If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

MARTINA CIARAMITARO, by Next Friend 

MARIA CIARAMITARO,

Plaintiff-Appellant,

UNPUBLISHED

February 25, 2021

v No. 350227

Macomb Circuit Court

CARMINA RUGGERO, also known as 

CARMELINA RUGGERO, and ARIANA 

RUGGERO, by Next Friend CARMINA 

RUGGERO, also known as CARMELINA 

RUGGERO,

LC No. 2018-002503-NO

Defendants-Appellees.

Before: JANSEN, P.J., and SERVITTO and RIORDAN, JJ.

SERVITTO, J. (concurring in part, dissenting in part)

I agree with the majority’s conclusion that the trial court did not err in granting summary 

disposition in favor of defendants with respect to plaintiff’s claim against Ariana. However, 

because I believe that the trial court also appropriately granted summary disposition in favor of 

defendants with respect to plaintiff’s claims against Carmelina, I respectfully dissent from that 

portion of the majority’s opinion holding otherwise.

Restatement 2d of Torts, § 316 provides:

A parent is under a duty to exercise reasonable care to control his minor 

child as to prevent it from intentionally harming others or from so conducting itself 

as to create an unreasonable risk of bodily harm to them, if the parent 

(a) knows or has reason to know that he has the ability to control his child, 

and

(b) knows or should know of the necessity and opportunity for exercising 

such control. 
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Under the above standard, Carmelina could be held to a duty to exercise control over Ariana to 

prevent her from conducting herself “as to create an unreasonable risk of bodily harm to” plaintiff 

if she knew or had reason to know she could control Ariana and knew or had reason to know of 

the necessity for exercising control over Ariana. Two issues with respect to the above lead me to 

conclude that the trial court properly granted summary disposition in favor of Carmelina.

First, an unreasonable risk of harm is different from simply a risk of harm. “Where an act 

is one which a reasonable man would recognize as involving a risk of harm to another, the risk is 

unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law 

regards as the utility of the act or of the particular manner in which it is done.” Restatement 2d of 

Torts § 291. All reasonable adults, and reasonable children of plaintiff and Ariana’s ages recognize 

that a baseball bat is meant to be swung and that a swing trainer is meant to be swung at. These 

same reasonable persons would also recognize that a swinging bat creates a risk of harm to one 

standing too close to it. The question for our resolution, then, is whether the risk of harm posed 

by a swinging baseball bat is unreasonable. I do not believe that it is.

This is not an instance where children of a young age were swinging bats or, as the majority 

recognized, where children were swinging a bat in a reckless manner. The risk of harm posed by 

a swinging bat is generally alleviated by standing a clear distance from the swinging bat. Here, 

plaintiff and Ariana were 9 and 10 years old, respectively, when they were in the front yard paying 

with the swing trainer. Plaintiff testified that she was either first or second in line to use the swing 

trainer. She could not recall where she was standing when Ariana swung the bat at the swing 

trainer and was not actually positive that Ariana was the one swinging the bat when she was 

injured. Ariana testified that she did not look behind her when she swung the bat, but believed she 

was able to swing without hitting anyone. Alessio Detasti (who was 11 years old when the incident 

occurred) testified that there were other kids present before the incident occurred, two of whom 

were teenagers, and plaintiff was present when the other kids had taken turns on the swing trainer. 

According to Detasti, before the teenagers and another boy left to go into the backyard, one of 

them had told the rest of them to stand back from the swing trainer. Detasti testified that he was 

waiting to take a turn when the incident occurred and, when Ariana went up to swing at the swing 

trainer, he also told everyone to stand back because he did not want anyone to get hit. Detasti 

testified that he did not think that plaintiff was in the path of the bat when Ariana swung, but he 

thought plaintiff moved up a couple of steps closer to Ariana as she swung the bat.

From the above, it was clear that there was a risk in standing too close to a swinging bat 

and the risk posed was not of such magnitude as to outweigh the particular manner in which it was 

done. There was, after all, no evidence submitted showing that Ariana swung the bat in any way 

different from how a bat is typically used. While there was an obvious risk to a swinging bat, the 

risk would only be heightened if one positioned him or herself in the path of the bat. Thus, the 

risk posed by Ariana in using a bat on a toy meant to be swung at with a bat was not so unreasonable 

as to impose a duty upon Carmelina to supervise Ariana’s swinging of the bat.

Second, Carmelina testified that she was making food for the minor children that were 

present at her house, when Ariana, plaintiff, plaintiff’s older brother, Alex, and perhaps Detasti

went to play in the front yard. The swing trainer was already attached to a basketball pole next to 

the driveway in the front yard and Ariana testified that she went into the garage to get her bat so 

she and the others could use the swing trainer. Ariana testified that incident occurred within five
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or ten minutes of the kids using the swing trainer. There was no indication that Carmelina knew 

the kids were using she swing trainer and no indication that she could have exercised control over 

this situation where the incident happened within minutes and on a toy that Ariana had purportedly 

used many times without incident.

In addition, I would find no genuine issue of material fact regarding whether Carmelina’s 

alleged negligent supervision caused plaintiff’s injuries. A plaintiff in a negligence action must 

establish that a defendant’s negligent conduct was the proximate cause of his or her injury. In 

order to be a proximate cause, the negligent conduct must have been a cause of the plaintiff’s 

injury (cause-in-fact) and the plaintiff’s injury must have been a natural and probable result of the 

negligent conduct (legal causation). O’Neal v St John Hosp & Med Ctr, 487 Mich 485, 496; 791 

NW2d 853 (2010). The cause-in-fact prong generally requires showing that “but for” the 

defendant’s actions, the plaintiff’s injury would not have occurred, while legal causation relates to 

the foreseeability of the consequences of the defendant’s conduct. Id. However, if factual 

causation cannot be established, legal causation is no longer a relevant issue. Ray v Swager, 501 

Mich 52, 64; 903 NW2d 366 (2017).

There has been no evidence indicating that but for Carmelina’s failure to supervise the 

children, plaintiff would not have incurred her injury. It is true that Carmelina testified at 

deposition that if she had been supervising the children in the front yard, she would have instructed 

plaintiff not to move while Ariana was swinging the baseball bat. However, the evidence 

demonstrates that plaintiff was twice told by other children to stand back when others were 

swinging the bat. It is thus speculative, at best, whether Carmelina also telling plaintiff to stand 

back and stay still would have prevented the injury. Giving instructions can, after all, only do so 

much. The person being instructed must, on his or her own, comply with the instruction. As stated 

by our Supreme Court, to adequately establish cause-in-fact, a plaintiff’s proof must be more than 

conjecture:

[A] basis in only slight evidence is not enough. Nor is it sufficient to submit a 

causation theory that, while factually supported, is, at best, just as possible as 

another theory. Rather, 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. [Skinner v Square D Co, 445 Mich 

153, 164–65; 516 NW2d 475 (1994)]

“A mere possibility of such causation is not enough; and when the matter remains one of pure 

speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of 

the court” to find for the defendant. Id. at 165. The submitted evidence is insufficient to create a 

question of fact whether Carmelina’s actions were the cause in fact of plaintiff’s injuries. As such, 

legal causation is no longer a relevant issue. Ray, 501 Mich at 64. I would thus affirm the trial 

court’s decision in its entirety.

/s/ Deborah A. Servitto