Ignotov v. Reiter

Boyle, J.

I concur in the result reached by Justice Levin.

The Court of Appeals in the case at bar clearly erred when it required the plaintiff to establish that "the proximate cause of his injury was defendant’s failure to appear at the termination hearing.” Ignotov v Reiter, 130 Mich App 409, 412; 343 NW2d 574 (1983) (emphasis added). It is well-established that in Michigan the burden is on the plaintiff to establish only that the defendant’s negligence is a proximate cause of the plaintiffs damages. Kirby v Larson, 400 Mich 585, 605; 256 NW2d 400 (1977); Sedorchuk v Weeder, 311 Mich 6, 10-11; 18 NW2d 397 (1945); Barringer v Arnold, 358 Mich 594, 599-600; 101 NW2d 365 (1960); SJI2d 30.03.

This Court has defined proximate cause as "a cause as operates to produce particular consequences without the intervention of any independent, unforeseen cause, without which the injuries would not have occurred.” Nielsen v Henry H Stevens, Inc, 368 Mich 216, 220; 118 NW2d 397 (1962). Moreover,

[t]he general rule, expressed in terms of damages, and long followed in this State, is that in a tort action, the tort-feasor is liable for all injuries resulting directly from his wrongful act, whether foreseeable or not, provided the damages are the legal and natural consequences of the wrongful act, and are such as, according to common experience and the usual course of events, might reasonably have been anticipated. Remote, contingent, or *401speculative damages are not considered in conformity to the general rule. [Sutter v Biggs, 377 Mich 80, 86; 139 NW2d 684 (1966). Citations omitted.]

The trial court in the case at bar found that a proximate. cause of plaintiff’s injury was defendant’s negligence in failing to notify plaintiff of the hearing on the petition to terminate plaintiffs parental rights. The court also found that a proximate cause of plaintiffs injury was the plaintiffs negligence in failing to notify defendant that he would contest the petition regardless of plaintiffs refusal to settle according to his ex-wife’s last settlement offer. These findings were supported by the record. Therefore, I agree with Justice Levin that the trial court did not clearly err on the finding of proximate cause.

Unlike Justice Levin, however, I believe the record establishes that damages were awarded for the loss of plaintiffs parental rights, not "the lost opportunity to resolve the matter by settlement.” The trial court in its decision specifically awarded damages to Ignotov for "the loss of his child.” Moreover, this case is unlike most cases involving malpractice in connection with the settlement of or failure to settle a case. See generally Anno: Legal malpractice in settling or failing to settle client’s case, 87 ALR3d 168. This case did not involve Reiter’s failure to disclose a settlement proposal to Ignotov, or the failure of Reiter to offer an authorized settlement proposal to Ignotov’s ex-wife. Therefore, Reiter’s misconduct did not directly result in the loss of an opportunity to settle.

The trial court’s award for the instant plaintiffs loss of parental rights had a basis in the record. I would reverse the judgment of the Court of Appeals and reinstate the judgment of the trial court.