             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



JAMES HEUSCHNEIDER,                                                    UNPUBLISHED
                                                                       June 4, 2019
               Plaintiff-Appellant,

v                                                                      No. 341053
                                                                       Washtenaw Circuit Court
WOLVERINE SUPERIOR HOSPITALITY, INC.                                   LC No. 17-000009-NO
doing business as COMFORT INN & SUITES,

               Defendant-Appellee.


Before: STEPHENS, P.J., and GLEICHER and BOONSTRA, JJ.


PER CURIAM.

       Plaintiff, James Heuschneider, appeals as of right the trial court’s order granting
defendant’s, Wolverine Superior Hospitality, Inc., motion for summary disposition pursuant to
MCR 2.116(C)(8) (failure to state a claim on which relief can be granted) and MCR
2.116(C)(10) (no genuine issue of material fact). We reverse and remand.

                                        I. BACKGROUND

        This case arises from a spider bite that plaintiff suffered while staying in a room at the
Comfort Inn & Suites in Ann Arbor, Michigan. According to plaintiff, emergency room doctors
opined that he was bitten by a brown recluse spider because of the way his body reacted to the
venom. Plaintiff filed a complaint against defendant for damages he sustained from the spider
bite. He pled four theories: innkeeper’s liability, premises liability, ordinary negligence, and
nuisance. Plaintiff averred that defendant had a duty to provide reasonably safe accommodations
to its guests and that it breached that duty by failing to take any action to protect or warn its
guests of a dangerous condition (the spider’s presence). According to plaintiff, defendant’s
failure to maintain the accommodations in a reasonably safe condition proximately caused
plaintiff’s spider bite. As a result of the spider bite, plaintiff sustained severe and permanent
personal injuries, including a left leg abscess, cellulitis of the left leg wound, necrosis of the left
leg wound, deep venous thrombosis, pulmonary emboli, pleural effusion, pulmonary infarction,
multiple surgeries to his leg and chest, weeks of inpatient hospitalization, and rehabilitation.



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        Defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and
MCR 2.116(C)(10). Defendant contended that plaintiff could not prove proximate causation
because plaintiff was unable to produce competent evidence showing that the alleged spider did
not arrive in the hotel room on plaintiff’s own clothing or luggage. Furthermore, defendant
asserted that no duty was owed to the plaintiff under the doctrine of ferae naturae. That doctrine
holds that a landowner cannot be held liable for the actions of wild animals on his or her property
unless the animals were in the landowner’s possession or control. The trial court granted the
motion for summary disposition. This appeal followed.

                                II. SUMMARY DISPOSITION

     Plaintiff argues on appeal that the trial court erred in granting defendant’s motion for
summary disposition. We agree.

                                 A. STANDARD OF REVIEW

        This Court reviews “the trial court’s denial of defendant’s motion for summary
disposition de novo.” Bellinger v Kram, 319 Mich App 653, 658-659; 904 NW2d 870 (2017).
“A motion for summary disposition brought under MCR 2.116(C)(8) tests the legal sufficiency
of the complaint on the basis of the pleadings alone.” Beaudrie v Henderson, 465 Mich 124,
129; 631 NW2d 308 (2001). The Court must “determine whether the plaintiff has stated a claim
upon which relief can be granted.” Id. at 129-130. “The motion should be granted if no factual
development could possibly justify recovery.” Id. at 130.

        When reviewing a motion brought pursuant to MCR 2.116(C)(10), this Court “must
consider the pleadings, affidavits, depositions, admissions, and any other documentary evidence
in favor of the party opposing the motion.” Baker v Arbor Drugs, Inc, 215 Mich App 198, 202;
544 NW2d 727 (1996). This Court’s “task is to review the record evidence, and all reasonable
inferences drawn from it, and decide whether a genuine issue regarding any material fact exists
to warrant a trial.” Id. A genuine issue of material fact exists when the record, “giving the
benefit of reasonable doubt to the opposing party, would leave open an issue upon which
reasonable minds might differ.” Shallal v Catholic Social Servs of Wayne Co, 455 Mich 604,
609; 566 NW2d 571 (1997) (citations omitted).

                                         B. ANALYSIS

        “To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a
duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4)
damages.” Hampton v Waste Mgt of Mich, Inc, 236 Mich App 598, 602; 601 NW2d 172 (1999).
“Proximate cause, also known as legal causation, . . . involves examining the foreseeability of
consequences, and whether a defendant should be held legally responsible for such
consequences.” Ray v Swager, 501 Mich 52, 63; 903 NW2d 366 (2017). “In a negligence
action, a plaintiff must establish both factual causation, i.e., the defendant’s conduct in fact
caused harm to the plaintiff, and legal causation, i.e., the harm caused to the plaintiff was the
general kind of harm the defendant negligently risked.” Id. at 64. “The moving party may thus
satisfy its burden under MCR 2.116(C)(10) by submit[ting] affirmative evidence that negates an
essential element of the nonmoving party’s claim, or by “demonstrat[ing] to the court that the

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nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving
party’s claim.” Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 7; 890 NW2d 344 (2016) (quotation
marks and citation omitted, alterations in original).

        “An innkeeper has a duty to protect guests from injury. The innkeeper must exercise
ordinary care and prudence to keep his premises reasonably safe for business invitees.”
Upthegrove v Myers, 99 Mich App 776, 779; 299 NW2d 29 (1980). In plaintiff’s case, MCL
125.474 further provides that “[t]he owner of every dwelling shall be responsible for keeping the
entire building free from vermin.” “The question whether a defendant has breached a duty of
care is ordinarily a question of fact for the jury and not appropriate for summary disposition.”
Latham v National Car Rental Systems, Inc, 239 Mich App 330, 340; 608 NW2d 66 (2000).
However, if the “moving party can show either that an essential element of the nonmoving
party’s case is missing, or that the nonmoving party’s evidence is insufficient to establish an
element of its claim, summary disposition is properly granted.” Id.

        The trial court granted summary disposition for lack of legal duty and failure to present
evidence of foreseeability. The court found that no legal duty was owed to the plaintiff based on
the doctrine of ferae naturae, or wild things, over which defendant had no control. The court
relied, in part, on the affidavit of an entomology expert, arthropod diagnostician, Howard
Russell, who opined that spiders were wild animals. The trial court found that no duty was owed
to the plaintiff based on the holding in Glave v Michigan Terminix Co, 159 Mich App 537; 407
NW2d 36 (1987), which ascribed a duty only where a wild animal is under the control of an
alleged tortfeaser. “By asserting dominion over a wild animal and keeping it, an individual may
be held liable for personal injuries caused by the animal’s conduct.” Id. at 540. Here, the court
found the fact that the spider was a wild animal an absolute defense to each of plaintiff’s claims
of premises liability, innkeeper’s liability, negligence, and nuisance. We find that the court erred
in applying the doctrine of ferae naturae to the innkeeper defendant.

        The doctrine of ferae naturae has its genesis in the common law. The common law
remains in force until modified. Wold Architects and Engineers v. Strat, 474 Mich 223, 233; 713
NW2d 750 (2006). “Our statute limiting the liability of an innkeeper is in derogation of the
common law and must be strictly construed.” Davis v Cohen, 253 Mich 330, 335; 235 NW 173
(1931). The trial court explicitly found that the innkeepers’ liability statute was inapplicable to
this case because it found that spiders were not vermin. This was erroneous. MCL 125.474
provides:

               Every dwelling and every part thereof shall be kept clean and shall also be
       kept free from any accumulation of dirt, filth, rubbish, garbage or other matter in
       or on the same, or in the yards, courts, passages, areas or alleys connected
       therewith or belonging to the same. The owner of every dwelling shall be
       responsible for keeping the entire building free from vermin . . . [Emphasis
       added].

The statute does not define vermin. Therefore, we look to the common meaning of the word.
Stanton v City of Battle Creek, 466 Mich 611, 617; 647 NW2d 508 (2002). Merriam-Webster’s
Dictionary (11th ed) defines vermin, in relevant part, as “1. a : small common harmful or
objectionable animals (such as lice or fleas) that are difficult to control . . .” A spider is an

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arachnid belonging to the same class as mites.1 Spiders fit within the common meaning of
vermin.

                                     1. FORESEEABILITY

        The defendant’s hotel manager testified that approximately one-third of the total rooms
were sprayed monthly on a rotational basis. However, she was not sure of the last time
plaintiff’s room was sprayed before the spider bite. Russell reviewed several documents related
to the case, including the service reports from Advanced Pest Control. He testified that
Advanced Pest Control used two different products: Phantom and Conquer. According to
Russell, both products had residual effectiveness, and he believed that both products would be
effective for approximately one month. Russell noted that the service reports indicated that
plaintiff’s room was last sprayed on June 8, 2015. Plaintiff’s incident occurred on August 20,
2015.

        There was conflicting testimony concerning how the brown recluse ended up in
plaintiff’s room. Russell explained that brown recluse spiders were not typically found in
Michigan; however, there had been isolated discoveries of brown recluses in the very city of the
injury. He testified that spiders, including the brown recluse, were known to travel from one
location to another on articles of clothing or luggage. Such transport of spiders and other insects
is reasonably foreseeable at a location housing transients. The plaintiff testified that he did not
transport the spider but encountered it when he was under the hotel’s bedding for the first time.
Russell agreed that it was possible that the spider was in the hotel room when plaintiff arrived.

         A question of fact exists as to whether defendant’s practices for pest control management
breached its duty to keep the premises reasonably safe and free from vermin. The evidence at
the time the summary disposition motion was decided indicated that plaintiff’s room had been
untreated for over one month prior to the injury, a period outside the efficacy of the pesticides
used at the location. Reasonable minds could disagree as to whether defendant breached its duty
in this instance and whether the breach proximately caused plaintiff’s injuries.

        Given our disposition, it is unnecessary to address plaintiff’s additional argument that the
trial court prematurely granted summary disposition before the close of discovery.

        Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.



                                                             /s/ Cynthia Diane Stephens
                                                             /s/ Elizabeth L. Gleicher
                                                             /s/ Mark T. Boonstra



1
    See https://www.britannica.com/animal/arachnid, last accessed May 5, 2019.


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