                            STATE OF MICHIGAN

                            COURT OF APPEALS



GREGORY TAYLOR and JAMES NIEZNAJKO,                                 UNPUBLISHED
                                                                    July 18, 2017
               Plaintiffs-Appellants,

v                                                                   No. 331048
                                                                    Genesee Circuit Court
MICHIGAN PETROLEUM TECHNOLOGIES,                                    LC No. 12-098397-NI
INC.,

               Defendant-Appellee,

and

CONSUMERS ENERGY COMPANY,

               Defendant.


Before: O’BRIEN, P.J., and JANSEN and STEPHENS, JJ.

STEPHENS, J. (concurring in part, dissenting in part)

        I concur in the majority’s conclusion that summary disposition of plaintiffs’ nuisance
claim was proper. I write separately to address the dismissal of plaintiffs’ negligence claim as a
spoliation sanction and to dissent from the majority’s holding that no genuine issue of material
fact exists.

        Taylor claimed that due to the negligent act of MPT, he suffered damages to his person,
including out of pocket expenses, and to personal property. In his deposition, he gave testimony
to support these damages and that they resulted from the evacuation. It is undisputed that an
evacuation was ordered and that Taylor and his family sheltered overnight at a nearby location.
MPT moved for dismissal of Taylor’s negligence claim based upon spoliation of evidence and
under MCR 2.116(C)(10). The trial court granted judgment to MPT however, it is unclear as to
which of MPT’s two theories of relief the court based its order. I believe that in either case, the
trial court erred.

                                 I. SPOLIATION SANCTION

       I depart from the majority and agree with Taylor that the trial court abused its discretion
by dismissing his negligence claim as a spoliation sanction.


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       A trial court’s decision to sanction a party for failing to preserve evidence is reviewed for
an abuse of discretion. Bloemendaal v Town & Country Sports Ctr, Inc, 255 Mich App 207,
211; 659 NW2d 684 (2002). “An abuse of discretion occurs when the trial court’s decision falls
outside the range of reasonable and principled outcomes.” Woodington v Shokoohi, 288 Mich
App 352, 355; 792 NW2d 63 (2010).

      As discussed earlier, although the trial court’s ruling is not entirely clear, it appears to
have dismissed Taylor’s negligence claim as a sanction for the spoliation of evidence.
Accordingly, the analytical focus is whether that remedy was proper under the circumstances.

       In Bloemendaal, 255 Mich App at 212, this Court stated:

       [I]n a case involving a party’s failure to preserve evidence, a trial court properly
       exercises its discretion when it carefully fashions a sanction that denies the party
       the fruits of the party’s misconduct, but that does not interfere with the party’s
       right to produce other relevant evidence. A lesser appropriate sanction could be
       the exclusion of evidence that unfairly prejudices the other party or an instruction
       that the jury may draw an inference adverse to the culpable party from the
       absence of the evidence. [Citations omitted.]

“Dismissal is a drastic step that should be taken cautiously. Before imposing the sanction of
dismissal, the trial court must carefully evaluate all available options on the record and conclude
that dismissal is just and proper.” Id. at 214 (citations and quotation marks omitted). Only
egregious conduct warrants dismissal. Id. at 215.

        The record clearly reflects that the trial court did not carefully evaluate all available
options before dismissing Taylor’s negligence claim as a sanction for spoliation of evidence.
See Bloemendaal, 255 Mich App at 214. The court never expressly stated what other sanctions
were available or why they would not be appropriate. MPT may be correct that other sanctions,
such as the exclusion of Taylor’s testimony or a jury instruction, would not have been suitable,
but the law requires the trial court to consider the options before dismissing the case. The trial
court’s failure to do so requires reversal and remand so the trial court can consider alternative
sanctions.

                                   II. NEGLIGENCE CLAIM

       I also depart from the majority’s conclusion that no genuine issue of material fact exists
on Taylor’s negligence claim.

        “To establish a prima facie case of negligence, a plaintiff must prove the following
elements: (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the legal
duty, (3) the plaintiff suffered damages, and (4) the defendant's breach was a proximate cause of
the plaintiff's damages.” Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162;
809 NW2d 553 (2011). The court asserted that independent of the spoliation issue there was no
causal link between the claimed negligence of MPT and any damages. However, the parties
stipulated that Taylor and his family’s evacuation was a direct result of the fire at MPT’s plant.
While there are material questions of fact as to whether the fire and the evacuation were the
result of MPT’s breach of duty, there is no dispute that it owed a duty and that evidence of
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breach was presented to the trial court. Putting aside the property damage related to the pool,
Taylor offered testimony as to the non-economic damage occasioned to him and his family due
to their shelter stay and as to limited out of pocket expenses. These damages do not require
expert testimony and Taylor’s sworn deposition was enough to establish causation. Taylor’s
negligence theory does not bear the requirement that the injury arising from negligence must be
substantial. Thus, the trial court erred if its dismissal was based upon a failure to present
competent evidence on the negligence claim.

        A trial court’s decision on a motion for reconsideration is also reviewed for an abuse of
discretion. Frankenmuth Ins Co v Poll, 311 Mich App 442, 445; 875 NW2d 250 (2015). “An
abuse of discretion occurs when the trial court’s decision falls outside the range of reasonable
and principled outcomes.” Id. (citation and quotation marks omitted).

       “In order to establish the right to relief, the party bringing the motion for reconsideration
must establish that the trial court made a palpable error and a different disposition would result
from correction of the error.” Huntington Nat’l Bank v Daniel J Aronoff Living Trust, 305 Mich
App 496, 516; 853 NW2d 481 (2014). As discussed earlier, the trial court did not err by granting
summary disposition on Taylor’s nuisance claim, but did err by dismissing Taylor’s negligence
claim as a spoliation sanction. If corrected, Taylor could go forward with his negligence claim,
unless, and until the trial court expressly rules that no other sanctions are appropriate or
otherwise dismisses the claim. Therefore, the trial court abused its discretion, in part, by denying
Taylor’s motion for reconsideration.

        I would affirm in part, reverse in part, and remand for further proceedings. I would not
retain jurisdiction.



                                                             /s/ Cynthia Diane Stephens




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