Negligence & Intentional Tort

Issues: Claim for injuries sustained when a store mannequin fell and hit the plaintiff; Whether this was a premises liability case; Adams v. Adams (On Reconsideration); James v. Alberts; Laier v. Kitchen; Muscat v. Khalil; Res ipsa loquitur; Jones v. Porretta; Woodard v. Custer; Haase v. DePree; Wischmeyer v. Schanz; Distinguishing Skinner v. Square D Co.; A type of event that does not ordinarily occur absent someone's negligence; Gadde v. Michigan Consol. Gas Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Arsenault v. Designer Wearhouse Ctr. Inc.

e-Journal Number: 58472

Judge(s): Per Curiam – Jansen and O’Connell; Dissent - Owens


The court held that the trial court erred by analyzing plaintiff's claim arising from a falling mannequin as if it sounded in premises liability and by granting defendant's motion for summary disposition. Thus, it reversed the trial court's order dismissing plaintiff's case, and remanded. Plaintiff was injured while shopping at defendant's store. On appeal, she maintained that "the presence of an unsecured mannequin on a high wall display posed a foreseeable risk, thus imposing a duty on defendant to protect its customers." As a preliminary matter, the court held that this was not a premises liability case. It was true that plaintiff alleged in her complaint that she was a business invitee at the store and argued in her response to defendant's motion for summary disposition that the claim sounded partially in premises liability. "But '[i]t is well settled that the gravamen of an action is determined by reading the complaint as a whole, and by looking beyond mere procedural labels to determine the exact nature of the claim.'" She "did not allege that she was injured by a dangerous condition on the land. Rather, she alleged and maintained that she was injured when the mannequin fell from above and struck her on the head, shoulder, and arm" while defendant's employee (R) was retrieving merchandise from a nearby high wall display. She contended in her response to defendant's motion for summary disposition that she was injured, at least in part, by the "active negligence" of R. In other words, she alleged that her injury was at least partially caused by R's conduct - not a condition on the land. Further, the unsecured mannequin was not a condition of the land. The court also concluded that a rational trier of fact could draw a reasonable inference of negligence under the doctrine of res ipsa loquitur, which "entitles a plaintiff to a permissible inference of negligence from circumstantial evidence." Under res ipsa loquitur, "the evidence leads to a reasonable inference that defendant negligently caused the unsecured mannequin to fall and strike plaintiff, resulting in her injuries." Her "ordinary-negligence claim should have been allowed to reach the trier of fact on the basis of this theory of liability."


Full Text Opinion

This summary also appears under Municipal


Issues: Trip and fall on a city sidewalk; The Governmental Tort Liability Act (MCL 691.1401 et seq.); The highway exception (MCL 691.1402(1)); "Highway" as it was defined at the time of the incident (MCL 691.1401(e)); Prima facie case of negligence; Loweke v. Ann Arbor Ceiling & Partition Co.; "Proximate cause"; Skinner v. Square D Co.; Price v. High Pointe Oil Co.; Wilson v. Alpena Cnty. Rd. Comm'n; Multiple proximate causes; Allen v. Owens-Corning Fiberglas Corp.; Genuine issue of material fact; Allison v. AEW Capital Mgmt., LLP; Ridley v. Detroit; Foreseeability; Haliw v. Sterling Heights; Comparative negligence; Zaremba Equip., Inc. v. Harco Nat'l Ins. Co.; Applicability of the "open and obvious" doctrine where there is an alleged violation of statutory duty; Walker v. City of Flint; Argument for retroactive application of the 2012 amendments to MCL 691.1402a; Unpreserved issue; Hines v. Volkswagen of Am.; Duffy v. Department of Natural Res.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Foren v. City of Taylor

e-Journal Number: 58436

Judge(s): Per Curiam – Boonstra, Markey, and K.F. Kelly


Holding that reasonable minds could differ as to "whether the raised sidewalk was a 'but-for' cause of plaintiff's injury," and thus a genuine issue of material fact existed, the court reversed the trial court's order granting the defendant-city's summary disposition motion. As plaintiff was walking on the left-hand side of the sidewalk heading west, he saw a woman on a bicycle heading east on the same side of the sidewalk. To avoid colliding with the bicyclist, he moved over to the right-hand side of the sidewalk. "As he did so, plaintiff stubbed his toe on a raised portion of the sidewalk and fell down, resulting in various injuries." The court concluded that the evidence was sufficient for a fact-finder to determine that he "stubbed his toe on the raised sidewalk, and that even if he would not have done so but for avoiding the bicyclist, it was the raised sidewalk that caused, or was a substantial factor in causing, his fall." This evidence was "not mere speculation or impermissible conjecture." Further, there was a genuine issue of material fact "as to whether the raised sidewalk was the legal cause of plaintiff's injuries." While the city argued that "any alleged unevenness of the sidewalk was too remote to amount to legal cause" due to plaintiff's "'sudden movement upon seeing'" the bicyclist, the court disagreed. Even if his "avoidance of the bicyclist contributed in causing his fall, that fact would not render the unevenness of the sidewalk, as a contributing cause, too remote to constitute legal cause. Rather, it is foreseeable that an individual walking on a sidewalk could trip and fall on an uneven portion of that sidewalk while attempting to navigate around an oncoming pedestrian or bicyclist." A reasonable jury "could find that plaintiff's injuries in tripping and falling on the raised sidewalk 'were the legal and natural consequences of [defendant's failure to maintain the sidewalks in reasonable repair] and might reasonably have been anticipated.'" The fact that he was aware of the general condition of the sidewalks in his neighborhood was an issue of comparative negligence for the fact-finder, and the open and obvious doctrine did not apply given that his negligence theory involved an alleged violation of the city's statutory duty. The court did not entertain the city's unpreserved alternative argument for retroactive application of the 2012 amendments to MCL 691.1402a. Remanded.


Full Text Opinion

Issues: Auto negligence; Whether the "sudden emergency doctrine" barred the plaintiff's negligence claim; Socony Vacuum Oil Co. v. Marvin; Baker v. Alt; Vander Laan v. Miedema; Barringer v. Arnold; "Comparative fault"; MCL 500.3135(2)(b); Rodriguez v. Solar of MI, Inc.; Huggins v. Scripter; Malone v. Vining; "Vicarious liability"; Hekman Biscuit Co. v. Commercial Credit Co.; Potter v. McLeary; Whether the defendant-driver was an "independent contractor" or an "employee"; Anderson v. Wiegand; Candelaria v. BC Gen. Contractors, Inc.; Jenkins v. Raleigh Trucking Servs., Inc.; Nichol v. Billot; The "control test"; Hoffman v. JDM Assocs., Inc.; "Scope of employment"; Rogers v. JB Hunt Transp., Inc.; Kester v. Mattis, Inc.; Ten Brink v. Mokma; Estate Planning and Preservation, Inc. (EPP)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Fountaine v. Hersey

e-Journal Number: 58404

Judge(s): Per Curiam – Fitzgerald, Wilder, and Owens


Where defendant-Hersey's vehicle struck the plaintiff as he was jogging along the side of the road attempting to remove a ladder that someone had dropped in the westbound lane of I-94, the "sudden emergency doctrine" did not entitle Hersey to summary disposition on the plaintiff's auto negligence claim. In Docket No. 315410, the court concluded that the doctrine did not apply because there was "a question of fact whether the ladder was unsuspected." The driver of the car in which plaintiff was a passenger had avoided the ladder and pulled the car to the side of the road, with his hazard lights flashing, as the plaintiff jogged to fetch the ladder. Other cars had slowed to avoid the ladder, "causing traffic to back up on the highway. That many other vehicles were able to see the ladder and avoid it strongly indicates that the ladder was in clear view. Therefore, taking the evidence in a light most favorable to plaintiff, there is a question of fact whether the ladder had been in clear view for a substantial length of time, to make it unsuspected." The court also rejected Hersey's contention that the "plaintiff's existence on the roadway was a second sudden emergency, which he may not be faulted for failing to avoid." Although "[t]here was evidence that it was dark and misting, making visibility low," there was also evidence that the "plaintiff had been in clear view for a significant amount of time, long enough for him to jog towards the ladder, see Hersey's vehicle heading towards him, and jump to avoid being struck." Hersey also argued that the plaintiff was more than 50% at fault for the accident "because he chose to exit the truck and walk along the side of the highway, placing himself in danger." However, while "a rational juror might attribute some fault to plaintiff for placing himself in a potentially dangerous position," the court not agree that "a rational juror could only conclude that plaintiff was more than 50 percent at fault for the accident." The trial court also properly denied defendant-EPP summary disposition in Docket No. 318689 on the plaintiff's claim of vicarious liability. There remained a question whether Hersey was EPP's employee or whether he was an independent contractor. Although the trial court erred by applying the "economic reality test" rather than the "control test," there were questions of fact whether EPP "had sufficient control over Hersey" to render it vicariously liable. There also remained questions whether Hersey, a traveling salesman, was "acting within the scope of employment at the time of the accident." Affirmed.


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