                          STATE OF MICHIGAN

                           COURT OF APPEALS



SHAWN RYAN EICHLER, a minor by Next                                UNPUBLISHED
Friend ARMINDA DAWN BAKER,                                         December 11, 2018

              Plaintiff-Appellee,

v                                                                  No. 338606
                                                                   Lenawee Circuit Court
MODERN WASTE SYSTEMS, INC.,                                        LC No. 15-005322-NO

              Defendant-Appellant.


Before: O’BRIEN, P.J., and K. F. KELLY and FORT HOOD, JJ.

PER CURIAM.

        Defendant, Modern Waste Systems, Inc. (“defendant”), appeals by right an order entering
a final judgment in favor of plaintiff, Shawn Ryan Eichler (“plaintiff”), by his next friend and
mother, Arminda Dawn Baker (“Mindy”), in this negligence action.

                                       I. BASIC FACTS

        Plaintiff was eight years old on September 19, 2014, when he managed to pull a dumpster
down on himself while attempting to perform a pull-up on a bar attached to the front of the
dumpster. Plaintiff’s grandmother, Brenda Joyce Baker (“Brenda”), rented the dumpster from
defendant. Plaintiff and his mother, Mindy, lived next door to Brenda and plaintiff spent a great
deal of his time at Brenda’s house. Plaintiff’s theory of the case was that the dumpster, which
was a “slant-type” with a long overhang, was inherently dangerous if an 80-pound boy could pull
it over so easily and that defendant was negligent for placing such a dumpster on a grass surface
instead of on a concrete surface. Defendant countered that it owed plaintiff no duty.
Alternatively, defendant argued that there was no breach of duty because Brenda was the one
who chose the location for the dumpster. In addition to arguing that plaintiff was comparatively
negligent for the accident, defendant filed a notice of non-party fault, maintaining that both
Brenda and Mindy were negligent in failing to properly supervise plaintiff. After a three-day
bench trial, the trial court found that the design and placement of the dumpster rendered the
dumpster inherently dangerous and that defendant’s negligence was the proximate cause of
plaintiff’s injuries.

    II. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT SUMMARY
                               DISPOSITION


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       Defendant argues that the trial court erred in failing to grant summary disposition in its
favor where the evidence at the time of the motion for summary disposition revealed that
defendant owed plaintiff no duty. Alternatively, defendant argues that, even if there was a duty
owed to plaintiff, defendant did not breach any duty.

        “This Court reviews de novo a circuit court’s decision whether to grant or deny summary
disposition.” Joseph v Auto Club Ins Ass’n, 491 Mich 200, 205; 815 NW2d 412 (2012). The
determination of the existence of a duty presents a question of law subject to de novo review.
Hill v Sears, Roebuck & Co, 492 Mich 651, 659; 822 NW2d 190 (2012). If there is no duty,
summary disposition is proper. Beaudrie v Henderson, 465 Mich 124, 130; 631 NW2d 308
(2001). However, if factual questions exist regarding what characteristics giving rise to a duty
are present, the issue must be submitted to the factfinder. Howe v Detroit Free Press, Inc, 219
Mich App 150, 156; 555 NW2d 738 (1996), aff’d 457 Mich 871 (1998).

        “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). “[A] defendant is not liable to a plaintiff unless the defendant owed a
legal duty to the plaintiff.” Id.

       It is axiomatic that there can be no tort liability unless [a] defendant[ ] owed a
       duty to [a] plaintiff. Every person engaged in the performance of an undertaking
       has a duty to use due care or to not unreasonably endanger the person or property
       of others. However, as a general rule, there is no duty that obligates one person to
       aid or protect another. Generally, the duty that arises when a person actively
       engages in certain conduct may arise from a statute, a contractual relationship, or
       by operation of the common law . . . [Hill, 492 Mich at 660–661; (quotation
       marks and footnotes omitted).]

         Defendant owed plaintiff a common law duty of care. At the time of defendant’s motion
for summary disposition, there was a question of fact as to whether, in undertaking the duty to
fulfill its contract with Brenda, defendant created a new hazard by placing an inherently
dangerous dumpster on something other than a flat and level surface. See Loweke v Ann Arbor
Ceiling & Partition Co, LLC, 489 Mich 157; 809 NW2d 553 (2011). Defendant cites Bailey v
Schaaf, 494 Mich 595, 604; 835 NW2d 413 (2013), at length in support of its position that
defendant owed plaintiff no duty separate and apart from the contractual obligation to Brenda,
but Bailey is not directly on point. Bailey involved a landlord’s duty to protect a tenant against
the criminal act of a third party. The issue there was whether the plaintiff had entrusted himself
to the control and protection of the defendant. Here, plaintiff alleges that defendant placed an
inherently dangerous dumpster on Brenda’s property and failed to ensure that the dumpster was
placed on a hard and flat surface. The issue, then, was whether defendant used ordinary care to
avoid harm to plaintiff, who was a foreseeable individual.

       Defendant argues the trial court should not have considered plaintiff’s expert’s unsigned
and unsworn affidavit opining that dumpster was inherently dangerous and was not placed on a
proper surface. However, defendant never raised this issue in reply to plaintiff’s response to the

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summary disposition motion. Instead, defendant attacked the affidavit as being in conflict with
“eyewitness” testimony. There were no eyewitnesses to the actual accident, only its aftermath.
As such, defendant must be referring to testimony from Brenda and Mindy that the dumpster had
been there for a number of years and never had a problem in the past. The fact that there were no
accidents for a number of years was not dispositive that the dumpster was safe. It obviously was
not, if an 8-year-old child could pull it down so easily. Moreover, the affidavit was not the only
evidence plaintiff provided in his response to defendant’s motion for summary disposition.
Plaintiff provided photographs of the dumpster at issue and including safety reports from the
Consumer Products Safety Commission. The dumpster appeared to be of the type prohibited
under the report. It was not retrofitted with footings or braces. A question of fact clearly existed
as to whether the dumpster was inherently dangerous and whether the dumpster’s placement
added to the danger that the dumpster would tip. The trial court did not err in denying
defendant’s motion for summary disposition.

   III. WHETHER THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT WAS
                               NEGLIGENT

        For this particular issue, defendant focuses entirely on whether the trial court properly
considered Steven Ziemba’s testimony when it concluded that defendant breached its duty to
plaintiff. Defendant maintains that, had the trial court properly refused to consider Ziemba’s
testimony, there would have been no basis for finding defendant negligent. “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). To the extent defendant attacks the trial court’s
findings:

               This Court reviews a trial court’s findings of fact in a bench trial for clear
       error and reviews de novo its conclusions of law. A finding is clearly erroneous
       where, although there is evidence to support the finding, the reviewing court on
       the entire record is left with the definite and firm conviction that a mistake has
       been made. An appellate court will give deference to the trial court’s superior
       ability to judge the credibility of the witnesses who appeared before it. [Ambs v
       Kalamazoo Co Rd Comm’n, 255 Mich App 637, 651–652; 662 NW2d 424 (2003)
       (quotation marks, citations, and footnote omitted).]

        At trial, Ziemba described himself as a “safety consultant.” He graduated in 1972 from
Wayne State University with a Bachelor of Science in chemical engineering. From 1972 to 1989
Ziemba was a safety engineer with various insurance companies and conducted accident
investigations. The work included looking for fire hazards, liability hazards, and inspecting
equipment.

        Ziemba was asked to determine the safety of the type of dumpster involved in the
accident. Ziemba testified that the Consumer Product Safety Commission had been looking into
the dangers of the “slant-side” dumpsters since the 1970’s. At this point, defense counsel
objected, not because of Ziemba’s qualifications, but plaintiff failed to include a claim for
defective design in his complaint. The trial court noted that defendant was aware of plaintiff’s
theory since February 2016 and “if you knew that was what they were doing and I didn’t hear a
motion in limine or any other prophylactic measure besides getting this on the table here in the

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middle of day one of our trial.” The trial court permitted plaintiff to delve into the alleged design
flaw.

        Ziemba testified that the slant-type dumpster had the potential for being unstable and
were actually banned in 1978. Owners could retrofit the dumpsters with bracing extensions that
would enhance stability. Ziemba also pointed to a May 22, 1984 product sheet from the
Consumer Product Safety Commission. The article was based on a number of studies showing
that there had been 13 deaths of young children due to lack of stability. Plaintiff’s attorney asked
Ziemba to provide “more of an engineering explanation,” to which Ziemba answered:

               Well, simple terms is everything has a center of gravity for stability. You
       move beyond – like if you’re standing and then you lean way over, your stability
       – your center of gravity shifts and it’s no longer between your shoulders or your
       feet. This is the same thing. Your center – if it was a rectangular bin, the center of
       gravity, assuming the construction was the same, would be in the center. But now
       that you have this slanted bin, you have this side, this extra weight on this edge,
       and that shifts it from the dead center over closer to the slanted side. Now you add
       additional forces or weight, such as a child pulling on it or hanging on it or
       anybody, and it’s gonna tip over.

Ziemba opined that an 80-pound child should not be able to tip over a dumpster.

         He testified that the Consumer Product Safety Commission used two tests for checking
requirements for stability. The first is a horizontal push test where 70 pounds of force is exerted
at the top edge to see if the bin can be pushed over. The second is a vertical, or pull down, test to
see if the dumpster tips with 191 pounds of force. Ziemba noted that the bin that plaintiff pulled
over did not have safety extensions. The type of bin that injured plaintiff was the exact type that
was previously banned. However, Ziemba never had an opportunity to examine the exact bin
that injured plaintiff. Instead, defendant offered a modified bin for Ziemba’s examination. The
modified bin had extensions and was also placed on a hard level surface. Ziemba performed the
pull-down test on the bin defendant provided and was unable to tip it at 75 pounds. In fact, he
broke his measuring device. He noted, however that the bin was also placed on a hard level
surface. Ziemba was unable to perform the other test because he did not have the equipment
needed. Ziemba and plaintiff’s attorney ultimately found a non-modified bin on defendant’s
property. The bin was placed on a “dirt type” surface and plaintiff’s counsel was able to tip it
over with one hand. This particular bin, like the one involved in plaintiff’s accident, was not
modified with base extensions. Ziemba did not perform any testing on the bin because his gauge
was broken. Ziemba and plaintiff’s attorney then went on a road trip to see if there were other
such bins in the community. They found another un-modified container. It was on a hard
surface and was only tippable with an extreme amount of force. The concrete pad placement
made the difference. Ziemba believed that a grassy surface could become soft and mushy.
Ziemba opined that the dumpster that injured plaintiff was “definitely not safe” and was the
direct cause of plaintiff’s injuries.

        Defense counsel rigorously cross-examined Ziemba, eliciting that chemical engineering
had nothing to do with dumpster design. Ziemba also acknowledged that his certificate as a
certified safety professional lapsed about 16 years prior to trial. Ziemba was not certified as an

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expert in the area of human factors or ergonomics. Nor was he a certified safety engineer.
Ziemba had no training or experience with respect to dumpster design.

        On appeal, defendant argues that Ziemba was not offered as an expert, but then offered
expert testimony that defendant breached its duty to plaintiff. MRE 702 provides:

       If the court determines that scientific, technical, or other specialized knowledge
       will assist the trier of fact to understand the evidence or to determine a fact in
       issue, a witness qualified as an expert by knowledge, skill, experience, training, or
       education may testify thereto in the form of an opinion or otherwise if (1) the
       testimony is based on sufficient facts or data, (2) the testimony is the product of
       reliable principles and methods, and (3) the witness has applied the principles and
       methods reliably to the facts of the case.

However, although Ziemba’s testimony contained elements of scientific, technical or specialized
knowledge, he was not offered as an expert and was not received as an expert. Instead, he
provided lay witness testimony under MRE 701, which provides:

       If the witness is not testifying as an expert, the witness’ testimony in the form of
       opinions or inferences is limited to those opinions or inferences which are (a)
       rationally based on the perception of the witness and (b) helpful to a clear
       understanding of the witness’ testimony or the determination of a fact in issue.

MRE further provides:

       A witness may not testify to a matter unless evidence is introduced sufficient to
       support a finding that the witness has personal knowledge of the matter. Evidence
       to prove personal knowledge may, but need not, consist of the witness’ own
       testimony. This rule is subject to the provisions of Rule 703[1], relating to opinion
       testimony by expert witnesses.

Ziemba testified to what he observed at defendant’s warehouse and relevant literature. It cannot
be said that his testimony was overly dependent on scientific, technical, or other specialized
knowledge. His testimony was “rationally based on his perception of the evidence that he found
at the scene of the accident” and at defendant’s place of business, Chastain v Gen Motors Corp,
254 Mich App 576, 588; 657 NW2d 804 (2002), and, as the trial court noted, was helpful to a
clear understanding of a fact in issue in the case. In any event, even if Ziemba’s testimony
amounted to expert testimony, reversal is not necessary. See People v Dobek, 274 Mich App 58,
62; 732 NW2d 546 (2007).



1
  MRE 703 provides: “The facts or data in the particular case upon which an expert bases an
opinion or inference shall be in evidence. This rule does not restrict the discretion of the court to
receive expert opinion testimony subject to the condition that the factual bases of the opinion be
admitted in evidence thereafter.”


                                                -5-
   IV. WHETHER THE TRIAL COURT ERRED IN FAILING TO FIND PLAINTIFF
COMPARATIVELY NEGLIGENT AND REFUSING TO APPORTION FAULT TO BRENDA
                            AND MINDY

        Defendant argues that the trial court failed to find plaintiff comparatively negligent.
Generally, minors are not held to the same standard of care as adults, but are required only to
exercise the degree of care that a reasonably careful minor of the age, mental capacity and
experience of other similarly situated minors would exercise under the circumstances. Bragan v
Symanzik, 263 Mich App 324, 328; 687 NW2d 881 (2004). “[T]he capabilities of children older
than seven pose a question of fact for the jury, which is to determine it on the basis of whether
the child had conducted himself as a child of his age, ability, intelligence and experience would
reasonably have been expected to do under like circumstances.” Estate of Goodwin v Northwest
Michigan Fair Ass’n, ___ Mich App ___; ___ NW2d ___ (Docket No. 333963, issued July 3,
2018), slip op, p 16.

        It is clear that the trial court considered plaintiff’s relative fault and simply concluded that
this type of accident should not have occurred regardless of plaintiff’s conduct. That is, even if
plaintiff was well aware of the danger, his 80-pound frame should not have caused the dumpster
to tip. The trial court concluded that it was the dumpster’s design and placement that caused the
accident, not plaintiff’s conduct.

        Defendant next argues that the trial court failed to apportion fault to Brenda and Mindy.
The proportionate fault of nonparties must be ascertained and liability allocated accordingly.
MCL 600.2957(1); MCL 600.6304; Lamp v Reynolds, 249 Mich App 591, 597; 645 NW2d 311
(2002). Our Court recently reaffirmed that “parents have a duty to supervise their own children,
or determine that their children are of sufficient age and maturity to no longer need such
supervision” and that “[t]his duty to supervise one’s child includes an obligation to see that the
child’s behavior does not involve danger to the child . . .” Estate of Goodwin v Northwest
Michigan Fair Ass’n, ___ Mich App ___; ___ NW2d ___ (Docket No. 333963, issued July 3,
2018), slip op, p 7.) And, “[a]though parents have a duty to supervise their children, a parent’s
presence on the property does not abrogate the duty a premises owner owes to children” to
“protect children from dangerous conditions on their premises notwithstanding the presence of
the children’s parents.” Id. at n 7.

         A social worker and access clinician at Lenawee Community Mental Health Authority
testified that plaintiff needed constant supervision. Brenda testified that if plaintiff had asked if
he could play on it she would have told him “no.” Brenda never told plaintiff that he couldn’t
play on the dumpster. If she had thought it was a safety hazard, she would’ve had defendant
remove it.

       As with plaintiff’s alleged comparative fault, the trial court did, in fact, consider non-
party fault and simply refused to find that Brenda or Mindy bore any responsibility for the
accident. Again, the trial court stated: “Although there is inconsistent testimony, the dumpster
was on ground and situated such that it should not have tipped over with the pressure of a 100
pound or less child. None-the-less it did tip over on this young Plaintiff.”

        V. WHETHER THE TRIAL COURT ERRED IN ITS AWARD OF DAMAGES

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       Defendant argues that the trial court erred in failing to make specific findings required by
MCL 600.6305(1) and that it should not have considered evidence of plaintiff’s medical
expenses, which plaintiff failed to disclose during discovery.

         An appellate court reviews a trial court’s determination of damages following a bench
trial for clear error. Alan Custom Homes, Inc v Krol, 256 Mich App 505, 513; 667 NW2d 379
(2003). An appellate court “will not set aside a nonjury award merely on the basis of a
difference of opinion.” Marshall Lasser, PC v George, 252 Mich App 104, 110; 651 NW2d 158
(2002), quoting Meek v Dep’t of Transportation, 240 Mich App 105, 121; 610 NW2d 250
(2000). “Clear error exists where, after a review of the record, the reviewing court is left with a
firm and definite conviction that a mistake has been made.” Marshal Lasser, 252 Mich App at
110.

        Defendant’s argument that the trial court should not have considered plaintiff’s medical
bills goes to the admission of evidence. Again, “[a] trial court’s decision to admit or exclude
evidence is reviewed for an abuse of discretion.” Edry, 486 Mich at 639

       Defendant argues that the trial court failed to make the requisite findings to support the
damages award. It further argues that the trial court abused its discretion when it considered
evidence that plaintiff had incurred $29,000 in medical bills when plaintiff failed to provide such
information during discovery.

        Determination of the damages necessary to compensate a plaintiff for personal injury,
particularly for pain and suffering, rests within the sound discretion of the trier of fact. There is
no absolute standard by which to measure such awards. Kelly v Builders Square, Inc, 465 Mich
29, 35-36; 632 NW2d 912 (2001); Precopio v Detroit, 415 Mich 457, 464-465; 330 NW2d 802
(1982). “It is true that damages that are speculative or based on conjecture are not recoverable.
However, it is not necessary that damages be determined with mathematical certainty; rather, it is
sufficient if a reasonable basis for computation exists.” Chelsea Inv Group LLC v Chelsea, 288
Mich App 239, 255; 792 NW2d 781 (2010). Here, it is clear from the trial court’s opinion that
the amount awarded represented noneconomic damages for the physical and emotional pain
suffered by plaintiff. Noneconomic damages are defined as “damages or loss due to pain,
suffering, inconvenience, physical impairment, physical disfigurement, or other noneconomic
loss.” MCL 600.1483(3). Accordingly, the trial court complied with MCL 600.6305.

        The issue of plaintiff’s medical bills was also fully explored. During opening statements,
plaintiff’s attorney noted that plaintiff’s medical bills as of October 2016 were $27,419.32 and
had gone up since then. Defense counsel noted that plaintiff made no claim for medical bills or
economic losses. During trial, plaintiff’s counsel sought to admit the bills and defense counsel
objected. Plaintiff’s attorney indicated that the bills were paid mostly through Medicaid and that
there was a lien on the file. Plaintiff had to subpoena the bills and that was why they were not
immediately available to defendant during discovery. Defense counsel noted that plaintiff’s
answer to Interrogatory 18 that asked plaintiff to “list all losses or expenses you or the minor
Plaintiff have incurred as a result of the events described in the Complaint” was simply “my
mileage; loss of 1 day of work” and made no reference to medical bills. Plaintiff never
supplemented discovery to claim the medical bills. The trial court expected that defendant
wasn’t surprised by the bills and should have anticipated such a claim. It received the bills over

                                                -7-
defense counsel’s claim that there was no indication that the charges were reasonable or related
to the injury. It cannot be said that the trial court’s decision to receive the bills was an abuse of
discretion.

       Affirmed. As the prevailing party, plaintiff may tax costs. MCR 7.219.

                                                              /s/ Kirsten Frank Kelly
                                                              /s/ Karen M. Fort Hood




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