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

JESSE AUSTIN and SAMANTHA AUSTIN,

Plaintiffs-Appellants,

UNPUBLISHED

January 7, 2021

v No. 351929

Chippewa Circuit Court

MARK’S TIRE, INC., and U.P. TIRE, INC.,

Defendants-Appellees.

LC No. 16-014420-NO

Before: BOONSTRA, P.J., and GADOLA and TUKEL, JJ.

PER CURIAM.

Plaintiffs, Jesse Austin and Samantha Austin,1appeal as of right the trial court’s order 

granting summary disposition under MCR 2.116(C)(10) to defendants, Mark’s Tire, Inc., and U.P. 

Tire, Inc. Plaintiffs argue that either Mark’s Tire or U.P. Tire was at fault for an injury Jesse 

sustained at work while installing a split-rim wheel.2 We disagree and affirm.

I. UNDERLYING FACTS

On October 17, 2014, Jesse was injured while assisting his fellow employees at MCM 

Marine, Inc. (MCM) install a split-rim wheel that exploded during the installation process. 

Although Jesse had no experience with installing split-rim wheels, he was tasked with using an

impact wrench to reinstall wheels onto a crane. When he reached the second to last lug nut, the 

lock ring exploded off of the split-rim and severely injured Jesse. 

 

1 Plaintiff Samantha Austin’s loss of consortium, loss of services, and loss of companionship 

claims are derivative and are based on her status as plaintiff’s lawful spouse. We refer to plaintiff 

Jesse Austin as “Jesse” for purposes of clarity.

2 A split-rim wheel is a wheel that has three components that lock into place. Specifically, an 

uninflated tire is placed on the rim and then a flange and lock ring are connected to the rim and 

locked in place. After those three components lock together the tire is inflated.
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Plaintiffs identified two potential actors who could have been at fault for the accident, 

Mark’s Tire and U.P. Tire, because they were the only local contractors who mounted the crane’s 

tires for MCM. Specifically, MCM purchased seven tires for the crane from Mark’s Tire, and 

Mark’s Tire mounted six of those seven tires on split rims; U.P. Tire occasionally provided 

maintenance services for the crane’s tires.3 Notably, defendants both established that they would 

not use a rim that showed signs of corrosion or dents. Additionally, in instances in which U.P.

Tire serviced a rim due to corrosion, it sandblasted the corrosion off of the rim and painted it black, 

to protect the rim from future corrosion and so U.P. Tire could determine if it had previously 

serviced the wheel. The rim at issue in this case showed signs of extensive corrosion, had a dent, 

and was not painted black.

During depositions of MCM employees, each employee testified to not knowing who had 

last mounted a tire on the rim at issue. Deposition testimony revealed that the crane at issue was 

occasionally used off-site and that identifying who had last serviced a particular wheel was 

“impossible.”

4

 Defendants’ employees also responded to several questions about the mounting 

process and how each of them handled damaged rims. When provided a photograph of the 

damaged wheel, the employees stated that the wheel would not have been placed back into service 

in such a condition. 

Defendants eventually moved for summary disposition in separate motions. After a 

hearing on the matter, the trial court granted the motions, concluding that plaintiffs’ argument was 

speculative, not supported by the testimony, and that the evidence presented was insufficient to 

establish a single likely explanation for the exploding wheel. This appeal followed.

II. STANDARD OF REVIEW

A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency 

of a complaint and is reviewed de novo. Joseph v Auto Club Ins Ass’n, 491 Mich 200, 205-206; 

815 NW2d 412 (2012). This Court reviews a motion brought under MCR 2.116(C)(10) “by 

considering the pleadings, admissions, and other evidence submitted by the parties in the light 

most favorable to the nonmoving party.” Patrick v Turkelson, 322 Mich App 595, 605; 913 NW2d 

369 (2018). Summary disposition “is appropriate if there is no genuine issue regarding any 

material fact and the moving party is entitled to judgment as a matter of law.” Id. “There is a 

genuine issue of material fact when reasonable minds could differ on an issue after viewing the 

record in the light most favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 

Mich 419, 425; 751 NW2d 8 (2008). “Only the substantively admissible evidence actually 

proffered may be considered.” 1300 LaFayette East Coop, Inc v Savoy, 284 Mich App 522, 525; 

773 NW2d 57 (2009) (quotation marks and citation omitted). “Circumstantial evidence can be 

sufficient to establish a genuine issue of material fact, but mere conjecture or speculation is 

 

3 MCM apparently purchased tires for the crane only from Mark’s Tire.

4 The crane was mobile and MCM occasionally used it at locations other than where it was 

routinely kept.
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insufficient.” McNeill-Marks v Midmichigan Med Ctr-Gratiot, 316 Mich App 1, 16; 891 NW2d 

528 (2016). 

The moving party has the initial burden to support its claim with documentary evidence, 

but once the moving party has met this burden, the burden then shifts to the nonmoving party to 

establish that a genuine issue of material fact exists. AFSCME v Detroit, 267 Mich App 255, 261; 

704 NW2d 712 (2005). Additionally, if the moving party asserts that the nonmovant lacks 

evidence to support an essential element of one of his or her claims, the burden shifts to the 

nonmovant to present such evidence. Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 7; 890 NW2d 

344 (2016). 

III. ANALYSIS

Plaintiffs argue that sufficient evidence existed to establish a dispute of material fact 

regarding whether either Mark’s Tire or U.P. Tire negligently mounted a new tire on the damaged 

split-rim wheel that caused Jesse’s injuries. Specifically, plaintiffs present separate arguments in 

an attempt to establish causation by each defendant. First, plaintiffs argue that they can establish 

a reasonable inference that Mark’s Tire negligently mounted a tire on the split-rim wheel in 2010 

and the tire was kept as a spare, which later exploded when Jesse installed the tire on the crane. 

Secondly, plaintiffs argue that if Mark’s Tire was not negligent, then U.P. Tire may have 

negligently mounted a tire on a defective rim during servicing. We disagree with both arguments.

As an initial matter, we note that we could consider plaintiffs’ entire appeal abandoned 

because they failed to cite to any substantive law in any of the three briefs that they filed with this 

Court.5 While plaintiffs did provide case law establishing the standard of review applicable to this 

case, they only cited two cases in their primary brief on appeal addressing this case on the merits, 

and one of those two cases was unpublished. Additionally, the two cases that plaintiffs cited in 

their primary brief addressed only the issue of credibility determinations. Indeed, plaintiffs never 

mentioned the four elements of negligence or the fact that whether either Mark’s Tire or U.P. Tire 

breached their duty to install the tire reasonably is the dispositive issue in this case, because, 

assuming that negligence was involved (as to which there was insufficient evidence), there would 

still have to be evidence presented as to whose negligence caused the injury. While credibility 

determinations are important in this case, they are only important in relation to the issue of 

negligence, but plaintiffs failed to make that connection. Consequently, we could consider 

plaintiffs’ entire appeal abandoned. See Cheesman v Williams, 311 Mich App 147, 161; 874 

NW2d 385 (2015) (“An appellant may not merely announce a position then leave it to this Court 

to discover and rationalize the basis for the appellant’s claims; nor may an appellant give an issue 

only cursory treatment with little or no citation of authority.”). Nevertheless, because we disfavor

 

5 Plaintiffs filed three briefs in this case: (1) their primary appellant brief, (2) a brief replying to 

U.P. Tire’s brief, and (3) a brief replying to the brief of Mark’s Tires.
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dismissing an appeal in its entirety on the sole ground that an appellant’s argument is abandoned,

we choose to address plaintiffs’ appeal on the merits.6

“To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a 

duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) 

damages.” Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000) (citation omitted). 

The concept of causation encompasses both cause in fact and proximate cause. Skinner v Square 

D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994). “In a negligence action, a plaintiff must 

establish both factual causation, i.e., ‘the defendant’s conduct in fact caused harm to the plaintiff,’

and legal causation, i.e., the harm caused to the plaintiff ‘was the general kind of harm the 

defendant negligently risked.’ ” Ray v Swager, 501 Mich 52, 64; 903 NW2d 366 (2017) (citation 

omitted). A court must determine that a plaintiff has established factual causation before legal 

causation becomes a relevant issue. Id. Cause in fact may be established by circumstantial 

evidence, but such proof must facilitate reasonable inferences and not be based on mere 

speculation. Skinner, 445 Mich at 163-164. Nonetheless, “causation theories that are mere 

possibilities or, at most, equally as probable as other theories do not justify denying [a] defendant’s 

motion for summary judgment.” Id. at 172-173. The circumstantial evidence must tend to narrow 

the possibilities to a single likely explanation. Id. at 164. Indeed, “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,” and it is insufficient for a 

plaintiff “to submit a causation theory that, while factually supported, is, at best, just as possible 

as another theory.” Id. at 164-165.

Plaintiffs argue that because only defendants serviced MCM’s wheels, the evidence is 

sufficient to establish that one of them acted negligently by failing to reasonably install the splitrim wheel, and the determination of which defendant is more at fault should be left to the jury. 

Indeed, plaintiffs rely almost exclusively on Carr v Roger A Reed, Inc, unpublished per curiam 

opinion of the Court of Appeals, issued June 20, 2017 (Docket No. 330115), for the proposition 

that when two possible defendants are identified, the court must consider the evidence against each 

defendant prior to granting summary disposition. We normally do not address unpublished 

opinions because they are not binding on this Court,7but because all parties have addressed it in 

their briefs we choose to do so here.

As a threshold matter, however, and viewing the evidence in the light most favorable to 

plaintiffs, the evidence fails to establish by a preponderance that negligent installation of the splitrim wheel led to the explosion. Jesse had not been trained in the proper way to handle split-rim 

wheels and, as such, he may have skipped some important steps in the process of placing the wheel 

 

6 Additionally, defendants have not argued that plaintiffs’ arguments on appeal are abandoned and 

we similarly disfavor deciding cases based on arguments and theories not put forward by any 

parties in a case. We raise the issue of abandonment here, therefore, as constructive criticism, in 

the hope that by doing so counsel will be able to file more helpful briefs in the future.

7

“An unpublished opinion is not precedentially binding under the rule of stare decisis.” MCR 

7.215(C)(1). However, unpublished opinions can be instructive or persuasive. Paris Meadows, 

LLC v City of Kentwood, 287 Mich App 136, 145; 783 NW2d 133 (2010).
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back on the crane. Additionally, U.P. Tire’s long-time employee, George Hill, testified that if an 

individual overtightened a wheel while using an impact wrench to install the tire, the base of the 

rim could “warp,” causing a lock ring to “explode.” The record evidence did not make it any less 

likely that an error by Jesse, as opposed to one by either of the defendants, was the reason for the 

explosion. On this record, any finding against one of the defendants would be based on 

speculation. See Skinner, 445 Mich at 164-165.

Turning to Carr, in that case the plaintiff was injured by paraffin wax. It was undisputed 

that the paraffin wax was supplied by one of the two named defendants in the case, and no other 

possible defendants existed. Id. at 2-3. One of the defendants supplied paraffin wax in large blocks 

that were wrapped in brown paper; the other defendant supplied wax in much smaller blocks that 

were not wrapped in brown paper. Id. at 3. The facts of the case clearly established that the wax 

used at the scene of the accident was in large blocks and wrapped in brown paper. Id. at 3-4. 

Consequently, the facts of the case did not present a situation in which it was equally possible that 

each defendant was at fault. Id. Thus, this Court concluded that only the defendant who supplied 

the wax in large blocks and wrapped in brown paper could have supplied the wax that led to 

plaintiff’s injury. Id. 

In this case, by contrast, the record suggests a possibility that someone other than 

defendants may have worked on the crane’s wheels when the crane was used off-site. Indeed, 

Robert Chartrand, one of the owners of MCM, testified that the crane involved in the accident was 

occasionally used off-site, and MCM’s general manager, Thomas Bumstead, stated, 

what we’ve had in the past, you know, we’ve gone on crane lifts and, you know, 

some of the job sites aren’t the greatest. So, I mean, if we had flattened a tire or 

popped a tire or whatever, you know, any one of these tires could have been fixed 

or repaired at any given time.

Moreover, employees of both Mark’s Tire and U.P. Tire presented testimony and invoices 

reflecting that MCM had occasionally purchased, at different times, tubes for the tires and a tire 

that was unmounted, and MCM’s Controller, Thomas Spencer, testified that after his review of 

invoices, he could not establish who installed those items. Ultimately, just as plaintiffs could not 

establish who had mounted the tire on the specific rim at issue, plaintiffs also could not establish 

whether the wheel at issue underwent any repairs after the original tire purchase and mounting. 

Furthermore, after reviewing pictures of the rim that caused Jesse’s injury, employees of Mark’s 

Tire and U.P. Tire testified that they would not have used that rim. Rather, employees at Mark’s 

Tire and U.P. Tire would have replaced the rim because it was corroded and dented.

Nonetheless, plaintiffs argue that because (1) Mark’s Tire provided and mounted six of the 

seven tires MCM purchased for the crane, (2) the tire on the exploding rim was a new tire, and (3)

the exploding rim was not painted with U.P. Tire’s signature black paint, each of these facts 

supported an inference that it was more probable than not that Mark’s Tire was at fault. This 

theory, however, is speculative and not supported by the record. 

Notably, employees at MCM unequivocally testified that they did not know who last 

mounted or serviced the rim, or whether the wheel was a spare or in use prior to the accident. 

Indeed, Bumstead testified that due to the number of times the crane’s wheels were handled, 
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determining who last mounted the wheel at issue was “almost impossible.” Another MCM 

employee, Perron Reed, also suggested that he could not determine which defendant mounted the 

tire for the wheel at issue because he could only “guess” on the subject. Further, the only testimony 

on record regarding a new tire related to photographs shown by plaintiffs at depositions showing 

that the tires were barcoded by Michelin when new. But there is nothing in the record to support 

a conclusion that this photograph was of the actual tire involved in the accident. Additionally, 

while it is undisputed that the rim at issue was not freshly painted in black, it is also evident that 

the rim exhibited signs of corrosion. Most importantly, the wheel did not have any identifying 

marks that connected either the wheel or the tire to a particular defendant, and the last time Mark’s 

Tire sold and mounted a tire for MCM was in October 2010—four years before the accident. As 

noted by Bumstead, “any one of these tires could have been fixed or repaired at any given time.” 

Ultimately, plaintiffs could not establish who last mounted the subject wheel and, therefore, they 

cannot point to any evidence establishing that Mark’s Tire mounted the specific wheel at issue in 

this case. 

Plaintiffs further argue that if Mark’s Tire did not mount the tire on the subject rim, U.P. 

Tire would be implicated by process of elimination. But this argument does not establish that U.P. 

Tire performed an act that caused Jesse’s injury, and it certainly does not “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, 445 Mich at 164-165. Indeed, 

other than the fact that U.P. Tire worked on an unknown number of the crane’s tires, no evidence 

establishes that U.P. Tire ever worked on the rim at issue here. Furthermore, the rim did not have 

U.P. Tire’s signature black paint and it showed corrosion and dents that U.P. Tire would not have 

permitted. Additionally, as discussed earlier in reference to Mark’s Tire, plaintiffs could not 

establish who last mounted the subject wheel, and therefore cannot point to any evidence 

establishing that U.P. Tire mounted the specific wheel at issue. Thus, plaintiffs have failed to 

establish that it is more probable than not that U.P. Tire acted negligently.

In sum, the record evidence simply does not support either of plaintiffs’ arguments. 

Plaintiffs have presented no evidence allowing for a reasonable inference that either defendant’s

conduct led to Jesse’s injury, or, indeed, that either defendant engaged in any negligent conduct at 

all. There are other possibilities that could have occurred over the course of the four years since 

MCM’s last tire purchase from Mark’s Tire, and the evidence in the record does not support a 

reasonable inference that there was a single most likely explanation for the explosion that caused

Jesse’s injury. Skinner, 445 Mich at 164, 172-173. Rather, plaintiffs’ arguments regarding U.P. 

Tire rely merely on speculation and do not create an issue of fact because reasonable minds cannot 

reach different conclusions when considering these facts. Id. at 163-164. Thus, the trial court did 

not err by granting defendants’ motions for summary disposition.
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IV. CONCLUSION

Plaintiff’s evidence failed to establish negligence, and even if there was negligence, failed 

to establish the identity of whomever acted negligently. Consequently, for the reasons stated in 

this opinion, the trial court’s order granting summary disposition to defendants is affirmed. 

Defendants, as the prevailing parties, may tax costs pursuant to MCR 7.219.

/s/ Mark T. Boonstra 

/s/ Michael F. Gadola 

/s/ Jonathan Tukel