Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  April 10, 2015                                                                   Robert P. Young, Jr.,
                                                                                              Chief Justice

  149229                                                                            Stephen J. Markman
                                                                                        Mary Beth Kelly
                                                                                         Brian K. Zahra
                                                                                 Bridget M. McCormack
                                                                                       David F. Viviano
  WILLIAM LUCKETT IV, a Minor, by his Next                                         Richard H. Bernstein,
  Friends BEVERLY LUCKETT and WILLIAM                                                              Justices
  LUCKETT,
             Plaintiffs-Appellees,
  v                                                      SC: 149229
                                                         COA: 313280
                                                         Macomb CC: 2010-004265-NI
  SOUTHEAST MACOMB SANITARY DISTRICT
  and PATRICK O’CONNELL,
            Defendants-Appellees,
  and
  RICK KITTELL,
            Defendant-Appellant.

  _________________________________________/

          On order of the Court, the application for leave to appeal the March 25, 2014
  judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in
  lieu of granting leave to appeal, we REVERSE in part the judgment of the Court of
  Appeals and we REMAND this case to the Macomb Circuit Court for entry of summary
  disposition in favor of defendant Rick Kittell. The only evidence concerning the
  illumination of the Rio Vista Pier lights before the snowmobile accident was Kittell’s log
  in which he recorded that the pier lights were all illuminated approximately 20 minutes
  prior to the accident. The plaintiffs’ evidence all concerned the status of the lights
  following the accident. There is no evidence that Kittell was grossly negligent, that is,
  that he engaged in “conduct so reckless as to demonstrate a substantial lack of concern
  for whether an injury results.” MCL 691.1407(7)(a). Neither is there any evidence that
  Kittell’s acts or omissions were the proximate cause of the plaintiff’s injuries. See
  Robinson v Detroit, 462 Mich 439 (2000).

        BERNSTEIN, J. (dissenting).

        I respectfully dissent from this Court’s order reversing in part the judgment of the
  Court of Appeals and remanding to the trial court for entry of summary disposition in
                                                                                                               2

favor of all defendants. I would instead deny leave to appeal. I believe the Court of
Appeals correctly ruled that because there exists a genuine issue of material fact with
respect to defendant Rick Kittell, he is not entitled to summary disposition.

        Plaintiffs are the parents of William Luckett IV, a minor at the time this suit was
initially filed. On March 12, 2008, William was driving his father’s snowmobile on a
frozen lake when he crashed into a pier and was thrown onto the ice. William was
rendered quadriplegic as a result of the accident. On William’s behalf, plaintiffs sued
defendants, who were responsible for maintaining the lights on the pier. Plaintiffs
conceded that governmental immunity entitled defendant Southeast Macomb Sanitary
District to summary disposition under MCR 2.116(C)(7). However, plaintiffs maintained
that the individual defendants, Patrick O’Connell and Kittell, were liable because their
conduct amounted to “gross negligence” that was the “proximate cause of the injury.”
See MCL 691.1407(2)(c). The trial court ruled that the evidence was insufficient to
establish gross negligence, granting summary disposition in favor of both O’Connell and
Kittell pursuant to MCR 2.116(C)(7) and (10). The Court of Appeals affirmed the trial
court’s decision with respect to O’Connell but reversed with respect to Kittell. The Court
of Appeals concluded that a genuine issue of material fact existed regarding whether
Kittell’s acts or omissions amounted to gross negligence and that a reasonable jury could
conclude that Kittell’s conduct was the proximate cause of the accident. Luckett v South
Macomb Disposal Auth, unpublished opinion per curiam of the Court of Appeals, issued
March 25, 2014 (Docket No. 313280).

        I agree with the Court of Appeals. With respect to Kittell, while there was
conflicting evidence, when that evidence is viewed in the light most favorable to plaintiff,
I believe that a genuine issue of material fact exists. See MCR 2.116(C)(10); Maiden v
Rozwood, 461 Mich 109, 120 (1999). A motion for summary disposition should only be
granted if evidence establishes that there is no genuine issue as to any material fact and
the movant is entitled to judgment as a matter of law. MCR 2.116(C)(10) and (G)(4);
Quinto v Cross & Peters Co¸ 451 Mich 358, 361-363 (1996). A close case “ ‘calls for
jury instruction and jury verdict rather than a verdict by order of the court.’ ” Washington
v Jones, 386 Mich 466, 471 (1971), quoting Tien v Barkel, 351 Mich 276, 283 (1958). In
this particular case, with respect to Kittell, I believe the proofs should be submitted to a
jury to determine the ultimate outcome of the claim.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         April 10, 2015
       t0407
                                                                             Clerk
