Caleb Mitchell Brown v. Comstock Turf Inc - Opinion Vacated and Remanded

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• Lead Opinion from the Court
• Dissent from the Court Add Note # Caleb Mitchell Brown v. Comstock Turf Inc

Michigan Court of Appeals

• Citations: None known
• Docket Number: 370824
• Precedential Status: Non-Precedential

• Disposition: Vacated and Remanded

• Opinion

• Authorities

• Cited By

• Summaries

• Similar Cases

• PDF

Disposition

Vacated and Remanded

Lead Opinion

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

CALEB MITCHELL BROWN and DIANA UNPUBLISHED
BROWN, February 26, 2026
2:53 PM
Plaintiffs-Appellees,
and

ZURICH AMERICAN INSURANCE COMPANY,

Intervening Plaintiff-Appellee,

v No. 370824
Clinton Circuit Court
COMSTOCK TURF, INC., JOEL ROBERT LC No. 14-011366-NI
COMSTOCK, and COLLEEN SUE COMSTOCK,

Defendants-Appellants.

Before: GADOLA, C.J., and BOONSTRA and PATEL, JJ.

PER CURIAM.

Following a jury trial, the trial court entered a judgment in favor of plaintiffs, holding
defendants liable for injuries to plaintiff Caleb Mitchell Brown and awarding damages of
$9,512,590.35.1 Defendants appeal by right. We vacate the judgment and remand for entry of an
order granting judgment in favor of defendants.

1
Plaintiff Diana Brown is Brown’s wife. Plaintiffs’ complaint included a count alleging loss of
consortium. Intervening plaintiff Zurich American Insurance Company also filed, by stipulated
order, an intervening complaint seeking to recoup, from any recovery received by Brown, amounts
it paid to Brown as the worker’s compensation insurance carrier for Brown’s employer at the time
of the underlying incident.

-1-
I. PERTINENT FACTS AND PROCEDURAL HISTORY

On December 3, 2013, defendant Joel Robert Comstock was driving a Ford F-350 pickup
truck pulling a 40-foot trailer on Price Road near Westphalia.2 Brown was employed by a waste
collection company at the time, and was working with a partner, Douglas Reed, to pick up
residential garbage. Reed was driving their garbage truck, and he stopped on Price Road to allow
Brown to collect garbage and bring it to the truck. Reed testified that he stopped the garbage truck
in the roadway (not on the shoulder of the road) and that they were “running behind” because the
garbage truck had broken down earlier in the day.

Comstock testified that he had been following the garbage truck for approximately one and
a half miles. There was another vehicle between his truck and the garbage truck as it made periodic
stops.3 Comstock testified that he observed the vehicle ahead of him pull out to pass the garbage
truck and then saw it slam on its brakes as Brown ran across Price Road (from the passenger side
of the garbage truck). The other vehicle then passed the garbage truck, after which Comstock
“proceeded with caution” to also cross the yellow line to do the same. At that point, Comstock
testified, he saw Brown grab a garbage container, immediately turn, and “just about step[] in front
of” the F-350. Comstock testified that Brown was standing on the shoulder of the road, at
Comstock’s side window, and that they “made eye contact” as the F-350 was passing the garbage
truck. According to Comstock, Brown “was in a safe position or I wouldn’t have proceeded.”
Comstock then continued to his job site, with Brown “standing there holding a can to his left
standing on the side of the road and on the shoulder.” Comstock did not see or feel anything to
indicate that his truck or trailer made impact with anything. Comstock proceeded to his job site
and, when police contacted him there about an hour later, he learned that Brown had been injured.

Brown testified that he remembered two vehicles following the garbage truck for miles as
it made stops, including “a big truck and trailer” carrying equipment. He said that the garbage
truck stopped at a driveway by Clintonia Road, and that the first vehicle then passed the garbage
truck before he crossed the road. Brown further testified:

I crossed the road to get the can, looked beyond the road and then the white truck
with the equipment on it passed and then I just kind of turned my head because of
spray from the water and then, you know, I don’t remember anything after that.

Brown elaborated that he “just remember[s] a white flash [and] [does not] know if it was white
from the truck or just [his] brain getting lit up.” He said that he had been standing “[i]n the
driveway” next to the garbage can. He denied standing in the roadway or leaning into the roadway.
Brown had no memory of anything striking him or otherwise injuring him and said that he next
recalled waking up while being strapped into a gurney by emergency services. Reed testified that

2
Comstock testified that he was the sole owner of a landscaping business, defendant Comstock
Turf, LLC, and that his wife, defendant Colleen Comstock, was a co-owner of the F-350.
3
Comstock testified that the other vehicle was a red Ford Expedition. Brown described it as a
maroon Chevy Tahoe. Reed testified that it was a gold SUV.

-2-
he did not see or otherwise perceive a collision, but that after Comstock’s truck passed he saw
Brown lying unconscious on the ground.

On November 20, 2014, plaintiffs filed a complaint alleging that Comstock was negligent
and that Brown was injured as a result. Before trial, defendants moved for summary disposition,
arguing among other things that plaintiff had failed to establish a genuine issue of material fact
regarding causation. The trial court denied the motion.4

The matter was tried to a jury in 2022. At trial, Comstock, Brown, and Reed testified as
described. Timothy Robbins, Brown’s traffic crash reconstruction expert, testified that he had not
discovered any physical evidence that Comstock’s truck or trailer had left the roadway or that it
had struck Brown. Robbins could not form a conclusion based on his investigation regarding
whether any part of Comstock’s truck or trailer had struck Brown, whether Brown had struck
Comstock’s truck or trailer, or whether Brown was standing in the roadway when he was injured.

The testimony of several medical providers was provided by way of video depositions. X-
ray and CT scans taken at the emergency room the day of Brown’s injury were normal, but Brown
was noted to be dizzy and possibly concussed. In late 2014 and 2015, other medical providers
diagnosed Brown with various post-concussion symptoms and injuries to his shoulder requiring
surgery, which, based on Brown’s self-report, they attributed to the December 2013 injury.

After the close of plaintiffs’ proofs, defendants moved for a directed verdict, arguing
among other things that plaintiffs had not established causation. The trial court denied the motion.

Before the jury began its deliberations, the trial court instructed the jury that it could infer
that Comstock was negligent if it found that he had violated either MCL 257.640 or MCL 257.653.
MCL 257.640 states in relevant part:

(1) The state highway commission and county road commissions shall determine
those portions of a highway under their jurisdiction where overtaking and passing
or driving to the left of the roadway would be especially hazardous, and by
appropriate signs or markings on the roadway shall indicate the beginning and end
of those zones in a manner enabling an ordinary observant driver of a vehicle to
observe the directions and obey them. A sign shall be placed to the left of the
highway on those portions of a highway where additional notice is considered
necessary.

---

(3) A person who fails to obey the traffic-control devices installed pursuant to this
section is responsible for a civil infraction.

4
This Court denied defendants’ application for leave to appeal, for failure to persuade the Court
of the need for immediate appellate review. Brown v Comstock Turf, Inc, unpublished order of
the Court of Appeals, entered April 20, 2017 (Docket No. 335528).

-3-
MCL 257.653b states in relevant part:

(1) Upon approaching and passing a stationary solid waste collection vehicle, a
utility service vehicle, or a road maintenance vehicle that is giving a visual signal
by means of flashing, rotating, or oscillating amber lights as permitted by section
698, the driver of an approaching vehicle shall reduce to and maintain a safe speed
for weather, road conditions, and vehicular or pedestrian traffic and proceed with
due care and caution. . . .

The jury reached a verdict and awarded plaintiffs damages as stated above.5 After the verdict,
defendants moved for a new trial or for a judgment notwithstanding the verdict (JNOV), or
alternatively for remittitur, which the trial court denied. This appeal followed.

II. STANDARD OF REVIEW

This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Jarrad v Integon Nat’l Ins Co, 472 Mich 207, 212; 696 NW2d 621 (2005). “In reviewing a motion
under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other
relevant documentary evidence of record in the light most favorable to the nonmoving party to
determine whether any genuine issue of material fact exists to warrant a trial.” Zaher v Miotke,
300 Mich App 132, 139; 832 NW2d 266 (2013). “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.” Id. at 139-140 (quotation marks and citation omitted).

This Court also reviews de novo a trial court’s denial of a motion for a directed verdict.
“And the principles guiding analysis of motions for summary disposition [under
MCR 2.116(C)(10)] parallel those applicable to analyzing motions for a directed verdict.” Barnes
v 21st Century Premiere Ins Co, 334 Mich App 531, 550-551; 965 NW2d 121 (2020).
Additionally, this Court reviews de novo a ruling on a motion for a judgment notwithstanding the
verdict. Zaremba Equip, Inc v Harco Nat Ins Co, 302 Mich App 7, 16; 837 NW2d 686 (2013).
The motion should be granted if the evidence, viewed in the light most favorable to the nonmoving
party, fails to establish a claim as a matter of law. Id.

This Court reviews de novo a trial court’s decision regarding a motion for a new trial. Kelly
v Builders Square, Inc, 465 Mich 29, 34; 632 NW2d 912 (2001).

5
The jury’s verdict totaled more than $14,000,000 but was converted to a judgment of
$9,512,590.35 after setoffs. The jury awarded $409,553 for past economic damages (through
2022), additional economic damages (ranging from $77,284 to $128,683) for each year from 2023
through 2046, $2,500,000 in past noneconomic damages, additional noneconomic damages of
$100,000 for each year from 2022 through 2059, $1,000,000 of past lost consortium damages, and
additional lost consortium damages of $100,000 for each year from 2022 through 2059.

-4-
III. ANALYSIS

Defendants argue that plaintiffs failed to establish causation, and that the trial court erred
by denying their pretrial motion for summary disposition, their motion for a directed verdict, their
motion for a JNOV, and their motion for a new trial. We agree.

To establish a claim for negligence, a plaintiff must prove: (1) the defendant owed the
plaintiff a duty, (2) the defendant breached that duty, (3) the plaintiff suffered damages, and (4)
the defendant’s breach caused the plaintiff’s damages. See Loweke v Ann Arbor Ceiling &
Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553 (2011). To establish causation, the plaintiff
must prove that the defendant’s breach of the standard of care was both the cause in fact and a
proximate cause of the plaintiff’s damages. See Skinner v Square D Co, 445 Mich 153, 162-163;
516 NW2d 475 (1994). Cause in fact requires that the harmful result would not have come about
but for the negligent conduct. Haliw v Sterling Hts, 464 Mich 297, 310; 627 NW2d 581 (2001).
Cause in fact may be established by circumstantial evidence, but such proof must be subject to
reasonable inferences and not mere speculation. Skinner, 445 Mich at 163-164. There must be
more than an equal probability or a mere possibility that the defendant’s conduct was the factual
cause of the plaintiff’s damages. MEEMIC Ins Co v DTE Energy Co, 292 Mich App 278, 282;
807 NW2d 407 (2011).

Our Supreme Court has cautioned that “it is important to bear in mind that a plaintiff cannot
satisfy this burden [of proving causation] by showing only that the defendant may have caused his
injuries.” Craig v Oakwood Hospital, 471 Mich 67, 87; 684 NW2d 296 (2004) (cleaned up). “Our
case law requires more than a mere possibility or a plausible explanation. Rather, a plaintiff
establishes that the defendant’s conduct was a cause in fact of his injuries only if he set[s] forth
specific facts that would support a reasonable inference of a logical sequence of cause and effect.”
Id (footnote omitted). “While the evidence need not negate all other possible causes, this Court
has consistently required that the evidence exclude other reasonable hypotheses with a fair amount
of certainty.” Id. at 87-88 (cleaned up).

In this case, there were no witnesses who saw how Brown was injured, and Brown himself
does not remember what happened. There was no physical evidence establishing that any portion
of Comstock’s truck or trailer (or the equipment on the trailer) made contact with any part of
Brown’s body; nor did any experts conclude that Brown’s injuries were caused by contact with a
moving vehicle or trailer (or, assuming contact, how the contact occurred). Reed testified that he
and Brown were “running behind,” and Comstock testified that Brown ran in front of the vehicle
that was between the garbage truck and Comstock’s F-350, causing the other vehicle to have to
slam on its brakes. Brown then nearly stepped in front of the F-350, and his eyes met Comstock’s
as the F-350 passed the garbage truck while Brown stood on the side of the road or on its shoulder.
Brown and Comstock both testified that Brown was in a safe location as he watched Comstock’s
truck begin to pass him.

Plaintiffs argue that the jury was permitted to presume, from Comstock’s alleged violation
of a traffic statute, that he had acted negligently, and to infer that Brown was not negligent because
of his inability to recall what happened. Indeed, the violation of a safety statute gives rise to a
rebuttable presumption that the violator was negligent. See Zeni v Anderson, 397 Mich 117, 122;
243 NW2d 270 (1976); Johnson v Bobbie’s Party Store, 189 Mich App 652, 661; 473 NW2d 796

-5-
(1991). And our Supreme Court has stated, albeit in the days of contributory negligence, that a
pedestrian struck by an automobile who develops amnesia as a result may be presumed to have
been acting non-negligently. Knickerbocker v Samson, 364 Mich 439, 448-449; 111 NW2d 113
(1961). However, these presumptions, even if they apply in this case, go to the issues of duty,
breach, and comparative fault, not causation-in-fact.6

Plaintiffs argue that because Reed saw Brown lying on the ground immediately after
Comstock’s truck passed, the jury could reasonably conclude Comstock’s alleged negligence must
have caused Brown’s injury. Although that explanation is not inconsistent with the facts presented
at trial, plaintiffs did not produce evidence to “exclude other reasonable hypotheses with a fair
amount of certainty,” and plaintiff’s theory is not deducible as a “reasonable inference.” Craig,
471 Mich at 87-88. Our Supreme Court has described the “basic legal distinction between a
reasonable inference and impermissible conjecture”:

[A] conjecture is simply an explanation consistent with known facts or conditions,
but not deducible from them as a reasonable inference. There may be 2 or more
plausible explanations as to how an event happened or what produced it; yet, if the
evidence is without selective application to any 1 of them, they remain conjectures
only. On the other hand, if there is evidence which points to any 1 theory of
causation, indicating a logical sequence of cause and effect, then there is a juridical
basis for such a determination, notwithstanding the existence of other plausible
theories with or without support in the evidence. [Skinner, 445 Mich at 164-165
(emphasis added).]

See also Karbel v Comerica Bank, 247 Mich App 90, 98; 635 NW2d 69 (2001). In other words,
plaintiffs merely speculate—and invited the jury to speculate—about how Brown was injured.
There were multiple “plausible explanations” for Brown’s injury, and although plaintiffs’ theory
was one of them, the evidence was “without selective application” as to any of them, and therefore

6
We note that MCL 257.640, by its language, appears to be designed to protect drivers from
overtaking or being overtaken in hazardous areas—for example, the statute requires that signs or
markings be placed so as to enable “ordinary observant driver[s]” to observe and obey them.
MCL 257.640(1) (emphasis added). The presumption of negligence from a statutory violation
may be applied only if the statute is intended to protect against the result of the violation, the
plaintiff is within the class intended to be protected by the statute, and the evidence will support a
finding that violation of the statute was a proximate cause of the injury. See Klanseck v Anderson
Sales & Serv, Inc, 426 Mich 78, 87; 393 NW2d 356 (1986). See also Johnson, 189 Mich App at
661 (holding that a negligence finding requires a showing that the “purpose” of the prohibition
was “to prevent the type of injury and harm suffered”). Moreover, plaintiffs cite to no cases
applying a presumption of non-negligence due to lack of memory after Michigan’s adoption, see
Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), of a comparative negligence
system. But we need not determine whether either of these presumptions in fact applied in this
case, or whether they were adequately rebutted, because they relate to the duty of care and
Comstock’s or Brown’s breach of that duty, not causation. See Zeni, 397 Mich at 138-139 (holding
that causation still must be established).

-6-
they “remain conjectures only.” Id. Brown could also have, for example, merely slipped and fell
in the inclement weather. Or, particularly given that he and Reed were “running behind” and
Brown was observed running in front of (or nearly in front of) a passing vehicle before the incident
in question, he may have hurriedly walked into harm’s way before the entirety of Comstock’s
trailer had passed. There simply was no evidence pointing to any particular theory of causation,
or any evidentiary basis from which from which a jury could determine, beyond conjecture, what
had happened. The mere possibility that Brown could have been injured as a result of Comstock’s
alleged negligence was insufficient as a matter of law to establish causation. MEEMIC Ins, 292
Mich App at 282.

Even presuming that Comstock was negligent in crossing over the yellow line, Brown’s
acknowledged awareness of Comstock’s truck and trailer and of their passing of the garbage
truck—as confirmed by Brown’s and Comstock’s contemporaneous meeting of eyes—
demonstrates that Comstock’s crossing of the yellow line itself played no causative role in the
event. The jury was not permitted to infer causation merely because it presumed Comstock
negligent and Brown not negligent; moreover, the issue should not have reached the jury without
plaintiffs presenting more than mere speculation in support of causation. Skinner, 445 Mich
at 163-164.

For these reasons, we vacate the judgment and remand for entry of an order granting
judgment in favor of defendants. Because we decide this case on causation grounds, we need not
address defendants’ other arguments.

Vacated and remanded for entry of judgment in favor of defendants. We do not retain
jurisdiction.

/s/ Michael F. Gadola
/s/ Mark T. Boonstra

-7-

Dissent

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

CALEB MITCHELL BROWN and DIANA UNPUBLISHED
BROWN, February 26, 2026
2:53 PM
Plaintiffs-Appellees,

and

ZURICH AMERICAN INSURANCE COMPANY,

Intervening Plaintiff-Appellee,

v No. 370824
Clinton Circuit Court
COMSTOCK TURF, INC, JOEL ROBERT LC No. 14-011366-NI
COMSTOCK, and COLLEEN SUE COMSTOCK,

Defendants-Appellants.

Before: GADOLA, C.J., and BOONSTRA and PATEL, JJ.

PATEL, J. (dissenting).

The evidence at trial supported a finding of causation, and therefore I respectfully dissent.

“A directed verdict is appropriate only when no material factual question exists upon which
reasonable minds could differ.” Moore v Detroit Entertainment, LLC, 279 Mich App 195, 202;
755 NW2d 686 (2008) (cleaned up). It is the fact-finder’s responsibility to determine the weight
and credibility of the trial testimony, and the court may not substitute its judgment for that of the
jury when the evidence could lead reasonable jurors to disagree. Id. A motion for judgment
notwithstanding the verdict (JNOV) should only be granted if viewing the evidence and all
legitimate inferences in a light most favorable to the nonmoving party fails to establish a claim as
a matter of law. Hecht v Nat’l Heritage Academies, Inc, 499 Mich 586, 604; 886 NW2d 135
(2016). “[I]f reasonable jurors could have honestly reached different conclusions, the jury verdict
must stand.” Id. at 605-606 (cleaned up).

-1-
When Comstock encountered the garbage truck, he was returning to his job site after taking
a break for lunch. The roads were wet. 1 Comstock was driving a F-350 and towing a 40-foot
trailer that was loaded with two vehicles and two implements. A sport utility vehicle (SUV) was
directly in front of Comstock’s truck. 2 The garbage truck was in front of the SUV. Comstock
followed the SUV and garbage truck for approximately 1½ miles. The garbage truck made several
stops. At each stop, Comstock observed Brown retrieve garbage, throw it into the truck, and then
get back onto the truck. 3 At about the fourth or fifth stop, the SUV crossed over the solid yellow
center line into the oncoming lane of traffic and began to pass the garbage truck. Comstock
claimed that SUV “slammed” on its brakes and stopped, Brown ran to the other side of the road,
and then the SUV passed the garbage truck. Brown testified that he crossed the road after the SUV
passed the garbage truck. And Reed testified that Brown was standing near the rear of the garbage
truck when the SUV passed, and Brown did not cross the road until after the SUV had passed the
garbage truck.

Comstock stated, “I saw that as an opportunity for me to get back to my job site . . . .”
While Brown was on the other side of the road retrieving garbage, Comstock crossed the solid
yellow center line into the oncoming lane of traffic. He explained:

That’s the point where [Brown] grabbed the bag and turned around and just about
stepped in front of my truck, which I tried to avoid and stop, slow down, couldn’t
do much at that point ’cause it was right at my·side.· I saw that.· We made eye
contact.· It was kind of weird and I continued on to my job site at that point. And
at that point that’s the last recollection I have of any situation.

Comstock maintained that Brown was in a “safe position” on the shoulder—not in the
roadway—as he passed the garbage truck. And when Comstock last saw Brown, Brown was not
making any movements to walk into the lane of travel. Brown testified that he was standing in a
driveway when Comstock drove past him. Brown stated that he held his position because he
“didn’t want to get hit by a truck.” He denied walking into the truck. Reed confirmed that Brown
was not standing in the road when Comstock’s truck began to pass the garbage truck.

As Comstock drove past Brown, water sprayed up. 4 Brown turned his head to avoid the
spray, 5 and the next thing he recalled was “a white flash.” As Reed was inputting data in his

1
Comstock testified that it was “snowy.” Brown testified that it was “rainy sleet.” Reed testified
that it had “started raining about half way through the day.”
2
Comstock testified that the vehicle was an Expedition. Brown testified that it was a Tahoe. Reed
simply described it as an SUV.
3
Brown testified that, between stops, he stood on a step on the side of the truck and hung onto a
handrail.
4
Comstock maintained he was driving approximately five miles per hour when he passed the
garbage truck. But Reed estimated that the truck was traveling about 20 miles per hour.
5
Brown was wearing a knit hat, the hood from his sweatshirt, and the hood from his rain jacket
over his head.

-2-
computer, he heard the trailer “rattle” like it had struck a pothole or something. 6 Reed looked up
as the truck drove past and noted that the truck had “Comstock” on the door. After the truck
cleared, Reed saw Brown lying on the ground. No other vehicles drove past the garbage truck
between the time that Comstock’s truck passed and Reed observed Brown lying in the street.

Reed testified that Brown was unconscious for approximately two to three minutes. Reed
told the responding officer, Deputy Zachary Smith, that Brown was struck by a truck towing a
trailer and provided a description. After the truck was located, Deputy Smith spoke with Comstock
and took pictures of the truck and trailer. 7 Deputy Smith did not observe any skin or blood on the
truck or trailer. However, Smith testified that he would not expect to find either if Brown was
wearing multiple layers on his head. Deputy Smith returned to the accident scene approximately
two hours after the accident. He did not observe any tire marks that he attributed to Comstock’s
truck or trailer.

Plaintiff’s accident reconstruction expert, Tim Robbins, did not inspect Comstock’s vehicle
or trailer because both had been disposed but he examined the accident scene. Robbins opined
that any tire impressions that may have been left on the shoulder by Comstock’s truck or trailer
would have been gone within 12 to 15 minutes if it was wet or, if it was cold enough, the ground
would have been frozen and there would have not been any tire impressions.

Brown testified that he sustained injuries to his head, spine, and shoulder as a result of the
accident. He showed the jury a scar on the right rear upper portion of his head, which he testified
was a result of the accident. Photographs of Brown’s physical injuries were also admitted into
evidence.

“The causation element of a negligence claim encompasses both factual cause (cause in
fact) and proximate, or legal, cause.” Powell-Murphy v Revitalizing Auto Communities
Environmental Response Trust, 333 Mich App 234, 245; 964 NW2d 50 (2020). “Factual cause
generally requires showing that ‘but for’ the defendant’s actions, the plaintiff’s injury would not
have occurred. Proximate cause, by contrast, normally involves examining the foreseeability of
consequences, and whether a defendant should be held legally responsible for such consequences.”
Id. at 245-246 (cleaned up). “A plaintiff must necessarily establish factual cause in order to
establish proximate cause. While factual causation may be established with circumstantial
evidence, the evidence must support reasonable inferences of causation, not mere speculation.”
Id. at 246 (cleaned up). Consequently, “to provide circumstantial evidence that permits a
reasonable inference of causation, 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. (cleaned up). To prove causation, “a plaintiff need not prove that
an act or omission was the sole catalyst for his injuries,” rather, the plaintiff “must introduce
evidence permitting the jury to conclude that the act or omission was a cause.” Craig ex rel Craig

6
Testimony and evidence at trial confirmed that there was not a pothole in the roadway near the
area where the accident occurred. Comstock denied that his truck or trailer made any noise as he
drove past the garbage truck.
7
Comstock told Deputy Smith that he had unloaded the trailer after he returned to his job site.

-3-
v Oakwood Hosp, 471 Mich 67, 87; 684 NW2d 296 (2004). “All that is necessary is that the proof
amount to a reasonable likelihood of probability rather than a possibility.” Skinner v Square D
Co, 445 Mich 153, 166; 516 NW2d 475 (1994) (cleaned up).

The majority concludes that there “was no evidence pointing to any particular theory of
causation, or any evidentiary basis from which from which a jury could determine, beyond
conjecture, what had happened” and thus the evidence was “insufficient as a matter of law to
establish causation.” I respectfully disagree. Although Brown did not know which part of
Comstock’s vehicle or trailer struck him, 8 there was sufficient evidence for the jury to make a
reasonable inference that Brown was struck by either Comstock’s truck or the 40-foot trailer as
Comstock drove past Brown in the oncoming lane of traffic while passing the garbage truck.

I also respectfully disagree with the majority’s conclusion that “Comstock’s crossing of
the yellow line itself played no causative role in the event.” Regardless of whether Comstock
violated MCL 257.640 by passing the garbage truck in a no-passing zone, defendants concede that
the jury was properly instructed that it could infer Comstock was negligent if it found that he
violated MCL 257.653b, which, at the time of the accident, stated:

(1) Upon approaching and passing a stationary solid waste collection vehicle, a
utility service vehicle, or a road maintenance vehicle that is giving a visual signal
by means of flashing, rotating, or oscillating amber lights as permitted by section
698, the driver of an approaching vehicle shall reduce to and maintain a safe speed
for weather, road conditions, and vehicular or pedestrian traffic and proceed with
due care and caution. . . .

If Comstock had remained behind the stopped garbage truck and had not crossed the solid yellow
center line into the oncoming lane of traffic, Comstock’s truck and trailer would not have passed
by Brown as he stood in the driveway. In other words, but for Comstock passing the garbage truck
in the oncoming lane of traffic, there would not have been contact.

Accordingly, I respectfully dissent from the majority’s opinion. I would affirm the trial
court’s orders denying defendants’ motion for summary disposition, denying defendants’ motion
for a directed verdict, and denying defendants’ motion for a new trial or JNOV.

/s/ Sima G. Patel

8
Brown suffered amnesia from his injuries and was therefore entitled to an inference of having
exercised due care. See Knickerbocker v Samson, 364 Mich 439, 448-449; 111 NW2d 113 (1961).

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