in Re Sdao Estate ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
Estate of JOHN ANTHONY SDAO, Deceased, by UNPUBLISHED
JOHN SAM SDAO, Personal Representative, January 21, 2016
Plaintiff-Appellant/Cross-Appellee,
v No. 322646
Oakland Circuit Court
MAKKI & ABDALLAH INVESTMENTS, d/b/a LC No. 2013-132325-NO
MOBIL GAS STATION, and JOHN DOE
CORPORATION and JANE DOE
CORPORATION,
Defendants,
and
SARA CORPORATION, d/b/a TWELVE MILE &
CAMPBELL MART,
Defendant-Appellee/Cross-
Appellant,
and
JOHN DOE CORPORATION and JANE DOE
CORPORATION,
Defendants,
and
YASSMINE WHOLESALERS,
Defendant-Appellee.
Before: SHAPIRO, P.J., and O’CONNELL and GLEICHER, JJ.
SHAPIRO, P.J. (concurring).
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Although I disagree with some of the majority’s analysis, I concur with its conclusion
that the judgment in this case should be affirmed.
In my view, the trial court erred in dismissing the negligence claims. It did so on the
basis of its conclusion that a reasonable juror could not conclude that defendants’ actions were a
proximate cause of death of plaintiff. However, proximate cause is generally an issue for the
jury to determine. Schutte v Celotext Corp, 196 Mich App 135, 138; 492 NW2d 773 (1992); see
also Jones v Detroit Med Ctr, 490 Mich 960, 961; 806 NW2d 304 (2011).
Despite this error, I would not reverse given the jury’s conclusion that defendants’ sale of
K-2 was not a cause of the young man’s suicide. The jury found that defendants violated the
Consumer Protection Act, MCL 445.901 et seq., but the jury found no liability because it
answered, “No” to the question “did the plaintiff suffer a loss as a result of the [defendants]
violation of the Consumer Protection Act.” In so doing, the jury found that defendants’ actions
were not a cause of plaintiff’s death. Indeed, in closing argument plaintiff’s counsel argued,
without objection, that the jury need only conclude that “but for the use of this drug” plaintiff
would not have committed suicide. Plaintiff has not suggested any basis to conclude that a jury
that rejected causation as required under the Consumer Protection Act would have accepted it
under the more demanding proximate cause standard.
As to the evidentiary issues, while I do not fully subscribe to the majority’s analysis, I
agree that none of the trial court’s evidentiary rulings constituted an abuse of discretion.
/s/ Douglas B. Shapiro
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