich 158, 162-163; 483 NW2d 26 (1992). Furthermore, this case involves a determination of whether plaintiffs were owed a duty. The trial court's determination that no duty existed is subject to de novo review. Brown v Brown, 478 Mich 545, 552; 739 NW2d 313 (2007). The trial court concluded that the various defendants owed a duty to plaintiffs. Specifically, the court held that there was a duty to not increase the risk of harm to the plaintiffs that was posed by the uncapped gas line. "Whether a defendant owes a plaintiff a duty of care is a question of law for the court." Beaudrie v Henderson, 465 Mich 124, 130; 631 NW2d 308 (2001). A duty can be created by a contractual relationship, a contract or an application of the common law. Cummins v Robinson Twp, 283 Mich App 677, 692; 770 NW2d 421 (2009). As our Supreme Court has stated, "whether a duty is owed depends on whether harm is reasonably foreseeable." Valcaniant v Detroit Edison Co, 470 Mich 82, 90; 679 NW2d 689 (2004). The Supreme Court has further explained that when determining whether a duty exists under the common law, the following factors are relevant: (1) [T]he relationship of the parties, (2) the foreseeability of the harm, (3) the degree of certainty of injury, (4) the closeness of connection between the conduct and injury, (5) the moral blame attached to the conduct, (6) the policy of preventing future harm, and, (7) finally, the burdens and consequences of imposing a duty and the resulting liability for breach. The inquiry is ultimately a question of fairness involving a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution. [Cummins v Robinson Twp, 283 Mich App 677, 693; 770 NW2d 421 (2009), quoting Rakowski v Sarb, 269 Mich App 619, 629; 713 NW2d 787 (2006).] -2-

"[T]he ultimate inquiry in determining whether a legal duty should be imposed is whether the social benefits of imposing a duty outweigh the social costs of imposing a duty." In re Certified Question, 479 Mich 498, 505; 740 NW2d 206 (2007). On appeal, the various defendants argue that the court's finding regarding the existence of a duty was precluded by Fultz v Union Commerce Assoc, 470 Mich 460; 683 NW2d 587 (2004). In Fultz, the plaintiff slipped and fell in an icy parking lot. She subsequently brought a negligence cause of action against the landowner and a contractor. The landowner had hired the contractor to plow and salt the parking lot and, on the day in question, the contractor had allegedly failed to fulfill its contractual duties. Fultz, 470 Mich at 461-462. Our Supreme Court ultimately held that no cause of action could be brought against the contractor. The Court stated that the contractor owed no duty to the plaintiff where the plaintiff failed to specify a duty that was separate and distinct from the contractual agreement with the landowner. The Court explained: Accordingly, the lower courts should analyze tort actions based on a contract and brought by a plaintiff who is not a party to that contract by using a "separate and distinct" mode of analysis. Specifically, the threshold question is whether the defendant owed a duty to the plaintiff that is separate and distinct from the defendant's contractual obligations. If no independent duty exists, no tort action based on a contract will lie. [Id. at 467.] Defendants argue on appeal that any alleged duty in this case was not separate and distinct from the contractual duties owed to plaintiffs. As stated in Fultz, "a subcontractor breaches a duty that is `separate and distinct' from the contract when it creates a `new hazard' that it should have anticipated would pose a dangerous condition to third persons." Fultz, 470 Mich at 468-469. When plaintiffs purchased the home the previous owners did not leave the gas dryer that had been installed. Upon uninstalling the dryer, those owners apparently failed to cap the gas line. Therefore, the original hazard at the home was the uncapped and exposed gas line. When Pritchard and Dameron delivered the electric dryer, the evidence indicates that they installed the dryer in a way that concealed the uncapped gas line. A concealed and uncapped gas line is a different hazard than a gas line in plain sight. Had the gas line never been concealed, or had plaintiffs been told of its existence prior to it being concealed, Marcy Hill may have realized that the uncapped line was the source of the gas smell on the day in question. Unlike in Banaszak v Northwest Airlines, Inc, 477 Mich 895; 722 NW2d 433 (2006), the hazard in this case was not the subject of the contractual duty. Rather, the hazard that allegedly caused the explosion did not exist until Pritchard and Dameron installed the dryer in a way that prevented the discovery of the uncapped gas line. Like the trial court, we conclude that it is proper to impose a duty in this instance. It was reasonably foreseeable that the concealed and uncapped gas line in plaintiffs' home would cause serious damages. The social benefits of requiring delivery men to refrain from concealing obvious hazards exceed the minimal social cost. Consequently, the trial court properly concluded that Pritchard and Dameron owed plaintiffs a duty in this instance. Defendants-cross-appellants next assert that the trial court erred in determining that there was a genuine issue of material fact regarding proximate causation. We disagree. -3-

"`[A] proximate cause' is `a foreseeable, natural, and probable cause' of `the plaintiff's injury and damages.'" Kaiser v Allen, 480 Mich 31, 37-38; 746 NW2d 92 (2008), quoting Shinholster v Annapolis Hosp, 471 Mich 540, 546; 685 NW2d 275 (2004). "In order to be a proximate cause, the negligent conduct must have been a cause of the plaintiff's injury and the plaintiff's injury must have been a natural and probable result of the negligent conduct. These two prongs are respectively described as `cause-in-fact' and `legal causation.'" O'Neal v St John Hosp & Medical Center, 487 Mich 485, 496; 791 NW2d 853 (2010). To establish factual causation, a "plaintiff must present substantial evidence from which a jury may conclude that more likely than not, but for the defendant's conduct, the plaintiff's injuries would not have occurred." Genna v Jackson, 286 Mich App 413, 418; 781 NW2d 184 (2009). Furthermore, the "mere possibility of such causation is not sufficient; and when the matter remains one of pure speculation and conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict in favor of the defendant." Id. Proximate cause is that which operates to produce particular consequences without the intervention of any independent, unforeseen cause, without which the injuries would not have occurred. Helmus v Michigan Dept of Transp, 238 Mich App 250, 256; 604 NW2d 793, 797 (1999). While the question of causation is typically reserved for the jury, the trial court may decide the issue if there is no genuine issue of material fact. Genna, 286 Mich App at 418. "Finally, it is well-established that the proper standard for proximate causation in a negligence action is that the negligence must be `a proximate cause' not `the proximate cause.'" O'Neal, 487 Mich at 497. We conclude that there is a significant and genuine issue of material fact relating to proximate causation. The explosion in question occurred when Marcy Hill unknowingly opened an uncapped gas valve in her home. After the valve remained open for several hours, Marcy's daughter Patricia lit a candle. The open flame and the flowing gas combined and resulted in an explosion. Four years prior to the actions of the various plaintiffs, Pritchard and Dameron installed an electric dryer in a way that concealed the existence of the uncapped gas line. In order to hold that there is a genuine issue of material fact regarding proximate causation, this Court must conclude that a reasonable jury could find that the injuries that occurred were the natural and probable result of Pritchard and Dameron's conduct. While a reasonable jury could conclude that the conduct of Marcy and Patricia Hill was a proximate cause of their own injuries, such a conclusion would not preclude a jury from finding that Pritchard and Dameron's conduct served as a proximate cause as well. As stated above, proximate cause is that which operates to produce particular consequences without the intervention of any independent, unforeseen cause, without which the injuries would not have occurred. Helmus, 238 Mich App at 256. While plaintiffs' conduct was certainly an independent cause without which the injuries would not have occurred, that conduct was not necessarily unforeseen. A jury could certainly conclude that it was foreseeable that plaintiffs, not knowing the location and existence of the uncapped gas line, would eventually be harmed by the concealed hazard. Had Pritchard and Dameron not created a new hazard by concealing the uncapped gas line, Plaintiffs could have theoretically discovered and eliminated the original hazard well before the eventual explosion. As plaintiffs note, the proximate cause of an injury is not necessarily the most immediate. In Parks v Starks, 342 Mich 443, 447; 70 NW2d 805 (1955), our Supreme Court quoted 38 Am Jur, Negligence,

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