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MUELLER v. API (2018)

Court of Appeals of Michigan.

Helen Kaye MUELLER, Personal Representative of the Estate of Travis Lee Peterson, Plaintiff-Appellant, v. BRANNIGAN BROTHERS RESTAURANTS AND TAVERNS LLC, Austin Smith, Donald Suttle Jr., Mark McClain, and Shafeek Kanaveh, Defendants-Appellees, API Eden Rock Inc., Defendant.

No. 335501

Decided: April 03, 2018

Before: Ronayne Krause, P.J., and Fort Hood and O'Brien, JJ. Nolan, Thomsen & Villas, PC (by Lawrence P. Nolan and Gary G. Villas) for the Estate of Travis L. Peterson. Conlin, McKenney & Philbrick, PC (by Allen J. Philbrick) and Bursch Law PLLC (by John J. Bursch) for Brannigan Brothers Restaurants & Taverns, LLC. Fraser Trebilcock Davis & Dunlap, PC (by Graham K. Crabtree and Gary C. Rogers) for Austin Smith. Hackney Grover (by Christian P. Odlum and Steven D. Foucrier) for Mark McClain.

Plaintiff Helen Kaye Mueller, the personal representative of the estate of Travis Lee Peterson, appeals by right after a jury trial and entry of a verdict partially in her favor. This matter arises out of the wrongful death of Peterson, who was killed after patronizing a bar owned by defendant Brannigan Brothers Restaurants & Taverns, LLC (Brannigan). After being ejected from the bar, Peterson was chased and physically beaten by bouncers who were then presently or previously employed by the bar. Notwithstanding the judgment partially in her favor, plaintiff appeals by right two evidentiary decisions and two orders granting partial summary disposition. We affirm.

In broad strokes, with the exception of a few critical details, the facts are simple, undisputed, and tragic. Peterson was a business invitee, or more colloquially a patron, of the restaurant or bar owned and operated by Brannigan in downtown Lansing on January 1, 2012, at approximately 2:00 a.m. Some manner of dispute occurred, and Peterson was asked to leave the premises. Peterson did so, and thereafter the individual defendants—Austin Smith, Donald Suttle, Jr., Mark McClain, and Shafeek Kanaveh 1 —pursued Peterson and attacked him, inflicting injuries that caused his death. None of these facts is seriously contested at this time, nor is it contested that the individual defendants had some kind of employment history with the bar. Rather, the only factual issues are whether any of the individual defendants were actually working for the bar at the time, were acting within the scope of their employment, or were the actual cause of Peterson's death. Brannigan was granted summary disposition on the grounds that all individual defendants were “off the clock” in one way or another.

The trial court entered a default judgment against Suttle, Kanaveh settled with the estate partway through trial, the jury found both McClain and Kanaveh not negligent in Peterson's death, and the jury found Smith negligent but not a proximate cause of Peterson's death. The jury found that Peterson's and Suttle's negligence caused Peterson's death. The jury then apportioned 20% of the fault to Peterson and 80% of the fault to Suttle. Accordingly, the trial court entered judgment in favor of plaintiff and against Suttle, and a judgment of no cause of action against Smith and McClain.2

A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). When reviewing a motion under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all evidence submitted by the parties in the light most favorable to the nonmoving party and grants summary disposition only when the evidence fails to establish a genuine issue regarding any material fact. Id. at 120, 597 N.W.2d 817. A motion brought under MCR 2.116(C)(8) should be granted only when the complaint is so legally deficient that recovery would be impossible even if all well-pleaded facts were true and construed in the light most favorable to the nonmoving party. Id. at 119, 597 N.W.2d 817. Only the pleadings may be considered when deciding a motion under MCR 2.116(C)(8). Id. at 119-120, 597 N.W.2d 817.

“The decision whether to admit evidence falls within a trial court's discretion and will be reversed only when there is an abuse of that discretion.” People v. Duncan, 494 Mich. 713, 722, 835 N.W.2d 399 (2013). “A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes.” Id. at 722-723, 835 N.W.2d 399. However, preliminary questions of law, including the interpretation and application of statutes and legal doctrines, are reviewed de novo, and the trial court necessarily commits an abuse of discretion if it makes an incorrect legal determination. Id. at 723, 835 N.W.2d 399; Estes v. Titus, 481 Mich. 573, 578-579, 751 N.W.2d 493 (2008). This Court also “reviews a trial court's rulings concerning the qualifications of proposed expert witnesses to testify for an abuse of discretion.” Woodard v. Custer, 476 Mich. 545, 557, 719 N.W.2d 842 (2006).

Plaintiff first argues that the trial court erred by granting summary disposition in favor of Brannigan. We note that plaintiff alleged several counts against Brannigan and that the parties fail to clearly distinguish the counts alleging vicarious liability from the counts alleging that Brannigan committed torts in its own right. In particular, plaintiff alleged that Brannigan was negligent in its hiring, retention, supervision, and training of its employees. This assertion does superficially resemble vicarious liability, insofar as the conduct of the employees is relevant. However, plaintiff correctly points out that the negligent hiring, retaining, training, or supervising of an employee can be a direct tort committed by the employer itself, not a matter of vicarious liability. Hersh v. Kentfield Builders, Inc., 385 Mich. 410, 412-413, 189 N.W.2d 286 (1971). We will address the distinct issues separately.

Regarding vicarious liability, plaintiff fairly summarizes the legal principles: broadly, and in relevant part, an employer may be held liable for the tortious conduct of its employee so long as that conduct was “committed in the course and within the scope of the employee's employment,” but not if the act was outside the employee's authority or committed for the employee's own personal purposes. Bryant v. Brannen, 180 Mich.App. 87, 98, 446 N.W.2d 847 (1989). “While the issue of whether the employee was acting within the scope of his employment is generally for the trier of fact, the issue may be decided as a matter of law where it is clear that the employee was acting to accomplish some purpose of his own.” Id.

Plaintiff accurately states that Suttle testified that he was working on the night of Peterson's beating. Critically, however, that is the only evidence plaintiff submits in support of Suttle having been an employee; on the very same page of his deposition, Suttle also testified that as of one minute after midnight, he was no longer an employee. Notably, he had not merely quit for the night, but in fact he had been fired. He testified that by the time of the incident, he had already left work, and then returned to the bar to retrieve his payment for the hours he had worked earlier. Plaintiff's argument that the trial court erred by finding no genuine question of fact that Suttle was not employed on the night of the incident is technically correct but essentially pettifoggery and substantively immaterial: even though he had been employed at some point during that evening, Suttle was no longer employed at the time he participated in chasing and beating Peterson. Consequently, the trial court correctly held that at the relevant time, Suttle was not in fact employed by Brannigan and that Brannigan could therefore not be vicariously liable for Suttle's tortious misconduct. Brannigan argued in the trial court that there was no dispute that Kanaveh was not working on the night of the incident at all, and all of the testimony we have found supports that assertion. Plaintiff has not cited any evidence or advanced any argument to the contrary. Consequently, Brannigan could not be vicariously liable for any tortious misconduct engaged in by Kanaveh.

Brannigan concedes that Smith and McClain were employed and working at the time of the incident, but he argues that they acted completely outside the scope of their employment by chasing an ejected patron down the street and beating him savagely. Plaintiff observes that Smith testified at his deposition that he participated in the pursuit down the street to protect McClain and to break up the fight, and plaintiff asserts that Smith was therefore acting on behalf of Brannigan and within the scope of his employment, which Smith believed specifically entailed protecting employees. However, it is critical that Smith's testimony was based on his version of events: that Peterson had assaulted McClain and Smith was attempting to protect McClain or break up a fight and that he only punched Peterson because Peterson attacked him and he was unable to retreat. Consequently, this testimony does not support plaintiff's argument to the effect that Smith believed pursuing and assaulting Peterson would be conduct within the scope of his employment. Rather, Smith's testimony that he was acting within the scope of his employment is clearly dependent on his interpretation of what occurred, which differs critically from plaintiff's interpretation of what occurred. Essentially, it is incompatibly conditional.

Otherwise, plaintiff makes no argument that we can find to the effect that chasing an ejected patron down the street, far off Brannigan's premises, for the purpose of committing a battery was authorized, was remotely similar to any authorized act, or was for any purpose whatsoever that could reasonably be believed to benefit Brannigan. The trial court's holding that Brannigan could not be held vicariously liable for the misconduct of the individual defendants was the only reasonable conclusion to draw from the evidence in this matter. Additionally, even if the trial court had erred by finding that Brannigan had no vicarious liability for the conduct of Smith and McClain, the jury's findings of no negligence as to McClain and no proximate cause as to Smith would render that finding irrelevant and harmless in any event.

However, neither the employees’ present employment status nor their departure from the scope of their employment disposes of plaintiff's claims of negligent hiring, retention, training, or supervision. Furthermore, the fact that two of the individual defendants were not technically working for Brannigan at the time of the incident is also not dispositive: the gravamen of negligent hiring or retention is that the employer bears some responsibility for bringing an employee into contact with a member of the public despite knowledge that doing so was likely to end poorly. Hersh, 385 Mich. at 412-413, 189 N.W.2d 286. In other words, it is not a tort dependent on vicarious liability at all, but rather direct liability. Consequently, the fact that Brannigan allegedly should have known that the bouncers it hired would commit a grievous assault could proximately result in that assault, because it is the “but for” act that caused the bouncers and the patron to be in the same place at the same time.

Nevertheless, a claim of negligent hiring or retention requires actual or constructive knowledge by the employer that would make the specific wrongful conduct perpetrated by an employee predictable. See Brown v. Brown, 478 Mich. 545, 553-556, 739 N.W.2d 313 (2007). In particular, employers are not expected to anticipate that their employees will engage in criminal conduct without some particularized forewarning thereof. Id. at 555-556, 739 N.W.2d 313; Hamed v. Wayne Co., 490 Mich. 1, 12-15, 803 N.W.2d 237 (2011). Thus, lewd and crude commentary is not enough to put an employer on notice that an employee will commit a rape, although an actual threat to commit a rape would. Brown, 478 Mich. at 555-556, 739 N.W.2d 313. A past history of generally aggressive and irresponsible behavior is not enough to put an employer on notice that the employee would engage in a violent sexual assault. Hamed, 490 Mich. at 16, 803 N.W.2d 237. Knowledge of an employee having actually committed another rape would justify anticipating that the employee would reoffend, if the employer had good reason to know of the prior crime. Bradley v. Stevens, 329 Mich. 556, 46 N.W.2d 382 (1951). However, employers are not strictly liable for their employees’ misconduct that goes beyond what would generate vicarious liability under respondeat superior. Zsigo v. Hurley Med. Ctr., 475 Mich. 215, 226-227, 716 N.W.2d 220 (2006).

Plaintiff asserts that Smith was known to be violent and short-tempered and that he had been charged with assaulting a police officer. Strictly speaking, Smith had been convicted of attempted assault on a police officer pursuant to a plea on March 31, 2003, contemporaneously with an attempted unlawful use of a motor vehicle; an also-contemporaneous charge of larceny was dismissed, and Smith served a total of nine days in jail. It was therefore a decade-old misdemeanor charge, and its predictive value to the incident at issue in this matter is consequently rather poor.

Plaintiff argues that Suttle had a prior manslaughter conviction but provides no criminal docket sheet, and upon further analysis, the situation was considerably more bizarre. Suttle testified that he was convicted of second-degree murder when he was 15 years old. Apparently, he was “playing with a firearm” when it discharged. His “girlfriend,” who was 40 or 42 years old at the time and with whom he was having a sexual relationship, gave him the gun in some kind of “almost like a suicide-type deal.” He testified that he entered a no-contest plea “just pretty much to hush everything” so that he “wouldn't have to get on the stand.” Although a second-degree murder conviction is substantial, the nature of the offense does not easily lend itself to predicting the kind of pursuit and assault that occurred here, especially given the well-known propensity of teenagers to engage in dubious conduct they regret as adults.

Plaintiff argues that Kanaveh had a criminal history of fighting and theft. We have found no public record of any convictions. However, in his deposition, Kanaveh admitted that he had been charged criminally on the basis of a fight somewhere in Novi in 2005 or 2006, which he described as “there was some sort of something going on where guys were arguing and fighting and I was punched and then I defended myself and punched a guy back and that was pretty much it from what I remember.” He stated that although he was arrested, charged, and ultimately did go to court, the charge was dropped. He testified that he had also been arrested for attempting to steal a golf cart along with Smith “probably over ten years ago,” but he did not recall what ultimately happened beyond paying restitution and presumably having his record expunged eventually. If Kanaveh even had a criminal record, nothing about it would suggest the kind of pursuit and assault that occurred here.

Plaintiff has not argued that McClain had any kind of criminal history insofar as we can find. We have reviewed McClain's deposition testimony, and there is no mention of any prior criminal history or history of violence. There is no public record of McClain being listed as either an active or inactive offender. Obviously, there is no articulated negligent-hiring claim related to McClain.

Consequently, the trial court properly disposed of plaintiff's claim for negligent hiring. Plaintiff's claims of negligent retention, negligent training, and negligent supervision are not necessarily disposed of merely because none of the individual defendants had particularly egregious histories before their hiring. However, those claims still depend on the particular misconduct complained of being foreseeable. Taken entirely at face value, plaintiff argues that there were frequently fights at the bar, that employees received no training, that the owner was drunk and irresponsible, and that the security staff had a tendency toward roughness and aggressiveness. We accept for the sake of argument that Brannigan's training and supervision were grossly incompetent or nonexistent. That would strongly suggest that sooner or later a patron was going to get hurt fighting with the staff on-site or while being removed from the premises. But that would still not predict security staff chasing an ejected patron down the street and beating him fatally. That outrageous conduct and loss of self-control is such a radical departure from expected social norms that we very much doubt businesses commonly perceive a need to craft rules and training against that degree of blatantly criminal misconduct.

Plaintiff finally argues that Brannigan should be held liable because its staff failed to ensure that Suttle and Peterson left the bar at different times. The only staff member plaintiff suggests should have done so is Pam Muzillo, who is not a named defendant. Additionally, plaintiff concedes that Suttle was a nonemployee at the time, so this is essentially an argument that Brannigan had some obligation to control two unruly patrons after their ejection.

In any event, the cases on which plaintiff relies are not helpful. In Mills v. White Castle Sys., Inc., 167 Mich.App. 202, 204, 208, 421 N.W.2d 631 (1988), this Court held that it was possible for a restaurant to be negligent for failing to eject unruly patrons from its parking lot and failing to summon police upon request after those unruly patrons attacked other customers and were present for some considerable time. In Marcelletti v. Bathani, 198 Mich.App. 655, 664, 500 N.W.2d 124 (1993), this Court noted the general rule that no one is under a duty to protect others from the conduct of third persons. The Court recognized, however, that a “special relationship with either the victim or the person causing the injury” could give rise to such a duty when the individual was in a position of control and the third party was foreseeably endangered and that the “proprietor-patron” relationship has been recognized as such a “special relationship.” Id. In Taylor v. Laban, 241 Mich.App. 449, 454-457, 616 N.W.2d 229 (2000), this Court mostly discussed licensees rather than invitees but observed that a social host is not under any obligation to control guests beyond “refrain[ing] from wilful and wanton misconduct that results in one guest injuring another guest,” which is not established by a mere failure to act. Regarding invitees, the Taylor Court, id. at 453, 454, merely cited Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 502-503, 418 N.W.2d 381 (1988), in which our Supreme Court held that a merchant was not under a duty to provide armed guards and that “any duty we might impose on defendant to protect his invitees from the criminal acts of third parties would be inevitably vague, given the nature of the harm involved.” As already discussed, employers are generally not expected to anticipate criminal acts.

This issue is not as easily addressed as any of the parties suggest. However, the trial court ultimately reached the correct decision. Brannigan could not be held vicariously liable under a respondeat superior theory of liability because the individual defendants were either not working at the time of the incident or were wholly deviating from the scope and authority of that employment for their own purposes. Brannigan could not be held liable for negligent hiring because nothing in the individual defendants’ backgrounds would have suggested any serious likelihood that they would commit the complained-of acts in this matter. Brannigan could not be held liable for negligent retention or supervision on these facts because, although it does appear that the bar was poorly run, the history of its internal issues would not predict this particular kind of misconduct. For analogous reasons, Brannigan could not be held negligent simply because its staff ejected Suttle and Peterson at the same time, if indeed that actually occurred.

Plaintiff next argues that the trial court erred by dismissing her “concert of action” claim against the individual defendants. The parties all agree that “concert of action” was a viable cause of action in 1994. Under that “traditional theory,” if a plaintiff “can establish that all defendants acted tortiously pursuant to a common design, they will all be held liable for the entire result.” Abel v. Eli Lilly & Co., 418 Mich. 311, 337-338, 343 N.W.2d 164 (1984). However, the parties dispute whether that cause of action survived the enactment of MCL 600.2956, an issue that appears not to have been explicitly determined by any published decision of the courts of this state. We hold that the issue has, however, been determined, albeit somewhat less cleanly stated, and that “concert of action” is in fact no longer a viable cause of action in Michigan.

MCL 600.2956, as enacted by 1995 PA 161, provides:

Except as provided in [MCL 600.6304], in an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each defendant for damages is several only and is not joint. However, this section does not abolish an employer's vicarious liability for an act or omission of the employer's employee.

MCL 600.6304 addresses the apportionment of fault and the award of damages in tort actions when there is common liability among multiple tortfeasors. MCL 600.6304(4) specifically states that liability “is several only and not joint.” Furthermore, MCL 600.2957(1) similarly provides:

In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each person shall be allocated under this section by the trier of fact and, subject to [MCL 600.6304], in direct proportion to the person's percentage of fault. In assessing percentages of fault under this subsection, the trier of fact shall consider the fault of each person, regardless of whether the person is, or could have been, named as a party to the action.

Plaintiff primarily advances the argument that by its own express terms, MCL 600.2956 excepts vicarious-liability theories from the abolition of joint and several liability, and because vicarious liability was still an issue at the time the trial court decided the instant motion for summary disposition, concert of action was therefore also a viable claim. However, that is a misreading of both the statute and its entire framework, not to mention a very weak effort at bootstrapping, especially because a plain reading of the complaint shows that the concert-of-action count was alleged only against the individual defendants, not Brannigan. Vicarious liability is premised on agency and the traditional doctrine that a master is responsible for the actions of the master's servant even if the master was not personally at fault. McClaine v. Alger, 150 Mich.App. 306, 316-317, 388 N.W.2d 349 (1986). It has nothing to do with joint liability, and it is a narrow exception to the abolition of joint and several liability left by the Legislature. The significance is that Brannigan is not “off the hook” if any of its alleged employees were found liable for committing a tort while in the scope of their employment, not that all of the employees are liable if any of them are. The fact that there is an issue of respondeat superior in the case does not render MCL 600.2956 inapplicable to defendants who are not each others’ employers.

Plaintiff argues that this Court's opinion in Urbain v. Beierling, 301 Mich.App. 114, 132, 835 N.W.2d 455 (2013), establishes that concert of action remains a viable cause of action. Plaintiff accurately notes that this Court described what the claim entails, relying on Abel, and upheld the trial court's grant of summary disposition in favor of the defendants because the plaintiff had failed to demonstrate an underlying tort rather than because concert of action was not a viable claim. However, this Court did so in the context of discussing the plaintiff's assertion that the trial court had erred by disposing of both a concert-of-action and civil-conspiracy claims, noting that both required an underlying tort that had not been established and explicitly approving of the trial court's observation that “ ‘[b]oth claims are not actionable torts, but rather require a separate tort before liability can attach ․’ ” Id. at 131-132, 835 N.W.2d 455. In other words, this Court was not called on to determine whether concert of action was a valid claim, but rather whether the trial court's reasoning had been sound. Construing the absence of an unnecessary pronouncement to be an outright holding to the contrary does not even rise to the level of relying on dicta.

Plaintiff additionally relies on our Supreme Court's decision in Gerling Konzern v. Lawson, 472 Mich. 44, 56, 693 N.W.2d 149 (2005). Plaintiff correctly notes that our Supreme Court stated that “a ‘common liability’ exists in situations in which multiple tortfeasors are liable for the same injury to a person or property or for the same wrongful death” and that the “1995 tort reform legislation does not negate the existence of common liability among such multiple tortfeasors.” Id. However, the case itself concerned the right of contribution for a tortfeasor who had settled for more than the jury ultimately found that tortfeasor liable. The Court went on to observe that what tort reform did change was the possibility of a single tortfeasor being liable for the entirety of a common liability and then being required to seek contribution from the other tortfeasors, whereas now “a tortfeasor need only pay a percentage of the common liability that is proportionate to his fault.” Id. at 52-54, 56-57, 693 N.W.2d 149. The broader context of the Court's statement was the pronouncement that a settling tortfeasor had “a statutory right to seek contribution from other responsible tortfeasors after having settled with the injured parties in the underlying tort action, and tort reform legislation in 1995 does not alter this right.” Id. at 62-63, 693 N.W.2d 149. It expressly held that such contribution claims may well be of reduced necessity but remained permissible; otherwise, “the 1995 legislation eliminated joint and several liability in certain tort actions, requires that the fact-finder in such actions allocate fault among all responsible tortfeasors, and provides that each tortfeasor need not pay damages in an amount greater than his allocated percentage of fault.” Id. at 51, 693 N.W.2d 149.

Plaintiff also relies on an unpublished case 3 that is not precedentially binding. MCR 7.215(C)(1). We think that the opinion itself engaged in a certain amount of somewhat ambiguous semantic hair-splitting, and plaintiff's interpretation thereof is at least not wholly unreasonable on its face. However, that opinion relied on a published case, which in turn held that “[t]he significance of [the tort reform] change is that each tortfeasor will pay only that portion of the total damage award that reflects the tortfeasor's percentage of fault” and that “the trier of fact must consider the fault of each person who contributed to the tort, not only those who are parties to the litigation ․” Smiley v. Corrigan, 248 Mich.App. 51, 55, 56, 638 N.W.2d 151 (2001). The opinion certainly did not explicitly hold that concert of action remains a viable claim, and we do not believe any such holding was intended.

Plaintiff argues that “[i]f the jury was presented with the Plaintiff-Appellant's concert of action theory it could have reasonably found each of these individuals negligent and a proximate cause of [Peterson's] death.” The jury did, in fact, consider the fault of each of the defendants. Pursuant to MCL 600.2956, none of the defendants in this matter could be found liable for the entirety of Peterson's injuries simply because of an undifferentiated contribution thereto or be liable for any portion thereof without a specifically allocated percentage of fault. Irrespective of whether any case to date has explicitly so held, we do so now: concert of action as a cause of action is incompatible with MCL 600.2956.

Plaintiff next argues that the trial court erred by prohibiting her from impeaching Smith with a prior conviction of attempted joyriding, arguing that this Court has held unlawful use of a motor vehicle to constitute a crime involving dishonesty. Incredibly, plaintiff fails to address MRE 609(c), which states:

Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.

According to the criminal docket sheet plaintiff herself provided, Smith was convicted of attempted unlawful use of a motor vehicle, MCL 750.414, by a plea on March 31, 2003, and he was sentenced to nine days in jail. Ten years from the latest date would have elapsed by April 10, 2013. Although the tortious conduct in this matter occurred in 2012, this claim was not filed until December 13, 2013. Consequently, the trial court correctly found the joyriding conviction inadmissible irrespective of whether it contains an element of theft or dishonesty. We find plaintiff's argument devoid of even arguable legal merit and impossible to have been based on a reasonable inquiry. MCR 2.114(D)(2). However, because of the trivial ease with which it could be disposed and the fact that Smith is, as will be noted, a prevailing party and already entitled to costs, MCR 7.219(A), we impose no sanctions because any such sanctions would only be punitive. MCR 2.114(E).

Finally, plaintiff argues that the trial court erred by allowing Dr. Benjamin Mosher, the emergency room doctor who treated Peterson, to testify regarding the low likelihood, in his opinion, that Peterson's skull fracture could have been caused by a fall from standing height. We disagree.

Plaintiff stipulated to Mosher's qualifications, despite being offered an opportunity for voir dire, and made a total of two objections during Mosher's testimony. Plaintiff objected to the relevance of how many of Mosher's 9,000 or so patients had presented with a similar skull fracture, which the trial court apparently overruled or otherwise resolved off the record. Plaintiff also objected to Mosher's opinion that a fall from a greater distance would be more likely to cause an injury like the one Peterson suffered, on the grounds that “he's only seen six of this nature,” which the trial court overruled. Giving plaintiff the very maximal benefit of the doubt, the latter objection could reasonably be construed as a challenge to Mosher's practical expertise to render an opinion about how far of a fall would be necessary to produce an injury similar to the skull fracture Peterson suffered. While minimal, appellate consideration is not precluded merely because a party makes a more developed or sophisticated argument on appeal. See Steward v. Panek, 251 Mich.App. 546, 554, 652 N.W.2d 232 (2002). We prefer to resolve issues on their merits when possible, so we will construe plaintiff's objections in her favor to the extent we can.

However, plaintiff is limited to challenging Mosher's practical and particular expertise only. Plaintiff's stipulation to Mosher's formal or general expertise and failure to contend in the trial court that Mosher exceeded his field of expertise preclude plaintiff from making that challenge at this time. Chapdelaine v. Sochocki, 247 Mich.App. 167, 177, 635 N.W.2d 339 (2001). “[E]rror requiring reversal cannot be error to which the aggrieved party contributed by plan or negligence ․” Farm Credit Servs. of Michigan's Heartland, P.C.A. v. Weldon, 232 Mich.App. 662, 684, 591 N.W.2d 438 (1998). Before admitting expert testimony, a trial court must properly and thoroughly exercise its gatekeeping function under MRE 702 to ensure that “each aspect” of the expert testimony is reliable. Gilbert v. DaimlerChrysler Corp., 470 Mich. 749, 779-781, 685 N.W.2d 391 (2004). However, the trial court is not obligated to do so sua sponte, but rather is only required to do so upon request, and a failure to bring the issue to the court's attention waives it. See Craig v. Oakwood Hosp., 471 Mich. 67, 82, 684 N.W.2d 296 (2004). Plaintiff has, quite simply, waived the issue regarding whether Mosher's testimony exceeded his field of expertise.

Nevertheless, pursuant to giving plaintiff the benefit of the doubt, plaintiff did make a specific objection to Mosher's opinion testimony regarding the likelihood of any particular fall causing Peterson's injuries. Plaintiff objected that it called for speculation and conjecture because Mosher had only seen six or so fractures of that nature. Michigan courts have a time-honored tradition of looking to the substance of arguments rather than nomenclature, which, of course, unambiguously furthers the cause of justice and fairness. See Hurtford v. Holmes, 3 Mich. 460, 463 (1855); In re Traub's Estate, 354 Mich. 263, 278-279, 92 N.W.2d 480 (1958); Wilcox v. Moore, 354 Mich. 499, 504, 93 N.W.2d 288 (1958); Norris v. Lincoln Park Police Officers, 292 Mich.App. 574, 582, 808 N.W.2d 578 (2011). With that in mind, we construe plaintiff's objection as essentially being an objection to foundation. The trial court overruled the objection without any analysis or argument on the record. We think the issue may have warranted somewhat more thoughtful consideration, but we ultimately conclude that the decision was either correct or harmless.

Mosher was called as a witness by Smith. It was established initially that Mosher had seen “maybe half a dozen” comparable basilar skull fractures like the one Peterson presented with over the course of a career spanning some nine thousand patients. Mosher was asked, with no objection, to explain how such a fracture could occur, to which Mosher explained that it could happen from any number of mechanisms, like falling, being struck, being shot, or being involved in a car accident. He further explained that he had never seen a diffused, 11-centimeter fracture like the one Peterson had. He further testified, again with no objection, that skull fractures caused by falls from a standing height were typically more local in shape, which was inconsistent with the fracture Peterson had, particularly in combination with Peterson's coma level and internal bleeding. Mosher was asked whether it would make a difference whether a person fell “from a standing height who is 6 foot 2 as opposed to 5 foot 2” (in context, meaning a taller person falling to the ground), to which Mosher replied that he would not expect one foot to make a meaningful difference. When asked about a 10-foot fall, he agreed that such a fall made a fracture like the one Peterson had “more likely than falling from 6 foot 2.”

Plaintiff objected when Smith's attorney asked Mosher, “What about another 20 feet?” After the objection was overruled, Mosher agreed that another 20 feet would indeed make such a fracture more likely. However, he then clarified that he was not saying that Peterson's fracture necessarily required a fall from such a height, but rather only that a fall from 20 to 30 feet was more likely to cause such a fracture than a fall from 6 feet. He therefore concluded that it was “highly unlikely” that Peterson's injuries were caused by a fall from standing height and hitting his head on the ground, because he “just [did not] think that that mechanism would sustain the amount of force needed to fracture Mr. Peterson's skull the way it was and sustain the injury and having him be in a coma that he was” and that a punch to the mouth was “unlikely” to have caused Peterson's death. Plaintiff declined to ask Mosher any questions at all.

Given Mosher's stipulated-to expertise and his experience with not only other injuries but particularly with comas and internal bleeding, we do not believe that it would have been an abuse of discretion for the trial court to overrule an objection to foundation, nor did Mosher engage in any inappropriate speculation or conjecture. Furthermore, the jury was made aware that Mosher had little to no other experience with a similar injury. At no point did Mosher opine that it was impossible for Peterson to have sustained the injury from a mere fall. Plaintiff could have followed up on Mosher's lack of experience and highlighted it but elected not to do so. The mere fact that testimony is not advantageous—because it presumably increased the likelihood that the jury would believe only Suttle, who had a baton, could have inflicted a fatal blow—does not make it improper. Even if the trial court's decision had been erroneous, we are not persuaded that it would have been sufficiently prejudicial to warrant our intervention. MCR 2.613(A).

The trial court is affirmed. Brannigan, Smith, and McClain, being the prevailing parties who actually participated in this appeal, may each tax costs. MCR 7.219(A).


1.   The surname of defendant Shafeek Kanaveh was also spelled “Kanazeh” in the lower court record.

2.   Suttle was independently convicted of second-degree murder arising out of the same events that gave rise to the instant appeal. People v. Suttle, unpublished per curiam opinion of the Court of Appeals, issued June 3, 2014 (Docket No. 314773), 2014 WL 2527415.

3.   Lackie v. Fulks, unpublished per curiam opinion of the Court of Appeals, issued June 11, 2002 (Docket No. 231479).

Per Curiam.

RONAYNE KRAUSE, P.J., and FORT HOOD and O'BRIEN, JJ., concurred.

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MUELLER v. API (2018)

Docket No: No. 335501

Decided: April 03, 2018

Court: Court of Appeals of Michigan.

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