Bean v. Directions Unlimited, Inc

Kelly, J.

(dissenting). Defendant’s application fails to establish that the Court of Appeals order was clearly erroneous and will cause material injustice. MCR 7.302(B)(5). Hence, the standard of appellate review applicable to this case has not been met. I would allow the order to stand.

*36At trial, the jury found that defendant’s negligent hiring and supervision of Gerald Flagle was not a proximate cause of Ms. Bean’s sexual victimization. Plaintiff moved for a new trial, and the judge denied the motion. On review, the Court of Appeals found that the ruling was an abuse of the trial judge’s discretion, because the jury’s finding was against the great weight of the evidence. Bosak v Hutchinson, 422 Mich 712, 737; 375 NW2d 333 (1985); MCR 2.611(A)(1)(e).

The Court of Appeals relied on undisputed facts presented at trial. It did not engage in credibility determinations. Although the evidence on which it reversed the trial court was not robust, it constituted the bulk or great weight of the evidence presented.

It established that defendant’s executive director, James Koivu, learned that Gerald Flagle had been convicted of criminal sexual conduct. Flagle had sexually assaulted a mentally retarded woman at another facility before his employment with Directions Unlimited.

After Koivu became aware of the threat Flagle might pose to Ms. Bean, he discovered Flagle on the premises with her one morning before the facility was open to the public. He chose not to prevent a re-occurrence. Because of that, Flagle continued to have access to the facility when it was closed and unoccupied. In effect, Koivu made it possible for Flagle to abuse and molest the victim.

Defendant offered no evidence to counter this showing of proximate cause. Nothing indicates that Flagle would have been able to sexually penetrate Ms. Bean at another location or at Directions Unlimited when the facility was open. Therefore, defendant’s *37negligent hiring and supervision of Flagle was a proximate cause of the victim’s exploitation. The great weight of the evidence exposes a natural and continuous sequence, unbroken by new and independent causes, beginning with defendant’s negligence and ending with the sexual abuse of the victim. McMillian v Vliet, 422 Mich 570, 576; 374 NW2d 679 (1985).

The Court of Appeals reversal and remand should be allowed to stand, because it is not clearly erroneous and will not cause material injustice. This Court’s intervention in the case is unwarranted.

Cavanagh, J., concurred with Kelly, J.