Negligence claims related to power outages & property flooding; Duty; Proximate cause; Ray v Swager; Amendment of the complaint to add a party; Weymers v Khera; Motion to strike evidence submitted with summary disposition motions; Judicial notice; MRE 201(b); Utility Resource Group LLC (URG)

The court held that the trial court erred in granting defendants summary disposition under MCR 2.116(C)(8) in this negligence case arising from power outages and property flooding. It also erred in denying plaintiffs’ motion to add DTE Electric as a party and in regard to their motion to strike exhibits filed with defendants’ motions. Plaintiffs asserted “it was improper for the trial court to consider information apart from the pleadings and make factual determinations when granting defendants summary disposition.” The court found that it did appear “the trial court considered the extent and nature of the rainfall, either through the exhibits that defendants submitted or through information provided in plaintiffs’ other lawsuit. Specifically, [it] determined that ‘the damage suffered by Plaintiffs resulted from a series of unfortunate events that coincided with an unexpected torrential rain event’ and that there was ‘no connection between the damage done to the electric power line and the cause of the damage done to’” their homes. It also “determined that ‘the 1000-year rainfall was a superseding cause and was not reasonably foreseeable.’ This was all information outside the” third amended complaint. Thus, “this was error.” The court concluded “plaintiffs adequately put defendants on notice of plaintiffs’ claims against them.” The court noted the “trial court concluded that DTE Energy had no duty to plaintiffs, primarily resting its decision on the unforeseeable nature of the damages and the superseding cause of the rain.” Further, its opinion also appeared “to determine that DTE Energy could not have been a proximate cause of plaintiffs’ damages on the basis of superseding rain. There is not, however, enough factual support at this point in the proceedings to determine whether DTE Energy was entitled to dismissal on the basis of duty or proximate cause.” The court also held that the trial court erred in granting defendant-URG summary disposition based on “proximate cause. Plaintiffs properly pleaded that URG responded to the MISS DIG notification and that URG may be liable if they failed to mark the cable, resulting in the power outage at” a pump station and flooding of their properties. As to plaintiffs’ motion to amend, “adding DTE Electric at this stage of the proceedings would not be futile. The trial court did not address the remaining bases for denying a motion to amend, but there is also no evidence” of undue delay or bad faith by plaintiffs in “not first naming DTE Electric as a defendant.” Reversed and remanded.