Michigan Supreme Court

Lansing, Michigan

Robert P. Young, Jr., Chief Justice

Stephen J. Markman

Mary Beth Kelly

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein, Justices

Order 

April 10, 2015

149229

WILLIAM LUCKETT IV, a Minor, by his Next

Friends BEVERLY LUCKETT and WILLIAM

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 
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

2

Clerk

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.