Campbell v. Kovich

273 Mich. App. 227, 731 N.W.2d 112 (2006)



A motion made under MCR 2.116(C)(10) tests the factual support for a claim 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. 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. 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. 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). But such materials shall only be considered to the extent that they would be admissible as evidence. MCR 2.116(G)(6).


A woman was struck in the eye by an unknown, unrecovered object that she alleged was ejected from a lawn mower being operated by someone who was mowing the neighbor's lawn. A case was filed for claims of negligence, negligent infliction of emotional distress, and loss of consortium against both the neighbors and the operator. All defendants moved for summary disposition under MCR 2.116(C)(10), which the trial court granted. The case was appealed to the Court of Appeals of Michigan.


Is there a cause of action?




The Court held that no negligence was present during the incident and determined that ordinary care only required the operator to inspect the mower's path. Further, there were no independent acts of negligence on the part of the owners. The fact that they knew nothing about the operator or his mowing equipment before he was hired did not have any causal connection to the accident. There was also insufficient evidence that the owners sufficiently retained control so as to render the operator an employee instead of an independent contractor. Michigan did not recognize a cause of action for the negligent hiring of an independent contractor, and the act of mowing a lawn was not inherently dangerous. As a licensee, the injured party had reason to know of the dangers of lawn mowers. Therefore, the owners had no duty to warn her or to inspect their property to determine if there were hidden objects that the lawn mower might eject.

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