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
MARTINA CIARAMITARO, by Next Friend UNPUBLISHED
MARIA CIARAMITARO, February 25, 2021
Plaintiff-Appellant,
v No. 350227
Macomb Circuit Court
CARMINA RUGGERO, also known as LC No. 2018-002503-NO
CARMELINA RUGGERO, and ARIANA
RUGGERO, by Next Friend CARMINA
RUGGERO, also known as CARMELINA
RUGGERO,
Defendants-Appellees.
Before: JANSEN, P.J., and SERVITTO and RIORDAN, JJ.
SERVITTO, J. (concurring in part, dissenting in part)
I agree with the majority’s conclusion that the trial court did not err in granting summary
disposition in favor of defendants with respect to plaintiff’s claim against Ariana. However,
because I believe that the trial court also appropriately granted summary disposition in favor of
defendants with respect to plaintiff’s claims against Carmelina, I respectfully dissent from that
portion of the majority’s opinion holding otherwise.
Restatement 2d of Torts, § 316 provides:
A parent is under a duty to exercise reasonable care to control his minor
child as to prevent it from intentionally harming others or from so conducting itself
as to create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child,
and
(b) knows or should know of the necessity and opportunity for exercising
such control.
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Under the above standard, Carmelina could be held to a duty to exercise control over Ariana to
prevent her from conducting herself “as to create an unreasonable risk of bodily harm to” plaintiff
if she knew or had reason to know she could control Ariana and knew or had reason to know of
the necessity for exercising control over Ariana. Two issues with respect to the above lead me to
conclude that the trial court properly granted summary disposition in favor of Carmelina.
First, an unreasonable risk of harm is different from simply a risk of harm. “Where an act
is one which a reasonable man would recognize as involving a risk of harm to another, the risk is
unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law
regards as the utility of the act or of the particular manner in which it is done.” Restatement 2d of
Torts § 291. All reasonable adults, and reasonable children of plaintiff and Ariana’s ages recognize
that a baseball bat is meant to be swung and that a swing trainer is meant to be swung at. These
same reasonable persons would also recognize that a swinging bat creates a risk of harm to one
standing too close to it. The question for our resolution, then, is whether the risk of harm posed
by a swinging baseball bat is unreasonable. I do not believe that it is.
This is not an instance where children of a young age were swinging bats or, as the majority
recognized, where children were swinging a bat in a reckless manner. The risk of harm posed by
a swinging bat is generally alleviated by standing a clear distance from the swinging bat. Here,
plaintiff and Ariana were 9 and 10 years old, respectively, when they were in the front yard paying
with the swing trainer. Plaintiff testified that she was either first or second in line to use the swing
trainer. She could not recall where she was standing when Ariana swung the bat at the swing
trainer and was not actually positive that Ariana was the one swinging the bat when she was
injured. Ariana testified that she did not look behind her when she swung the bat, but believed she
was able to swing without hitting anyone. Alessio Detasti (who was 11 years old when the incident
occurred) testified that there were other kids present before the incident occurred, two of whom
were teenagers, and plaintiff was present when the other kids had taken turns on the swing trainer.
According to Detasti, before the teenagers and another boy left to go into the backyard, one of
them had told the rest of them to stand back from the swing trainer. Detasti testified that he was
waiting to take a turn when the incident occurred and, when Ariana went up to swing at the swing
trainer, he also told everyone to stand back because he did not want anyone to get hit. Detasti
testified that he did not think that plaintiff was in the path of the bat when Ariana swung, but he
thought plaintiff moved up a couple of steps closer to Ariana as she swung the bat.
From the above, it was clear that there was a risk in standing too close to a swinging bat
and the risk posed was not of such magnitude as to outweigh the particular manner in which it was
done. There was, after all, no evidence submitted showing that Ariana swung the bat in any way
different from how a bat is typically used. While there was an obvious risk to a swinging bat, the
risk would only be heightened if one positioned him or herself in the path of the bat. Thus, the
risk posed by Ariana in using a bat on a toy meant to be swung at with a bat was not so unreasonable
as to impose a duty upon Carmelina to supervise Ariana’s swinging of the bat.
Second, Carmelina testified that she was making food for the minor children that were
present at her house, when Ariana, plaintiff, plaintiff’s older brother, Alex, and perhaps Detasti
went to play in the front yard. The swing trainer was already attached to a basketball pole next to
the driveway in the front yard and Ariana testified that she went into the garage to get her bat so
she and the others could use the swing trainer. Ariana testified that incident occurred within five
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or ten minutes of the kids using the swing trainer. There was no indication that Carmelina knew
the kids were using she swing trainer and no indication that she could have exercised control over
this situation where the incident happened within minutes and on a toy that Ariana had purportedly
used many times without incident.
In addition, I would find no genuine issue of material fact regarding whether Carmelina’s
alleged negligent supervision caused plaintiff’s injuries. A plaintiff in a negligence action must
establish that a defendant’s negligent conduct was the proximate cause of his or her injury. In
order to be a proximate cause, the negligent conduct must have been a cause of the plaintiff’s
injury (cause-in-fact) and the plaintiff’s injury must have been a natural and probable result of the
negligent conduct (legal causation). O’Neal v St John Hosp & Med Ctr, 487 Mich 485, 496; 791
NW2d 853 (2010). The cause-in-fact prong generally requires showing that “but for” the
defendant’s actions, the plaintiff’s injury would not have occurred, while legal causation relates to
the foreseeability of the consequences of the defendant’s conduct. Id. However, if factual
causation cannot be established, legal causation is no longer a relevant issue. Ray v Swager, 501
Mich 52, 64; 903 NW2d 366 (2017).
There has been no evidence indicating that but for Carmelina’s failure to supervise the
children, plaintiff would not have incurred her injury. It is true that Carmelina testified at
deposition that if she had been supervising the children in the front yard, she would have instructed
plaintiff not to move while Ariana was swinging the baseball bat. However, the evidence
demonstrates that plaintiff was twice told by other children to stand back when others were
swinging the bat. It is thus speculative, at best, whether Carmelina also telling plaintiff to stand
back and stay still would have prevented the injury. Giving instructions can, after all, only do so
much. The person being instructed must, on his or her own, comply with the instruction. As stated
by our Supreme Court, to adequately establish cause-in-fact, a plaintiff’s proof must be more than
conjecture:
[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. [Skinner v Square D Co, 445 Mich
153, 164–65; 516 NW2d 475 (1994)]
“A mere possibility of such causation is not enough; and when the matter remains one of pure
speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of
the court” to find for the defendant. Id. at 165. The submitted evidence is insufficient to create a
question of fact whether Carmelina’s actions were the cause in fact of plaintiff’s injuries. As such,
legal causation is no longer a relevant issue. Ray, 501 Mich at 64. I would thus affirm the trial
court’s decision in its entirety.
/s/ Deborah A. Servitto
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