                            Court of Appeals, State of Michigan

                                             ORDER

                                                                         Deborah A. Servitto
Estate of Grace Lewis v New Horizon Rehabilitation Service Inc            Presiding Judge


Docket No.    322922                                                     Kurtis T. Wilder


LC No.        2012-127632 NO                                             Mark T. Boonstra
                                                                          Judges



              The Court orders that plaintiffs motion for reconsideration is GRANTED.               The
December 1, 2015 opinion is hereby VACATED, and a new opinion is attached.




                       A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on




                                  MAR 3 1 2016
                                      Date
                          STATE OF MICHIGAN

                           COURT OF APPEALS


BRENDA MCCONNER as Personal                                         UNPUBLISHED
Representative of the ESTATE OF GRACE                               March 31, 2016
LEWIS,

               Plaintiff-Appellant,
V                                                                   No. 322922
                                                                    Oakland Circuit Court
NEW HORIZON REHABILITATION                                          LC No. 2012-127632-NO
SERVICES, INC., and SANDRA SMITH,

               Defendants-Appellees.


                                      ON RECONSIDERATON

Before: SERVITTO, P.J., and WILDER and BOONSTRA, JJ.

PER CURIAM.

        Plaintiff, acting as personal representative of the estate of the decedent, appeals as of
right the trial court’s order granting summary disposition in favor of defendants, a vocational and
rehabilitation facility and one of its employees, in this wrongful death action. We reverse and
remand for further proceedings.

                                            I. FACTS

       New Horizons provides vocational and rehabilitation services to people with disabilities.
In 2010, Grace Lewis, who suffered from mental and psychological disabilities, began receiving
vocational services at New Horizon. Due to the seriousness of Ms. Lewis’ conditions, she
required one on one monitoring by staff at all times. On February 24, 2011, defendant Sandra
Smith was decedent’s assigned vocational instructor.

       Decedent had a known habit of eating too quickly and sometimes choking on her food.
For those reasons, a prior instructor had cut up decedent’s food and gave her only one or two
pieces at a time. Smith was also aware of decedent’s habits, and the precautions taken by her
predecessor. On February 24, 2011, during lunch, Smith cut decedent’s sandwich into numerous
pieces before allowing decedent to eat it. When decedent began to eat too fast Smith advised her
to slow down, which decedent did before continuing.



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         According to Smith’s deposition testimony, after this exchange, decedent ran from the
lunchroom into the bathroom, and Smith immediately followed. Smith stated that decedent fell
to the floor and refused to get up, but did not exhibit any signs of distress. She further stated that
another employee was present in the bathroom and that she herself sought assistance after the
two of them could not raise decedent from the floor. A short time later decedent’s case manager
entered the bathroom, and she, with the assistance of other employees, moved decedent to
another room to change her because decedent had soiled her pants. In that other room, a
different employee noticed for the first time that decedent was having difficulty breathing.
Emergency medical services were summoned, and arrived shortly thereafter. EMS personnel
worked on decedent for approximately twenty minutes at New Horizon before transporting her to
the hospital, where she died the next day of asphyxiation and other complications arising from
choking on her sandwich. Smith has consistently maintained that she remained with decedent at
all times until EMS personnel arrived. All deposition statements of employees of the defendant
facility, as well as incident reports created by employees and EMS personnel, indicate that Smith
was present with decedent at all times, and that no employee observed any outward signs of
choking until after decedent was moved from the bathroom to the adjacent room.

       However, plaintiff offered a medical expert’s affidavit opining that a person who was
choking would normally exhibit plainly observable symptoms of physical distress. Further,
handwritten notes on a consultation request form from the hospital indicated that decedent was
found unsupervised in the bathroom on the floor. Additionally, a family member of the
decedent, who was present at the hospital on the day in question, stated in deposition that an
unnamed woman, identifying herself as an employee of the defendant facility, told the family
member that decedent ran to the bathroom alone and was followed only after her instructor had
not seen her for some time. Also, according to this account, decedent was left alone in the
bathroom while facility employees sought help from other staff members. Facility employees
who were present at the hospital deny that this conversation occurred.

        Plaintiff commenced this action, alleging that defendants negligently caused decedent’s
death. After extensive discovery, defendants filed motions requesting summary disposition
under MCR 2.116(C)(8) and (C)(10). The trial court ruled that both the note and the deposition
statements of the family member were inadmissible hearsay, and it did not consider that evidence
when evaluating the motions. The trial court, on the basis of the evidence it did consider, held
that no question of material fact had been established concerning defendants’ negligence, and so
granted summary disposition in favor of defendants under MCR 2.116(C)(10).

                                 II. STANDARDS OF REVIEW

       This Court reviews a trial court’s decision to grant or deny summary disposition de novo.
Lucas v Awaad, 299 Mich App 345, 358-359; 830 NW2d 141 (2013). Review of a decision
under MCR 2.116(C)(10) is limited to the evidence that was before the trial court when the
motion was decided. Innovative Adult Foster Care, Inc v Ragin, 285 Mich App 466, 476; 776
NW2d 398 (2009).

        “A trial court’s decision to admit or exclude evidence is reviewed for an abuse of
discretion.” Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010). “An abuse of


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discretion occurs when the trial court chooses an outcome falling outside the range of principled
outcomes.” Id.

                                          III. ANALYSIS

                   A. EVIDENCE CONSIDERED BY THE TRIAL COURT1

        Summary disposition under MCR 2.116(C)(10) tests the evidentiary support for a claim,
and the moving party has the initial burden of identifying issues over which there are no
questions of material fact. Innovative, 285 Mich App at 475. The burden then shifts to the
nonmoving party, who must go beyond the allegations and denials in pleadings “to set forth
specific facts showing that a genuine issue of material fact exists.” Quinto v Cross & Peters Co,
451 Mich 358, 362; 547 NW2d 314 (1996). See also MCR 2.116(G)(4). The parties must
support their respective positions with admissible evidence in the form of affidavits, depositions,
admissions, or other documentary evidence. MCR 2.116(G)(3)(b) and (G)(6). All documentary
evidence must be evaluated in the light most favorable to the nonmoving party. Innovative, 285
Mich App at 475. An issue of material fact may be found if this evaluation “leaves open an issue
upon which reasonable minds might differ.” Id. (internal quotation marks and citation omitted).

         However, “speculation and conjecture are insufficient to create an issue of material fact.”
Ghaffari v Turner Constr Co (On Remand), 268 Mich App 460, 464; 708 NW2d 448 (2005). A
motion under MCR 2.116(C)(10) is properly granted “if the affidavits or other documentary
evidence show that there is no genuine issue in respect to any material fact, and the moving party
is entitled to judgment as a matter of law.” Quinto, 451 Mich at 362. Summary disposition may
be inappropriate when motive or intent are at issue, or the credibility of a deponent is crucial.
See White v Taylor Distrib Co, 275 Mich App 615, 630; 739 NW2d 132 (2007), aff’d 482 Mich
136; 753 NW2d 591 (2008); Vanguard Ins Co v Bolt, 204 Mich App 271, 276; 514 NW2d 525
(1994).

       At issue in this case is whether sufficient evidence was presented to establish a question
of material fact concerning whether defendants breached their duty to exercise ordinary care
while supervising decedent.2 The trial court decided this question without considering the
hospital intake notes, or the deposition testimony whereby decedent’s family member told of an



1
  Plaintiff’s challenges to the trial court’s evidentiary rulings were not explicitly presented in her
statement of the questions presented. See MCR 7.12(C)(5). This Court is not obligated to
address issues not germane to those included in the statement of questions presented. Meagher v
McNeely & Lincoln, Inc, 212 Mich App 154, 156; 536 NW2d 851 (1995). But, in the interests of
justice, we will address those issues despite the imperfect presentation.
2
  Negligence requires proof of 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, 489 Mich 157, 162; 809 NW2d 553 (2011).


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unnamed facility employee’s account of decedent’s entering the bathroom alone, on the grounds
that they were inadmissible hearsay.

        Plaintiff argues that the trial court erred in failing to recognize a question of material fact
even without recourse to that excluded evidence, first arguing that Smith’s admitted
disinclination to hand-feed decedent her sandwich created a question for the jury regarding a
breach of duty. We agree.

       Typically, it is for a jury to decide if a defendant’s conduct meets the requisite duty of
care, but if an overwhelming public policy concern arises, the court may decide. See Bailey v
Schaaf, 494 Mich 595, 603; 835 NW2d 413 (2013). And, it is not the prerogative of a trial court
to weigh the credibility of witnesses when considering motions for summary disposition. See
Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994); White, 275 Mich App at
625.

        We first note plaintiff’s argument that the statements by a medical expert regarding the
physical symptoms of choking provide a basis upon which a reasonable juror could choose to
disbelieve the deposition testimonies of the defendant facilities employees. However, the
medical expert’s affidavit did not create serious credibility concerns, as it offered little more than
an invitation to speculate concerning the credibility of the witnesses, who consistently
maintained that no one observed decedent having difficulties breathing. See Ghaffari, 268 Mich
App at 464.

        Plaintiff further argues that the credibility of Smith’s testimony is sufficiently central to
the outcome of the case as to render summary disposition inappropriate even if other evidence
does not contradict it. Plaintiff attempts to liken the present case to White to support her
argument.3 The present case is distinguishable from White and related cases because its outcome
does not depend solely on the credibility behind one person’s subjective account of the pertinent
events. We agree, however, that if Smith was in fact negligent, she had a motive to testify
falsely. More importantly, we agree that Smith’s testimony provides a basis for denying
summary disposition in defendant’s favor.




3
  In White, the crux of the defendant’s argument to rebut a statutory presumption of negligence
using the sudden-emergency doctrine was whether deposition testimony that he “passed out just
before the accident and that he did not experience sweating, dizziness, or unsteadiness” until
moments before, was believed. 275 Mich App at 627. This evidence was inherently subjective
in nature, and there existed substantial motive for the defendant to testify in a way that would
avoid liability. Accordingly, this Court concluded that the plaintiff was entitled to the
opportunity to have jurors assess his credibility. Id. at 630. The Supreme Court affirmed,
determining that factual and credibility issues existed, but did so solely on the basis of
inconsistencies in the deponent’s testimony. White, 482 Mich at 142.




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        The defendant employee’s (Smith) common law duty was to supervise decedent in the
same manner as would a reasonable person in the same circumstances. See Case v Consumers
Power Co, 463 Mich 1, 6-7; 615 NW2d 17 (2000). It is true that plaintiff does not contest that
Smith adhered by the protocols of the company, the regional medical authority, and decedent’s
treatment plan. And, the parties do not dispute that Smith had knowledge of decedent’s eating
habits, her risk of choking, and the precautions taken by other employees in the past.
Specifically, both Smith and decedent’s regular instructor were aware that decedent would shove
large quantities of food into her mouth at once if an entire meal or entire sandwich was placed in
front of her. Decedent’s regular instructor testified at deposition that she would cut decedent’s
sandwich into several small pieces and then put only as much in front of decedent as she
could/should put in her mouth at one time.

         Smith testified that she, too, cut up decedent’s sandwich into smaller pieces. However, it
appears from Smith’s testimony that she placed all of the sandwich pieces in front of decedent at
the same time. Smith testified that decedent initially was eating the sandwich quickly, shoving
four pieces of the sandwich in her mouth at one time, but when redirected by Smith, started
picking up one piece of sandwich at a time. Smith could not recall, however, how many pieces
decedent had put in her mouth before she ran to the bathroom. Both Smith and the other
instructor, then, were aware of decedent’s tendency to shove quantities of food into her mouth if
not carefully monitored. While both instructors cut the sandwich into smaller pieces, Smith still
left the entirety of the sandwich within decedent’s reach and allowed her to select the amount of
food to place in her mouth at once. Smith’s testimony, then, is sufficient to establish a question
of material fact regarding whether she supervised decedent in the same manner as would a
reasonable person in the same circumstances. See, Case, 463 Mich at 6-7.

       For these reasons, we find that the evidence the trial court chose to consider created a
question of material fact for jury resolution.

                                         B. HEARSAY

        Hearsay, meaning a person’s unsworn, out-of-court statement offered in evidence to
prove the truth of the matter asserted, is generally inadmissible, subject to several exemptions
and exceptions as provided by the rules of evidence. MRE 801-805. Those exceptions include
“[s]tatements made for purposes of medical treatment or medical diagnosis in connection with
treatment and describing medical history . . . insofar as reasonably necessary to such diagnosis
and treatment.” MRE 803(4). This exception recognizes “(1) the self-interested motivation to
speak the truth to treating physicians in order to receive proper medical care, and (2) the
reasonable necessity of the statement to the diagnosis and treatment of the patient.” People v
Duenaz, 306 Mich App 85, 95; 854 NW2d 531 (2014) (internal quotation marks and citation
omitted). Plaintiff argues the hospital intake notes fell within this exception and thus the trial
court erred in declining to take them into account. We disagree.

       The contents of the notes at issue concerned decedent being unsupervised; not
unresponsive. Unlike information regarding length of unresponsiveness, a general statement
regarding lack of supervision without any reference to time is not reasonably “necessary to . . .
diagnosis or treatment.” MRE 803(4). See also Duenaz, 306 Mich App at 95. Accordingly, the
handwritten notes from the hospital intake form concerning decedent being unsupervised did not

                                                -5-
satisfy the requirements of MRE 803(4), and thus were properly excluded as inadmissible
hearsay.

        However, we hold that the trial court erred in declining to admit the alleged conversation
between decedent’s family member and the unnamed employee of New Horizon. Admissions by
a party opponent are not hearsay if made “by the party’s agent . . . concerning a matter within the
scope of the agency or employment, made during the existence of the relationship.” MRE
801(d)(2)(D). For such evidence to be admitted, the proponent of the evidence must establish
that the declarant was an employee of the opposing party. See Bachman v Swan Harbour Assoc,
252 Mich App 400, 440; 653 NW2d 415 (2002). In Bachman, this Court held that an alleged
conversation with someone the plaintiff believed to be an employee of the defendant was
inadmissible hearsay on the ground that the plaintiff failed to affirmatively establish that the
declarant actually had an agency relationship with the defendant. Id. However, nothing in
Bachman suggests that specifying the name of the declarant is important so long as the
proponent of the evidence establishes that agency relationship.

        In the present case, the deposition testimony of decedent’s family member indicates that
when she arrived at the emergency room there were two women present, one whom she knew,
and the other an unnamed “young white lady.” Before talking to the family member, the “young
white lady” allegedly identified herself as an employee of New Horizon. After the conversation
at issue, another woman, who identified herself as a supervisor for New Horizon, entered the
room. Decedent’s family member asserted that the supervisor said that the other unnamed
woman did not know the whole story and dismissed her. When the family member later
discussed the accident with her family, she learned that the supervisor told them a version of
events that was significantly different from what she was told by the unnamed employee.

        Defendants concede that there were in fact two employees of New Horizon at the
hospital; one was decedent’s case manager, and the other was indeed a young, white female.
Although defendants raised credibility arguments concerning the family member’s account, they
did not ask the trial court to rule that this declarant’s existence or identity as an agent of the
defendant facility was insufficiently established. The statements at issue, then, were arguably
attributed to 1) a person identified as an agent of the opposing party, 2) concerning a matter
within the scope of her employment, 3) during the existence of that relationship. See MRE
801(d)(2)(D). Accepted at face value and considered in the light most favorable to the non-
moving party, these statements present a plausible alternative chain of events for jurors to
consider, in direct conflict with the other accounts offered into evidence. Such testimony is
certainly sufficient to establish a genuine issue of material fact precluding summary disposition,
and it places the credibility of other evidence on record at issue. Determining the truth of
conflicting accounts is the business of the trier of fact. See White, 275 Mich App at 625.
Accordingly, the trial court’s error in excluding that deposition from consideration when
evaluating the parties’ motions for summary disposition requires reversal. See MRE 103(a).

       For these reasons, we reverse the trial court’s decision to grant summary disposition for
defendants and remand for further proceedings consistent with this opinion.




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Reversed and remanded. We do not retain jurisdiction.



                                                  /s/ Deborah A. Servitto
                                                  /s/ Kurtis T. Wilder
                                                  /s/ Mark T. Boonstra




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