Michigan Supreme Court

Lansing, Michigan

Robert P. Young, Jr.

, Chief Justice

Stephen J. Markman

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein

Joan L. Larsen,

Justices 

# Order

December 21, 2016

153699

- 700

DONALD SCHWARCK, Personal Representative

of the Estate of KAREN IRENE SCHWARCK,

Deceased,

Plaintiff

- Appellee,

v SC: 153699

COA: 322696

Mackinac CC: 12

- 007341

- NP

ARCTIC CAT, INC.,

Defendant

- Appellant,

and

RENTAL EXPRESS, INC.,

Defendant,

and

T & RC COMPANY d/b/a INDIAN RIVER

SPORTS CENTER,

Defendant.

_________________________________________/

JOSHUA BONNO, Personal Re presentative of

the Estate of EDITH BONNO, Deceased,

Plaintiff

- Appellee,

v SC: 153700

COA: 325439

Mackinac CC: 12

- 007349

- NP

ARCTIC CAT, INC.,

Defendant

- Appellant,

and

RENTAL EXPRESS, INC.,

Defendant,

and

T & RC COMPANY d/b/a INDIAN RIVER

SPORTS CENTER,

Defendant,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.

December 21, 2016

t1220 2

Clerk and

DONALD SCHWARCK, Personal Representative

of the Estate of KAREN IRENE SCHWARCK,

Deceased,

Defendant.

_________________________________________/

On order of the Court, the application for leave to appeal the January 14, 2016

judgment of the Court of Appeals is considered, and it is DENIED, b ecause we are not

persuaded that the questions presented should be reviewed by this Court prior to the

completion of the proceedings ordered by the Court of Appeals.

M ARKMAN , J. ( dissenting .)

I would grant leave to appeal in light of the Court of Appea ls dissent to assess

whether that court erred by vacating the trial court’s grant of summary disposition.

Although a close call in certain respects, I am concerned nonetheless that the Court of

Appeals may have misconstrued aspects of the deposition testi monies of both plaintiff s ’

reconstruction expert and the fire chief and thereby engaged in excessive speculation

concerning the chain of events leading to the tragic accident in this case.

Z AHRA

, J. ( dissenting .)

I would grant leave to appeal to consid er whether the Court of Appeals majority

erred by finding a genuine issue of material fact regarding causation with respect to

plaintiffs’ products liability claim. While undeniably a tragic accident, I tend to agree

with the trial court and the Court of Appeals dissent, which both found plaintiffs’ theory

of causation speculative. Plaintiffs may show causation circumstantially, but evidence

“must facilitate reasonable inferences of causation, not mere speculation.” Skinner v

Square D Co , 445 Mich 153, 1 63

- 164 (1994). It is not “sufficient to submit a causation

theory that, while factually supported, is, at best, just as possible as another theory.” Id.

at 164. The gravamen of plaintiffs’ causation theory is that the gear shift was in “silent

reverse” mode. Plaintiffs’ theory is a possibility, but no more probable than other

contemplated theories. Consequently, I question whether the majority correctly

concluded that plaintiffs established a genuine issue of material fact regarding causation.