Alternative-liability theory; Loweke v. Ann Arbor Ceiling & Partition Co., LLC; Kamanski v. Grand Trunk W.R. Co.; Causation; Abel v. Eli Lilly & Co.; Gerling Konzern Allgemeine Versicherungs AG v. Lawson; Kaiser v. Allen; MCL 600.2956, MCL 600.2957(1), MCL 600.2960(1), & MCL 600.6304; Whether the alternative-liability theory is viable in Michigan; Statutory interpretation; Lamp v. Reynolds; MCL 600.6304(4); MCL 600.6304(1)(b); Fault defined; MCL 600.6304(8); MCL 600.6304(1)(b); Gelman Scis., Inc. v. Fidelity & Cas. Co. of NY; Napier v. Osmose, Inc. (WD MI); Abela v. General Motors Corp.

Holding that “alternative-liability theory is still viable in Michigan,” the court determined that “the trial court erred when it granted defendants’ motions for summary disposition because plaintiff presented sufficient evidence to create a genuine issue of fact” as to causation. Thus, it reversed the trial court’s order granting summary disposition in favor of defendants-Diva Nails, LLC and Nails Studio (collectively, defendants). Plaintiff-customer argued that alternative-liability theory was still viable in Michigan and there was a genuine issue of material facts as to whether either defendant caused her injury, Herpes Whitlow. The court agreed. Defendants contended that the theory was “no longer viable in Michigan because joint and several liability is critical to the doctrine’s application and was abolished by the 1995 tort reform.” The court held that alternative-liability theory was applicable here because plaintiff could show the three threshold requirements. Thus, she was relieved of the burden of proving causation in fact, which shifted to defendants. Plaintiff “demonstrated an inability to identify the nail salon which harmed her and may benefit from ‘the burden-shifting feature of alternative[-]liability theory to withstand summary [disposition] on the causation issue of the negligence claim[].’” Plaintiff was “still obligated to present evidence proving all other elements of negligence, including proximate causation.” Moreover, plaintiff “presented substantial evidence from which a jury may conclude that, more likely than not, she would not have contracted Herpes Whitlow but for defendants’ conduct.” The trial court ignored plaintiff’s expert’s testimony that she “contracted Herpes Whitlow from one of the two nail salons and that both defendants acted negligently. While 50% to 80% of the population have Herpes Simplex 1, the trial court was incorrect in determining that Herpes Whitlow is common and thus there was no way to determine where plaintiff contracted the virus. To the contrary, Herpes Whitlow is very rare and is much more difficult to pass from one individual to another.” The court held that the trial court decided a fact that can only be resolved by the jury. Thus, it determined that summary disposition was inappropriate.