Negligent infliction of emotional distress

Michigan Court of Appeals Reports

CAMPBELL v. KOVICH, 269876 (Mich.App. 12-14-2006) KARIE
CAMPBELL and DAVID CAMPBELL, as Next Friend for ALLISON
CAMPBELL, a Minor, and CAITLIN CAMPBELL, a Minor,
Plaintiffs-Appellants, v. STEVEN KOVICH, JULIE KOVICH and
ASHTON MINISH, Defendants-Appellees. No. 269876. Michigan
Court of Appeals. December 14, 2006 at 9:00 a.m.

Appeal from Oakland Circuit Court LC No. 04-062067-NO.

Before: WILDER, P.J., and KELLY and BORRELLO, JJ.

PER CURIAM.

Plaintiffs Karie Campbell (Karie) and David Campbell, next
friend for Allison Campbell and Caitlin Campbell, minors,
appeal as of right (1) an order granting summary
disposition to defendants Steven Kovich (Steven) and Julie
Kovich (Julie), (the Koviches), and (2) an order granting
summary disposition to defendant Ashton Minish (Ashton). We
affirm.

I.

Karie was struck in the eye by an unknown, unrecovered
object that she alleges was ejected from a lawnmower being
operated by Ashton, who was mowing the Koviches’ lawn.
Plaintiffs’ pleadings assert claims of negligence,
negligent infliction of emotional distress, and loss of
consortium. All defendants moved for summary disposition
under MCR 2.116(C)(10), which the trial court granted.

II.

A motion made under MCR 2.116(C)(10) tests the factual
support for a claim, Dressel v Ameribank, 468 Mich 557,
561; 664 NW2d 151 (2003), and should be granted when there
is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. Miller v
Purcell, 246 Mich App 244, 246; 631 NW2d 760 (2001). When
the burden of proof at trial would rest on the nonmoving
party, the nonmovant may not rest upon mere allegations or
denials in the pleadings, but must, by documentary
evidence, set forth specific facts showing that there is a
genuine issue for trial. Quinto v Cross & Peters Co, 451
Mich 358, 362; 547 NW2d 314 (1996). A genuine issue of
material fact exists when the record, drawing all
reasonable inferences in favor of the nonmoving party,
leaves open an issue upon which reasonable minds could
differ. West v GMC, 469 Mich 177, 183; 665 NW2d 468 (2003).
When deciding a motion for summary disposition under this
rule, a court must consider the pleadings, affidavits,
depositions, admissions, and other documentary evidence
then filed in the action or submitted by the parties in the
light most favorable to the nonmoving party. MCR
2.116(G)(5); Ritchie-Gamester v City of Berkley, 461 Mich
73, 76; 597 NW2d 517 (1999). But such materials “shall only
be considered to the extent that the[y] . . . would be
admissible as evidence. . . .” MCR 2.116(G)(6); Veenstra v
Washtenaw Country Club, 466 Mich 155, 163; 645 NW2d 643
(2002).

III.

A.

Plaintiffs first argue that the trial court erroneously
concluded that there was insufficient evidence of causation
in fact, i.e., that the object that struck Karie was
ejected from the lawnmower. Assuming but not finding
causation, summary disposition was nevertheless warranted
because plaintiffs’ arguments fail in other respects.

For example, plaintiffs contend that they presented
sufficient evidence to establish that Ashton breached
duties owed in this case. We disagree. The elements of a
prima facie case of negligence are: (1) duty; (2) breach;
(3) injury or damages; and (4) causation. Brown v Brown,
270 Mich App 689, 693; 716 NW2d 626 (2006). For the reasons
explained below, plaintiffs fail to establish a genuine
issue of material fact on the element of breach. A genuine
issue of material fact exists when the record, drawing all
reasonable inferences in favor of the nonmoving party,
leaves open an issue on which reasonable minds could
differ. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d
468 (2003).

The parties cite, and this Court has located, no Michigan
authority specifically addressing what degree of care a
person mowing a lawn must exercise. In Gore v Ohio Dep’t of
Transportation, 119 Ohio Misc 2d 138, 141, 774 NE2d 817,
820 (Ct Cl, 2002),1 a limousine passenger brought an action
against the Ohio Department of Transportation (ODOT) as the
employer of an independent contractor that mowed grass on a
highway median, alleging that ODOT was liable for injuries
she sustained when a piece of rubber thrown from a mower
struck her in the head. On ODOT’s motion for summary
judgment, the court held that ODOT was not liable for the
independent contractor’s negligence. Id. at 141. The court
also reasoned that “[r]emoving debris from the mower’s path
is a routine precaution, which any careful contractor could
be expected to take in the exercise of ordinary care.” Id.
(emphasis added). Thus, Ohio authority persuasively argues
that inspecting a mower’s path is what ordinary care
requires.

Adopting the Ohio requirement for ordinary care as our own,
there is insufficient evidence that Ashton failed to
exercise reasonable care. On September 14, 2004, before
mowing the Koviches’ lawn, Ashton inspected the lawn for a
couple minutes. Karie admitted that while mowing the lawn,
Ashton was not doing anything unusual, but was merely
pushing the lawn mower, and that he did not appear to be in
a hurry and appeared to be watching where he was walking.
Before Karie was struck, Ashton was watching the area in
front of him, and he did not see anything in front of the
lawnmower. Karie also acknowledged in her deposition that
Ashton never acknowledged that he had mowed over anything.
Under these facts, there is no genuine issue of material
fact as to whether Ashton exercised reasonable care in the
operation of the lawn mower.

We reject plaintiffs arguments that summary disposition
was inappropriate because to do so would impose on Ashton a
duty to exercise more care than is exercised by persons of
ordinary prudence. Ashton was not required to exercise
extraordinary care. Case v Consumers Power Co, 463 Mich 1,
5, 615 NW2d 17 (2000). Ordinarily prudent people, when
mowing a lawn, do not go to such extraordinary lengths as
to: do more than a brief inspection of the lawn before
mowing; avoid mowing altogether when other persons are
within 75 feet; mow only under close parental supervision;
or look anywhere but ahead of where they are going while
mowing. The evidence suggests that Ashton was ordinarily
careful, but an accident of unclear causation occurred.
Viewing the evidence in a light most favorable to
plaintiff, reasonable minds could not disagree that Ashton
exercised due care. Accordingly, the trial court did not
err in granting summary disposition to Ashton.

B.

Plaintiffs next argue that the trial court erred in
granting summary disposition on the premises liability
claims against Steven and Julie Kovich, because there was
evidence of independent acts of negligence. We disagree.
Plaintiffs do not present evidence of independent acts of
negligence by the Koviches that had any causal connection to
the accident.

“‘Proximate cause’ is a legal term of art that incorporates
both cause in fact and legal (or `proximate’) cause.” Craig
v Oakwood Hosp, 471 Mich 67, 86; 684 NW2d 296 (2004).
Causation in fact requires a but-for standard. Wilkinson v
Lee, 463 Mich 388, 396-397; 617 NW2d 305 (2000). In other
words, it requires a showing that but for the negligent
conduct, the injury would not have occurred. Wiley v Henry
Ford Cottage Hosp, 257 Mich App 488, 496; 668 NW2d 402
(2003). Proximate cause “normally involves examining the
foreseeability of consequences, and whether a defendant
should be held legally responsible for such consequences.”
Skinner v Square D Co, 445 Mich 153, 163; 516 NW2d 475
(1994). Cause in fact requires more than a possibility of
causation; while the evidence need not negate all other
possible causes it must exclude other reasonable hypotheses
with a fair amount of certainty. Craig, supra at 87-88.

The fact that the Koviches knew nothing about Ashton before
they hired him has not been shown to have any causal
connection to the accident. The fact that the Koviches knew
nothing about the lawn mowing equipment Ashton would be
using also has not been shown to have any causal connection
to the accident. By the same token, the fact that the
Koviches did not know how old Ashton was, or that he would
be using a mower that the manufacturer recommended should
not be used by minors absent close parental supervision,
are also facts that have not been shown to have any causal
connection to the accident. Therefore, we reject
plaintiffs’ argument that the trial court erred in
dismissing their premises liability claims based on alleged
independent acts of negligence.

C.

Plaintiffs next argue that the trial court erroneously
ruled as a matter of law that Ashton was not an employee of
the Koviches, rather than an independent contractor. We
disagree.

“[A] premises owner who hires an independent contractor is
generally not [vicariously] liable for injuries that the
contractor negligently causes. . . .” Ghaffari v Turner
Constr Co, 473 Mich 16, 24; 699 NW2d 687 (2005). “The
rationale for this rule is that an independent contractor
is not subject to the control of the employer, and
therefore the employer should not be held vicariously
liable for actions outside its control.” Janice v
Hondzinski, 176 Mich App 49, 53; 439 NW2d 276 (1989).

The test for whether a worker is an independent contractor
or employee is whether the worker has control over the
method of his work: “If the employer of a person or
business ostensibly labeled an `independent contractor’
retains control over the method of the work, there is in
fact no contractee-contractor relationship, and the employer
may be vicariously liable under the principles of master
and servant.” Candelaria v B C Gen Contractors, Inc., 236
Mich App 67, 73; 600 NW2d 348 (1999). In other words: “An
independent contractor is one who, carrying on an
independent business, contracts to do a piece of work
according to his own methods, and without being subject to
control of his employer as to the means by which the result
is to be accomplished, but only as to the result of the
work.” Utley, for Use and Benefit of Travelers Ins Co v
Taylor & Gaskin, Inc, 305 Mich 561, 570; 9 NW2d 842 (1943)
(emphasis added).

Here, there is insufficient evidence that the Koviches
retained control over the method by which Ashton would mow
their lawn. Vince Minish, Ashton’s father, testified that,
if Steven Kovich became displeased, he could require Ashton
to work in any way he deemed fit. However, this evidence
only suggests that Steven could have dictated the methods
of mowing the lawn if he became displeased. In other words,
Steven could have changed a contractor-contractee
relationship into a master-servant (employer-employee)
relationship if he became displeased. There is no evidence
that Steven became displeased and attempted to exercise
control over Ashton’s mowing (i.e., changed to a
master-servant relationship).

There is no evidence that the Koviches actually exercised
control over the method by which Ashton mowed their lawn.
Therefore, the trial court did not err in concluding as a
matter of law that Ashton was an independent contractor,
for whose negligence the Koviches could not be held
vicariously liable. Plaintiffs further argue that the
Koviches were independently negligent in their selection of
Ashton to mow their lawn. However, Michigan recognizes no
cause of action for negligent hiring of an independent
contractor. Reeves v Kmart Corp, 229 Mich App 466, 475-476;
582 NW2d 841 (1998). “Michigan has not recognized a duty
requiring an employer to exercise care in the selection and
retention of an independent contractor. . . . [W]e hold
that such a duty does not exist.” Id.

Plaintiffs further argue that the Koviches may be held
liable for Ashton’s negligence under the retained control
doctrine, because the activity was inherently dangerous,
citing Reeves, supra at 471. We disagree. Plaintiffs cite
no authority that lawn mowing is inherently dangerous.
There is sister state authority. In Gore, the court held
that “mowing grass in a median is not an inherently
dangerous activity. . . .” Gore, supra at 141. Gore,
similar on its facts, is persuasive. Lawn mowing is not
inherently dangerous.

D.

Plaintiffs next argue that the trial court erred in
concluding that the Koviches did not breach a duty of
ordinary care. Again, we disagree.

Michigan law classifies entrants onto property into
trespassers, licensees and invitees. Stitt v Holland
Abundant Life Fellowship, 462 Mich 591, 596; 614 NW2d 88,
91 (2000). We agree with the Koviches that, assuming that
Karie was “on” the Koviches property (the servient estate
vis-??-vis the public right of way over the sidewalk), Karie
was a licensee because she was not there for any activity
affording any monetary benefit to the Koviches. Id. at
596-597. As noted in Davis v Morton, 143 Mich App 236, 242;
372 NW2d 517 (1984), in Woodworth v Brenner, 69 Mich App
277, 280; 244 NW2d 446 (1976), “the plaintiff, a licensee,
fell on an icy sidewalk owned by the adjacent property
owners. . . .” Davis, supra at 242. Accordingly, Woodworth
recognized that a person walking on a sidewalk is a
licensee vis-??-vis the owner of the fee (the servient
estate under the sidewalk).

The duty owed a licensee is limited. “A landowner owes a
licensee a duty only to warn the licensee of any hidden
dangers the owner knows or has reason to know, if the
licensee does not know or have reason to know of the
dangers involved. The landowner owes no duty of inspection
or affirmative care to make the premises safe for the
licensee’s visit.” Stitt, supra at 596-597. Here, Karie was
allegedly injured not by a hidden danger, but by a danger
the licensee had reason to know of: the lawnmower. The
lawnmower was not hidden. Karie admitted that she was aware
that lawnmowers could run over and eject objects:

Q. Were you aware before this incident . . . that things
could be ejected from under a lawn mower?

A. Yes.

Q. But you were aware that day walking down the sidewalk
that things could come out from under lawn mowers?

A. Yes.

Thus, the Koviches had no duty to warn Karie of this
danger. Stitt, supra at 596-597. The Koviches also had no
duty to inspect the premises to determine whether there
were hidden objects that a lawnmower might eject. Id.
Therefore, viewing the evidence in a light favorable to
plaintiffs, there is no genuine issue of material fact
regarding whether the Koviches breached a duty owed to
Karie as a licensee.

IV.

The trial court did not err in concluding that plaintiffs
failed to present sufficient evidence to establish that
Ashton breached duties owed in this case or in granting
summary disposition of the plaintiffs’ claims of
independent acts of negligence by the Koviches. The trial
court also did not err in ruling as a matter of law that
Ashton was an independent contractor and not an employee of
the Koviches, and the trial court also correctly held as a
matter of law that the Koviches did not breach any duty
owed to Karie as a licensee on their property.

Affirmed.