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### STATE OF MICHIGAN

COURT OF APPEALS

CHANCE LOWERY,

Plaintiff-Appellant, UNPUBLISHED April 2, 2015

v No. 319199 Calhoun Circuit Court ENBRIDGE ENERGY LIMITED PARTNERSHIP and E NBRIDGE ENERGY PARTNERS LP, LC No. 2011-003414-NO

Defendants-Appellees.

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

P ER C URIAM

. In this toxic tort case, plaintiff appeals as of right from an order of the circuit court granting summary disposition to defendants under MCR 2.116(C)(1 0) (no genuine issue of material fact). We reverse and r emand for further proceedings.

This case stems from the July 26, 2010, Enbridge Energy oil sp ill into Talmadge Creek and the Kalamazoo River. At the time of the spill, plaintiff l ived in Battle Creek, 250 feet from the Kalamazoo river. Plaintiff alleges that he was injured as a result of being exposed to toxic fumes from the spilled oil. Plaintiff testified by deposition that he began to get headaches within 24 hours of the oil spill and its accompanying release of odor. Although plaintiff’s testimony was not entirely clear, a reason able reading of it is that he h ad severe migraines for approximately a week after the s pill and that he vomited “non s top practically” for almost a week before his hospital admission on August 18, 2010. During a fit of vomiting, plaintiff testified, he experienced sudden and severe abdominal pain. Plaintiff went t o Bronson Battle Creek Hospital where a CT scan revealed that he had suffered an “avulsion” of his short gastric artery that led to internal bleeding. Doctors at Bronson repaired the avulsion su rgically. Plaintiff testified that he told the treating physicians about his exposure to oil fumes. However, hospital records and the testimony of plaintiff’s treating surgeon indicate that plainti ff did not mention oil fumes at the time of treatment.

Plaintiff’s medical expert revie wed plaintiff’s hospital recor ds and concluded that oil fumes caused plaintiff’s head aches, nausea, coughing, and vomit ing, and that “the tear in his short gastric artery was cause d by violent and uncontrollable b outs of coughing and vomiting which resulted in changes in intra-abdominal pressure and sudde n and violent movement of the-2- upper intra-abdominal organs . . . . ” The expert did not exami ne plaintiff, basing his opinion solely on a review of t he medical records.

The trial court granted plain tiff’s motion for partial summary disposition under MCR 2.116(C)(10) on the issue of the negligent operation of the oil pipeline. However, the court subsequently granted defendants summary disposition under (C)(10), stating, “I just don’t have anything . . . to link up the e tiology of ruptured aorta [ sic].”

“On appeal, a trial court’s grant or denial of summary disposi tion is reviewed de novo.” Hines v Volkswagen of America

, Inc , 265 Mich App 432, 437; 695 NW2d 84 (2005).

A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating a moti on for summary disposition brou ght under this subsection, a trial court considers affidavits, pleadings, depo sitions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), i n the light most favorable to the party opposing the motion. Where the proffere d evidence fails to establish a genuine issue regarding any material fact, the movi ng party is entitled to judgment as a matter of law. [ Maiden v Rozwood , 461 Mich 109, 120; 597 NW2d 817 (1999).]

In a negligence case, the plaintiff, in order to recover, is r equired to prove (1) that the defendant owed the plaintiff a duty of care, (2) that the defen dant breached that duty, (3) that the plaintiff suffered harm, and (4) that the defendant’s breach ca used the harm. Genna v Jackson

, 286 Mich App 413, 417; 781 NW2d 124 (2009). Here, there is no dispute that defendant breached its duty of care to plaintiff and that plaintiff suffe red harm; the only dispute is whether defendant’s negligence was a proxi mate cause of plaintiff’s art erial rupture.

“Cause in fact requires that the harmful result would not have come about but for the defendant’s negligent conduct.” Id . (citation and quotation marks omitted). “Cause in fact may be established by circumstantial evidence, but such proof must facilitate reasonable inferences of causation, not mere speculation.” Id . at 417-418 (citation and quot ation marks omitted). “A plaintiff must present substanti al evidence from which a jury m ay conclude that more likely than not, but for the defendant’s conduct, the plaintiff’s injuries would not have occurred.” Id . at 418.

Defendants contend that the testimony of plaintiff’s medical e xpert was inadequate. We note, however, that in Genna , this Court held that direct expert testimony that the toxin w as the cause of the plaintiff’s injury was not required to prove causa tion in a toxic tort case. Id . The Court stated:

Defendant urges this Court to adopt the requirement that, in o rder to prove causation in a toxic tort case, a plaintiff must show both that the alleged toxin is capable of causing injuries like those suffered by the plaintif f in human beings subjected to the same exposure as the plaintiff, and that the t oxin was the cause of the plaintiff’s injury. They urge this Court to find that dire ct expert testimony is required to establish the causal link, not inferences. We decli ne to adopt this requirement. [ Id .]-3- A plaintiff is permitted to prove his case through circumstanti al evidence and reasonable inferences. See id . at 421. Here, there was a s trong enough logical sequence of cause and effect for a jury to reasonably conclude that plaintiff’s exposure to oil fumes caused his vomiting, which ultimately caused his short gastric artery to rupture. P laintiff lived in the vicinity of the oil spill and was aware of an overpow ering odor and was aware that “the news just kept saying that headaches and nausea [sic].” A r easonable reading of plaintiff ’s testimony is that he had an approximately weeklong spell of se vere migraines that started t he day after the spill and then, approximately a week after that, he experienced a several-days- long bout of vomiting. During a fit of vomiting, plaintiff felt a sharp pain in his abdomen, an d it turned out that his short gastric artery (which runs between the s tomach and the spleen) had rupt ured, requiring surgery. Given the proffered evidence, the claim that the already-adjudged neg ligence of defendants in the release of oil into the Kalamaz oo River caused the artery ruptu re goes beyond mere speculation.

It is true that there are other plausible explanations for pla intiff’s injury and that there are certain facts that could potentially be damaging to plaintiff’s case at trial. However, this only serves to highlight that there are genuine issues of material f act to be resolved by a jury. For the purpose of a motion for summary disposition under MCR 2.116(C)( 10), there is enough circumstantial evidence to creat e a genuine issue of material f act.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

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