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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UNPUBLISHED 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: SERVITTO, P.J., and WILDER and BOONSTRA, JJ. 

PER CURIAM. 

 Plaintiff, acting as personal representative of the estate of the decedent, appeals as of 

right the trial court’s order granting summary disposition in favor of defendants, a vocational and 

rehabilitation facility and one of its employees, in this wrongful death action. We reverse and 

remand for further proceedings. 

 Plaintiff argues the evidence before the trial court established material questions of fact 

regarding defendants’ alleged negligence during the events leading up to decedent’s death. We 

hold that the trial court mistakenly excluded admissible evidence as hearsay, which when 

properly considered establishes a question of material fact precluding summary disposition.1

I. FACTS 

 New Horizons provides vocational and rehabilitation services to people with disabilities. 

In 2010, Grace Lewis, who suffered from mental and psychological disabilities, began receiving 

 

1

 Plaintiff’s challenges to the trial court’s evidentiary rulings were not explicitly presented in her 

statement of the questions presented. See MCR 7.12(C)(5). This Court is not obligated to 

address issues not germane to those included in the statement of questions presented. Meagher v 

McNeely & Lincoln, Inc, 212 Mich App 154, 156; 536 NW2d 851 (1995). But, in the interests of 

justice, we will address those issues despite the imperfect presentation. 
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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 February 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 food and gave her only one or two 

pieces at a time. Smith was also aware of decedent’s habits, and the precautions taken by her 

predecessor. On February 24, 2011, during lunch, Smith cut decedent’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, and Smith immediately followed. Smith stated that decedent fell 

to the floor and refused to get up, but did not exhibit any signs of distress. She further stated that 

another employee was present in the bathroom and that she herself sought assistance after the 

two of them could not raise decedent from the floor. A short time later decedent’s case manager 

entered the bathroom, who, with the assistance of other employees, moved decedent to another 

room to change her because decedent had soiled her pants. In that other room, a different 

employee noticed for the first time that decedent was having difficulty breathing. Emergency 

medical services were summoned, and 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 that she remained with decedent at 

all times until EMS personnel arrived. All deposition statements 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 observed any outward signs of 

choking until after decedent was moved from the bathroom to the adjacent room. 

 However, plaintiff offered a medical expert’s affidavit opining that a person who was 

choking would normally exhibit plainly observable symptoms of physical distress. Further, 

handwritten notes on a consultation request form from the hospital 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 question, stated in deposition that an 

unnamed woman, identifying herself as an employee of the defendant 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, decedent was left alone in the 

bathroom while facility employees sought help from other staff members. Facility employees 

who were present at the hospital deny that this conversation occurred. 

 Plaintiff commenced this action, alleging that defendants negligently caused decedent’s 

death. After extensive discovery, defendants filed motions requesting 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 fact had been established concerning defendants’ negligence, and so 

granted summary disposition in favor of defendants under MCR 2.116(C)(10). 
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II. STANDARDS OF REVIEW 

 This Court reviews a trial court’s decision to grant or deny summary 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 before 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 admit or exclude evidence is reviewed 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 falling 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 evidentiary support for a claim, 

and the moving party has the initial burden of identifying issues 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 genuine issue of material fact exists.” 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 nonmoving party. Innovative, 285 

Mich App at 475. An issue of material fact may be found if this evaluation “leaves open an issue 

upon which reasonable minds might differ.” Id. (internal quotation marks and citation omitted). 

 However, “speculation and conjecture are insufficient to create 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 properly granted “if the affidavits 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 credibility 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 presented to establish a question 

of material fact concerning whether defendants breached their duty to exercise ordinary care 
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while supervising decedent.2

 The trial court decided this question without considering the

hospital intake notes, or the deposition testimony whereby decedent’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 recognize 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 question for the jury regarding a 

breach of duty. We disagree. 

 The defendant employee’s common law duty was to supervise decedent 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 dispute 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 indicate that she took reasonable 

precautions to ensure safety when she cut up the sandwich and advised 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 argued in hindsight that 

more could have been done to prevent an accident. This alone does not mean that those who 

work with the disabled should be liable every time their disinclination to take additional 

precautions coincides with a tragedy. Stated differently, declining 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 trial 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 testimony is sufficiently central to the outcome of the case as to render 

summary disposition inappropriate even if other evidence does not contradict it. Moreover, 

plaintiff argues that the statements by a medical expert regarding the physical symptoms of 

choking provide a basis upon which a reasonable juror could choose to disbelieve the deposition 

testimonies of the defendant facilities employees. 

 

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 Negligence requires proof of 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, 489 Mich 157, 162; 809 NW2d 553 (2011). 
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 Plaintiff attempts to liken the present case to White to support her argument that an 

assessment of the defendant employee’s credibility is crucial to 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 describes the crucial events. 

Testimony of other witnesses, incident reports filed the same day, and testimony and notes from 

EMS personnel all support the version of events accepted as uncontroverted by the trial court. 

Moreover, Smith’s own testimony does not contain significant inconsistencies, 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 affidavit did not create serious credibility concerns, as it 

offered little more than an invitation to speculate concerning the credibility of the witnesses, who 

consistently maintained that no one observed decedent having difficulties breathing. See 

Ghaffari, 268 Mich App at 464. Jurors are always free to disbelieve any 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 nonmoving party’s burden to offer 

evidence to put at issue a question of material fact or otherwise establish that summary 

disposition is inappropriate as a matter of law. An argument relying exclusively on speculation 

regarding a possible alternative chain of events amounts to nothing more than an inadequate 

denial of the moving party’s well-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 defendants’ witnesses for jurors to consider, or to otherwise place 

credibility seriously at issue. See Ghaffari, 268 Mich App at 465. 

 For these reasons, we agree with the trial court that the evidence it chose to consider did 

not create a question of material fact for jury resolution. 

B. HEARSAY 

 Hearsay, meaning a person’s unsworn, out-of-court statement offered in evidence to 

prove the truth of the matter asserted, is generally inadmissible, subject to several exemptions 

 

3

 In White, the crux of the defendant’s argument to rebut a statutory presumption of negligence 

using the sudden-emergency doctrine was whether deposition testimony that he “blacked out just 

before the accident, and that he did not experience sweating, dizziness, or unsteadiness” until 

moments before, was believed. 275 Mich App at 627. This evidence was inherently subjective 

in nature, and there existed substantial motive for the defendant to testify in a way that would 

avoid liability. Accordingly, this Court concluded that the plaintiff 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 did so solely on the basis of 

inconsistencies in the deponent’s testimony. White, 482 Mich at 142. 

 
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and exceptions as provided by the rules of evidence. MRE 801-805. Those exceptions include 

“[s]tatements made for purposes of medical treatment or medical diagnosis in connection with 

treatment and describing medical history . . . insofar as reasonably necessary to such diagnosis 

and treatment.” MRE 803(4). This exception recognizes “(1) the self-interested motivation to 

speak the truth to treating physicians in order to receive proper medical care, and (2) the 

reasonable necessity of the statement to the diagnosis and treatment 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 within this exception and thus the trial 

court erred in declining to take them into account. We disagree. 

 The contents of the notes at issue concerned decedent being unsupervised; not 

unresponsive. Unlike information regarding length of unresponsiveness, a general statement 

regarding lack of supervision without 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 requirements of MRE 803(4), and thus were properly excluded as 

inadmissible hearsay. 

 However, we hold that the trial court erred in declining to admit the alleged conversation 

between decedent’s family member and the unnamed employee of New 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 employee 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 employee of the defendant was 

inadmissible hearsay on the ground that the plaintiff failed to affirmatively establish that the 

declarant actually had an agency relationship with the defendant. Id. However, nothing in 

Bachman suggests that specifying the name of the declarant is important so long as the 

proponent of the evidence establishes that agency relationship.

 In the present case, the deposition testimony of decedent’s family member indicates that 

when she arrived at the emergency room there were two women present, 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 said 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 supervisor told them a version of 

events that was significantly different from what she was told by the unnamed employee. 

 Defendants concede that there were in fact two employees of New Horizon at the 

hospital; one was decedent’s case manager, and the other was indeed a young, white female. 

Although defendants raised credibility arguments concerning the family member’s account, they 

did not ask the trial court to rule that this declarant’s existence or identity as an agent of the 

defendant facility was insufficiently established. The statements at issue, then, were arguably 

attributed to 1) a person identified as an agent of the opposing party, 2) concerning a matter 

within the scope of her employment, 3) during the existence of that relationship. See MRE 
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801(d)(2)(D). Accepted at face value and considered in the light 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 into evidence. Such testimony is 

certainly sufficient to establish a genuine issue of material fact precluding summary disposition, 

and it places the credibility of other evidence on record at issue. 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 deposition from consideration when 

evaluating the parties’ motions for summary disposition requires reversal. See MRE 103(a). 

 For these reasons, we reverse the trial court’s decision to grant summary disposition for 

defendants and remand for further proceedings consistent with this opinion. 

 Reversed and remanded. We do not retain jurisdiction. 

/s/ Deborah A. Servitto 

/s/ Kurtis T. Wilder 

/s/ Mark T. Boonstra