SKINNER v. SQUARE D CO.

CAVANAGH, C.J.

Plaintiffs, representatives for the decedent Chester W. Skinner, appeal from the Court of Appeals decision affirming the trial court's grant of the defendant's motion for summary disposition under MCR 2.116(C)(10). 195 Mich.App. 664; 491 N.W.2d 648 (1992). This Court granted plaintiffs' application for leave to appeal, limited to the following questions:

We find that the plaintiffs failed to offer evidence from which reasonable minds could infer that the alleged defect caused the decedent's death. Because the defendant's summary disposition motion was properly supported, and the plaintiffs' evidentiary response was not adequate, we hold that the trial court correctly granted the defendant's motion. For the reasons stated by the Court of Appeals, we also hold that the trial court properly dismissed plaintiffs' claims for failure to insulate and failure to warn.

I

We borrow from the Court of Appeals accurate summary of the relevant facts in this case:

* * *

Plaintiffs claim that the Square D switch was defectively designed because it had a large "phantom zone" that sometimes made the switch appear to be "off" when it was actually "on." Plaintiffs assert that this defect proximately caused Mr. Skinner's death.

The defendant responds that, even assuming the switch is defective, the plaintiffs' evidence does not show that Mr. Skinner was misled by the switch when he was fatally electrocuted.1 Following numerous depositions and written discovery requests, the defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(10),2 effectively claiming that because plaintiffs are unable to establish a genuine issue of causation, it is entitled to judgment as a matter of law.

The trial court granted the defendant's motion, ruling that the "Plaintiff has produced no evidence to show a specific fact issue to support his theory that the switch somehow caused Plaintiff's decedent's death." The Court of Appeals affirmed, over the dissent of Judge MICHAEL J. KELLY. The majority found that "at no time did plaintiffs advance a plausible theory regarding how the defective switch caused the accident." 195 Mich.App. 668. The Court further concluded that there were insufficient facts to proceed on plaintiffs' separate claims of failure to insulate and failure to warn.3

II

It is well settled under Michigan law that a prima facie case for products liability requires proof of a causal connection between an established defect and injury. Mulholland v DEC Int'l Corp, 432 Mich. 395, 415; 443 N.W.2d 340 (1989). While the plaintiff bears the burden of proof, the plaintiff is not required to produce evidence that positively eliminates every other potential cause. Rather, the plaintiff's evidence is sufficient if it "establishes a logical sequence of cause and effect, notwithstanding the existence of other plausible theories, although other plausible theories may also have evidentiary support." Id.

As indicated, the defendant in the instant products liability suit argued that the plaintiffs failed to establish a genuine issue of causation, entitling it to summary judgment.

The Michigan Court Rules provide a precise description of the respective burdens that litigants must bear when a motion for summary judgment is filed pursuant to MCR 2.116(C)(10). Specifically, MCR 2.116(G)(4)4 mandates that the party seeking summary judgment must specify the issues for which it claims there is no genuine factual dispute. Provided the moving party's motion is properly supported, MCR 2.116(G)(4) dictates that the opposing party must then respond with affidavits or other evidentiary materials that show the existence of a genuine issue for trial. If the opposing party does not so respond, the rule provides that "judgment, if appropriate, shall be entered against him or her." MCR 2.116(G)(4). In a similar fashion, this Court has explained the burden of the nonmovant as follows:

III

A trial court tests the factual support of a plaintiff's claim when it rules upon a motion for summary disposition filed under MCR 2.116(C)(10). Lichon v American Universal Ins Co, 435 Mich. 408, 414; 459 N.W.2d 288 (1990). The court must consider the affidavits, pleadings, depositions, admissions, and documentary evidence submitted or filed in the action.6 The court is not permitted to assess credibility, or to determine facts on a motion for summary judgment. Zamler v Smith, 375 Mich. 675, 678-679; 135 N.W.2d 349 (1965). Instead, the court's task is to review the record evidence, and all reasonable inferences therefrom, and decide whether a genuine issue of any material fact exists to warrant a trial.7

To determine if a genuine issue of material fact exists, the test is "whether the kind of record which might be developed, giving the benefit of reasonable doubt to the opposing party, would leave open an issue upon which reasonable minds might differ." Farm Bureau Mutual Ins Co v Stark, 437 Mich. 175, 184-185; 468 N.W.2d 498 (1991).

Like the trial court's inquiry, when an appellate court reviews a motion for summary disposition, it makes all legitimate inferences in favor of the nonmoving party. Moll v Abbott Laboratories, 444 Mich. 1, 27, n 36; 506 N.W.2d 816 (1993).

Applying these rules, we find that the defendant fulfilled its burden under MCR 2.116(G)(4) when it effectively indicated in its motion that there was no genuine dispute regarding causation. In addition, we conclude that the plaintiffs failed to satisfy their duty because, for the reasons set forth below, their proofs did not establish a genuine issue of causation.

IV

So as to avoid any possible confusion, we make plain that the specific causation issue before the Court in this case is one of cause in fact, and not legal cause or "proximate cause." That said, we also take this opportunity to clarify what is typically required to establish cause in fact.

Under Michigan products liability law, as part of its prima facie case, a plaintiff must show that the manufacturer's negligence was the proximate cause of the plaintiff's injuries. Brisboy v Fibreboard Corp, 429 Mich. 540, 547; 418 N.W.2d 650 (1988) (emphasis added). We have previously explained that proving proximate cause actually entails proof of two separate elements: (1) cause in fact, and (2) legal cause, also known as "proximate cause." Moning v Alfono, 400 Mich. 425, 437; 254 N.W.2d 759 (1977).

The cause in fact element generally requires showing that "but for" the defendant's actions, the plaintiff's injury would not have occurred. Prosser & Keeton, Torts (5th ed), § 41, p 266. On the other hand, legal cause or "proximate cause" normally involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences. Moning at 439. See also Charles Reinhart Co v Winiemko, 444 Mich. 579, 586, n 13; 513 N.W.2d 773 (1994). A plaintiff must adequately establish cause in fact in order for legal cause or "proximate cause" to become a relevant issue. We find that the plaintiffs here were unsuccessful in showing a genuine issue of factual causation. Accordingly, we need not and do not address legal cause or "proximate cause" in this case.

Because no one was present in the shop with the decedent immediately before the accident, the plaintiffs had to rely on circumstantial evidence to establish that the alleged defective switch was the cause in fact of the decedent's death. This Court has repeatedly recognized that plaintiffs may utilize circumstantial proof to show the requisite causal link between a defect and an injury in products liability cases. Mulholland at 415; Holloway v General Motors Corp (On Rehearing), 403 Mich. 614, 618; 271 N.W.2d 777 (1978); Schedlbauer v Chris-Craft Corp, 381 Mich. 217, 223; 160 N.W.2d 889 (1968); Bronson v J L Hudson Co, 376 Mich. 98; 135 N.W.2d 388 (1965).

While plaintiffs may show causation circumstantially, the mere happening of an unwitnessed mishap neither eliminates nor reduces a plaintiff's duty to effectively demonstrate causation:

To be adequate, a plaintiff's circumstantial proof must facilitate reasonable inferences of causation, not mere speculation. In Kaminski v Grand Trunk W R Co, 347 Mich. 417, 422; 79 N.W.2d 899 (1956), this Court highlighted the basic legal distinction between a reasonable inference and impermissible conjecture with regard to causal proof:

We want to make clear what it means to provide circumstantial evidence that permits a reasonable inference of causation. As Kaminski explains, at a minimum, a causation theory must have some basis in established 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. Rather, 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.8

We have consistently applied this threshold evidentiary standard to a plaintiff's proof of factual causation in negligence cases:9

In light of the above pronouncements, we concur with the observation made in 57A Am Jur 2d, Negligence, § 461, p 442:

Our case law effectively illustrates the degree of circumstantial proof required to enable jurors to reasonably infer the existence of a causal relationship between a defendant's actions and a plaintiff's injuries. For example, in Schedlbauer, a plaintiff boat owner suffered injuries when his pleasure boat exploded. The plaintiff filed suit against the boat manufacturer, claiming that a defectively porous fuel pump caused gasoline to leak into the boat's bilge area, ultimately resulting in the explosion. The controlling question was whether the plaintiff could offer enough evidence to establish that the gasoline entered the bilge area via the allegedly defective fuel pump, thereby producing the blast.

The plaintiff relied upon circumstantial proof to verify his causation theory. The proofs included: the plaintiff's testimony that, while the boat had operated without incident in the past, immediately before the explosion, the engine started to "run `rough'";11 the plaintiff's expert testimony that if there had been a leak in the fuel pump, the engine would not turn off, but it would "`run roughly'";12 the expert's opinion that the gasoline entered the bilge area through the fuel pump and caused the explosion; the expert's view that if gasoline had entered the bilge area in any other way, the engine would have necessarily shut off automatically during the explosion; and the plaintiff's testimony that during the explosion the motor continued to run until he manually turned it off.

In particular, this Court emphasized that the expert's testimony "fairly indicate[d] `a logical sequence of cause and effect'"13 between the alleged defect and resulting injury. The Court also acknowledged the defendant's alternative causation theories, but found them to be less than probable. On the basis of the plaintiff's circumstantial evidence, the Court concluded that a jury would have sufficient ground to infer that the defendant's defective fuel pump caused the explosion and, in turn, the plaintiff's injuries.

Kaminski also highlights the level of circumstantial evidence needed to adequately establish causation. A plaintiff factory worker incurred injuries when he was hit by a trailer that was parked near a railroad track. The plaintiff filed suit against the defendant railroad company, claiming that the conductor's negligent failure to see the trailer caused the train to push the trailer into the plaintiff, injuring him. The collision occurred at night, and there were no eyewitnesses to the accident.

The plaintiff's circumstantial proof showed that moments before the accident the plaintiff had stopped within six feet of the train track, the dark green trailer was parked near the track on the same side that the plaintiff had stopped, and the train was approaching the area where both the plaintiff and trailer were located. Nearer to the time of the collision, the evidence indicated that the train conductor heard a screeching noise coming from the side of the train where both the plaintiff and trailer were situated. At the time of the collision, the plaintiff, also having heard the same screeching noise, was suddenly struck by something he could not see. Immediately after the collision, the plaintiff found himself lying on top of the trailer. The evidence also indicated that, other than the moving train, there were no other objects in the area that could have pushed the trailer into the plaintiff.

The Court found that these circumstantial proofs could facilitate a jury in inferring a logical causal relationship between the defendant's negligence and the plaintiff's injuries. The Court mentioned the defendant's contrary causation theories, but in the end dismissed them, explaining that while they were "possible," they were "not probable."

In contrast to these cases, the circumstantial evidence offered in Jordan did not afford jurors an opportunity to deduce a causal link between a defendant's actions and an injury. In Jordan, the plaintiff's decedent was electrocuted while repairing an overhead crane. The plaintiff brought suit against the manufacturer of the crane, asserting that the manufacturer had negligently failed to ground the crane's electrical system, and that this negligence caused the decedent's death. There were no eyewitnesses to the accident.

The plaintiff was unable to offer any evidence establishing where the decedent was located on the crane or what he may have been touching when he was electrocuted. The sole evidence presented consisted of testimony from the plaintiff's expert regarding purely hypothetical situations. The expert was unable to give an opinion regarding whether the lack of grounding had any causal correlation with the decedent's particular electrocution. On the basis of the lack of evidence, the Court concluded that plaintiff failed to adequately establish causation.

In Howe, the circumstantial causal proof was equally deficient. A brakeman for a railroad company was getting off a waycar in the dark when he fell to his death from the bridge on which the car had stopped. The brakeman's representative brought suit against the railroad company, claiming that the railroad's negligent failure to provide more space between the track and the edge of the bridge resulted in the decedent's death. The misadventure occurred on a dark and rainy night, and no one observed the actual fall.

The circumstantial evidence established that the train had stopped on the bridge, and, pursuant to his duties, the decedent prepared to get off the train to set up flagman signals. The decedent was last seen buttoning his coat by the rear door of the car with two lanterns at his feet. The decedent's representative argued that it was reasonable to infer that the decedent thereafter alighted from the train, and that the insufficient landing space caused the decedent to fall off the bridge. The Court regarded this causation theory as unlikely without additional facts and circumstances for support, reasoning:

V

Unlike the circumstantial proofs submitted in Schedlbauer and Kaminski, and more like those offered in Jordan and Howe, the plaintiffs' circumstantial evidence here did not afford a reliable basis from which reasonable minds could infer that more probably than not, but for the defect in the Square D switch, Mr. Skinner would not have been electrocuted.

Plaintiffs' causation theory is that the faulty switch caused the decedent to be confused about whether the machine was on or off; that this confusion induced him to touch the live wires; and that this contact resulted in his electrocution. To support this theory, the plaintiffs offered testimony from co-workers who stated that, in the past, the decedent was always a careful worker, and always turned the power off before he manually reversed the alligator clips. On the basis of this testimony, the plaintiffs urge that the switch must have confused the decedent regarding whether the machine was on or off on the day that he touched the wires and that this confusion led to his electrocution. The lower courts explicitly exposed the critical problem with this theory.

If the machine had been operating, the decedent could not have been confused by the switch in the way that the plaintiffs contend. The plaintiffs do not dispute that when the tumbler is running, it makes a considerable amount of noise, and that the drum moves in a circular motion. The decedent could not have been confused regarding the power's status because either the noise or the visual appearance of movement would have affirmatively cued him regarding whether the power was on or off — regardless of what the switch may have indicated.

In view of this factually established phenomenon, the plaintiffs had to offer an alternative sequence of cause and effect, whereby the decedent was confused by the switch, but the machine was not in operation. The plaintiffs proposed an hypothesis under which Mr. Skinner thought that the machine was off because of a faulty indication from the switch, the power was actually on, but the machine was not running because the wires were not attached to the alligator clips. Under this hypothetical situation, the following antecedent events would necessarily had to have transpired: the machine had to have been turned off, the wires then unhooked, and, the machine thereafter turned back on. This scenario is fatally flawed in two respects.

First, the plaintiffs failed to produce any evidence from which a jury could reasonably conclude that the wires were unhooked when Mr. Skinner began using the machine just before the accident. In fact, the only record evidence pertaining to how the wires and clips were maintained indicated that they would probably have been connected.14 Second, the plaintiffs did not offer any proof from which it rationally could be inferred how the machine would have been turned back on after the wires had been unhooked.15

Of course, the plaintiffs' offered scenario is a possibility. However, so are countless others. As explained above, causation theories that are mere possibilities or, at most, equally as probable as other theories do not justify denying defendant's motion for summary judgment.16

Plaintiffs further argue that the testimony of their experts proved factual causation. In Jordan, this Court taught that expert opinion based upon only hypothetical situations is not enough to demonstrate a legitimate causal connection between a defect and injury.17 Moreover, in Mulholland at 411, we stated that "there must be facts in evidence to support the opinion testimony of an expert."18

Plaintiffs' expert testimony did not sufficiently establish causation. Plaintiffs' experts maintained that the switch was defective, and that the defect was the proximate cause of the decedent's death. The experts' causation theories were deficient, however, because each lacked a basis in established fact. Specifically, each expert either assumed, or was asked to assume, that (somehow) the wires were unhooked, and that the power was on when Mr. Skinner began working on the machine. Because the experts' conclusions regarding causation are premised on mere suppositions, they did not establish an authentic issue of causation.

Taking the record evidence in the light most favorable to the plaintiff, we conclude that the record facts do not manifest a genuine issue of factual causation. The offered evidence only established that an accident took place. Michigan law does not permit us to infer causation simply because a tragedy occurred in the vicinity of a defective product. The plaintiffs were required to set forth specific facts that would support a reasonable inference of a logical sequence of cause and effect. Instead, the plaintiffs posited a causation theory premised on mere conjecture and possibilities.19

We recognize that motions for summary judgment implicate considerations of the jury's role to decide questions of material fact. At the same time, however, litigants do not have any right to submit an evidentiary record to the jury that would allow the jury to do nothing more than guess.

We are also aware that courts should exercise restraint when deciding to dismiss a suit for lack of evidence. Holloway at 622.20 Nonetheless, in this case we are confident that the plaintiffs were unable to establish an essential element of proof. The decedent's tragic death remains a matter of speculation.21

Because the plaintiff did not show a genuine issue of material fact for trial as required under MCR 2.116(G)(4), we find that the lower courts did not err in granting the defendant's motion for summary judgment.

VI

For the reasons stated by the Court of Appeals, we also find that the trial court did not err in granting the defendant's motion for summary judgment on the plaintiffs' claims of failure to warn and failure to insulate.

Accordingly, we affirm the judgment of the Court of Appeals.

BRICKLEY, BOYLE, RILEY, and MALLETT, JJ., concurred with CAVANAGH, C.J.

LEVIN, J. (dissenting).

The estate of Chester W. Skinner commenced this action claiming that his death was the result of a defect in design of an on/off switch manufactured by Square D Company, or a failure properly to insulate the switch, or a result of both such defect and failure.

The question presented is whether the estate produced sufficient evidence to resist Square D's motion for summary disposition that contended the estate's theory of causation was not reasonably inferable from the evidence. Square D in effect conceded, for the purposes of the motion, that the switch was defectively designed and not properly insulated.1

The circuit judge granted the motion, and the Court of Appeals affirmed, one judge dissenting.

I would hold that the estate produced sufficient evidence to require jury submission of the question whether Skinner's death was caused by the defect in design and failure to insulate so in effect conceded.

I

Skinner was in the business of cleaning and finishing metal parts. He was electrocuted while working with a homemade tumbling machine activated by turning, from off to on, the Square D switch that he had installed between the machine and the outside source of power.

Skinner would place the parts to be cleaned in the tumbler's metal drum and then turn on the power to spin the drum. After the parts had been spun for a period of time, Skinner would reverse the direction of the drum.

Skinner reversed the direction of the drum by unhooking, by hand, two of three alligator clips that connected electrical wires from the tumbling machine to the Square D on/off switch. Skinner would then reattach the clips to different ports on the tumbling machine, and turn the Square D switch from off to on to start the drum going in the reverse direction.

It was, as the Court of Appeals observed, imperative that the operator of the tumbling machine assure that the power was off before he touched the alligator clips. 195 Mich.App. 664; 491 N.W.2d 648 (1992).

On February 21, 1986, Skinner was working in the area of the tumbling machine. His wife, Doris L. Skinner, who commenced this action as personal representative of his estate, and her two sisters, all employees at Skinner's shop, were working in an adjacent room when they heard Skinner cry for help. The women ran to the tumbling room to find Skinner in excruciating pain, with electricity flowing through his body, standing with his hands above his head and an alligator clip in each hand. As the women began to move toward Skinner, he warned them to stand back and not to touch him.

Skinner struggled to release his hands from the clips. He was able to free his left hand, and, with the left hand, pulled down the handle on the Square D on/off switch to move it to, or further to,2 the off position. Skinner then spun around, fell to the floor, and died.

II

The estate's theory of causation is that the defective on/off switch caused Chester Skinner's death in the following manner. Skinner entered, or had been working in, the room containing the tumbling machine. The tumbling machine was not being operated immediately before Skinner touched or picked up the electrical wires. Before touching the wires, in accordance with his habit, he looked at the on/off switch.

The concededly3 defective on/off switch falsely indicated that it was in the off position,4 and thus that there was no electricity flowing through the wires. Relying on his reading of the on/off switch, Skinner touched the wires and suffered the excruciating electrical shock.

III

We agree with the majority5 that Square D's motion for summary disposition, asserting that the estate's theory of causation is not reasonably inferable from the evidence, poses the question whether, as stated by the United States Supreme Court, "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v Liberty Lobby, Inc, 477 U.S. 242, 250; 106 S.Ct. 2505; 91 L Ed 2d 202 (1986). The Court continued that the "standard mirrors the standard for a directed verdict" that a "trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict;" "[i]f reasonable minds could differ as to the import of the evidence, however, a verdict should not be directed." Id., pp 250-251.

The United States Supreme Court also observed that "the `genuine issue' summary judgment standard is `very close' to the `reasonable jury' directed verdict standard: `The primary difference between the two motions is procedural; summary judgment motions are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on the evidence that has been admitted.'" Id., p 251.

This Court in Mulholland v DEC Int'l Corp, 432 Mich. 395, 415; 443 N.W.2d 340 (1989), said that on a motion for directed verdict in a product liability case "`the question is whether it is reasonable to infer from the evidence, direct or circumstantial, that the accident was probably caused by a defect attributable to the manufacturer. Questions of comparative probability are to be resolved by the trier of fact.'" Quoting Holloway v General Motors Corp (On Rehearing), 403 Mich. 614, 622; 271 N.W.2d 777 (1978). The Court, in Mulholland, continued:

Although this Court has cautioned that "where all theories of causation rest only on conjecture, no jury question [is] presented," Cummings v Grand Trunk W R Co, 372 Mich. 695, 697; 127 N.W.2d 842 (1964), it has also emphasized that "`such cases are rare, and that rule should never be so extended as to result in a failure of justice, or in denying an injured person a right of action where there is room for balancing the probabilities, and for drawing reasonable inferences better supported upon one side than the other.'" Id., pp 697-698, quoting Schoepper v Hancock Chemical Co, 113 Mich. 582, 586; 71 NW 1081 (1897) (emphasis added).7

Kaminski v Grand Trunk W R Co, 347 Mich. 417; 79 N.W.2d 899 (1956), demonstrates how a court should decide whether "reasonable inferences" are "better supported upon one side than the other." The Court in Kaminski, in holding that reasonable inferences favorable to the plaintiff could be drawn from the evidence, contrasted the defendant's theories of the accident with those advanced by the plaintiff. After scrutinizing the defendant's theories, the Court concluded that "the trouble with the defendant's `other explanations' is the comparative improbability thereof." Id., p 427.

The majority quotes approvingly from Kaminski, but ignores the rule of Kaminski requiring scrutiny not only of the plaintiff's theory, but also scrutiny of the defendant's theory, and an assessment of the comparative probability or improbability of the competing theories. The majority in the instant case rejects plaintiff's theory, in the abstract, without engaging in such comparative probability or improbability analysis.

This is not a "rare case" in which all theories of causation are "mere conjecture." A comparison of the contrasting theories indicates that "reasonable inferences" are "better supported upon one side [plaintiff's] than the other."

IV

The plaintiff's theory that Skinner touched the electrical wires after relying on the on/off switch that erroneously indicated the power was off both is the product of reasoned inferences from the evidence and is more probable than any other reasonable theory of causation.

The majority asserts that there are two "fatal flaws" in the plaintiff's theory. First, "the plaintiffs failed to produce any evidence from which a jury could reasonably conclude that the wires were unhooked when Mr. Skinner began using the machine just before the accident."8

The majority ignores that there is substantial evidence that the tumbling machine was not operating when Skinner touched the wires.9 If the wires had been connected to the tumbler and had power been running through them, the tumbler would have been operating. Since there is substantial evidence that it was not operating, a trier of fact could reasonably conclude, without resorting to conjecture, that the electrified wires were not connected to the tumbler when Skinner touched them.10

Alternatively, if the wires were hooked up to the tumbling machine when Skinner touched them, the trier of fact could reasonably conclude — because of the evidence that the tumbler was not operating — that power was not flowing through the wires when Skinner touched them and removed them from the machine. If that was the case, then the situation would have been exactly the same as if the wires had been unhooked from the machine sometime before Skinner touched them just before the accident.

This brings us to the second "fatal flaw" highlighted by the majority when it states that the plaintiff failed to "offer any proof from which it rationally could be inferred how the machine would have been turned back on after the wires had been unhooked."11

There are not an infinite number of ways in which the power could have been restored to the wires. Skinner could have purposely restored power to the wires and then forgotten that he had done so before touching them. Another person could have restored power to the wires before Skinner touched them. Skinner could have accidentally restored power to the wires as he was holding the wires (by falling on the switch), or some object could have fallen on the handle thereby turning the power on as Skinner was holding the wires.12

Taking the last possibility first, there is no evidence that any object with a mass great enough to move the on/off switch fell on the switch as Skinner was holding the wires. No witness reported finding such an object in the vicinity of the tumbler, and there does not appear to be a shelf above the on/off switch from which such an object could have fallen.

The evidence seems to clearly establish that Skinner did not fall on the switch. When the three women found Skinner, he was standing on a wooden pallet with his arms above his head.13 Surely, he could not have fallen on the switch and regained his balance while suffering a tremendous electrical shock — one that no doubt crippled his muscles.14

A theory that posits that something or someone restored power to the wires by falling on the switch can be discarded because the power was "on" when the switch was in the "up," not the "down," position.15 Any downward pressure on the switch would have turned the power off, not on.

That leaves only the possibilities that either Skinner16 or some other person restored power to the wires. Under both of these remaining explanations of how power was restored to the wires — either by Skinner accidentally before he touched or picked up the wires or by another person — Skinner would have had an opportunity to rely on the faulty on/off switch before touching the wires.

The dispositive question then becomes whether the plaintiff presented sufficient evidence to create a question of fact whether Skinner relied on the on/off switch before touching the wires. I conclude that the plaintiff produced sufficient evidence. The evidence consisted of the uncontradicted testimony of Violet Whiting that Skinner always looked at the on/off switch before he would touch the wires.17 A trier of fact could reasonably conclude from the habit evidence that Skinner looked at the on/off switch before he touched the wires and, thus, that he only touched the wires after satisfying himself that they were not energized.18

V

I also conclude that the Court of Appeals erred in affirming the circuit court's grant of summary disposition against the plaintiff on the failure to insulate claim.

The plaintiff's failure to insulate claim asserted that Skinner did not die from the initial shock, but instead died when he touched the uninsulated handle of the Square D on/off switch. The plaintiff claims that when Skinner touched the uninsulated handle of the on/off switch, the magnitude of the shock he was receiving increased, thereby killing him.

The Court of Appeals found this claim to be "disingenuous." Id., p 670. The Court said that the plaintiff presented no evidence that could have established that it was only at the instant that Skinner touched the on/off switch that the shock became fatal. The Court stressed that even the plaintiff's expert witness conceded that Skinner could have been electrocuted even if the on/off switch had been insulated and that Skinner could have been electrocuted before he reached for the on/off switch. The Court also emphasized that a pathologist "testified that Mr. Skinner had already completed the circuit by the time he grabbed for the switch, with the current entering his right hand and exiting through the balls of his feet." Id.

The Court of Appeals erred in failing to advert to and consider the testimony of two expert witnesses for the plaintiff who testified that the magnitude of the shock that Skinner was receiving could have been increased when he grabbed the uninsulated handle of the Square D switch.19

The Court of Appeals also erred in failing to advert to and consider the nonexpert testimony of the women who found Skinner suffering from shock. Doris Skinner and Violet Whiting testified that when they ran into the room where the tumbling machine was located, they found Skinner conscious and in severe pain from the shock. As the women began to approach Skinner, he apparently recognized that the women would be in danger if they touched him as he was receiving the shock, and he warned them not to touch him.20 The women further testified that it was not until Skinner freed his left hand and grabbed the uninsulated handle that he lost consciousness and dropped to the ground.21

Although the testimony of the women conflicts with that of the defense expert witnesses who testified that Skinner was, in effect, "dead" before he touched the uninsulated handle, their testimony is nonetheless evidence that Skinner did not die from the initial shock. Skinner was able to think rationally and communicate while he was receiving the initial shock.

The law requires that all reasonable inferences must be drawn in favor of the nonmoving party. The testimony of the women who found Skinner and of the expert witnesses who opined that the uninsulated handle could have increased the magnitude of the shock that Skinner was receiving is sufficient to create a question for the trier of fact concerning whether the uninsulated handle contributed to Skinner's death.

GRIFFIN, J., took no part in the decision of this case.