                           STATE OF MICHIGAN

                           COURT OF APPEALS



KHALANI CARR,                                                      UNPUBLISHED
                                                                   June 20, 2017
              Plaintiff-Appellant,

v                                                                  No. 330115
                                                                   Oakland Circuit Court
ROGER A. REED, INC., doing business as REED                        LC No. 2013-134098-NI
WAX, KELLER HEARTT COMPANY, INC.,
AMOCO OIL COMPANY, also known as BP
PRODUCTS NORTH AMERICA, INC., THE
INTERNATIONAL GROUP, INC., and SASOL
WAX NORTH AMERICA CORPORATION, also
known as SASOL WAX NORTH AMERICA,
INC., also known as SASOL CHEMICALS USA,
LLC,

              Defendants-Appellees,

and

PROS SERVICE, INC.,

              Defendant.


Before: M. J. KELLY, P.J., and BECKERING and SHAPIRO, JJ.

PER CURIAM.

        Plaintiff appeals as of right following the trial court’s grant of summary disposition to
defendants under MCR 2.116(C)(10) (no genuine issue of material fact). We affirm the grant of
summary disposition as to defendants Roger A. Reed Inc., Amoco Oil Company, and The
International Group, Inc. We reverse the grant of summary disposition to defendants Keller
Heartt Company Inc. and Sasol Wax North America Corporation.

                                I. FACTUAL BACKGROUND

       Plaintiff, a DTE employee, was injured while performing repair work to electrical
components located in a city manhole. Part of the work involved cleaning the components using
a hot paraffin wax. The wax was melted on the job site in a kettle intended for that purpose.



                                               -1-
Plaintiff’s co-worker testified that when they got to the job site, the kettle already had some wax
in it and that, after adding additional wax, he heated the kettle and gave it to plaintiff, who was in
the manhole. A fire began in the manhole, and there appears to be no dispute that the fire began
when the paraffin wax ignited. Plaintiff suffered serious injury. In this suit, plaintiff alleges that
the wax supplied to DTE failed to contain adequate information and warning about the unusual
flammability of the wax. He alleged that if that information had been provided, the wax would
have been handled in a manner to prevent his injury.

        This case presents an unusual circumstance. Two companies, Keller Heartt and Reed,1
were the suppliers of identical paraffin wax to DTE. Each defendant filed a motion for summary
disposition pursuant to MCR 2.116(C)(10) on the grounds that there was no evidence from
which a jury could reasonably conclude that it had supplied the specific batch of wax used on the
date of injury. The trial court agreed and dismissed the claims against each defendant. Plaintiff
appeals from each of those orders.

                                          II. ANALYSIS

        Summary disposition under MCR 2.116(C)(10) is appropriate if, after considering the
affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties in the
light most favorable to the party opposing the motion, no genuine issue of material fact exists.
Klein v HP Pelzer Auto Sys, Inc, 306 Mich App 67, 75; 854 NW2d 521 (2014). “The trial court
is not permitted to assess credibility, or to determine facts on a motion for summary disposition.”
Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). A genuine issue of material
fact exists when reasonable minds could differ on an issue after viewing the record in the light
most favorable to the nonmoving party. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425;
751 NW2d 8 (2008).

        Plaintiff initiated this action under a negligence theory based on the failure to warn.
Therefore, as part of the prima facie case, plaintiff must show that a failure to warn attributable
to the manufacturer or supplier was a proximate cause of his injuries. Skinner, 445 Mich at 162.
Establishing proximate cause entails proof of two separate elements: (1) cause in fact, and (2)
legal cause, also known as “proximate cause.” Id. at 162-163. Cause in fact requires a showing
that “but for” the defendant’s actions, the plaintiff’s injury would not have occurred. Id. at 163.
Legal cause, on the other hand, involves examining the foreseeability of consequences and
whether a defendant should be held legally responsible for such consequences. Id. In Skinner,
our Supreme Court explained that “the plaintiff must present substantial evidence from which a
jury may conclude that more likely than not, but for the defendant’s conduct, the plaintiff’s
injuries would not have occurred.” Id. at 164-165. It is not sufficient for a plaintiff “to submit a



1
  Defendants Amoco Oil Company and The International Group Inc., manufactured the wax that
defendant Roger A. Reed, Inc. supplied to DTE, and these defendants will collectively be
referred to as the Reed defendants. Defendant Sasol Wax North America Corporation
manufactured the wax that defendant Keller Heartt supplied to DTE, and these defendants will
collectively be referred to as the Keller Heartt defendants.



                                                 -2-
causation theory that, while factually supported, is, at best, just as possible as another theory.”
Id. at 164.

        DTE’s records and the testimony of its employees established that DTE did not obtain
wax from any company other than Keller Heartt and Reed. Neither defendant has put forward
any evidence to suggest otherwise. Therefore, Keller Heartt’s claim that they did not supply the
wax used on the day of the accident unavoidably leads to the conclusion that Reed was the
supplier. And Reed’s claim that they did not supply the wax used on the day of the accident
unavoidably leads to the conclusion that Keller Heartt was the supplier. In other words, there is
no question of material fact but that the wax used on the day of plaintiff’s accident was supplied
by either Keller Heartt or Reed.

                                      A. KELLER HEARTT

         There is more than sufficient circumstantial evidence to create a question of fact
regarding whether the wax that was added to the kettle before it was handed to plaintiff was
manufactured and supplied by the Keller Heartt defendants. Keller Heartt delivered wax blocks
that measured approximately 19 X 12 X 1 1/2 inches. At the service center where the wax was
stored, DTE wrapped the Keller Heartt slabs in brown or manila paper.2 Because of the size of
the blocks, DTE employees who needed to use it would break the wax into pieces to fit them into
a kettle to melt the wax for use on jobs. By contrast, the Reed wax was delivered in much
smaller blocks, about 3.5 X 3.5 X ¾ inches, that could be placed into the kettle without the need
to break them into smaller pieces. According to the record evidence, Plaintiff went to the job-
site with three other employees. One of them, Akil Williamson, was responsible for ensuring the
truck was stocked with necessary materials for the job assignment. Williamson did not recall
whether the truck was already stocked with paraffin wax or if he loaded it that day. But he
testified that the type of wax in the truck was wrapped in brown paper, i.e. consistent with Keller
Hearrt wax. He also recalled breaking the wax into pieces and inserting them into the kettle to
melt. Erik O’Connell, another employee present at the incident, also testified that the wax
outside the manhole had been broken from a big block and that when the truck was loaded, the
only wax at the Service Center was in large blocks. Plaintiff similarly testified that the wax he
saw at the service center that day was 1 ½ feet to 2 feet long and two inches thick and that there
were also broken up pieces.

        Furthermore, photographs taken at the scene shortly after the accident show two large and
several smaller, irregularly-shaped pieces of wax on a fire blanket, i.e. pieces of a large block
that had been broken off rather than the Reed-style bricks. Looking at the photograph,
Williamson testified at his deposition that “[i]f that’s the wax that’s out there, then, yes, that was
probably the wax I would have been using.” Three other DTE employees, including its
purchasing officer testified that the wax depicted in the photos was not Reed wax. No wax
consistent with the size and shape of the Reed smaller bricks was depicted on the photos of the
job-site.


2
  Although Reed wax had been ordered by the time of the accident, the wax fitting the
description of the Keller Heartt defendants’ product remained available to DTE employees.



                                                 -3-
         In response, Keller Heartt argues that a post-deposition affidavit signed by Williamson
establishes beyond a question of fact that the wax that caused the fire was not Keller Heartt wax.
We disagree. In his affidavit, Williamson averred that he did not know which of the two
companies’ wax he placed in the kettle that day and that if Reed wax had been on the truck he
would have used it first because it was easier. However, even assuming that is true, there is no
testimony that Reed wax was on the truck or present at the job site. Moreover, Williamson
testified that the wax on the truck was in a brown wrapping, which is consistent with Keller
Heartt product, not Reed product. O’Connell testified that the only wax at the Service Center
was the large blocks and, while plaintiff at one point in his deposition said there was Reed wax
there, he went on to describe the wax he saw as being 1 ½ feet long and two inches thick, a size
consistent only with the Keller Heartt wax. And, as noted, the only wax photographed at the
scene is of a size consistent with Keller Heartt wax.

        In sum, while Williamson’s affidavit suggests that it was possible that Reed wax was
used, there is no evidence to support the conclusion that it was probable that Reed wax was used.
By contrast, there is substantial evidence to support the conclusion that it was more probable
than not that Keller Heartt was the wax loaded into the kettle.3 Therefore, we reverse the grant
of summary disposition to the Keller Heartt defendants.

                                             B. REED

       For the reasons just discussed, the record does not contain evidence to support the
conclusion that it was more likely than not that Reed provided the relevant wax. There is no
evidence that Reed wax was at the job site or even on the truck. There is evidence to support the
conclusion that Reed wax was available at the service center, but that is not sufficient to create a
question of material fact. See Skinner, 445 Mich at 164-165 (the evidence must show that it is
more than just a possibility that the defendant’s product was the cause of the plaintiff’s injury).

        Plaintiff, essentially conceding the lack of evidence that Reed’s wax was loaded into the
kettle, has not relied on traditional tort law in its response to Reed’s motion for summary
disposition. Rather, plaintiff argues that, because there is no way to determine whether the wax
that was already in the kettle at the time Williamson added the additional wax and heated it was
provided by Reed or Keller Heartt, it can rely on the theory of alternative liability defined in Abel
v Eli Lilly and Company et al, 418 Mich 311; 343 NW2d 164 (1984). However, this theory may
not to be substituted for traditional tort principles in this case. Alternative liability may be
employed only where each of the multiple defendants has produced the same allegedly defective
product, and there is no evidence which of the defendant’s manufactured the particular unit of
the product that ultimately caused the injury. Id. at 334. As the Abel Court cautioned, this
theory may only be used where “to do otherwise would leave an innocent plaintiff remediless.”
Id. at 335. “Where plaintiffs are able to identify the causation in fact of their injury, traditional
tort remedies must be used to secure relief.” Id.



3
 The burden of proof is “more likely than not,” not absolute certainty. See Skinner, 445 Mich at
165.



                                                -4-
        In this case, as just noted, there is sufficient evidence for a jury to conclude that Keller
Heartt’s product was the one loaded into the kettle and so was a cause in fact of plaintiff’s injury.
We agree with plaintiff that it is impossible to determine which company’s wax was in the kettle
before more was added by Williamson at the job site. However, this does not alter the fact that
plaintiff has an available remedy in this case – its suit against Keller Heartt based on what was
added at the job site. Thus, this is not a situation where plaintiff is without a remedy. For the
alternative liability theory to apply, it would have to be impossible to determine which of the two
companies wax was in the kettle upon arrival and which was added. If that were the case, we
would have to address the question whether the alternative liability theory was implicitly
abolished by the statutory elimination of joint and several liability as defendants contend. But
because plaintiff has a viable claim under traditional tort principles, we do not address that
question. Whether plaintiff is entitled to compensation from the Keller Heartt defendants
remains for the jury to determine, but he has a viable claim within the rubric of traditional tort
principles and so may not rely on a theory of alternative liability. For this reason, we affirm the
trial court’s decision to grant summary disposition to Reed.

                                   III. ISSUES ON REMAND

        Defendants have argued that regardless of the question now before us, they are entitled to
dismissal of plaintiff’s claims based upon the defense that plaintiff was a sophisticated user. The
trial court did not address that question or examine the facts relevant to it. Accordingly, we do
not address it here and leave it to the trial court to do so on remand at defendant’s request. See
Heydon v Media One of Southeast Mich Inc, 275 Mich App 267, 278; 739 NW2d 373 (2007)
(this Court need not address issues not ruled on by the trial court).

         Given our determination that there is no factual basis to support a conclusion that Reed
wax was more likely than not used, we anticipate that on remand the parties may disagree on the
status of any notices of non-party at fault already filed or that may be filed following our
decision as to the Reed defendants. That issue is likely to engender another appeal to this court
and further delay for the parties, and so in the interest of judicial efficiency we address it now.
See People v Hermiz, 462 Mich 71, 77; 611 NW2d 783 (2000) (Opinion of TAYLOR, J.) (stating
that it is appropriate to review issues not raised by the parties when justice requires doing so and
determining that judicial economy and finality are factors that support reviewing such an issue).

        In order to obtain an assessment of fault against a non-party, the party asserting such fault
must demonstrate that the non-party’s negligence, or other actionable conduct, was a cause of
plaintiff’s injury. MCLA 600.6304(8). The trial court has concluded, and we have affirmed, that
evidence, sufficient to allow a reasonable jury to find Reed at fault, does not exist.4 Thus, it


4
  Keller Heartt had a full opportunity to present evidence in opposition to Reed’s motion and
presented none. Presumably this is because none existed since evidence that the wax was
provided by the Reed defendants would have been highly favorable to Keller Heartt. If Keller
Heartt was aware of such evidence but did not provide it, it may not now file a notice of non-
party fault based upon it in light of MCR 2.112(K)(3)(c) which bars the filing of a notice more
than 91 days after initial pleadings unless the “facts on which the notice is based were not and



                                                -5-
would be improper for any party, either plaintiff or Keller Heartt to present such a claim to the
jury. See Romain v Frankenmuth Mutual Ins Co, 483 Mich 18, 20, 22; 762 NW2d 911 (2009).

                                        V. CONCLUSION

        We affirm the trial court’s dismissal of the Reed defendants and reverse the trial court’s
dismissal of the Keller Heartt defendants. The matter is remanded to the trial court for further
proceedings and trial. We do not retain jurisdiction. Reed may tax appellate costs against
plaintiff. Plaintiff may tax appellate costs against Keller Heartt. MCR 7.219.



                                                              /s/ Michael J. Kelly
                                                              /s/ Jane M. Beckering
                                                              /s/ Douglas B. Shapiro




could not with reasonable diligence have been known to the moving party.” Moreover, even if
that standard is met, the notice may not be filed if, as here, it would “result in unfair prejudice to
the opposing party.” Id.



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