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STATE OF MICHIGAN
COURT OF APPEALS


PATRICK PATTERSON and SUSAN PATTERSON, Plaintiffs-Appellants, v GREGORY BRYAN CABALA, Defendant-Appellee, and ROBERT TREVINO, Defendant/Cross-DefendantAppellee, and SAGINAW CHIPPEWA INDIAN TRIBE OF MICHIGAN, d/b/a SOARING EAGLE CASINO, Defendant/Cross-Plaintiff-Appellee. _________________________________________ PATRICK PATTERSON and SUSAN PATTERSON, Plaintiffs-Appellants, v GREGORY BRYAN CABALA, Defendant, and ROBERT TREVINO,

UNPUBLISHED August 8, 2006

No. 260728 Bay Circuit Court LC No. 04-003358-NS

No. 265672 Bay Circuit Court LC No. 04-003358-NS

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Defendant/Cross-DefendantAppellee, and SAGINAW CHIPPEWA INDIAN TRIBE OF MICHIGAN, d/b/a SOARING EAGLE CASINO, Defendant/Cross-Plaintiff-Appellee.

Before: Borrello, P.J., and Saad and Wilder, JJ. PER CURIAM. In this dramshop action, plaintiffs Patrick and Susan Patterson appeal by leave granted from an order granting summary disposition in favor of defendant Saginaw Chippewa Indian Tribe of Michigan (Tribe) in Docket No. 260728. In Docket No. 265672, plaintiffs appeal as of right from the trial court's order granting summary disposition in favor of defendant Robert Trevino pursuant to MCR 2.116(C)(10). This court consolidated the two appeals. In both cases, we affirm the trial court's granting of summary disposition. On June 9, 2002, plaintiff Patrick Patterson (plaintiff) was working as a road patrol deputy with the Bay County Sheriff's Department. According to plaintiff, at approximately 2:30 a.m., he was dispatched to investigate a motor vehicle that was driving erratically and which he subsequently discovered had crashed while on the ramp connecting US 10 and northbound I-75. Trevino, the driver of the vehicle, was arrested after he failed a field sobriety exam and registered a .177 on a preliminary breathalyzer test. Trevino admitted that he consumed six to eight beers at "the casino." A wrecker was dispatched to the scene and removed Trevino's vehicle from a ditch near the ramp. While plaintiff was inspecting the damage to Trevino's vehicle, another vehicle, which was being driven by defendant Cabala, struck Trevino's vehicle and pinned plaintiff between Trevino's damaged vehicle and the wrecker. Like Trevino, Cabala was also driving while under the influence of alcohol. Plaintiff sustained severe injuries as a result of being pinned between Trevino's vehicle and the wrecker. Plaintiffs brought suit against defendants. Defendant Tribe filed a cross-complaint against Trevino asserting that he was required to indemnify them for any damages. Defendant Tribe also moved for summary disposition pursuant to MCR 2.116(C)(1), (4), (7), and (8), asserting that plaintiffs' action was barred by the doctrine of sovereign immunity, that the court lacked personal jurisdiction over the Tribe, that federal law preempts state law regarding Native American affairs, and that the court lacked subject matter jurisdiction. Plaintiffs asserted that a Native American tribe's right to sovereign immunity does not extend to matters involving alcohol, but that, even if it did, the Tribe had waived sovereign immunity in the compact it signed with Michigan providing for the establishment of a class three gaming venue. The trial court granted summary disposition in favor of the Tribe, holding that defendant Tribe had sovereign immunity in a dramshop action and that immunity had not been clearly waived in the compact. The trial court denied a subsequent motion for reconsideration. Plaintiffs filed a claim of appeal from the trial court's granting of summary disposition in favor of defendant Tribe on -2-


November 29, 2004 (Docket No. 260728). This Court originally dismissed the appeal for lack of jurisdiction, but subsequently granted a delayed application for leave to appeal. Defendant Trevino also moved for summary disposition. Trevino moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), arguing that plaintiffs could not establish that Trevino was the proximate cause of their injuries because the second accident was a superseding cause that was unforeseeable and that therefore removed Trevino from liability. In support of their cause of action against Trevino, plaintiffs submitted the affidavit of Milwaukee County Sheriff's Department Captain Peter Jaskulski regarding the foreseeability of the second accident.1 The trial court determined that Cabala's actions were not reasonably foreseeable and granted Trevino's motion for summary disposition under MCR 2.116(C)(10). In making its ruling, the trial court stated: The question then becomes: Is the intervening act reasonably foreseeable? There is the affidavit that suggest this happens quite frequently and it's--it's a risk that, ah, I should say--it's a--an event that happens to police officers unfortunately more frequently than one would--one would want to have happen. The question is, is what--what Trevino actions were there that would not cause this to be an intervening cause and/or reasonably foreseeable? Trevino was in custody at the time. He couldn't do anything about it. I suppose one could make

In his affidavit, Jaskulski made the following statements regarding the foreseeability of the second accident: h. One of the greatest known hazards associated with any patrol stop, accident investigation or directing traffic associated with a motor vehicle crash is that a police officer may be struck by another motorist. i. In instruction of police officers, they are trained in measures to undertake to reduce the foreseeable risk associated with being struck by a third party while performing a patrol stop, accident investigation or directing traffic, but even with the safety precautions undertaken, it is impossible to eliminate this foreseeable risk of a subsequent collision. j. It is my opinion that a motorist who voluntarily consumes alcohol and then operates his vehicle while intoxicated reasonably should have known that he has created a condition wherein he would endanger third parties or necessitate police intervention. k. That Robert Trevino's conduct set into action a course of events which were a direct cause of Deputy Patterson's injuries. l. That the secondary accident involving Cabala's collision with Trevino's accident was reasonably foreseeable and the natural consequence of Trevino's illegal and grossly negligent conduct.

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an argument that if the investigating officer inadvertently stepped into the highway and got ran over by someone who was lawfully driving that would be a--that Trevino would still be liable. You could go on and on and on and on with hypothetical[s] that would--would cause perhaps injury that the-because of whatever reason this accident may have caused those injuries. The law isn't that way. The law is such that it must be some intervening--or I should say one cause that is reasonably foreseeable in light of this intervening cause. I don't see it. I don't think this is reasonably foreseeable under the law or under the facts of this case as a--as I would apply it to the law. I'll grant the motion under (C)(10). We first address plaintiffs' appeal in Docket No. 265672 from the trial court's granting of summary disposition in favor of defendant Trevino. The issue is whether defendant Cabala's conduct of driving while under the influence of alcohol and causing the second accident which resulted in plaintiff's injuries constituted a superseding cause which relieved Trevino of liability. Plaintiffs contend that the trial court confused the concepts of superseding intervening negligence and concurrent negligence in reaching its decision by focusing on the fact that Trevino was in custody when plaintiff was struck. Plaintiffs assert that the trial court should have focused on whether the second act of negligence was foreseeable at the time of the first act of negligence. According to plaintiffs, the second accident was foreseeable because it is not uncommon for traffic accidents to occur at the location of a highway traffic stop, and summary disposition was therefore inappropriate. In contrast, Trevino and the Tribe both contend that the second accident was not foreseeable.2 Plaintiffs' complaint alleged that Trevino was negligent or grossly negligent. Proof of proximate cause is necessary to sustain a claim of negligence. Eichhorn v Lamphere School Dist, 166 Mich App 527, 545; 421 NW2d 230 (1988). Proximate cause is "`that which in a natural and continuous sequence, unbroken by any new, independent cause, produces the injury,

We review de novo a trial court's grant or denial of summary disposition under MCR 2.116(C)(10). Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion brought under MCR 2.116(C)(10) tests the factual support for a claim. Downey v Charlevoix Co Bd of Co Rd Comm'rs, 227 Mich App 621, 625; 576 NW2d 712 (1998). The pleadings, affidavits, depositions, admissions, and any other documentary evidence submitted by the parties must be considered by the court when ruling on a motion brought under MCR 2.116(C)(10). MCR 2.116(G)(5); id. at 626. When reviewing a decision on a motion for summary disposition under MCR 2.116(C)(10), this Court "must consider the documentary evidence presented to the trial court `in the light most favorable to the nonmoving party.'" DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534, 538-539; 620 NW2d 836 (2001), citing Harts v Farmers Ins Exchange, 461 Mich 1, 5; 597 NW2d 47 (1999). A trial court has properly granted a motion for summary disposition under MCR 2.116(C)(10) "if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law." Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).

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without which such injury would not have occurred . . . .'" McMillian v Vliet, 422 Mich 570, 576; 374 NW2d 679 (1985), quoting Weissert v Escanaba, 298 Mich 443, 452; 299 NW 139 (1941). However, an act that occurs after the actor's negligent act was committed, `"which actively operates in producing harm to another[,]"' may break the causal chain. McMillan, supra at 576, quoting 2 Restatement Torts,

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