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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UNPUBLISHED 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 ENBRIDGE ENERGY 

PARTNERS LP, 

LC No. 2011-003414-NO 

 Defendants-Appellees. 

Before: JANSEN, P.J., and METER and BECKERING, JJ. 

PER CURIAM. 

 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)(10) (no genuine issue of 

material fact). We reverse and remand for further proceedings.

 This case stems from the July 26, 2010, Enbridge Energy oil spill into Talmadge Creek 

and the Kalamazoo River. At the time of the spill, plaintiff lived 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 reasonable reading of it is that he had severe migraines for 

approximately a week after the spill and that he vomited “non stop 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 to 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 surgically. 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 plaintiff did not mention oil fumes at the 

time of treatment. 

 Plaintiff’s medical expert reviewed plaintiff’s hospital records and concluded that oil 

fumes caused plaintiff’s headaches, nausea, coughing, and vomiting, and that “the tear in his 

short gastric artery was caused by violent and uncontrollable bouts of coughing and vomiting 

which resulted in changes in intra-abdominal pressure and sudden and violent movement of the 
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upper intra-abdominal organs . . . .” The expert did not examine plaintiff, basing his opinion 

solely on a review of the medical records. 

 The trial court granted plaintiff’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 etiology of ruptured aorta [sic].” 

 “On appeal, a trial court’s grant or denial of summary disposition 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 motion for summary disposition brought under this 

subsection, a trial court considers affidavits, pleadings, depositions, admissions, 

and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most 

favorable to the party opposing the motion. Where the proffered evidence fails to 

establish a genuine issue regarding any material fact, the moving 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 required to prove (1) that the 

defendant owed the plaintiff a duty of care, (2) that the defendant breached that duty, (3) that the 

plaintiff suffered harm, and (4) that the defendant’s breach caused 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 suffered harm; the only dispute is whether 

defendant’s negligence was a proximate cause of plaintiff’s arterial 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 quotation marks omitted). “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 418. 

 Defendants contend that the testimony of plaintiff’s medical expert was inadequate. We 

note, however, that in Genna, this Court held that direct expert testimony that the toxin was the 

cause of the plaintiff’s injury was not required to prove causation in a toxic tort case. Id. The 

Court stated: 

 Defendant urges this Court to adopt the requirement that, in order 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 plaintiff in human beings 

subjected to the same exposure as the plaintiff, and that the toxin was the cause of 

the plaintiff’s injury. They urge this Court to find that direct expert testimony is 

required to establish the causal link, not inferences. We decline to adopt this 

requirement. [Id.] 
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A plaintiff is permitted to prove his case through circumstantial evidence and reasonable 

inferences. See id. at 421. Here, there was a strong 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. Plaintiff lived in the vicinity of the oil 

spill and was aware of an overpowering odor and was aware that “the news just kept saying that 

headaches and nausea [sic].” A reasonable reading of plaintiff’s testimony is that he had an 

approximately weeklong spell of severe migraines that started the 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, and it turned out that his short gastric 

artery (which runs between the stomach and the spleen) had ruptured, requiring surgery. Given 

the proffered evidence, the claim that the already-adjudged negligence of defendants in the 

release of oil into the Kalamazoo River caused the artery rupture goes beyond mere speculation. 

 It is true that there are other plausible explanations for plaintiff’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 fact 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 create a genuine issue of material fact. 

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

retain jurisdiction. 

/s/ Patrick M. Meter 

/s/ Jane M. Beckering