Opinion
No. 348996 No. 349022 No. 349436
08-20-2020
MARKQUAN GRAY, by Guardian STAR GEE, Plaintiff-Appellee, v. THORNE PRIMARY ELEMENTARY SCHOOL, Defendant-Appellant, and WESTWOOD COMMUNITY SCHOOL DISTRICT, Defendant/Cross-Plaintiff/Cross-Defendant-Appellant, and GCA SERVICES GROUP, INC., Defendant/Cross-Defendant/Cross-Plaintiff. MARKQUAN GRAY, by Guardian STAR GEE, Plaintiff-Appellant, v. THORNE PRIMARY ELEMENTARY SCHOOL, Defendant-Appellee, and WESTWOOD COMMUNITY SCHOOL DISTRICT, Defendant/Cross-Defendant/Cross-Plaintiff-Appellee, and GCA SERVICES GROUP, INC., Defendant/Cross-Plaintiff/Cross-Defendant-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 17-014299-NO Before: GLEICHER, P.J., and STEPHENS and CAMERON, JJ. PER CURIAM.
Markquan Gray, a second-grader at defendant Thorne Primary Elementary School, sustained a head injury when a mullion fell on him as he and a teacher exited the building. The mullion, a vertical metal bar, separated the two main doors to the school. Here is a photo of the doorway with the mullion in place:
Image materials not available for display.
Markquan's guardian filed this negligence action against Thorne, the Westwood Community School District, and GCA Services Group, Inc., which supplied custodial and maintenance services to the school. Defendants brought motions for summary disposition and to strike plaintiff's expert witness, and filed cross-motions for summary disposition concerning an indemnification provision in GCA's contract. The trial court denied summary disposition to the school defendants, granted GCA summary disposition by finding that it had not been negligent, struck the expert, and granted summary disposition to GCA on its indemnification claim.
We affirm the denial of summary disposition to the school defendants, vacate the order granting summary disposition to GCA, and reverse the order striking plaintiff's expert. Because the trial court's indemnification ruling rested on its erroneous determination that GCA was not negligent as a matter of law, we must vacate that ruling as well. We remand for further proceedings.
I. UNDERLYING FACTS
At the end of a school day, Markquan's teacher walked him and another student to an exit where two adjoining doors, separated by a vertical metal mullion, opened outward toward a parking lot. As the teacher pushed on one door's handle bar, the mullion suddenly fell away from the doorframe and struck Markquan on the head. The mullion fell because three screws failed. The screws secured a bracket uniting the top of the mullion with the doorframe. The heads of all three screws broke off, leaving just the bodies of the screws in place. The school's "building engineer" testified that the screws likely broke because they were worn and rusted; he conceded that they had "probably been in a poor condition for a very long time." Plaintiff's expert witness explained that that the screws were not visible when the mullion was in place. In his view, the screws failed one at a time over an extended period, resulting in a loosening of the mullion that would have been apparent every time the doors were secured in the evening.
Years before the accident, the district replaced its unionized custodial and maintenance staff with employees supplied by defendant GCA. The parties' Custodial Services Agreement did not specifically provide for routine inspections of the school premises. A GCA representative admitted that upon discovering conditions in need of repair, GCA was obligated to complete the repair or report it to the district, which would retain a third-party contractor if necessary. The building engineer testified that the "nighttime custodian" was supposed to check on the exit doors every evening to confirm that they were locked.
Barry Walmsley, a former employee of both the district and GCA, signed an affidavit averring that he had repaired the doorframe containing the defective mullion in 2015. Walmsley asserted that he warned both David Stull (the district's Director of Operations) and Sandy Richardson, Jr. (Walmsley's GCA supervisor) two years before the incident that the mullion "was in bad enough condition that . . . the entire mullion needed to be replaced because it was in such bad decay and disrepair." Walmsley's affidavit further stated that "at least three other door frames in the district had issues with screws in the top of the door frame becoming loose" and that he had "personally repaired these doors." He continued, "These were the same types of screws in the same location that ultimately failed . . . during the incident that hurt Markquan Gray." According to Walmsley, "it was well known that these screws had a propensity to fail over time and extended use."
Walmsley was deposed after the parties completed their summary disposition briefing. At oral argument in the circuit court, attorneys for GCA and the district referred to Walmsley's testimony, but did not submit the transcript for the court's review. GCA filed the transcript in this Court but because it was not part of the lower court record we will not consider it. See Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649 NW2d 783 (2002) ("This Court's review is limited to the record established by the trial court, and a party may not expand the record on appeal.").
The complaint filed by Star Gee, Markquan's guardian, alleges that defendants breached their respective duties by failing to: correct the dangerous defect in the mullion; warn invitees of the dangers associated with the mullion; take corrective measures; maintain the premises in a reasonably safe condition; or inspect, maintain, or repair the fixture. The complaint further asserts that the school defendants did not enjoy governmental immunity because Markquan's injury was caused by a defect in a public building.
Invoking governmental immunity, the school defendants moved for summary disposition of plaintiff's claims. They contended that the public building exception did not apply because they lacked actual or constructive notice of a dangerous building condition. Alternatively, they asserted that the mullion was not permanently affixed to the building and, therefore, any defect did not come within the reach of the building exception. GCA's summary disposition argument contended that its duty of care derived solely from its contract with the district, and that it bore no independent duties to Markquan. In addition, GCA and the district both sought summary disposition of their respective cross-claims arising from a mutual indemnification provision in the Custodial Services Agreement.
GCA also filed a motion to strike plaintiff's proposed mechanical engineering and safety analysis expert, Gene Litwin. GCA asserted that Litwin's opinions were unreliable and did not satisfy the requirements for admission under MRE 702 or MCL 600.2955 because in answer to several questions posed by defense counsel, Litwin cited "common sense" as the basis for his answers. Plaintiff responded that Litwin's expertise went beyond the knowledge of an average juror and that his use of the phrase "common sense" during his deposition merely emphasized that the dangers should have been obvious to defendants' employees.
The trial court granted GCA's motion for summary disposition of plaintiff's claim against it. Citing Walmsley's affidavit, the court reasoned that if GCA owed plaintiff a common-law duty to "inspect and provide reports," Walmsley satisfied that duty. The trial court also determined that plaintiff failed to produce evidence that GCA was responsible for "making the repair or replacing door parts." Next, the trial court denied the school defendants' motion for summary disposition. The court explained that Walmsley's affidavit created a question of fact as to whether the school defendants had notice of the defective condition. The court also concluded that that "the mullion is in fact part of the building with no function away from the building and is not a temporary object or structure." The trial court denied GCA's motion regarding its cross-claim as moot in light of its disposition of plaintiff's claim in favor of GCA. The district's motion regarding its cross-claim was likewise denied because "in granting summary disposition to GCA, the Court finds that GCA was not negligent and therefore [the district is] not entitled to indemnification from GCA." The trial court later granted the motion to strike Litwin as an expert on the basis that his testimony rested on common sense and therefore would not assist the trier of fact.
The school defendants claimed an appeal as of right involving the trial court's governmental immunity ruling, and we granted plaintiff leave to appeal the grant of summary disposition to GCA and the order striking Litwin. Gray v Thorne Primary Elementary Sch, unpublished order of the Court of Appeals, entered August 13, 2019 (Docket No. 349022).
II. DOCKET NO. 348966-GOVERNMENTAL IMMUNITY
The school defendants challenge the trial court's denial of summary disposition on governmental immunity grounds, raising two arguments: they had neither constructive nor actual notice of the defective mullion, and the mullion was not a fixture, rendering the building exception inapplicable. We reject both contentions.
We review de novo the applicability of governmental immunity and exceptions to that immunity, Pike v Northern Mich Univ, 327 Mich App 683, 690; 935 NW2d 86 (2019), as well as a trial court's grant or denial of summary disposition, Wigfall v Detroit, 504 Mich 330, 336; 934 NW2d 760 (2019). Summary disposition is warranted under MCR 2.116(C)(7) when a claim is barred by immunity granted by law. Liang v Liang, 328 Mich App 302, 306; 936 NW2d 710 (2019). "If there is no factual dispute, whether a plaintiff's claim is barred under a principle set forth in MCR 2.116(C)(7) is a question of law for the court to decide." Id. (cleaned up). However, "[a] genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
This opinion uses the new parenthetical "cleaned up" to improve readability without altering the substance of the quotation. The parenthetical indicates that nonsubstantive clutter such as brackets, alterations, internal quotation marks, and unimportant citations have been omitted from the quotation. See Metzler, Cleaning Up Quotations, 18 J App Pract & Process 143 (2017).
A. NOTICE
The school defendants first assert that they had no knowledge of the specific "injury-producing" defect that caused plaintiff's injury. That defect, defendants insist, was the "deteriorated screws." Because no one (including Walmsley) had reported that the screws were defective before they failed, defendants contend that they lacked any notice of the problem and are therefore immune from liability. This argument misconstrues the law and evades the facts.
Section 7 of the governmental tort liability act (GTLA), MCL 691.1401 et seq., "generally provides immunity from tort liability to a 'governmental agency' if the agency 'is engaged in the exercise or discharge of a governmental function.' " Pike, 327 Mich App at 691, quoting MCL 691.1407(1). MCL 691.1406 sets forth the public building exception, in relevant part, as follows:
Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. Knowledge of the dangerous and defective condition of the public building and time to repair the same shall be conclusively presumed when such defect existed so as to be readily apparent to an ordinary observant person for a period of 90 days or longer before the injury took place.To pierce the shield of immunity under this exception, the plaintiff must prove:
(1) a governmental agency is involved, (2) the public building in question is open for use by members of the public, (3) a dangerous or defective condition of the public building itself exists, (4) the governmental agency had actual or constructive knowledge of the alleged defect, and (5) the governmental agency failed to remedy the alleged defective condition after a reasonable amount of time. [Renny v Mich Dep't of Transp, 478 Mich 490, 496; 734 NW2d 518 (2007).]
Relying principally on the Supreme Court's opinion in Wilson v Alpena Co Rd Comm, 474 Mich 161; 713 NW2d 717 (2006), the school defendants contend that plaintiff did not establish that they had actual or constructive notice of the defective mullion. Mere notice of a condition of disrepair, the school defendants insist, is not the same as notice of the actual injury-producing defect. Although Walmsley claimed to have notified Stull that the entire mullion was in disrepair, he did not personally know or advise the school defendants about the deteriorating internal screws. Analogizing to Wilson, the school defendants assert that the trial court erred by determining that a factual dispute regarding notice precludes summary disposition.
Logically, we find this argument wanting. Walmsley averred that he "specifically" notified a representative of the school defendants that "the entire mullion needed to be replaced because it was in such bad decay and disrepair," that other door frames had "issues" with loose screws, and that "it was well known that these screws had a propensity to fail over time and extended use." We are at a loss to imagine how actual notice of a defective condition could be any more definitive or detailed. Walmsley advised that the mullion needed to be replaced because it was decayed. No further information was required to satisfy the statute's notice requirement.
Furthermore, Wilson is inapposite. That case arose under the highway exception to governmental immunity, not the building exception. The statutory language of the highway exception is different in an important way. The highway exception allows for recovery by "[a] person who sustains bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel[.]" MCL 691.1402(1) (emphasis added). The Wilson Court held that to successfully allege a violation of the duty imposed by the statute, a plaintiff had to specifically allege that the claimed defect rendered the road not "reasonably safe and convenient for public travel." Wilson, 474 Mich at 168. The Supreme Court explained:
In determining what constitutes a "defect" under the act, our inquiry is . . . informed by the "reasonably safe and convenient for public travel" language of MCL 691.1402(1). In other words, an imperfection in the roadway will only rise to the level of a compensable "defect" when that imperfection is one which renders the highway not "reasonably safe and convenient for public travel," and the government agency is on notice of that fact. [Id. (emphasis in original).]A road with bumps and that required frequent patching, the "defect" alleged in Wilson, did not necessarily meet that standard. Id. at 169. And that makes sense; many roads in Michigan have small potholes or bumps but are not necessarily unsafe for public travel. Notice of a highway defect requires more than notice of a deformity in a road, the Wilson Court explained.
In contrast, the statutory language governing this case imposes a duty on governmental agencies "to repair and maintain public buildings under their control when open for use by members of the public." MCL 691.1406. When the responsible agency breaches that duty, it may be held liable for damages "resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition." MCL 691.1406 (emphasis added). While the condition must arise from the defendant's failure to satisfy its duty to repair and maintain the building, Renny, 478 Mich at 501, the plain language of the statute does not limit the exception to conditions that rendered the building unsafe for public use. Rather, liability can arise from a condition that is either dangerous or defective, as long as the defendant had "actual or constructive knowledge of the defect." MCL 691.1406.
We find nothing in Wilson suggesting that to avoid immunity, plaintiff had to prove that the school defendants knew or should have known of the defective screws, not just the defective mullion. Nor are we persuaded by the schools' argument that a different provision in MCL 691.1406 compelled notice that the worn screws were both defective and dangerous. After setting forth the general requirement that a governmental agency must have had "actual or constructive knowledge of the defect" (emphasis added), the next sentence of the statute provides: "Knowledge of the dangerous and defective condition of the public building and time to repair the same shall be conclusively presumed when such defect existed so as to be readily apparent to an ordinary observant person for a period of 90 days or longer before the injury took place." (Emphasis added.) This provision concerns the establishment of a presumption of notice. We have not applied this presumption of notice and do not hold that plaintiff is entitled to summary disposition on the question of notice. Rather, Walmsley's affidavit creates a genuine issue of fact regarding notice that a jury must resolve. The sentence cited by the school defendants is irrelevant.
We also reject any suggestion that a defective mullion could not render the entrance itself dangerous. As discussed below, the mullion is part and parcel of the doorframe, through which hundreds of children entered and exited the school every day. A mullion likely to fall due to disrepair presents a dangerous condition.
We additionally note that defendant's argument cannot be reconciled with the meaning of constructive notice. "Constructive notice is demonstrated by showing that the agency should have discovered the defect in the exercise of reasonable diligence." Ali v Detroit, 218 Mich App 581, 586-587; 554 NW2d 384 (1996). And in Hill v Sears, Roebuck & Co, 492 Mich 651, 668; 822 NW2d 190 (2012), the Supreme Court reaffirmed that:
A person is chargeable with constructive notice where, having the means of knowledge, he does not use them. If he has knowledge of such facts as would lead any honest man, using ordinary caution, to make further inquiries, and does not make, but on the contrary studiously avoids making such obvious inquiries, he must be taken to have notice of those facts, which, if he had used such ordinary diligence, he would readily have ascertained. [Cleaned up.]Walmsley's warning that the mullion was in bad shape and needed to be replaced sufficed to supply defendants with enough knowledge "to make further inquiries." Had they done so, the deteriorated screws would have been discovered. "Generally, the question of whether a defect has existed a sufficient length of time and under circumstances that the defendant is deemed to have notice is a question of fact, and not a question of law." Banks v Exxon Mobil Corp, 477 Mich 983, 984; 725 NW2d 455 (2007). The trial court correctly found that a jury must determine whether the school defendants had actual or constructive notice of the defective mullion.
B. FIXTURE ANALYSIS
The school defendants also argue that the public building exception was inapplicable because the mullion was not physically part of the public building. Again, we find no merit to this assertion.
The public building exception applies only when the plaintiff's injury was caused by a "dangerous or defective condition of the building itself." Pierce v Lansing, 265 Mich App 174, 178; 694 NW2d 65 (2005) (cleaned up). The GTLA does not impose liability for "transitory conditions because they are not related to the permanent structure or physical integrity of the building." Wade v Dep't of Corrections, 439 Mich 158, 168; 483 NW2d 26 (1992). However, a dangerous or defective condition of a fixture can support a claim of liability under the public building exception. Fane v Detroit Library Comm, 465 Mich 68, 78; 631 NW2d 678 (2001). "An item is a fixture if (1) it is annexed to realty, (2) its adaptation or application to the realty is appropriate, and (3) it was intended as a permanent accession to the realty." Id.
The first requirement refers to " 'the act of attaching or affixing personal property to real property and, as a general proposition, an object will not acquire the status of a fixture unless it is in some manner, albeit slight, attached or affixed, either actually or constructively, to the realty.' " Wayne Co v William G & Virginia M Britton Trust, 454 Mich 608, 615; 563 NW2d 674 (1997), quoting 35 Am Jur 2d, Fixtures, § 5, p 703. Though capable of removal, the mullion was attached to the building with a number of brackets and screws. It was therefore annexed to the real property. Moreover, "[c]onstructive annexation occurs where the item cannot be removed from the building without impairing the value of both the item and the building." Fane, 465 Mich at 80. The mullion serves as the dividing post of the double doorway; it has no value other than as a necessary adjunct to the doorframe in which it fits. In addition, the latches for the doors are affixed to the mullion, making it impossible to securely close the doors without the mullion in place. The school's entrance was designed with two side-by-side doors, separated by a mullion, and set in a single doorframe. The doors, doorframe and mullion were interconnected in such a manner that they were an integrally linked part of the building's entry system. Thus, even though the mullion was not permanently attached to the doorframe, it was at least constructively annexed to the building.
The second element of the fixture analysis considers "the relationship between the chattel and the use which is made of the realty to which the chattel is annexed." Wayne Co, 454 Mich at 618 (cleaned up). "An object introduced onto the realty may become a fixture if it is a necessary or at least a useful adjunct to the realty, considering the purposes to which the latter is devoted." Id. at 619 (cleaned up). As noted, the mullion is a component of the doorframe and is necessary to securely close the doors and restrict access to the school building. By design, the mullion is capable of temporary removal to create a wider opening, thereby making it easier to move large objects and furniture in and out of the building. This is an appropriate adaption or application to the realty.
Under the third element of the fixture analysis, we consider "the objective visible facts to determine whether intention to make the article a permanent accession to the realty exists." Id. "Intent may be inferred from the nature of the article affixed, the purpose for which it was affixed, and the manner of annexation." Id. Again, the mullion is an integral component of the doorframe, without which the doors cannot be securely closed. Despite its removable design, only one witness could recall ever seeing it removed; another witness testified that "heavy tools" were necessary to remove it. Because the mullion is annexed to the building, appropriately adapted to the building, and intended as a permanent accession to the building, it qualifies as a fixture and is deemed part of the building. Fane, 465 Mich at 78. As such, the dangerous or defective condition of the mullion could support a claim of liability under the public building exception. Id. The trial court correctly rebuffed the school defendants' fixture argument.
III. DOCKET NO. 349022-NEGLIGENT CONTRACT PERFORMANCE
Plaintiff argues that the trial court erred by summarily dismissing her claim against GCA by finding that Walmsley's report of the mullion's condition satisfied GCA's common-law duty of care. The trial court also rejected that GCA was responsible for making repairs to the door because "[p]laintiff has not provided the Court with any evidence to support" that doing so fell within GCA's duties. In so ruling, the trial court misapprehended the law and improperly invaded the province of the jury.
GCA's motion for summary disposition rested on the Supreme Court's decision in Fultz v Union-Commerce Assoc, 470 Mich 460; 683 NW2d 587 (2004), in which the Court distinguished between duties that arise under a contract and those that exist under the common law. The "threshold question," the Fultz Court instructed, is "whether the defendant owed a duty to the plaintiff that is separate and distinct from the defendant's contractual obligations." Id. at 467. Absent an independent duty, a plaintiff cannot bring a tort action "based on a contract[.]" Id.
In Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 170; 809 NW2d 553 (2011) (cleaned up), the Court clarified the parameters of the "separate and distinct duty" analysis, highlighting that "a separate and distinct duty to support a cause of action in tort can arise by statute, or by a number of preexisting tort principles, including duties imposed because of a special relationship between the parties and the generally recognized common-law duty to use due care in undertakings." Answering this question "generally does not necessarily involve reading the contract" to "determine whether the plaintiff's injury was contemplated" under it. Id. at 169. The salient question is "whether any legal duty independent of the contract" exists. Id. In Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967), the Supreme Court described "the basic rule of the common law, which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person or property of others."
Loweke instructs that the mere existence of a contract between GCA and the district does not preclude plaintiff from maintaining a cause of action against GCA for negligence. Rather, when GCA undertook to inspect the school's doors and to make repairs, it had a duty to use due care while providing those services.
The parties generally agreed that GCA was responsible for and performed regular inspections of the school building and grounds. GCA also performed minor repairs, including on several doorways. At common law, "[e]very person engaged in the performance of an undertaking has a duty to use due care or to not unreasonably endanger the person or property of others." Hill, 492 Mich at 660. This duty extended to the public at large, including Markquan. See Clark, 379 Mich at 261. Further, it was reasonably foreseeable that having undertaken to inspect the premises for conditions in need of maintenance (and either repair or report those conditions), negligent performance of those inspections could result in injury to people within the school. Thus, GCA owed Markquan, as a member of the public and a student at the school, a duty to perform its inspections, maintenance, and repairs with due care. Consequently, to the extent the trial court ruled that GCA had no duty of care to Markquan, it erred.
Without explicitly finding that GCA owed plaintiff a duty of care, the trial court determined that Walmsley satisfied that duty by informing his supervisor that the mullion needed repair. The trial court erred in this regard as well. Despite Walmsley's disclosure of the mullion's poor condition, GCA failed to follow up by more closely inspecting it or making repairs. Given GCA's role at the school and its knowledge of Walmsley's warning, reasonable minds could differ as to whether GCA's actions were reasonable under the circumstances. Accordingly, the trial court erred by granting GCA's motion for summary disposition of plaintiff's negligence claim.
The school defendants point out in their appellate briefing that the trial court's error in granting summary disposition to GCA affected its ruling regarding the district's motion for summary disposition of its cross-claim, which the trial court denied for the sole reason that GCA was not negligent as a matter of law. The trial court also denied GCA's motion for summary disposition of its own cross-claim, finding that GCA's claim for indemnification was moot in light of its determination that GCA had no liability to plaintiff. Because a material question of fact remains regarding whether GCA was negligent, the trial court's denial of the competing motions for summary disposition must also be vacated. On remand, the trial court should address the merits of those motions in the first instance.
IV. DOCKET NO. 349436-LITWIN'S EXPERT OPINIONS
Lastly, plaintiff asserts that the trial court abused its discretion by relegating Litwin's opinions to common sense and striking him as an expert witness. This argument has merit. Litwin's reliance on "common sense" in explanation of his answers to several questions did not render the entirety of his testimony inadmissible under MRE 702. The trial court abused its discretion by holding that because some of Litwin's opinions fell outside the realm of "specialized knowledge," the balance of his testimony required exclusion.
We review for an abuse of discretion a trial court's decision to exclude evidence. Elher v Misra, 499 Mich 11, 21; 878 NW2d 790 (2016). "An abuse of discretion occurs when the trial court chooses an outcome falling outside the range of principled outcomes." Id. (cleaned up). Questions of law underlying an evidentiary ruling are reviewed de novo. Id.
MRE 702 addresses the admissibility of expert testimony:
If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.This rule, like its federal counterpart in FRE 702, was drafted to incorporate the standards of reliability described by the United States Supreme Court in Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993). Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010). Under MRE 702, the trial court's role is that of a gatekeeper, and it may admit expert testimony if the evidence meets the requisite standards of reliability. Gilbert v DaimlerChrysler Corp, 470 Mich 749, 782; 685 NW2d 391 (2004).
The trial court's ruling focused exclusively on one aspect of MRE 702: whether Litwin's testimony would assist the trier of fact. The court did not rule on any other aspect of MRE 702, including whether Litwin's opinions qualified as reliable. Accordingly, we confine our analysis the to the ground for exclusion relied on by the trial court.
This case involves the manner in which a mullion failed and gave way. Few jurors likely know what a mullion is, the purposes it serves, or the manner in which is it attached to a building. It is not intuitively obvious that the mullion that fell on Markquan was defective or dangerous, or that the defect was discoverable on reasonable inspection. Similarly, it is not intuitively obvious that the three screws failed over time rather than in sequence. These factual matters fall outside the realm of common knowledge and experience, meaning that expert testimony addressing them is potentially admissible if it "will assist the trier of fact to understand the evidence or to determine a fact in issue," and meets the other requirements of MRE 702.
Litwin is a mechanical engineer. He explained that mechanical engineering "deals with how objects respond to physical loading of a bend, break, twist to form, that sort of thing. And then mechanical engineering uses that knowledge to design and build various sorts of physical structures." According to Litwin, the discipline involves "engineering principles including physics," "[m]athematical sciences," "[d]esign and analysis," and the manufacture and maintenance of mechanical systems. Litwin inspected the mullion after it had been repaired, and reviewed the evidence surrounding its failure. He prepared a detailed report outlining various measurements of the mullion and doors, and describing the manner in which the mullion was attached to the doorframe. Litwin concluded that the accident occurred because "three vertical screws" became detached, "thereby allowing the mullion along with its upper mullion attachment bracket to fall."
Defendants have not contested that three screws broke, leading to the collapse of the mullion. Rather, the dispute in this case largely centers on whether the defect in the mullion was detectable before it fell, and if so, who should have detected it.
Litwin's report included a numbered "analysis" including the following opinions and observations:
11. At issue is how easy, or difficult, would it have been to detect this problem prior to the accident.
12. As noted above, the three attachment screws at issue are not visible when the mullion is in place.
13. It is not plausible that all three of the attachment screws failed suddenly and simultaneously. Instead, they would have broken one at a time over an extended time period.
14. Once two of the vertical screws were broken the mullion top would pivot easily about the remaining top screw.
15. GCA had the task of checking and securing the school's exterior doors at the end of each day.
16. The GCA employee who checked and secured these doors at the end of each day would surely be able to easily detect the change in the secureness of the mullion especially after two ff the tree screws had broken.
At his deposition, Litwin summarized his global opinion in this case as follows:
One, from an engineering standpoint I think we all understand that the - - I'll call it the last failure or the catastrophic in to this mullion when it fell and struck the child, there are three vertical screws which attach - - I don't know that we have a good name for the part, but there is a part up at the top of the mullion, not the mullion itself, a part that attaches to the header across the doorway. And that it was found right after the accident that all three of those screws were broken off allowing that nameless part to come loose allowing the mullion to come out.
From an engineering standpoint one of my conclusions is that it is not plausible with all three of these screws broke at the same time. It's also one of my I'll call it engineering opinions, that one screw would be enough to keep the mullion from falling out; but that one screw would allow that - - again, that nameless piece up at the top to pivot. And if it could pivot about the single attachment point, then that would provide looseness to the mullion.
Litwin again opined that the mullion likely was loose before it fell. When asked how he could be certain of that, Litwin responded:
The only thing that I will say - - and again, it's not from testimony, just from an engineering understanding.
For the mullion to come out as it did on the day of the accident, it has to be detached at both the top and the bottom, okay. And putting aside for now which
would have come first, it would seem that whichever - - let's just say it came loose at the top first, okay. I'm sorry, let me not use the word loose. Let me say that hopefully more clearly.
If it came detached at the top but still was attached at the bottom, then the mullion would be loose until it completely fell out. Or if the sequence goes the other way. If it came detached at the base before it became detached at the top, then it would be loose prior to the catastrophic accident.
In testing Litwin's opinion, defense counsel inquired about the fact that the shafts of the broken screws were not recovered after the accident. Litwin explained as follows the reason that the absence of the shafts didn't impact his opinion:
A. The testimony is and what makes sense from an engineering standpoint is the - - I'll call it the shaft of the screws, the remainder of the screws, that parts that didn't have to - - that didn't break off remained where they had been. And that in order to reaffix the - - I keep calling it the nameless piece that had fallen off.
Q. Sure.
A. We can figure out which one it was, but one of the GCA people took a drill and drilled them out. Basically destroyed them in order to put a new screw in, so they weren't recovered and they didn't disappear. They were destroyed in the immediate post-accident repair.
The cross-examination also tested Litwin's opinion that the mullion must have felt loose before it fell. One witness employed at the school denied detecting any such weakness. When confronted with that testimony Litwin retorted: "[I]t's not plausible to me from an engineering standpoint that all three of those bolts broke at once. And that one would have held it in place from failing, but would have allowed motion." He further explained that one of the screws had to have been intact just before the mullion fell:
A. Wait. I think from an engineering standpoint I think we know that at least one of them was in tact.
Q. What do you mean in tact?
A. Not broken off. At least one of those three screws, I don't know which one of them, had its head still on shortly before the accident.
Q. What is your support for that?
A. I'm sorry?
Q. What is your support for that statement?
A. My support for that is that the top of the mullion would not stay in place if all three of those were broken.
Q. Right. But while that may be true, my question is: What is your support for your statement that one screw remained intact while the other two didn't? In other words, was there some testimony from some witness that said that the mullion was observed to be pivoting the way you described in your report?Litwin expanded on that opinion during the next series of questions.
A. No. What I'm saying is my basis for that is simply an engineering understanding of physically what would occur as opposed to testimony from any witnesses.
Q. Well, let me ask you this in the form of a hypothetical just so that I understand what you're saying.
A. Sure.
Q. Hypothetically if three screws are installed at the same time.
A. Yes.
Q. They are the same type, size and kind of screw and they are installed in this application. At least hypothetically they are going to be exposed to the same forces, the same pressure and the same elements over years.
A. No.
Q. That's not true?
A. I'm interrupting you, but the answer is no.
Q. Why not?
A. Because it depends on the - - let's see, how they share the load. And how they share and distribute the load depends on a number of things.
It can depend on how among other things if - - I'll just say let's suppose one is real tight and the other two are loose.
Q. Fair enough.
A. You can pick it any way you want. That's one of the ways. There are other ways that they can share the load unequally, but your turn.
In answer to other questions, Litwin did not cite supporting engineering principles, but posited that opinions flowed from "common sense." Specifically, he cited common sense as his reasoning that (1) the mullion was not removed often or for significant lengths of time; (2) GCA should have documented past repairs on the mullion; (3) GCA should have recognized it needed to follow up or take addition steps concerning the mullion; (4) GCA's duties at the school were not triggered only when something broke; (5) Walmsley's single report to the district was insufficient to satisfy GCA's duties; (6) defendants all shared responsibility for plaintiff's injury; and (7) GCA's contractual duty to perform high-level inspections on a monthly basis required a "more intimate inspection" of issues concerning safety.
The trial court struck Litwin as an expert after determining that his testimony "appears to be based only on common[ ]sense," and therefore would not be helpful to the trier of fact. However, as the above summary of his testimony reveals, a significant portion of Litwin's testimony was premised on engineering principles and his engineering expertise. Testimony resting on Litwin's engineering expertise was not inadmissible because other testimony—provided in answers to questions posed on cross-examination—rested on common sense. Litwin's opinions regarding the method and mechanics of the mullion's failure indisputably fall outside the ken of the average juror, and within the skillset of a mechanical engineer. Furthermore, MRE 702 does not require confining expert testimony to areas beyond a juror's expertise. Even when jurors are likely to bring common-sense ideas and opinions to a question, an expert may have specialized knowledge bearing on the issue that would also be helpful to a considered and complete analysis. See Linkstrom v Golden T Farms, 883 F2d 269, 270 (CA 3, 1989).
A trial court's gatekeeping inquiry is context and case-specific and should focus on the all of the challenged evidence before it, not just snippets or isolated segments. See Lenawee Co v Wagley, 301 Mich App 134, 164; 836 NW2d 193 (2013). The touchstone is whether Litwin possesses "technical or other specialized knowledge" that "will assist the trier of fact[.]" To the extent Litwin offers expert testimony consistent with those requirements, it is admissible despite that other aspects of his testimony may not be. The trial court abused its discretion in finding otherwise.
V. CONCLUSION
In Docket No. 348996, we affirm the trial court's denial of the school defendants' motion for summary disposition of plaintiff's claim. In Docket No. 349436, we reverse the trial court's order granting GCA's motion to strike Litwin as an expert.
In Docket No. 349022, we vacate the trial court's grant of summary disposition in favor of GCA, as well as its denial of the cross-motions concerning GCA's and the district's indemnity claims, and we remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Cynthia Diane Stephens
/s/ Thomas C. Cameron