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### STATE OF MICHIGAN

COURT OF APPEALS

BRENDA MCCONNER as Personal Representative of the ESTATE OF GRACE LEWIS,

Plaintiff-Appellant, UNPUBLISHED December 1, 2015

V No. 322922
Oakland Circuit Court

NEW HORIZON REHABILITATION SERVICES, INC., and SANDRA SMITH, LC No. 2012-127632-NO

Defendants-Appellees.

Before: S ERVITTO , P.J., and W ILDER and B OONSTRA , JJ.

P ER C URIAM

.

Plaintiff, acting as personal representative of the estate of the decedent, appeals as of right the trial court’s order gr anting summary disposition in f avor of defendants, a vocational and rehabilitation facility and one of its employees, in this wrong ful death action. We reverse and remand for further proceedings.

Plaintiff argues the evidence before the trial court establish ed material questions of fact regarding defendants’ alleged n egligence during the events lead ing up to decedent’s death. We
hold that the trial court mistak enly excluded admissible eviden ce as hearsay, which when properly considered establishes a question of material fact pre cluding summary disposition. 1

I. FACTS

New Horizons provides vocationa l and rehabilitation services t o people with disabilities. In 2010, Grace Lewis, who suffered from mental and psychologica l disabilities, began receiving

1 Plaintiff’s challenges to the trial court’s evidentiary ruling s were not explicitly presented in her statement of the questions pre sented. See MCR 7.12(C)(5). Thi s Court is not obligated to address issues not germane to those included in the statement o f questions presented. Meagher v McNeely & Lincoln, Inc , 212 Mich App 154, 156; 536 NW2d 851 ( 1995). But, in the inte rests of justice, we will address those issues despite the imperfect pre sentation.-2- vocational services at New Horizon. Due to the seriousness of Ms. Lewis’ conditions, she required one on one monitoring by staff at all times. On Febru ary 24, 2011, defendant Sandra Smith was decedent’s assigned vocational instructor.

Decedent had a known habit of eating too quickly and sometimes choking on her food. For those reasons, a prior instructor had cut up decedent’s foo d and gave her only one or two pieces at a time. Smith was also aware of decedent’s habits, a nd the precautions taken by her predecessor. On February 24, 2011, during lunch, Smith cut dec edent’s sandwich into numerous pieces before allowing decedent to eat it. When decedent began to eat too fast Smith advised her to slow down, which decedent did before continuing.

According to Smith’s deposition testimony, after this exchange decedent ran from the lunchroom into the bathroom, a nd Smith immediately followed. S mith stated that decedent fell to the floor and refused to get up, but did not exhibit any sig ns of distress. She further stated that another employee was present in the bathroom and that she herse lf sought assistance after the
two of them could not raise deced ent from the floor. A short t ime later decedent’s case manager entered the bathroom, who, with the assistance of other employe es, moved decedent to another room to change her because decedent had soiled her pants. In t hat other room, a different employee noticed for the first time that decedent was having di fficulty breathing. Emergency medical services were summoned, a nd arrived shortly thereafter. EMS personnel worked on decedent for approximately twenty minutes at New Horizon before transporting her to the hospital, where she died the next day of asphyxiation and other complications arising from choking on her sandwich. Smith has consistently maintained tha t she remained with decedent at all times until EMS personnel arrived. All deposition statemen ts of employees of the defendant facility, as well as incident reports created by employees and EMS personnel, indicate that Smith was present with decedent at all times, and that no employee ob served any outward signs of choking until after decedent was mo ved from the bathroom to the adjacent room.

However, plaintiff offered a medical expert’s affidavit opinin g that a person who was choking would normally exhibit plainly observable symptoms of p hysical distress. Further, handwritten notes on a consultation request form from the hospi tal indicated that decedent was found unsupervised in the bathroom on the floor. Additionally, a family member of the decedent, who was present at the hospital on the day in questio n, stated in deposition that an unnamed woman, identifying herself as an employee of the defend ant facility, told the family
member that decedent ran to the bathroom alone and was followed only after her instructor had not seen her for some time. Also, according to this account, d ecedent was left alone in the bathroom while facility employees sought help from other staff members. Facility employees who were present at the hospita l deny that this conversation oc curred.

Plaintiff commenced this action, alleging that defendants negl igently caused decedent’s death. After extensive discovery, defendants filed motions req uesting summary disposition under MCR 2.116(C)(8) and (C)(10). The trial court ruled that both the note and the deposition statements of the family member were inadmissible hearsay, and it did not consider that evidence when evaluating the motions. The trial court, on the basis of the evidence it did consider, held that no question of material f act had been established concerni ng defendants’ negligence, and so granted summary disposition in favor of defendants under MCR 2. 116(C)(10).-3- II. STANDARDS OF REVIEW

This Court reviews a trial cour t’s decision to grant or deny s ummary disposition de novo.

Lucas v Awaad , 299 Mich App 345, 358-359; 830 NW2d 141 (2013). Review of a decision under MCR 2.116(C)(10) is limited to the evidence that was befo re the trial court when the
motion was decided. Innovative Adult Foster Care, Inc v Ragin , 285 Mich App 466, 476; 776 NW2d 398 (2009).

“A trial court’s decision to adm it or exclude evidence is revi ewed for an abuse of
discretion.” Edry v Adelman , 486 Mich 634, 639; 786 NW2d 567 (2010). “An abuse of
discretion occurs when the trial court chooses an outcome falli ng outside the range of principled

outcomes.” Id.

III. ANALYSIS

A. EVIDENCE CONSIDERED BY THE TRIAL COURT

Summary disposition under MCR 2.116(C)(10) tests the evidentia ry support for a claim, and the moving party has the initial burden of identifying issu es over which there are no questions of material fact. Innovative , 285 Mich App at 475. The burden then shifts to the nonmoving party, who must go beyond the allegations and denials in pleadings “to set forth specific facts showing that a ge nuine issue of material fact ex ists.” Quinto v Cross & Peters Co

, 451 Mich 358, 362; 547 NW2d 314 (1996). See also MCR 2.116(G)( 4). The parties must support their respective positions with admissible evidence in the form of affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(3)(b) and (G)(6). All documentary evidence must be evaluated in the light most favorable to the n onmoving party. Innovative , 285 Mich App at 475. An issue of mat erial fact may be found if thi s evaluation “leaves open an issue upon which reasonable minds might differ.” Id . (internal quotation marks and citation omitted).

However, “speculation and conjec ture are insufficient to creat e an issue of material fact.” Ghaffari v Turner Constr Co (On Remand) , 268 Mich App 460, 464; 708 NW2d 448 (2005). A motion under MCR 2.116(C)(10) is pr operly granted “if the affid avits or other documentary
evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law.” Quinto , 451 Mich at 362. Summary disposition may be inappropriate when motive or intent are at issue, or the cre dibility of a deponent is crucial.

See White v Taylor Distrib Co , 275 Mich App 615, 630; 739 NW2d 132 (2007), aff’d 482 Mich 136; 753 NW2d 591 (2008); Vanguard Ins Co v Bolt , 204 Mich App 271, 276; 514 NW2d 525 (1994).

At issue in this case is whether sufficient evidence was prese nted to establish a question of material fact concerning whet her defendants breached their d uty to exercise ordinary care-4- while supervising decedent. 2 The trial court decided this question without considering the hospital intake notes, or the deposition testimony whereby dece dent’s family member told of an unnamed facility employee’s account of decedent’s entering the bathroom alone, on the grounds that they were inadmissible hearsay.

Plaintiff argues that the trial court erred in failing to reco gnize a question of material fact even without recourse to that excluded evidence, first arguing that Smith’s admitted disinclination to hand-feed decedent her sandwich created a que stion for the jury regarding a breach of duty. We disagree.

The defendant employee’s common law duty was to supervise dece dent in the same manner as would a reasonable person in the same circumstances. See Case v Consumers Power

Co , 463 Mich 1, 6-7; 615 NW2d 17 (2000). The parties do not disp ute that Smith had knowledge of decedent’s eating habits, her risk of choking, and the precautions taken by other employees in the past, but neither do the parties dispute that Smith followed all applicable protocols. Smith’s uncontroverted deposition statements indica te that she took reasonable precautions to ensure safety when she cut up the sandwich and a dvised decedent to eat slower.

Typically it is for a jury to decide if a defendant’s conduct meets the requisite duty of care, but if an overwhelming public policy concern arises, the court may decide. See Bailey v Schaaf , 494 Mich 595, 603; 835 NW2d 413 (2013). It can always be arg ued in hindsight that more could have been done to prevent an accident. This alone d oes not mean that those who work with the disabled should be liable every time their disinc lination to take additional precautions coincides with a tragedy. Stated differently, decl ining to exercise extraordinary , as opposed to merely ordinary, care does not constitute common-law negligence. See Campbell v
Kovich , 273 Mich App 227, 231-232; 731 NW2d 112 (2006). Accordingly, Smith’s deposition testimony alone does not establish a question of material fact regarding negligence.

The parties recognize that it is not the prerogative of a tria l court to weigh the credibility of witnesses when considering motions for summary disposition. See Skinner v Square D Co

, 445 Mich 153, 161; 516 NW2d 475 (1994); White , 275 Mich App at 625. Plaintiff argues that the credibility of Smith’s tes timony is sufficiently central to the outcome of the case as to render summary disposition inappropriate even if other evidence does n ot contradict it. Moreover, plaintiff argues that the statements by a medical expert regard ing the physical symptoms of choking provide a basis upon which a reasonable juror could cho ose to disbelieve the deposition testimonies of the defendant facilities employees.

2 Negligence requires proof of the following elements: “(1) the defendant owed the plaintiff a legal duty, (2) the defendant br eached 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 , 489 Mich 157, 162; 809 NW2d 553 (2011).-5- Plaintiff attempts to liken the present case to White to support her argument that an assessment of the defendant employee’s credibility is crucial t o resolution of this case. 3 We agree that if Smith was in fact negligent, she had a motive to testify falsely. However, unlike

White and similar cases, ample admissible documentary evidence descr ibes the crucial events. Testimony of other witnesses, incident reports filed the same d ay, and testimony and notes from EMS personnel all support the version of events accepted as unc ontroverted by the trial court. Moreover, Smith’s own testimony does not contain significant in consistencies, which might themselves raise questions of credibility. The present case is distinguishable from White and related cases because its outcome does not depend solely on the credibility behind one person’s subjective account of the pertinent events.

Further, the medical expert’s a ffidavit did not create serious credibility concerns, as it
offered little more than an inv itation to speculate concerning the credibility of the witnesses, who consistently maintained that no one observed decedent having di fficulties breathing. See Ghaffari , 268 Mich App at 464. Jurors are always free to disbelieve an y witnesses or other evidence even when overwhelming, or uncontradicted, Guerrero v Smith , 280 Mich App 647, 669; 761 NW2d 723 (2008), but that does not excuse the nonmovin g party’s burden to offer evidence to put at issue a questi on of material fact or otherwi se establish that summary disposition is inappropriate as a matter of law. An argument r elying exclusively on speculation regarding a possible alternative chain of events amounts to not hing more than an inadequate denial of the moving party’s we ll-supported position. See MCR 2.116(G)(4). To the extent that plaintiff relies on the medical expert’s opinion, plaintiff has failed to present evidence contrasting the accounts of defe ndants’ witnesses for jurors to consider, or to otherwise place credibility serious ly at issue. See Ghaffari , 268 Mich App at 465.

For these reasons, we agree with the trial court that the evid ence it chose to consider did not create a question of materia l fact for jury resolution.

B. HEARSAY

Hearsay, meaning a person’s unsworn, out-of-court statement of fered in evidence to prove the truth of the matter asserted, is generally inadmissib le, subject to several exemptions

3 In White , the crux of the defendant’s argument to rebut a statutory pre sumption of negligence using the sudden-emergency doctrine was whether deposition test imony that he “blacked out just before the accident, and that h e did not experience sweating, d izziness, or unsteadiness” until moments before, was believed. 275 Mich App at 627. This evide nce was inherently subjective in nature, and there existed substantial motive for the defenda nt to testify in a way that would avoid liability. Accordingly, this Court concluded that the pl aintiff was entitled to the opportunity to have jurors assess his credibility. Id. at 630. The Supreme Court affirmed, determining that factual and credibility issues existed, but di d so solely on the basis of inconsistencies in the deponent’s testimony. White , 482 Mich at 142.-6- and exceptions as provided by the rules of evidence. MRE 801-8 05. Those exceptions include “[s]tatements made for purposes of medical treatment or medical diagnosis in connection with treatment and describing medical history . . . insofar as reas onably necessary to such diagnosis and treatment.” MRE 803(4). This exception recognizes “(1) th e self-interested motivation to speak the truth to treating physicians in order to receive prop er medical care, and (2) the reasonable necessity of the statement to the diagnosis and trea tment of the patient.” People v
Duenaz , 306 Mich App 85, 95; 854 NW2d 531 (2014) (internal quotation marks and citation omitted). Plaintiff argues the hospital intake notes fell with in this exception and thus the trial
court erred in declin ing to take them into account. We disagre e.

The contents of the notes at is sue concerned decedent being un supervised; not unresponsive. Unlike information regarding length of unrespons iveness, a general statement regarding lack of supervision w ithout any reference to time is not reasonably “necessary to . . . diagnosis or treatment.” MRE 803(4). See also Duenaz , 306 Mich App at 95. Accordingly, the notes did not satisfy the require ments of MRE 803(4), and thus were properly excluded as inadmissible hearsay.

However, we hold that the trial court erred in declining to ad mit the alleged conversation between decedent’s family membe r and the unnamed employee of Ne w Horizon. Admissions by a party opponent are not hearsay if made “by the party’s agent . . . concerning a matter within the scope of the agency or employment, made during the existence of the relationship.” MRE 801(d)(2)(D). For such evidence to be admitted, the proponent of the evidence must establish that the declarant was an empl oyee of the opposing party. See Bachman v Swan Harbour Assoc

, 252 Mich App 400, 440; 653 NW2d 415 (2002). In Bachman , this Court held that an alleged conversation with someone the plaintiff believed to be an emplo yee of the defendant was inadmissible hearsay on the gr ound that the plaintiff failed to affirmatively establish that the declarant actually had an agency relationship with the defendan t. Id . However, nothing in

Bachman suggests that specifying the name of the declarant is importan t so long as the proponent of the evidence establis hes that agency relationship.

In the present case, the deposition testimony of decedent’s fa mily member indicates that when she arrived at the emergency room there were two women pre sent, one whom she knew and the other an unnamed “young white lady.” Before talking to the family member, the “young white lady” allegedly identified herself as an employee of New Horizon. After the conversation at issue, another woman, who identified herself as a supervisor for New Horizon, entered the room. Decedent’s family member asserted that the supervisor sa id that the other unnamed woman did not know the whole story and dismissed her. When the family member later discussed the accident with her family she learned that the sup ervisor told them a version of events that was significantly di fferent from what she was told by the unnamed employee.

Defendants concede that there were in fact two employees of Ne w Horizon at the hospital; one was decedent’s case manager, and the other was in deed a young, white female. Although defendants raised credi bility arguments concerning the family member’s account, they
did not ask the trial court to ru le that this declarant’s exist ence or identity as an agent of the defendant facility was insuffici ently established. The stateme nts at issue, then, were arguably attributed to 1) a person identi fied as an agent of the opposin g party, 2) concerning a matter within the scope of her employment, 3) during the existence of that relationship. See MRE-7- 801(d)(2)(D). Accepted at face valu e and considered in the lig ht most favorable to the nonmoving party, these statements present a plausible alternative chain of events for jurors to consider, in direct conflict with the other accounts offered in to evidence. Such testimony is certainly sufficient to establish a genuine issue of material f act precluding summary disposition, and it places the credibility of other evidence on record at is sue. Determining the truth of conflicting accounts is the business of the trier of fact. See White , 275 Mich App at 625. Accordingly, the trial court’s error in excluding that depositi on from consideration when evaluating the parties’ motions f or summary disposition require s reversal. See MRE 103(a).

For these reasons, we reverse t he trial court’s decision to gr ant summary disposition for defendants and remand for further proceedings consistent with t his opinion.

Reversed and remanded. We do not retain jurisdiction.

/s/ Deborah A. Servitto
/s/ Kurtis T. Wilder
/s/ Mark T. Boonstra