Negligence — Alternative-liability theory – Nail salons

Listen to this article

Where a plaintiff filed a negligence complaint against two defendant nail salons, a judge’s decision to enter summary disposition in favor of both defendants must be vacated because (1) alternative-liability theory is still viable in Michigan and (2) there is a genuine issue of material facts as to whether either defendant caused her injury.

“On April 19, 2016, plaintiff claims to have received a manicure at Diva Nails in Livonia. She testified that during the manicure, the nail technician cut the skin on plaintiff’s right thumb with cuticle clippers, breaking the skin and causing a small bleed. She alleged that the technician, who was not wearing gloves, did not disinfect the cut or ask plaintiff to wash her hands before finishing plaintiff’s manicure. On April 23, 2016, plaintiff visited Nails Studio in Howell, Michigan for a polish change and a pedicure. The technician was identified during discovery. According to plaintiff, that technician reopened the cut received at Diva Nails on plaintiff’s right thumb with cuticle clippers, causing her wound to bleed and did not use any disinfectant on the cut or ask the Plaintiff to wash her hands. The technician denies that the wound was re-opened but admits that she wore one glove on her left hand. The technician from Nails studio denied being diagnosed with any communicable disease.

“On April 26, 2016, plaintiff went to Livonia Urgent Care because the cut on her right thumb was inflamed and painful. Plaintiff was diagnosed with a bacterial infection and given antibiotics. After another visit to Livonia Urgent Care and two visits to St. Joseph Mercy Livingston Hospital, plaintiff was diagnosed with Herpes Whitlow and prescribed antiviral medication.

“Plaintiff filed a complaint against defendants, alleging negligence under an alternative-liability theory. After discovery both defendants filed motions for summary disposition under MCR 2.116(C)(10), arguing that alternative-liability theory was no longer viable in Michigan because the 1995 tort reform abolished joint liability and that plaintiff could not prove causation. The trial court did not determine whether the 1995 tort reform and abolition of joint liability eliminated alternative liability in Michigan, but concluded that summary disposition was warranted, nonetheless, because plaintiff could not demonstrate causation. According to the trial court, plaintiff could have contracted Herpes Whitlow from anywhere, and therefore, summary disposition was warranted.

“Plaintiff argues that the trial court erred in granting defendants’ motion for summary disposition because alternative-liability theory is still viable in Michigan and there is a genuine issue of material facts as to whether either defendant caused her injury. We agree.

“Defendants contend that alternative-liability theory is no longer viable in Michigan because joint and several liability is critical to the doctrine’s application and was abolished by the 1995 tort reform.

“Defendants are correct in that, except for cases where it was expressly preserved by statute,2 the liability of each tortfeasor is ‘several only’ and ‘not joint.’ MCL 600.2956; MCL 600.6304(4). However, abolition of joint liability does not preclude a plaintiff from invoking alternative liability to seek recovery when she cannot identify which of multiple tortfeasors caused her injury.

“Having concluded that alternative-liability theory is still viable in Michigan, we conclude that the trial court erred when it granted defendants’ motions for summary disposition because plaintiff presented sufficient evidence to create a genuine issue of fact regarding causation.”

Dissenting judge’s comments

CAVANAGH J. “Plaintiff failed to establish that both nail technicians were infected with the herpes simplex virus, and thus, a jury could not conclude that more likely than not, but for their negligent conduct, plaintiff would not have contracted herpetic whitlow. If the nail technicians did not have the herpes simplex virus, how could they give it to plaintiff? It is just as likely that plaintiff contracted herpes whitlow at some time after leaving the nail salons with an open wound. Accordingly, I would affirm the trial court’s order granting summary disposition in favor of defendants Diva Nails, LLC, and Nails Studio.”

White v. Diva Nails; MiLW 08-102841, 9 pages; Michigan Court of Appeals unpublished per curiam; Stephens, J., Servitto, J.; Cavanagh, J., dissenting; on appeal from Wayne Circuit Court; Kenneth M. Essad for appellant; Richard M. Mitchell for appellee.

Click here to read the full text of the opinion.

Click here to read the full text of the dissenting opinion.