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### STATE OF MICHIGAN

COURT OF APPEALS

MICHELE HOLT and FLOYD HOLT,

Plaintiffs-Appellees, UNPUBLISHED May 26, 2016

v No. 325345 Wayne Circuit Court LEGACY HHH, VHS HARPER-HUTZEL HOSPITAL, INC., and HOLLISTER-WHITNEY ELEVATOR CORPORATION, LC No. 13-002501-NO

Defendants,

and

OTIS ELEVATOR COMPANY,

Defendant-Appellant.

Before: B OONSTRA , P.J., and M ETER and B ECKERING , JJ.

P ER C URIAM

.

Defendant, Otis Elevator Compa ny (Otis), appeals by leave gran ted an order denying its motion for summary disposition of the claims of plaintiff Miche le Holt (Michele) and her husband, plaintiff Floyd Holt, related to injuries Michele alle gedly suffered when a rope gripper stopped an elevator she was riding while at work at Harper Hosp ital in Detroit. 1 We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

A. AUGUST 6, 2010 INCIDENT

On August 6, 2010, at approximately 9:00 a.m., Michele, who wa s in charge of patient transport at Harper Hospital, entered elevator number 10 on the eighth floor of the hospital. Janet Hester was already in the elevator. As the elevator bega n its descent to the basement, it

1 According to plaintiffs’ complaint, defendants Legacy HHH and VHS Harper-Hutzel Hospital, Inc., are assumed names for Harper Hospital.-2- “seemed to go very quickly, and then all of a sudden it stopped .” Michele recalled that “it felt like [the elevator] bounced. The sudden stop threw Michele and she hit her left knee on a panel on the side of the elevator. She was also thrown backwards, wh ich caused her to hit her upper
back and the back of her head on the rear elevator wall. After a brief pause, the elevator descended again before stopping abruptly for a second time. Mi chele was thrown again, and she
collided with the front and rear walls of the elevator. She hi t her knee, which made what she described as a popping sound.

Several Otis employees were at Harper Hospital on the day of t he incident working to “modernize” the elevators. They were not working on elevator 1 0 or the bank in which the elevator was housed that day; work on elevator 10 had recently been completed and city officials had tested and certified the elevator two days before the incid ent. Ralph Kates, part of the fourperson modernization crew, was working on top of elevator 12 at the time of the incident and noticed that elevator 10 stopped abruptly. After calling down to the passengers to see if they were injured, Kates contacted his supervisor, Mark McMillen, an d told him about the situation.

McMillen decided to investigate the problem by venturing into what many witnesses
described as the “machine room” or “elevator machine room.” Th e machine room is located on the 11th floor of Harper Hospital; the 11th floor is only acces sible by a freight elevator that requires special access or by a stairwell secured by a locked d oor. The machine room is further secured by locked, self-closing doors. 2 McMillen testified that his modernization crew did not have keys to the machine room and that they could only enter if they were allowed in by hospital personnel or by Roy England, an Otis maintenance mechanic who w orked at the hospital. Further, only a few, select hospital employees had keys to the machine room. 3 McMillen was able to access the machine room door on the morning of the inci dent because the main door to the room had been propped open.

McMillen testified that he had been in the area of the machine room the morning of the incident and he recalled seeing an unknown individual enter the room through the main door, which had been propped open in violation of city code requireme nts. 4 McMillen first testified that the individual was not wearing a green Otis uniform, but l ater testified that he had no
recollection of the color of th e uniform that the individual wo re. The only thing McMillen could
recall about the individual was that he was male.

2 Detroit City Code required the doors to the machine room to be locked and to self-close.

3 In 2008, Otis and Harper Hospital entered into a maintenance a greement which provided that the elevator units remained the possession of, and were under c ontrol of, Harper Hospital. The agreement also provided that Harper Hospital agreed to “provide [Otis] unrestricted ready and safe access to all areas of the building in which any part of t he Units are located . . . .”

4 Roy England, a maintenance mechanic employed by Otis and who w as not part of the modernization crew, testifi ed that he would prop the door open for the modernization crew.-3- When McMillen entered the mach ine room following Kates’s repor t of the incident with elevator 10, the unknown individu al was still in the machine ro om, and the door was still propped open. McMillen walked over to the machinery for elevat or 10, which was on the opposite side of the roo m from the unknown individual, and bega n examining the elevator by using a diagnostic tool. Kates told McMillen, and McMillen’s i nvestigation confirmed as much, that a device called a “rope gri pper” had set on elevator 10, c ausing it to stop suddenly. McMillen’s diagnostic tool repor ted that the overspeed governor switch (overspeed switch) had been tripped, causing the rope gripper to deploy. 5 The overspeed switch at issue was located on the floor between elevators 10 and 11. The switch was designed to deploy in the event the elevator began descending over a certain, unsafe speed. Accord ing to McMillen, elevator 10 had not “oversped,” meaning it had not reached the type of speed th at would have tripped the overspeed switch.

B. THE OVERSPEED SWITCH

At the time of the incident, the overspeed switch for elevator 10 was located on the floor and was not protected or covered in any fashion. Several witne sses testified that someone could easily brush up against the switch and accidentally trip it. F or instance, Dennis Christiaens, plaintiff’s expert witness, testified in his deposition that th e overspeed switch was a “very
delicate switch” and that it “doesn ’t take much to trip that sw itch.”

Deposition testimony in this case produced considerable materi al concerning how the overspeed switch was tripped. As noted, McMillen’s diagnostic tool ruled out the idea that elevator 10 had in fact, “oversped,” meaning that the elevator had not traveled fast enough to trip the switch and deploy the rope gri pper. There was also testimo ny from several witnesses that, although a power failure could possibly cause the deployment of the overspeed switch, a power
failure had not occurred in this case. Christiaens testified t hat under the known circumstances in this case, i.e., that the elevator had not “oversped” and there was no power failure, the overspeed switch must have been tripped manually, meaning that someone ha d intentionally or accidentally tripped the switch and caused elevator 10 to stop abruptly. Ac cording to Christiaens, such a manual tripping of the switch coul d only occur if someone touch ed the overspeed switch.

As to what could have caused the switch to trip given that a p ower failure or overspeed condition could be ruled out, Mc Millen testified that “everythi ng would be speculation.” He testified that there were “too many” potential causes to list, then testified that “[t]he only way that switch can get tripped without the elevator tripping it is either by vibration or somebody hit
it.” He then t estified, without offering any additional exampl es, that vibration or someone hitting the switch were “not the only t hings that could cause” the swit ch to trip.

5 Several witnesses testified that when the overspeed switch is tripped and the roper gripper device engages, the elevator stops, and it cannot begin moving again until the overspeed switch and rope gripper are reset.-4- Kates testified that he discussed the incident with McMillen o n the day it occurred and McMillen did not say anything with regard to the switch being t ripped by an individual. However, at “some later point,” t hey discussed the incident aga in and McMillen told him that he thought someone had walked by the overspeed switch and tripped it by mistake. Kates testified that it took little force to trip the switch and agreed that so meone walking past the switch could hit it by mistake and acciden tally trip the switch.

Joseph Steger, an Otis employee, testified that it would be “s peculation” to attempt to determine what tripped the overspeed switch in this case. He t estified, though, that he did not know of any possible causes to explain why the switch was tripp ed, aside from someone manually tripping the switch. He later testified that the swit ch could “vibrate and swivel,” but acknowledged that the switch was designed so as to avoid being tripped through vibration.

Doug Dietrich, an employee of Hollister-Whitney Elevator Corpo ration, the entity that manufactured the rope gripper and overspeed switch at issue in this case, testified that the overspeed switch is designed to s tay closed under normal condit ions and that “spring washers” were put in place to create resi stance. To his knowledge, Holl ister-Whitney had not received any complaints or reports about an overspeed switch deploying under normal operating conditions,
due to “vibration or whatever.” In his opinion, in the absence of an overspeed condition, the only thing that would cause the overspeed switch to deploy woul d be physical contact with the
switch.

Ronald Creak, an expert witness retained by Harper Hospital, o pined that there were three potential causes for the incident. The first of which wa s that the overspeed switch was defective. The second potential cause was that the governor sw itch had not been reset after city inspectors tested elevator 10 two days prior to the incident. The third potential cause Creak identified was potential physical contact with the switch.

Dennis Olson, an expert retained by Hollister-Whitney, testifi ed that subsequent testing of the governor switch at issue a nd of elevator 10 demonstrated , in his opinion, that there was no design defect in the switch. Olson disagreed with Creak’s opin ion that the incident involving the sudden stoppage of elevator 10 could have been caused by an imp roperly reset governor switch following testing by city inspectors. Olson testified that the switch could not be partially reset; it would either be fully closed or fully open. Olson opined that the sudden stoppage that allegedly caused Michele’s injuries was caused by the elevator

clip[ing] a door lock which activated the rope gripper which br ought the car to an emergency stop and . . . as a result of the emergency stop of t he car, that the governor tension weight bounced, which caused the rope to snap back down on top and impact the governing causi ng the switch to trip.

In other words, Olson thought that the governor switch tripped after the rope gripper was activated, contrary to the testim ony of several others who opin ed that the switch was tripped first, and then the rope g ripper was activated.

Clarence Fox, an expert retaine d by Otis, testified that vibra tion and normal building movement could have caused the governor switch to trip, but adm itted he did not have any-5- evidence to support the possibili ty that vibration caused the s witch to trip. Fox could not identify any other instances in his 57-year career where an overspeed sw itch was tripped by vibration and admitted McMillen’s theory about the switch possibly being trip ped by building vibration was “speculation.”

Roy England, an Otis employee who worked at Harper Hospital as an elevator maintenance mechanic and who was not part of the four-person mo dernization crew, testified that he was working in the machine room at the time of the inci dent. He testified that he was kneeling next to elevator 9 and two other members of the “Otis crew” were across from him. He did not know the names of the individuals. England testified t hat no one was standing by the overspeed switch for elevator 10. He did not recall seeing any one near elevator 10 before the incident, and testified that i f someone had tripped the overspe ed switch, he would have noticed, given his proximity to the elevator.

C. OCCUPANCY OF THE MACHINE ROOM

In addition to conflicting deposition testimony about what cau sed the overspeed switch to trip, there was also conflicting deposition testimony about who was in the machine room at the time the switch was tripped. As noted above, England testified that he was in the machine room at the time of the incident, as were two other Otis employees, the names of whom he could not recall. England testified that the elevator was operational 6 after the sudden stop and that he received a telephone call from Mike Murdock, the interim direct or of facilities, engineering, and construction at Harper Hospital, “[q]uickly, within five minute s,” after the incident, to go to
Murdock’s office and to discu ss the incident with him.

Donald Art, an Otis employee who was part of the modernization crew on the date of the incident, testified that, “to the best of [his] knowledge and n otes,” he was working with England on a different bank of elevators at the hospital, not in the ma chine room, on the date and time of the incident. He testified that he was performing maintenance work with England “on the other side of the hospital” from where the incident occurred. 7

McMillen testified that when he arrived in the machine room to investigate a “couple minutes” after the incident, an unknown individual was in the r oom. McMillen testified that

6 When specifically asked about this aspect of England’s testimo ny, Olson testified that the elevator could not have been ope rational after th e rope gripper engaged and overspeed switch had been tripped. The devices would need to be reset in order for the elevator to be operational again. McMillen offered similar testimony about having to rese t the devices in order for the elevator to begin moving again.

7 Plaintiffs’ counsel indicated at the oral argument on appeal t hat England has since recanted his testimony about being present in the machine room at the time o f the incident. As noted by plaintiffs’ counsel, our analysi s is not affected in any way be cause the testimony of other witnesses contradicted England’ s contention, and thus, the matt er remained a question of fact for the jury.-6- England arrived in the machine room approximately ten minutes a fter McMillen got there. And, at that time, McMillen had not yet gotten elevator 10 running a gain. McMillen testified that he told England he was going to send the elevator to the basement after he reset the governor switch and got the elevator running, and he instructed England to meet the passengers of the elevator— Michele and Hester—in the basement. According to McMillen, Eng land went to the basement to meet Michele and Hester, but discovered that they were already gone when he got there, and England returned to the machine room to report the same to McMi llen.

Kates’s testimony also disputes whether England was in the mac hine room, as he testified that England did not arrive in the machine room until after bot h Kates and McMillen arrived. Specifically, Kates recalled that he called McMillen to report the problem, and that he (Kates) went to the machine room after McMillen. England was not in th e machine room when Kates got there. According to Kates, England arrived approximately f ive to ten minutes later. Kates
recalled that McMille n told England to meet the occupants of th e elevator in the basement.

In addition to discussing whether England was in the machine r oom, Kates testified, as noted above, that McMillen later revealed to him that McMillen believed “there was somebody else in there” and that this “somebody” had walked by the overs peed switch and tripped it by mistake. Kates gave no indication as to who this unknown “some body” was, nor did he testify if McMillen gave any indication as t o the identity of the person.

D. THE NATURE OF MICHELE’S ALLEGED INJURIES

Michele received medical attention at the emergency room at Ha rper Hospital shortly after the accident. Records indicate that her primary complain t at the time was knee pain and mild back pain. Michele testified that she reported neck pain as well, and a hospital incident report indicates that Michele ind icated “neck pain.” A few day s later, Michele received
treatment at a clinic and received a cane because she had diffi culty walking. In November 2010, a few months after the incident, Michele recalled that her mobi lity was restricted and she had what she described as severe pain and numbness in her neck, rig ht shoulder, and fingers. She continued working until January 2010, at which point it was det ermined that she was disabled and could not work. She was diagnosed with herniated discs in her neck following the elevator incident. Michele testified that multiple doctors opined that the herniated discs were caused by the incident, specifically when she struck the wall of the elev ator car. Dr. Paul Cullis, the doctor who declared Michele disabled, testified in his deposition that “[t]he elevator accident caused the disc herniation, which caused the compression of [Michele’s] sp inal cord.” Michele had surgery
in November 2012 and used a walke r for several months.

Defendant’s expert, Albert King, Ph.D., testified that he is a n expert in biomechanics and neurophysiology of back pain, but h e is not a medical doctor. According to Ki ng, it was possible to recreate similar conditions caused by the rope gripper stopp ing an elevator, but it was impossible to recreate precisely what happened to Michele in el evator 10. He explained at his deposition that a rope gripper is a friction device that “clamp s against the ropes and produces an extremely rapid abrupt stop.” In an experiment, King stood in an elevator to test the rope gripper’s effect on the elevator as it descended. He used two accelerometers—one attached to
the rail of the elevator car and one attached to a tongue depre ssor between his teeth. The
accelerations measured were “well below the accelerations exper ienced in activities of daily-7- living, such as jogging, plopping down into a chair or hopping off a step. When King was in the elevator and it stopped with the rope gripper twice, he “didn’t feel anything.” Regarding Michele’s description of hitting her knee on the side of the el evator, King opined that the account was “greatly exaggerated.”

King agreed that if a doctor opined in his or her medical opini on that the accident caused Michele’s disc injury, he could not disagree with that. But he concluded from a biomechanical standpoint that the accident did not cause such a disc injury. King opined that Michele had preexisting degenerative changes in her cervical spine. 8

E. PROCEDURAL HISTORY

Plaintiffs filed their complaint against Otis and the hospital defendants. 9 Pertinent to the present appeal, plaintiffs alleged negligence and loss of conso rtium. With regard to negligence, plaintiffs claimed that defendants were negligent for failing t o cover, guard, or otherwise protect the overspeed switch, failing to keep the machine room doors cl osed and/or locked, and failing to
restrict access to the machine room.

Otis moved for summary disposition pursuant to MCR 2.116(C)(10) . Otis characterized plaintiffs’ theory of the case as one claiming that Otis was ne gligent for allowing the “mystery man” McMillen saw in the machine room access to the room, after which the “mystery man” tripped the overspeed switch. Otis argued that England’s testi mony refuted such a theory, as he testified that no one was around the overspeed switch at the ti me of the incident. Given England’s testimony, Otis argued that plaintiffs’ theory of the case was, at best, speculative, because even Christiaens, plain tiff’s expert, acknowledged that he did not know how the incident occurred and admitted that any opinion he could offer in this r egard would be speculative. Thus, Otis argued that plaintiffs’ theory of causation was speculativ e and her claim must be dismissed. Otis also argued that negligen ce could not be inferred through res ipsa loquitor because the activation of a safety device is not ordinarily associated with negligence and the instrumentality
at issue in this case was not within Otis’s exclusive control. Otis also claimed that its biomechanical engineering expert, Dr. King, presented what it d escribed as unrebutted testimony opining that it was scientificall y impossible for Michele to be injured in the way she claimed.

Following a November 21, 2014 heari ng, the trial court denied the motion. On March 31, 2015, this Court granted Otis’s a pplication for leave to appeal the trial court’s summary

8 However, there was no evidence of such problems in her medical history.

9 After Otis filed a notice of non-party fault, plaintiffs added Hollister-Whitney as a defendant. Plaintiffs later agreed with contentions by Hollister-Whitney t hat summary disposition as to Hollister-Whitney was appropriate because there was no evidence that the overspeed switch was defective; the trial court granted summary disposition to Holli ster-Whitney and there are no issues on appeal with regard t o that grant of summary dispositi on. Additionally, we note that appears that plaintiffs settled their claims with the hospital defendants. The current appeal only pertains to plaintiffs’ claims against Otis.-8- disposition ruling. Holt v Legacy HHH , unpublished order of the Court of Appeals, entered March 31, 2015 (Docket No. 325345).

II. ANALYSIS

On appeal, Otis argues that plaintiffs failed to establish proximate causation to support their prima facie case of neglig ence, and therefore, the trial court erred by denying its motion for summary disposition. We disagree.

A. STANDARD OF REVIEW

Otis’s motion for summary disposition was pursuant to MCR 2.11 6(C)(10), which tests the factual sufficiency of a complaint. Urbain v Beierling , 301 Mich App 114, 122; 835 NW2d 455 (2013).

In evaluating a motion for summa ry disposition brought under Su brule (C)(10), a reviewing court considers affida vits, pleadings, depositions, a dmissions, and other evidence submitted by the parties in the light most favorable t o the party opposing the motion. Summary disposition is properly granted if the pro ffered evidence fails to establish a genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. [ Klein v HP Pelzer Auto Sys, Inc , 306 Mich App 67, 75; 854 NW2d 521 (2014).]

This Court reviews de novo a trial court’s decision to grant or deny a motion for summary disposition. Dressel v Ameribank , 468 Mich 557, 561; 664 NW2d 151 (2003).

B. CAUSATION—OTIS’S CO NDUCT AND THE INCIDENT

To establish their negligence claim, plaintiffs must prove tha t (1) Otis owed plaintiffs a duty; (2) Otis breached that dut y; (3) causation; and (4) plain tiffs suffered damages. Quinto v Woodward Detroit CVS, LLC , 305 Mich App 73, 75; 850 NW2d 642 (2014). The only issue in the motion concerned the third element, causation. To prove ca usation, plaintiffs must present proof of both cause in fact and proximate cause. Genna v Jackson , 286 Mich App 413, 417; 781 NW2d 124 (2009). To establish cause in fact, plaintiffs must p resent sufficient evidence to allow the jury to conclude that more likely than not, the injuries wo uld not have occurred but for Otis’s negligence. Id . at 417-418. Proximate cause has been defined as “ ‘a foresee able, natural, and probable cause.’ ” Jones v Detroit Med Ctr , 490 Mich 960; 806 NW2d 304 (2011) (citation omitted). Otis takes issue with the sufficiency of plaintiffs’ evidence to prove cause in fact, being why the rope gripper stopped the elevator Michele was rid ing in at the time of the incident.

Cause in fact may be proved through circumstantial evidence, b ut that evidence “ ‘must
facilitate reasonable inferen ces of causation, not mere specula tion.’ ” Genna , 286 Mich App at 417-418, quoting Skinner v Square D Co , 445 Mich 153, 164; 516 NW2d 475 (1994). An explanation that is consistent w ith the known facts, but not de ducible from those facts as a reasonable inference, is a “conjecture.” Skinner , 445 Mich at 164. There might be more than one possible explanation for an occurrence, but if the evidence does not point to any one of them as the theory of causation, then they remain conjecture. Id . If, on the other hand, there is-9- evidence that “ ‘points to any 1 theory of causation, indicatin g a logical sequence of cause and effect, then there is a juridical basis for such determination, ’ ” even though other plausible
theories exist. Id ., quoting Kaminski v Grand Trunk WR Co , 347 Mich 417, 422; 79 NW2d 899 (1956).

The Skinner Court further explained how circu mstantial evidence may permit a reasonable inference of causation:

[A]t a minimum, a causation theory must have some basis in esta blished fact. However, a basis in only slight evidence is not enough. Nor is it sufficient to submit a causation theory that, while factually supported, is, at best, just as possible as another theory. Rat her, the plaintiff must present substantial evidence from which a jury may conclude t hat more likely than not, but f or the defendant’s conduct, the plaintiff’s inju ries would not have occurred. [ Id . at 164-165.]

The Court pointed to a number of cases applying this standard to a plaintiff’s proof of cause in fact in negligence cases. Id . at 165-167. It stated its agreement with 57A Am Jur 2d, Negligence, § 461, p 442:

All that is necessary is that the proof amount to a reasonable likelihood of probability rather than a possibility. The evidence need not n egate all other possible causes, but such evidence must exclude other reasonabl e hypotheses with a fair amount of certainty. Absolute certainty cannot be achie ved in proving negligence circumstantially; but such proof may satisfy where t he chain of circumstances leads to a conclusion which is more probable thanany other hypothesis reflected by the evidence. However, if such evidenc e lends equal support to inconsistent conclusions or is equally consistent wi th contradictory hypotheses, negligence is not established. [ Skinner , 445 Mich at 166.]

Otis, as the party moving for summary disposition, had the bur den of presenting documentary evidence to support its motion. See MEEMIC Ins Co v DTE Energy Co , 292 Mich App 278, 281; 807 NW2d 407 (2011). Plaintiffs’ theory of the c ase was that Otis was negligent for failing to safeguard the overspeed switch, which allowed th e unknown individual to contact the overspeed switch. Alternatively, plaintiffs argued that Ot is was negligent for failing to secure the machine room, which allowed an unknown individual to make contact with the overspeed switch. Otis, which moved for summary disposition on the grounds that there was no genuine issue of fact as to cause in fact and that plaintiffs’ theories were speculative, met its initial burden of going forward. In this regard, Otis presente d testimony from McMillen that there were multiple causes that could have led to the overspeed switch being tripped. Specifically, McMillen testified that the switch could have bee n tripped manually, or through
vibration of the elevator car a nd/or the hospital building. Th us, according to Otis’s evidence, plaintiffs’ theory—that someone negligently contacted the overs peed switch—was just as likely as the theory that vibration cau sed the overspeed switch to tri p.

In addition, defendant present ed deposition testimony from Eng land, who testified that he was in the machine room at the time of the incident. According to England, although there were Otis employees in the room, no one was near the overspeed switc h for elevator 10. This-10- testimony negated the idea that anyone—an Otis employee or othe rwise—negligently contacted the overspeed switch.

Given the evidence defendant presented, the burden shifted to plaintiffs to produce evidence in support of its causati on theories of liability. Ag ain, in evaluating this issue, we view the evidence in a light most favorable the non-moving party, wh ich in this case was plaintiffs.

Klein , 306 Mich App at 75; Huron Mountain Club v Ma rquette Co Rd Comm , 303 Mich App 312, 321-322; 845 NW2d 523 (2013). On the record before us, we agree with the trial court that plaintiffs satisfied their b urden under MCR 2.116(C)(10) and th at they created a genuine issue of fact—beyond speculation—that Otis was the cause in fact of Mich ele’s injuries. We analyze this issue by first considering whether there was circumstantial evi dence to support plaintiffs’ theory that physical contact with the ove rspeed switch caused it to tr ip, and then examine whether there was sufficient evidence to support plaintiffs’ theory that eith er: (1) Otis was negligent in failing to cover or otherwise secure the overspeed switch; or (2) Otis was negligent in failing to secure
the door to the machine room.

As an initial matter, plaintiffs produced circumstantial evide nce to facilitate reasonable inferences that the overspeed governor was tripped manually, me aning that someone contacted the switch, causing the switch to trip and the rope gripper to deploy. Plaintiffs presented deposition testimony from Christiaens, an expert witness, who t estified he was aware that McMillen’s testing of the overspeed switch ruled out an overspe ed condition, i.e., the switch did not engage because the elevator had traveled too fast. Christi aens was also aware that investigations performed by Otis employees, including McMillen, ruled out the possibility of a power failure as a cause for the tripping of the overspeed swit ch. Based on these circumstances, and his own research, Christiaen s opined that the overspeed swi tch had to have been tripped manually, i.e., someone tripped the switch.

In regard to Christiaens’s testimony, Otis claims that it cann ot be used to demonstrate adequate proof of causation because Christiaens himself admitte d that his opinion was “speculation.” We disagree with Otis’s portrayal of Christiaen s’s testimony. Christiaens testified that, under the facts of this case, the only way the overspeed switch could have been tripped, since the elevator did not overspeed, was through manu al contact. Christiaens testified that he relied on McMillen’s diagnostic testing to arrive at th is conclusion. In challenging how
Christiaens arrived at this co nclusion, Otis’s counsel asked Ch ristiaens whether he had read England’s testimony in which he stated that no one was near the overspeed switch at the time of the incident. Christiaens testified that he had read England’s testimony, which prompted the following exchange with counsel:

Q . In other words, [England’s testimony contradicted] Mark [McMillen 10 ]?

10 The transcript uses the spelling “McMillan.” This opinion use s the spelling “McMillen,” because that was the spelling utilized during McMillen’s own de position.-11- A . Yes.

Q . Did you rule that out or—

A . I thought the testimony between Mark [McMillen] and Roy Engl and were [sic] inconsistent.

Q . So did you rule one out or not?

A . I think I may have rul ed out Roy England.

Q . Did you or didn’t you? I gue ss I need to know today.

A . Well, not being there and not knowing the circumstances, it’ s only speculation.

Q . Right, I know it’s speculation, but they both would be specu lation, would you agree?

A . They both could be. It’s still speculation to me.

Q . It is speculation to you?

A . Yes.

Q . Thank you. So would you agree th at you can’t say to a reaso nable degree of certainty how the incident occurred?

A . I cannot say that.

In context, Christiaens did not testify that he was speculatin g as to how the overspeed switch was tripped. Rather, his use of the word “speculation” was in regard to whether he believed the testimony of England—w ho testified that no one was near the overspeed switch for
elevator 10—or McMillen—who testified in a manner that ruled ou t other possible causes regarding how the overspeed switc h tripped. It was appropriate for Christiaens to rely on McMillen’s testimony in f orming his opinion. See MRE 703.

Furthermore, even without Chr istiaens’s testimony about what c aused the overspeed switch to trip, there was other testimony supporting plaintiff’ s theory that the switch was tripped manually. Notably, Dietrich testified that the overspeed switc h at issue was designed so as to avoid deploying due to vibration, which is contrary to McMillen ’s testimony concerning whether vibration could have caused the overspeed switch to trip in thi s case. Dietrich was aware that prior to the overspeed switch being tripped and the rope grippe r deploying in this case, elevator 10 had not oversped. In light of these conditions, Dietrich te stified that the only thing that could have caused the overspeed switch to trip was physical contact w ith the switch. Moreover, Kates testified that McMillen told him that he thought the overspeed switch was tripped when someone hit it by mistake, based on McMillen’s observation of a person in the machine room before the
incident.-12- In sum, we find no merit in Otis’s position that the testimony provided by Christiaens and other witnesses was speculativ e or without any factual basis. Plaintiffs presented ample evidence to rule out the possibility of other potential causes for the o verspeed switch to trip, leading
Christiaens and Dietrich to conc lude, under the k nown facts, th at the overspeed switch must have been tripped manually. And, contrary to Otis’s contentions, pl aintiffs also presented evidence that someone was in the machine room at the time the overspeed switch was manually tripped. Although Otis presented testimony from England in support of it s claim that no one was near the overspeed switch at the time of the accident, plaintiffs presen ted testimony that England was not
in the machine room at the time of the incident. Art testified that he was working with England on the other side of the hospital at the time of the incident. McMillen and Kates testified that they arrived in the machine room after the incident and that En gland arrived after they were already there. Moreover, Kates testified that McMillen admitte d to him that he believed, based on the facts and potential causes for the overspeed switch bein g tripped, that an unknown individual tripped the overspeed s witch. Hence there was circu mstantial evidence to support plaintiffs’ theory of manual tripping, and we reject Otis’s con tentions that this theory was speculative. In this regard, we find Otis’s reliance on this C ourt’s nonbinding decision in Wulff v
Otis Elevator Co , unpublished opinion per curiam of the Court of Appeals, issue d September 6, 2011 (Docket No. 297317), a case O tis’s postulates is “remarkab ly similar” to the instant case, to be misplaced. The expert’s opinion in Wulff was speculative because it lacked any basis in known facts and it was merely pos sible, not probable. That is not the case here.

Otis contends on appeal that th ere was no evidence to suggest that the unknown person McMillen saw in the machine room was an Otis employee, and that this precludes plaintiffs from showing that but for Otis’s allegedly negligent conduct, plaint iffs’ resultant injuries would not have occurred. However, that argument misses the mark. Plaint iffs’ theories of liability were premised on the idea that Otis was liable for not covering the overspeed switch, and, in the alternative, that Otis was neglig ent for allowing the door to t he machine room to be propped open. Neither of these theories is premised, nor are they reli ant on, the notion that the unknown individual was an Otis employee. Thus, whether the unknown ind ividual was an Otis employee, has no bearing on our ruling. Moreover, we conclude, on the re cord before us, that there was a question of fact concerning whethe r the unknown individual was an Otis employee. As noted,
the machine room was located on the 11th floor o f the hospital, access to which was restricted by an access-only elevator and stairway. Access to the machine ro om was even further restricted to a small group of individuals with keys. McMillen testified tha t an unknown individual entered the machine room shortly before the incident and remained in th e room immediately after the incident. Although McMillen initially testified that this pers on was not wearing an Otis uniform,
he later admitted that he did not know what color uniform the i ndividual wore, and that the only thing he knew about the person was that he was male. Further, plaintiffs presented testimony from hospital personnel that only Otis personnel were permitted to enter the machine room unattended. James McIntyre, the director of facility engineeri ng at the hospital, testified that
“Otis controls their machine rooms” and that he could not envis ion a scenario where anyone would be in the machine room without Otis permission. McIntyre further testified that “it just wouldn’t happen” with regard to whether a contractor would have been in the machine room
alone at the time of the inciden t. He said this because “Otis controls their machine rooms. We—
and that would include our contr actors—don’t stroll into their machine rooms.” Murdock
testified that he had never been to the machine room without Ot is’s authorization or-13- coordination, and that in his ex perience, hospital employees wh o were in the machine room were accompanied by an Otis employee. Further, hospital personnel t estified that the only reason a hospital employee would access the machine room was to perform maintenance or to accompany a city inspector during an inspection, and that there was no ma intenance or inspections being done on the day of the incident. There was also testimony from Otis employees—Kates and
McMillen—that the Otis modernizat ion crew, which was not always at the hospital, was at the hospital, working on elevators, and occasionally entering the m achine room, on the day of the incident. In sum, plaintiffs presented testimony that access t o the machine room, and the 11th floor in general, was restricted. Plaintiffs presented testimo ny that an unknown male individual went into the machine room and was present, alone, immediately after the incident occurred. Thus, it could be inferred that this unknown person was in the machine room during the incident. Further, plaintiffs presented evidence from which a rational ju ror could infer that this person was an Otis employee. Indeed, McMillen admitted he was not sure wh at color uniform the person was wearing. There was also testimony that only Otis employees went to into the machine room alone, and that this person was alone in the machine room. Mor eover, there was testimony that hospital employees who went to the machine room did so accompan ied by an Otis employee; again, the presence of a lone individual in the machine room al lows the inference that the person was an Otis employee.

We next turn our attention to plaintiffs’ allegations as they concern Otis’s conduct. That is, did plaintiffs present evidence which affords a reasonable basis for a jury to conclude that, more likely than not, but for Otis’s conduct, Michele’s injurie s would not have occurred? See

Skinner , 445 Mich at 164-165. On the record before this Court, we fin d that plaintiffs presented such evidence. Plaintiffs advanced two theories: (1) Otis was negligent for failing to cover or secure the overspeed switch in t his case; and (2) Otis was negl igent for failing to secure the machine room doors, specifically, for propping open the door th rough which the unknown individual entered. Plaintiffs presented sufficient evidence t o survive a motion for summary disposition under MCR 2.116(C)(10) on both of these theories. Regarding the first theory,
several witnesses testified con cerning how easily the overspeed switch could be tripped and that it could be tripped through inadvertent contact, such as accide ntally brushing up against the switch. For instance, Kates testified that the switch—which wa s designed to abruptly stop a moving elevator—could be trippe d with a single finger. Here, a s to plaintiffs’ first theory of Otis’s liability, plai ntiffs presented tesitmony: (1) that an u nknown individual was in the machine room at the time of the incident; (2) that the only plausible c ause for the overspeed switch to have been tripped was through contact by an individual who was in the room at the time of the accident; and (3) the ease with which the overspeed switch coul d be tripped accidentally. In essence, plaintiffs presented evidence that Otis left completel y unguarded a device that could bring an elevator to a sudden stop and that could easily be tri pped by a passerby with little to no effort. They also presented evidence that the only possible ca use of the injury was that someone made contact with the switch, and that there was an individual in the room at the time of the incident. It could be rationally inferred from this compilatio n of evidence that the failure to
cover or otherwise secure the ove rspeed switch was a but-for ca use of Michele’s injuries.

As to plaintiffs’ alternate theory, there was no dispute that the main door to the machine room was propped open on the day of the incident. McMillen was not aware whether any Otis employees had keys to the machine room and testified that none of the members of his-14- modernization crew had their own keys. He testified that his c rew would have had to ask hospital personnel for access to the machine room, but the mach ine room door was already propped open on the day of the incident. Further, only a very small group of hospital employees—none of whom were alleged to have been in the machine room on the day of the incident—had keys to the machine room. There was no evidence t hat any hospital employees or outside contractors were working in the machine room on the day of the incident. Furthermore, England testified that if he got to the machine room in the mor ning before the modernization crew, he would prop the door open for them. McMillen testified that he walked by the machine room shortly before the incident, saw the door was propped open , despite the fact that it was not supposed to be propped open, and did nothing about it. In fact , he even saw someone walk through the door and did nothing a bout it. He did nothing, des pite the fact that McIntyre testified that Otis personnel could ask unauthorized persons to leave the machine room. And, importantly, the machine room door was propped open mere moment s before an unknown
individual entered the machine room and elevator 10 was stopped , according to plaintiffs’ evidence, by an overspeed switch that was tripped manually, i.e ., by someone in the machine

room.

In light of the deposition testimony noted above, plaintiffs p resented evidence that the person who entered the machine room only did so because the doo r was propped open. Indeed, plaintiffs presented evidence th at the only Otis employee with keys to the machine room was England, and that England was not in the machine room at the ti me of the incident. They also presented testimony that only a select group of hospital employ ees had keys, and there was no indication that any of those employees were in the machine room on the day of the incident. Accordingly, the unknown individual who entered the machine roo m was either an Otis employee without the means to enter the machine room or he was a non-Otis employee who
otherwise had neither the means no r a reason to be in the machi ne room at the time of the incident. Thus, there was ample circumstantial evidence that t he unknown individual gained access to the machine room because an Otis employee with keys e ither propped the door open or permitted the door to be propped open and that the unknown indi vidual did so mere moments before an overspeed switch was tripped manually. Plaintiffs pr esented enough evidence to overcome a motion for summary disposition on the issue of causa tion because there was evidence from which a jury could conclude that, more likely tha n not, but for the conduct of permitting the door to be propped open, the injury would not ha ve occurred.

C. CAUSATION—PLAINTIFFS’ INJURIES

Next, Otis argues that the elevator incident could not have ca used the types of injuries Michele alleged. The trial court rejected these claims, findin g that Otis essentially raised credibility arguments about whose witnesses should be believed. We agree with the trial court’s

assessment.

Otis first disputes Michele’s account of the elevator drop and contends that it was implausible for Michele to have been thrown around in the manne r she contends occurred. It also argues that King’s testimony—that the mechanical forces in volved in the elevator fall could not have caused the types of inj uries Michele alleged—rendered plaintiffs unable to demonstrate
that the incident caused Mi chele’s alleged injuries.-15- The thrust of King’s testimony was that Michele’s herniated di sc could not occur from
one incident without a coinciden tal fracture. Because Michele’ s medical records did not reveal any fractures, King, who was not a medical doctor, opined that the herniated disc was not caused by the elevator injury. However , plaintiffs presented testimon y from Michele’s treating physicians indicating that her herniated disc was caused by the elevator incident. Setting aside the idea that King was not a medical doctor, we find that, at m ost, Otis has identified a question of fact. This is an issue for the jury, not an issue for summa ry disposition. See Klein , 306 Mich App at 75.

Otis’s arguments about whether the elevator fall could have to ssed Michele about the elevator in the manner she alleged suffer from the same flaw. King conducted an experiment and measured the g-forces generated when elevator 10 was stoppe d with the rope gripper. According to King, the g-forces were below “the accelerations e xperienced in activities of daily living, such as jogging, plopping down into a chair or hopping off a step.” King also testified that he “didn’t feel anything” when the elevator stopped sudden ly during his testing. 11 Otis also points to Hester’s testimony where in she stated that she did no t recall the incident. 12

Once again, we find that Otis failed to demonstrate that there was no genuine issue of material fact. In contrast to King and Hester’s testimony, pla intiffs presented testimony from Michele, who alleged that the une xpected stopping of elevator 1 0 caused her to be thrown around inside the elevator and to lose her balance, while Hester was h olding onto a cart at the time. The conflicting testimony is a matter for a jury to resolve, and is not appropriate for summary disposition. See Klein , 306 Mich App at 75.

III. CONCLUSION

We find that the trial court did not err when it denied Otis’s motion for summary disposition. Accordingly, we affirm.

/s/ Patrick M. Meter /s/ Jane M. Beckering

11 King admitted in his deposition that, unlike Michele, he was p repared for the elevator to stop and had an opportunity to brace himself for the fall, and furth er, it is possible that a person riding
in an elevator will not be sta nding with a stable posture.

12 An incident report prepared by security guard Robert Walker in dicates that Hester verified that
the event occurred.