Author(s): Paul E. Tower


Under traditional negligence theory, a plaintiff has to prove defendant’s breach of a duty was a cause of his injury. There are two elements of causation: cause in fact and proximate cause (sometimes known as legal cause). In Skinner v Square D Co., 445 Mich 153, 163 (1994), the Michigan Supreme Court described how the two elements interact:

The cause in fact element generally requires showing that “but for” the defendant’s actions, the plaintiff’s injury would not have occurred. On the other hand, legal cause or “proximate cause” normally involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences.

Generally, cause in fact is a question for a jury to decide. But as two new unpublished opinions demonstrate, a trial court can sometimes find causation lacking and dismiss a case.

In McLaren v Emasco Insurance Co., Court of Appeals No. 277582, plaintiff brought a claim for uninsured motorist benefits. Plaintiff alleged he sustained cervical and lumbar injuries as a result of an automobile accident. But plaintiff’s medical records indicated that he had a history of cervical and lumbar symptoms. Nonetheless, plaintiff contended that the symptoms he experienced after the accident were different and more severe than his symptoms before the accident, and resulted in a cervical fusion. Thus, plaintiff argued that there was a causal connection between the accident and his condition.

The Court of Appeals disagreed. The court noted that the fact that plaintiff’s symptoms became worse after the accident did not, in and of itself, establish that the accident caused the worsened symptoms. The court emphasized, “Notably absent in the record is any medical documentation or expert testimony indicating that the accident triggered an exacerbation of plaintiff’s symptoms.” As a result, plaintiff failed to support his argument that the accident caused his injuries.

In Hetherinton v Great Lakes Orthopedic Center, Court of Appeals No. 282006, plaintiff brought a negligence and premises liability suit against the YMCA when he suffered an injury while playing a game called “pickle ball.”2 Plaintiff testified that he went to the YMCA and paid for one half of a basketball court for solo basketball practice. While he was shooting baskets on the court, he was joined in the gym by pickle ball players who began to play pickle ball in a center area of the gym that overlapped the basketball court. Plaintiff stopped shooting baskets and watched the pickle ball game. While watching, plaintiff was asked whether he would like to be a fourth player in the game. He agreed to play. At some point while playing pickle ball, plaintiff fell on a ball and injured himself. Plaintiff claimed that the YMCA was negligent for allowing pickle ball and basketball to be played simultaneously in the same gym area. He also alleged that the premises were defective, and this caused the ball to roll under his foot, thereby causing his fall.

With respect to his negligence claim, the Court of Appeals rejected plaintiff’s argument that, had the YMCA not allowed basketball and pickle ball to be played simultaneously, he would not have been invited to play pickle ball. While this may have established “but for” causation, the court did not believe plaintiff could establish legal causation. The court noted, “However, that establishes only ‘but for’ causation as it goes only to whether the activity would have taken place, not to any particular danger in that activity or the way in which it was conducted. Thus, the trial court correctly ruled YMCA’s ‘failure to take precautionary measures’ could not, as a matter of law, have been the proximate cause of the plaintiff’s injury.” With respect to the premises liability aspect of plaintiff’s claim, the court held that there was no evidence that any defect in the premises was a “but for” cause of the ball being on the court on which plaintiff was playing.