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### STATE OF MICHIGAN

COURT OF APPEALS

JOHN R. RUFFINS, Conservator for ROBERT A. RUFFINS,

Plaintiff-Appellant-Cross-Appellee, UNPUBLISHED April 28, 2016

v No. 325443 Livingston Circuit Court DTE ELECTRIC COMPANY, LC No. 13-027760-NO

Defendant-Appellee-CrossAppellant.

Before: S AWYER , P.J., and M URPHY and R ONAYNE K RAUSE , JJ.

P ER C URIAM

.

Plaintiff appeals the trial court’s order dismissing and trans ferring the case to the Michigan Public Service Commission (MPSC) under the doctrine of primary jurisdiction. Defendant DTE Electric Company (DTE) cross appeals the trial co urt’s order denying its motion for summary disposition under MCR 2.116(C)(10). Because DTE wa s entitled to summary disposition under MCR 2.116(C)(10) on the element of causation, which would not have been a matter examined by the MPSC, it is unnecessary for us to entert ain the question whether the trial court properly invoked the doctrine of primary jurisdiction. W e reverse the trial court’s primary jurisdiction ruling and remand fo r entry of judgment in favor o f DTE pursuant to MCR 2.116(C)(10).

This case stems from an electricity shutoff at the home of Rob ert Ruffins (hereinafter Ruffins) by DTE. Ruffins, who suffered from dementia, lived al one but received assistance from his family members. Plaintiff is Ruffins’s brother and conserv ator. Plaintiff testified that he knew that his brother’s bills from DTE were past due and had to ld him to pay the amount owed. Apparently, Ruffins did not follow his brother’s advice because on January 16, 2013, DTE disconnected the meter on Ruffins’s home for lack of payment. Later that night, Ruffins’s cousin, Sally Conner, came to see him and found him naked, cold , covered in diarrhea, and unresponsive on his bedroom floor. Ruffins now resides in a nu rsing home and requires constant

care.

Plaintiff brought this action alleging that DTE caused Ruffins ’s injuries by failing to give

notice of the shutoff in accordance with an MPSC administrative emergency rule. DTE filed a motion for summary disposition, a rguing that plaintiff, as a ma tter of law, had failed to establish-2- a duty or breach of any duty and noting that the emergency rule relied on by plaintiff had not

been in effect at the time of the incident. In the alternative , DTE maintained that the doctrine of primary jurisdiction would apply if there were any questions of fact concerning whether DTE had complied with MPSC rules and regulations. The trial court denied DTE’s motion without prejudice, allowing plaintiff to file an amended complaint. Pl aintiff filed an amended complaint, retaining the previous allegation regarding the emergency rule, while adding a new claimed violation of Mich Admin Code, R 460.141 (Manner of shutoff). P laintiff asserted that DTE had violated Rule 460.141, where DTE’s employee who shut off the el ectricity allegedly failed to identify himself to Ruffins before the shutoff, failed to annou nce to Ruffins his intent to turn off the power, failed to provide Ru ffins with the opportunity to pa y the bill, and failed to leave a written shutoff notice. DTE filed a second motion for summary disposition, raising the issues argued previously in its original motion, but now also alleging a failure by plaintiff to establish an issue of fact regarding causation. The trial court denied t he motion for purposes of MCR 2.116(C)(10), but dismissed the case without prejudice and tran sferred it to the MPSC under the doctrine of primary jurisdiction. Plaintiff appeals the primar y jurisdiction ruling, while DTE cross appeals the trial court’s (C)(10) ruling.

This Court reviews de novo a trial court’s decision on a motio n for summary disposition. Loweke v Ann Arbor Ceiling & Partition Co, LLC , 489 Mich 157, 162; 809 NW2d 553 (2011). With respect to a motion for summary disposition brought pursua nt to MCR 2.116(C)(10), this

Court in Pioneer State Mut Ins Co v Dells , 301 Mich App 368, 377; 836 NW2d 257 (2013),

articulated:

In general, MCR 2.116(C)(10) provides for summary disposition when there is no genuine issue regarding any material fact and the m oving party is entitled to judgment or partial judgment as a matter of law. A motion brought under MCR 2.116(C)(10) tests the factual support for a party's claim. A trial court may grant a motion for summary disposition under MCR 2.116(C)(1 0) if the pleadings, affidavits, and other documentary evidence, when vie wed in a light most favorable to the nonmovant, show that there is no genuine issue with respect to any material fact. A genuine issue of material fact exists w hen the record, giving the benefit of reasonabl e doubt to the opposing party, l eaves open an issue upon which reasonable minds might differ. The trial court is no t permitted to assess credibility, weigh the evidence, or resolve factual disp utes, and if material evidence conflicts, it is not appropriate to grant a motion for summary disposition under MCR 2.116(C)(10). A court may only consider substantively admissible evidence actually proffered relative to a motion for summary di sposition under MCR 2.116(C)(10). [Citations and quotation marks omitted.]

“To establish a prima facie case of negligence, a plaintiff mu st prove 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 , 489 Mich at 162.

We shall assume that DTE owed R uffins a legal duty consistent with the MPSC rules on providing notice directly before electricity is shut off to a r esidence, and we shall also assume that DTE’s employee breached the duty as alleged by plaintiff. Regardless, plaintiff has failed to-3- create a genuine issue of material fact regarding whether the p resumed breach was a cause of the alleged injuries. The causation element encompasses both cause in fact and proximate or legal

cause. Case v Consumers Power Co , 463 Mich 1, 6 n 6; 615 NW2d 17 (2000). “The cause in fact element generally requires showing that ‘but for’ the defe ndant’s actions, the plaintiff’s injury would not have occurred.” Skinner v Square D Co , 445 Mich 153, 163; 516 NW2d 475 (1994). It is not sufficient to proffer “a causation theory th at, while factually supported, is, at best, just as possible as another theory.” Id. at 164. A “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.” Id. at 164-165 (emphasis added). “[L]itigants do not have any right to submit an evidentiary rec ord to the jury that would allow the jury to do nothing more than guess.” Id. at 174. The Skinner Court further observed that “ ‘[t]he evidence need not negate all other possible causes’ ” and that absolute certainty on cau sation is not required. Id. at 166, quoting 57A Am Jur 2d, Negligence, § 461, p 442.

Plaintiff’s lawsuit is entirely predicated on the alleged la ck of proper notice at the time electrical service was disrupted; however, the case is ultimate ly overly speculative regarding whether the lack of notice resulted in the deteriorated physica l and mental state in which Ruffins was discovered by his cousin. First, there was undisputed evid ence that Ruffins had received numerous past-due notices, that Ruffins had the funds to pay th e DTE electric bill, that plaintiff had pleaded with Ruffins to pay the bill, that at least one day before the shutoff, DTE made, minimally, two attempts to contact Ruffins by phone, and that, despite these efforts and circumstances, Ruffins still did not pay the bill. Moreover, t here is no indication that once the power was turned off, which certainly would have been noticeabl e fairly quickly, that Ruffins took any steps to contact DTE to take care of his outstanding b ill or to otherwise check on the matter, nor did Ruffins contact family members about the emergi ng situation. Therefore, the evidence strongly indicated that had DTE’s employee provided th e requisite notice, which we are assuming did not occur, Ruffins would not have reacted any diff erently, and a ju ry would have to engage in pure conjecture and speculation in order to find a ca usal link. It is truly unfortunate if his dementia played a role in Ru ffins’s failure to pay the bill and reaction to the shutoff, but DTE

cannot be blamed for that circu mstance, of which it had no know ledge.

Furthermore, there is no evidence that the lack of notice or e lectricity actually caused

Ruffins’s deteriorated medical condition. Plaintiff himself su rmised that Ruffins was having digestive problems and may have slipped and fallen on his own f eces. Plaintiff points to a medical letter from a doctor who was a “member of [Ruffins’s] c are team,” which reflected an opinion that Ruffins had suffere d a serious injury that resulte d in a significant loss of cognitive function, leaving him unable to make informed decisions. 1 In conjunction with this medical evidence, plaintiff cites documentary evidence about Ruffins’s physical and mental state directly before the incident, which was not nearly as bad as it was afte r the shutoff, the reby giving rise, in plaintiff’s view, to an inference that it was the shutoff or la ck of electricity that caused the deterioration. This evidence, however, does not necessarily ti e the harm to the presumed lack of notice or the lack of electricity; Ruffins could just as likely have had some type of accident or

1 The letter said nothing in terms of whether the cold contribut ed to Ruffins’s condition.-4- experienced a medical event unc onnected to the power shutoff. Ultimately, a jury could do nothing more than guess on the issue of causation. Plaintiff d id not present evidence, let alone substantial evidence, from which a jury could conclude that mor e likely than not, but for DTE’s conduct or failures, the inj uries would not have occurred.

Plaintiff presents a cursory argument that summary disposition relative to causation would be premature because there was still a month left for dis covery. “Generally, a motion for summary disposition is premature if granted before discovery on a disputed issue is complete.” Peterson Novelties, Inc v City of Berkley , 259 Mich App 1, 24-25; 672 NW2d 351 (2003) (citations omitted). “However, summary disposition may neverth eless be appropriate if further discovery does not stand a reasonable chance of uncovering fact ual support for the opposing party’s position.” Id . at 25 (citation omitted). Here, plaintiff fails to identify the nature of any previously-existing or potential discovery requests that could produce evidence that would create a genuine issue of mater ial fact on causation.

Because DTE was entitled to summary disposition under MCR 2.11 6(C)(10) with respect to the element of causation, and because causation, as opposed to rule violations, would not have been a matter for the MPSC to explore, we reverse the trial cou rt’s primary jurisdiction ruling and remand for entry of j udgment in favor of DTE.

Reversed and remanded for proceedings consistent with this opi nion. We do not retain jurisdiction. We dec line to award taxable costs under MCR 7.21 9.

/s/ David H. Sawyer /s/ William B. Murphy /s/ Amy Ronayne Krause