            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



CEDAR SPRINGS MOBILE ESTATES,                                      UNPUBLISHED
                                                                   September 17, 2019
               Plaintiff-Appellee,

v                                                                  No. 344630
                                                                   Kent Circuit Court
ANGELA SMITH,                                                      LC No. 17-011684-AV

               Defendant-Appellant.


Before: SWARTZLE, P.J., and GLEICHER and M. J. KELLY, JJ.

PER CURIAM.

        Cedar Springs Mobile Estates’ rental contracts make tenants responsible for damages
caused by negligent acts. At the bench trial to evict tenant Angela Smith and collect the costs of
repairing her rental unit, however, Cedar Springs’ only evidence of negligence was speculative
and was rebutted by Smith. On this record, the district court could not find Smith financially
responsible and therefore could not support a judgment of eviction. We reverse.

                                       I. BACKGROUND

       Angela Smith rented a mobile home and lot in the Cedar Springs Mobile Estates. On
July 22, 2017, a couch in the home’s living room caught fire, damaging the surrounding area.
Cedar Springs paid to repair the fire damage and then attempted to recoup approximately $5,000
from Smith. When Smith did not remit these funds in addition to her normal rent payments,
Cedar Springs instituted eviction proceedings in the district court and sought damages.
Following a bench trial, the district court ordered Smith’s eviction and also entered judgment of
$6,997.10. Smith appealed that judgment to the circuit court, which affirmed.

       The relationship between Smith and Cedar Springs was memorialized in two lease
agreements entered on June 3, 2017—the Cedar Springs Mobile Estates Lease Agreement (Lot
Lease) and the Cedar Springs Mobile Estates Home Lease Agreement (Home Lease)—and was
also governed by the Cedar Springs Community Rules (Community Rules). Under the Lot
Lease, Smith was required to pay $400 in monthly lot rent. Under the Home Lease, Smith was
required to pay an additional $375 in monthly rent for the mobile home.



                                               -1-
       The Home Lease specifically addresses fire damage to mobile homes as follows:

       18. DESTRUCTION OF HOME. If the Home is partially damaged by fire . . .,
       Landlord shall make necessary repairs as quickly as reasonably possible. If the
       Home is not habitable, rent will be abated until the Home is again habitable,
       unless the damage or destruction is due to the conduct (whether intentional or
       negligent) of Tenant, other members of Tenant’s household, or guests or invitees
       of Tenant, in which case there shall be no abatement of rent. No reduction in rent
       shall be made if Tenant can use and occupy the Home without substantial
       inconvenience. [Emphasis added.]

The Home Lease more generally provides that the tenant must “maintain the Home and all
fixtures and appliances in good working condition and repair.” The tenant is “responsible for all
repairs to Home and all fixtures and appliances” after move-in. Moreover:

       Tenant shall be liable for any damage to the Home or to Landlord’s other property
       that is caused by the acts or omissions (whether intentional or negligent) of
       Tenant, members of Tenant’s household or Tenant’s guests, visitors or invitees.
       Tenant shall reimburse Landlord, upon demand by Landlord, the costs of all
       required damage repairs/replacements. Landlord may require advance payment
       for any repair for which Tenant is responsible. [Emphasis added.]

The tenant also “agrees that he will not allow anything to be done on the Home, including the
operation of any equipment or machinery, which may result in imminent serious property
damage to the Home. . . .”

       The Lot Lease also governs the parties’ duties in the event of fire, providing that the
tenant remains “responsible for payment of [lot] rent” following a fire. In relation to the
“maintenance of home & site,” the Lot Lease provides:

       Resident must maintain the exterior of the home in accordance with the
       Community Rules and Regulations. In the event Resident neglects to maintain
       the site, Management will notify Resident to take corrective action within a
       reasonable number of days after the date of the written notice, and if Resident
       fails to bring the site into compliance within that time, Management shall have the
       right to enter upon the site and perform or subcontract this maintenance and
       charge resident for all maintenance performed.

       Resident will be charged for all such maintenance as provided in the Community
       and Regulations. Such charges shall be deemed rent and shall be collectable as
       rent. Management reserves the right to raise or lower said fees, charges, however.
       Resident shall be provided thirty (30) days written notice of such change.
       [Emphasis added.]

         The Community Rules similarly provide that residents are required “to maintain the home
site as required” and that if Cedar Springs must enter to make repairs, “[t]he charges incurred as
a result of such maintenance shall be deemed to be rent and collectable as rent.”

                                               -2-
        Both leases provide a mechanism for eviction. The Lot Lease permits Cedar Springs to
“terminate this tenancy for just cause and evict Resident as provided by law if Resident defaults
under this Lease. . . .” The Home Lease permits Cedar Springs to evict Smith if she “fails to pay
rent or other amounts owed by Tenant under this Lease.”

        The subject fire rendered the mobile home uninhabitable. Cedar Springs employed a
general contractor to oversee the repairs, a maintenance worker to clean the home, and an
electrician. Smith and her family were able to move back into the mobile home on October 13,
2017. At that time, she submitted $1,514.28 to Cedar Springs. Smith made an additional
payment of $872.28 on November 4. Pursuant to the Community Rules, ¶ IXA, these payments
were applied in a specific order: “1st to dishonored check charges; 2nd to late fees; 3rd to states
specific tax; 4th to water/sewer charges; 5th to other charges pursuant to these rules; 6th to
delinquent rent; and 7th to current rent.” The funds were applied only to the outstanding repair
bills under this provision, leaving the rent balance due and owing. Cedar Springs then charged a
late fee.

        One month later, Cedar Springs filed in district court a “demand for possession” based on
the rent arrearage. It also filed a form complaint seeking the payment of back rent and attested,
“The plaintiff declares that this residential property was kept fit for the use intended and has been
kept in reasonable repair during the term of the lease.”

        At a pretrial hearing, Cedar Springs shared its belief that the fire “was caused by an
afghan sitting on top of an air conditioner, which caused the air conditioner to overheat and
caught a couch on fire.” Cedar Springs reprised that theory at the bench trial and claimed that an
incident report prepared by the fire department supported this. The district court excluded the
report from evidence, however, because Cedar Springs failed to secure the presence of the
preparing officer and the report’s contents would therefore be hearsay. The court reiterated its
ruling later in the trial upon further motion of Cedar Springs.

        Cedar Springs manager, Ranee Dewey, testified at trial regarding the extent of the
damage to the mobile home, the types of repairs needed, and the cost expended. Dewey
inspected the mobile home the day after the fire. Dewey observed that the damage to the home
was centered in the living room “at the first window; . . . an air conditioner that was in that
window with an afghan laid on the top that was charcoaled.” The sofa would have been located
adjacent to that window. However, during Dewey’s inspection, the burnt couch was outside.
The flooring and the walls “by the window” also suffered severe damage and “[t]he window was
broke out.” Dewey described that “the wall by the window had holes all through it and
insulation pulled out; it also was saturated with water.” From Smith and her family’s efforts to
remove the burning couch from the home, the doorway “was also charred,” as was the railing on
the steps to the home.

        The court would not permit Dewey to give an opinion about the origin of the fire as she
was not expert, but permitted her to testify regarding “what she observed.” When asked, “What
did you observe?”, Dewey stated, “That the fire was started in the living room, at the window,
where there was an air conditioner and an afagan [sic] was placed over the air conditioner.” She
continued, “All of the main burning of the fire was in the living room: to the living room wall, to
the living room floor, the entry door.”

                                                -3-
        Smith took the stand and testified that no one was in the living room when the fire
started. She and her husband heard the smoke detector, came out to investigate, and found “the
back of our couch was glowing on the wall.” They tried to extinguish the fire with buckets of
water and to use their fire extinguisher, but it would not work. They attempted to push the
burning couch out the front door, but it became lodged. Smith and her family ultimately fled the
mobile home through the back door. Smith denied that anyone placed an afghan on the air
conditioner before the fire. The afghan had been on the couch, Smith insisted. She described, “I
grabbed the blanket and tried to put the fire out and a piece of the blanket went on my foot”
causing a burn. If the fire incident report described an afghan draped on an air conditioner as the
fire’s point of origin, Smith asserted that this would be inaccurate.

       In closing, Cedar Springs argued, “[T]his was a fire that was caused by whatever they did
with the trailer. They were in the exclusive possession and control of the trailer. . . . They did
something or didn’t do something that caused the fire.” Moreover, Cedar Springs contended:

       [T]he fact that [Smith] has fairly and correctly objected to the entry of the fire
       department report, which gives a very clear picture of what that cause would have
       been, should not be something that she can use to persuade this Court that there is
       some other mysterious cause. The fact is, they were the only ones in possession,
       there was nobody from the park there, there was no stranger there, only
       themselves and their family and guests were in the trailer at the time the fire was
       caused.

              I would note that this happened on July 22nd, so that would be a good
       reason for the air conditioning to be on. If, in fact, there was an afghan sitting on
       top of it, that might cause the air conditioner to overheat, and the fire damage
       occurred in that place, according to the testimony of Ms. Dewey.

             This is something that [Smith] caused by . . . her own acts or omissions,
       and we’re entitled to recover.

         In reply, Smith asserted that the fire department’s report did not give “a clear picture . . .
as to the cause of the fire.” Smith’s theory was that the fire was caused by an electrical fire in
the “old” mobile home and that Cedar Springs violated its duty to “keep[] this premises habitable
and fit for its intended use, . . . which is as a residential premises. . . .” In the alternative, Smith
contended, “We do not know what happened here, and it is [Cedar Springs’] burden to prove . . .
that these damages were as a result of [Smith’s] negligence.” Cedar Springs had not met its
burden and yet “use[d] the threat of a writ of eviction to . . . hang it over [Smith’s] head to
basically force her into . . . covering damages for an electrical fire that no one knows . . . whose
fault it is.”

       Following a bench trial, the district court ruled:

               This matter is a request for possession only, not for a money judgment.




                                                  -4-
              The Court finds that the Defendant was in exclusive control of the
       property; there was no evidence received that the fire was caused from an act of
       God or any other specific reason.

               In reviewing exhibits 2, 3, and 4, together with exhibit A [the leases,
       community rules, and repair invoices], the Court accepts that the Defendant was
       in lawful possession of the property at the time of the fire; was responsible for
       maintaining the property at that time. The Court received no evidence that . . .
       there’s any specific cause of that fire.

              The Court received testimony that the Plaintiff expended a significant
       amount of money and labor and materials to repair the property and return it to
       the Defendant. The Defendant was the only one in possession.

               The Court concludes that, without a finding of negligence or intentionally
       setting the fire, that the fire was caused by the Defendant’s own acts or omissions
       and that the Plaintiff should not have to bear the cost of the Defendant’s own acts
       or omissions.

               The Defendant’s position is they shouldn’t have to pay.

                                             * * *

               This is a matter for possession only. The Court finds in favor of the
       Plaintiff.

        The circuit court affirmed the district court judgment. After quoting the relevant
provisions of the Home and Lot Leases, the circuit court concluded that in order to be liable for
the damages, there must be a finding that Smith committed “negligent or intentional
actions/omissions.” However, the doctrine of res ipsa loquitur could be relied upon to find
negligent acts or omissions. The court then found that the district court did not clearly err in
finding Smith liable based on that doctrine.

        Smith had further defended that the leases delegated the duty to repair onto tenants in
violation of the Truth in Renting Act, MCL 554.631 et seq. The court reasoned that MCL
554.139(2) allows parties to modify statutory duties, including the covenant to repair. As the
leases limited the transfer of duty to cases where the tenant committed negligent or intentional
acts, the circuit court found no statutory violation occurred.

        The circuit court also rejected Smith’s procedural challenge “that it was improper to treat
the unpaid damages as rent and to seek eviction in summary proceedings.” MCL 600.5739
permits a landlord to join claims in a summary proceeding, including those for money damages
and breach of contract. Here, the court noted, the Home Lease permits Cedar Springs to seek
eviction if a tenant “fails to pay rent or other amounts owed.” The Community Rules require
payment by a certain date and govern how those payments will be allocated. Current rent is the
last item on that list. Smith continued to remit only her base rent after Cedar Springs’ demand
for repayment of the repair costs. Those funds were allocated to the repair costs first and the

                                                -5-
current rent was not covered. Summary proceedings were therefore proper based on “the
overdue rent and any additional damages could be joined at that time.”

                                    II. RES IPSA LOQUITUR

        On appeal, Smith challenges the lower courts’ reliance on the doctrine of res ipsa loquitur
to find her negligent. First, she contends that the mere occurrence of a fire does not necessarily
mean that negligence occurred. Second, Smith notes that Cedar Springs had greater access to the
fire scene than her and therefore could have investigated and discovered the source of the fire.
Third, Smith argues that the doctrine does not apply in breach of contract actions.

        We review de novo the circuit court’s affirmance of the district court judgment. See First
of America Bank v Thompson, 217 Mich App 581, 583; 552 NW2d 516 (1996). “Following a
bench trial, we review for clear error the trial court’s factual findings and review de novo its
conclusions of law,” Ligon v Detroit, 276 Mich App 120, 124; 739 NW2d 900 (2006), such as
the applicability of res ipsa loquitur. Jones v Porretta, 428 Mich 132, 154 n 8; 405 NW2d 863
(1987).

        In a negligence action, the plaintiff bears the burden of establishing (1) duty, (2) a breach
of that duty, (3) causation, and (4) damages. Meemic Ins Co v DTE Energy Co, 292 Mich App
278, 281; 807 NW2d 407 (2011). Res ipsa loquitur is one way to establish negligence. “Res
ipsa loquitur is a Latin term meaning, ‘the thing speaks for itself.’ ” Woodard v Custer, 473
Mich 1, 6; 702 NW2d 522 (2005), quoting Black’s Law Dictionary (6th ed). It has been equated
to “circumstantial evidence of negligence.” Jones, 428 Mich at 150 (quotation marks and
citation omitted). “The major purpose of the doctrine of res ipsa loquitur is to create at least an
inference of negligence when the plaintiff is unable to prove the actual occurrence of a negligent
act.” Id.

       According to Prosser & Keeton, Torts (5th ed), § 39, p 244, in order to avail
       themselves of the doctrine, plaintiffs in their cases in chief must meet the
       following conditions:

          (1) the event must be of a kind which ordinarily does not occur in the
          absence of someone’s negligence;

          (2) it must be caused by an agency or instrumentality within the exclusive
          control of the defendant;

          (3) it must not have been due to any voluntary action or contribution on the
          part of the plaintiff.

       In Wilson v Stilwill, [411 Mich 587, 607; 309 NW2d 898 (1981)], this Court noted
       these conditions, as well as a fourth criterion: “ ‘Evidence of the true explanation
       of the event must be more readily accessible to the defendant than to the
       plaintiff.’ ” [Jones, 428 Mich at 150-151.]

        Reliance on circumstantial evidence or the doctrine of res ipsa loquitur does not remove
the plaintiff’s burden of producing evidence and proving its case. Rather, “ ‘[t]he plaintiff’s
                                                -6-
burden of proof . . . requires him to produce evidence which will permit the conclusion that it is
more likely than not that his injuries were caused by the defendant’s negligence.” Pugno v Blue
Harvest Farms LLC, 326 Mich App 1, 21-22; ___ NW2d ___ (2018), quoting Restatement 2d,
Torts, § 328D, comment e, p 159. The plaintiff must tip the scales of likelihood in its favor. A
defendant can even out the scales, or tip them in his or her favor, by presenting evidence tending
“to show that the event was not due to his negligence.” Prosser & Keeton, § 40, p 261.

        We begin at the end by agreeing with Smith that res ipsa loquitur is a tort, not contract,
principle. However, the contract in this case, specifically, ¶ 14D of the Home Lease, provides
that a mobile home tenant is only liable for repair costs if necessitated by intentional or negligent
acts or omissions. The contract bases the tenant’s financial liability on tort concepts. The lower
courts found negligence on Smith’s part under the doctrine of res ipsa loquitur and thereby found
her bound by contract to pay the costs of repairing the mobile home unit.

        Yet, we cannot accept Smith’s proposition that fire cases do not lend themselves to res
ipsa loquitur. Caselaw supports that fire is not an occurrence that is always caused by an
underlying tort. “[F]ire is a risk incident to property and not always occasioned by negligence.”
Pennsylvania R Co v Dennis’ Estate, 231 Mich 367, 370; 204 NW 89 (1925). Although the
Supreme Court later overruled Pennsylvania R Co’s holding that some negligence was required
to hold a bailee liable for the loss of property, it continued to recognize that “fires are sometimes
spawned by other than negligent conduct.” Columbus Jack Corp v Swedish Crucible Steel Corp,
393 Mich 478, 483, 486; 227 NW2d 506 (1975). In cases not relating to bailments, the Supreme
Court has held, “We cannot presume negligence merely from the happening of [a] fire.” Holgate
v Chrysler Corp, 279 Mich 24, 31; 271 NW2d 539 (1937).

      But it is an overstatement that res ipsa loquitur can never apply in cases involving fires of
“unknown origin.” In this regard, we find instructive the following analysis in Walker v Parish
Chem Co, 914 P2d 1157, 1161 (Utah App, 1996):

              Generally, fires of unknown origin are not the type of accident to which
       the doctrine of res ipsa loquitur applies. Professors Prosser and Keeton explain:

          There are many accidents which, as a matter of common knowledge, occur
          frequently enough without anyone’s fault. A tumble downstairs, a fall in
          alighting from a standing bus or street car, an ordinary slip and fall, a tire of
          an ordinary automobile which blows out, a skidding car, a staph infection
          from an operation, a fire of unknown origin, will not in themselves justify
          the conclusion that negligence is the most likely explanation; and to such
          events res ipsa loquitur does not apply. [Prosser and Keeton, § 39, p 246
          (emphasis in Walker).]

       Common experience of the community demonstrates that fires frequently occur
       without any negligent act or omission. The Idaho Supreme Court has observed,
       “Our common knowledge and experience, or that of a jury, would not justify the
       inference that the accident would not have happened in the absence of negligence
       in that there are many possible causes for a building fire in the absence of
       negligence.” Jerome Thriftway Drug, Inc v Winslow, 110 Idaho 615; 717 P2d

                                                -7-
       1033, 1037 (1986). Furthermore, courts historically have begun analyses of the
       application of res ipsa loquitur to fires of unknown origin with “the postulate that
       the experience of humankind is that fires may and do in fact have multiple causes,
       some of which involve negligence and some of which do not.” Appalachian Ins
       Co v Knutson, 242 F Supp 226, 237-38 (WD Mo, 1965), aff’d, 358 F2d 679, 681
       (CA 8, 1966).

               Nevertheless, most courts proceed from the general premise that fires of
       unknown origin frequently occur in the absence of negligence to examine the
       particular facts and circumstances of the individual fire. See, e.g., Lanza v
       Poretti, 537 F Supp 777, 787 (ED Pa, 1982); Menth v Breeze Corp, 4 NJ 428; 73
       A2d 183, 186 (1950); Foerster v Fischbach-Moore, Inc, 178 NW2d 258, 263
       (ND, 1970). Plaintiffs therefore are not precluded from receiving a res ipsa
       loquitur instruction in every case involving a fire of unknown origin. Instead, the
       application of the res ipsa loquitur doctrine necessarily depends upon the facts and
       circumstances of the particular case. Even so, plaintiffs must establish that the
       balance of probabilities in the specific fire weigh in favor of negligence as its
       cause. See Ballow[ v Moore], 699 P2d [719,] 722 [(Utah 1985)]. Moreover, that
       threshold requirement must be established by reference to the common
       experiences of the community or to expert testimony. See id.

        Testimony in this case established that a burnt afghan was found draped on the window
air conditioner after the fire. There is no record indication that the air conditioning unit
underneath the blanket showed any signs of malfunction. No evidence was presented that the
afghan was placed on the air conditioner before the fire; Dewey merely speculated that it was.
And Smith testified that the afghan actually caught fire while on the couch, not on the air
conditioner. On this record, it is just as likely that the fire was caused by defective electrical
wiring, an electrical surge, or a weather-related event, just to give a few examples. Cedar
Springs may have been able to establish the fire’s origin had it presented the testimony of the fire
official who prepared the fire incident report. The electrician hired to conduct repairs may even
have been able to provide a reliable opinion about the post-fire condition of the appliance or the
home’s wiring. Instead, it relied on the speculations of a lay person who was not present during
the event. It would be poor precedent to allow a plaintiff to use res ipsa loquitur to make an end
run around the rules of evidence in this manner.

         Cedar Springs also cannot meet the fourth condition of res ipsa loquitur as its agents had
greater access to the mobile home between July 22 and October 13 and “the true explanation of
the” fire was “more readily accessible” to it than Smith. Cedar Springs was given the fire
incident report shortly after the event. Moreover, its agents repaired the living room where the
fire took place. The repairs included electrical work. During this time, Cedar Springs had the
capacity to investigate and uncover the cause of the fire. Yet, Cedar Springs did not present the
individuals who conducted the repair work and did not follow the rules of evidence to have the
fire incident report admitted at trial.

         Absent sufficient evidence to support Smith’s negligence in causing in the fire, the
district court erred in finding Smith liable for the repair costs and using the nonpayment to
support eviction, and the circuit court erred in affirming that judgment. Given our resolution of

                                                -8-
this issue, we need not consider Smith’s additional procedural challenge to the district court’s
judgment.

       We reverse.



                                                           /s/ Brock A. Swartzle
                                                           /s/ Elizabeth L. Gleicher
                                                           /s/ Michael J. Kelly




                                              -9-
