COA 373769 ADAM RUSSELL V BLACK DIAMOND FIREWORKS LLC Opinion - Per Curiam - Unpublished 12/16/2025

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
ADAM RUSSELL,
Plaintiff-Appellant,
UNPUBLISHED
December 16, 2025
9:21 AM
v No. 373769
Ingham Circuit Court
BLACK DIAMOND FIREWORKS, LLC, also
known as PRO FIREWORKS,
LC No. 2022-000347-NO
Defendant-Appellee,
and
AMERICAN EAGLE SUPERSTORE, INC., also
known as BIG FIREWORKS, and PHOENIX
IMPORTS, INC.,
Defendants.
Before: SWARTZLE, P.J., and O’BRIEN and BAZZI, JJ.
PER CURIAM.
In this negligence action, plaintiff, Adam Russell, appeals as of right the trial court’s order
granting summary disposition to defendant, Black Diamond Fireworks, LLC, also known as Pro
Fireworks, under MCR 2.116(C)(10) (genuine issue of material fact).1 For the reasons set forth in
this opinion, we reverse the trial court’s order and remand this matter for further proceedings.
1 All references to defendant solely pertain to Black Diamond Fireworks, LLC, because defendants
American Eagle Superstore, Inc., also known as Big Fireworks, and Phoenix Imports, Inc., are not
parties to this appeal. The latter defendants were dismissed during the lower court proceedings,
and plaintiff does not contest their dismissal on appeal.

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I. BASIC FACTS AND PROCEDURAL HISTORY
This case arises from injuries that plaintiff alleges were sustained at a student event held at
the Michigan State University (MSU) campus, during which defendant operated a fireworks
display. On October 15, 2021, plaintiff took part in the “Izzone Campout Event” with his
girlfriend, Lauren Hackett, and his roommate, Gavin Wink, in which MSU students camped on
the Munn Intramural Field for several days to secure spots for the upcoming men’s basketball
games. Defendant agreed to conduct a fireworks presentation at the campout as a personal favor
to the MSU basketball coach. In anticipation of the event, defendant set up the launch platform
for the fireworks exhibition in an adjacent parking lot, designating a spectator safety zone of
approximately 150 feet between the launch site and the campout event stage. Thomas Miller, an
MSU fire marshal, approved defendant’s preparation of the launch site, under the belief that the
audience would be situated at a safe distance from the launch area, as the buffer zone exceeded the
guidelines set by the National Fire Protection Association.
After defendant launched the fireworks at approximately 10:00 p.m., plaintiff, positioned
approximately 20 to 30 feet from the stage, was struck in his right eye by an unknown object,
resulting in permanent central vision loss in that eye. Plaintiff testified that he was looking
skyward when the impact occurred approximately 10 to 15 minutes into the fireworks show, and
that a “heavy [and] metal” object, comparable in weight to a “pool ball,” hit him in the face. While
plaintiff was initially unsure of the exact nature of the projectile, he ultimately concluded that he
was contacted by a stray firework. Paramedics accompanied plaintiff to the hospital, where
medical personnel removed debris that was not “just dirt or rocks” from his eye. Plaintiff appeared
to be the only person significantly injured during the fireworks exhibition, and the pertinent parties
were unable to recover the object that caused plaintiff’s harm.
Sergeant Jason Luther, an officer employed by the MSU Department of Public Safety,
testified that he was patrolling the field during the fireworks display, and he saw that the fireworks
were detonating at a low altitude and in close proximity to spectators. Hackett further asserted
that she noticed a “small fire” in the fireworks launch area, which did not “look right.” Detective
Jamie Izen of the MSU Department of Public Safety additionally recalled that as she was standing
in the western section of the field, there were various “projectiles from the sky” striking, but not
injuring, her person, and that her coat was covered in “yellow powder.”
Both Miller and Max Roxbury, an employee of defendant, testified that solely “consumer
grade” fireworks were used for the fireworks exhibition. Roxbury further expressed that he was
unaware of any fireworks featuring “any parts or pieces that are heavy, like a pool ball,” because
only professional-grade fireworks may contain such “pool ball style item[s].” Roxbury also
expressed that the only object heavier than cardboard that may be released from the firework
cylinders were the “plugs” that capped its ends, which themselves were made of cardboard, and
none of the released fireworks misfired. However, MSU Department of Public Safety Captain
David Osmund asserted that Miller informed him that a “couple” of the fireworks defendant
employed during the fireworks presentation featured a “clay plug” that separated from the device
when launched.
Charles Weeth, plaintiff’s expert witness and a “pyrotechnic operator” with 40 years of
experience in the fireworks industry, advanced that the object that struck plaintiff “more likely

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than not . . .was either a dud firework shell or hazardous debris from a firework shell that came
down.” Weeth was unable to determine precisely what type of firework injured plaintiff, but he
asserted that the “shoot list,” detailing the fireworks deployed by defendant during the fireworks
presentation, was inaccurate. Weeth explained that the list included several devices that were not
depicted in the photographs capturing the fireworks used for the exhibition, including a photograph
of the cargo being loaded in defendant’s truck before being transported to the launch site. Weeth
further expressed that it was possible that the utilized fireworks, while labeled as consumer grade,
may contain greater amounts of gunpowder than permitted by federal law, and feature aerial shells
spanning 2 to 3 inches in diameter. Weeth additionally noted that based on his review of various
videos posted on defendant’s website, certain fireworks appeared larger than 1 ¾ inches in external
diameter, rendering these fireworks noncompliant with the United States Consumer Product Safety
Commission standards. Moreover, due to the size of these larger shells, Weeth expressed that the
implemented safety zone should have been 210 feet from the launch platform. Weeth reiterated
that a “dud firework,” a firework that fails to ignite or function as intended, likely struck plaintiff,
and any aerial shell spanning 1 to 3 inches in diameter maintained sufficient mass and velocity to
cause injury upon contact.
In June 2022, plaintiff commenced the underlying action, alleging negligence, or, in the
alternative, a res ipsa loquitor claim, against defendant, and contending that defendant’s failure to
properly examine, position, and deploy the fireworks caused plaintiff’s harm. Defendant moved
for summary disposition under MCR 2.116(C)(10) asserting that plaintiff failed to present any
“testamentary or physical evidence as to what struck him and caused his eye injury,” or that
defendant “violated any state or federal law with regarding to the Izzone Campout fireworks
display.” Defendant further argued, “In the absence of any proof as to a breach of duty or causal
connection between the fireworks display at the Izzone Campout and Plaintiff’s injury, Plaintiff
cannot satisfy his burden of proof” as to his claims. Plaintiff responded, “There is a question of
material fact whether Plaintiff was struck in the eye by an unexploded mortar or hazardous
firework debris as a direct and proximate result” of defendant’s negligence, and that he presented
extensive evidence regarding the subject incident, including medical records, expert testimony,
and witness testimony.
Following a motion hearing, the trial court awarded summary disposition to defendant
opining:
Well, this is certainly an unfortunate incident and injury for plaintiff. I do think it
falls within the realm of there are just some cases you can’t prove. I think this is
within the realm of asking the jury to speculate as to what caused the injury when
there was nothing seen, nothing found.
The speculation that we would ask the jury to engage in to get to the first
step that they have to find, which is that there was something connected to the
fireworks display that caused the injury before you get to the issue of negligence or
failing to set up the show with a far enough or big enough distance between the
audience and the display.
It does not appear that there is sufficient evidence—circumstantial evidence
being allowed, of course. Viewing this in the light most favorable to the plaintiff,

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it does not appear to me that there is sufficiently substantial evidence on which the
jury could conclude that proposition that the plaintiff makes that it was more likely
than not that it was caused by a firework shell.
So I am going to grant the motion, unfortunately, for the plaintiff in this
case, who appears to have been significantly injured.
On November 27, 2024, the court entered an order consistent with its statements on the record.
This appeal ensued.
II. STANDARD OF REVIEW
A trial court’s decision on a motion for summary deposition is reviewed de novo. El-Khalil
v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). A motion under MCR
2.116(C)(10) tests the factual sufficiency of a claim. Id. at 160. “Summary disposition under
MCR 2.116(C)(10) is proper if there is no genuine issue about any material fact and the moving
party is entitled to judgment as a matter of law.” Charter Twp of Canton v 44650, Inc, 346 Mich
App 290, 308; 12 NW3d 56 (2023). In reviewing the trial court’s decision, this Court “considers
affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or
submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the
motion.” Id. (quotation marks and citation omitted). “Where the burden of proof at trial on a
dispositive issue rests on a nonmoving party, the nonmoving party must not rely on mere
allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts
showing that a genuine issue of material fact exists.” Lowrey v LMPS & PMPJ, Inc, 500 Mich 1,
7; 890 NW2d 344 (2016). “A genuine issue of material fact exists when the record leaves open an
issue upon which reasonable minds might differ.” Johnson v VanderKooi, 502 Mich 751, 761;
918 NW2d 785 (2018) (quotation marks and citation omitted).
III. ANALYSIS
Plaintiff argues that the trial court improperly granted summary disposition on his
negligence claim. We agree.
“To establish a prima facie case of negligence, a plaintiff must prove that (1) the defendant
owed the plaintiff a legal duty, (2) the defendant breached the legal duty, (3) the plaintiff suffered
damages, and (4) the defendant’s breach was a proximate cause of the plaintiff’s damages.” Hill
v Sears, Roebuck & Co, 492 Mich 651, 660; 822 NW2d 190 (2012). “The causation element of a
negligence claim encompasses both factual cause (cause in fact) and proximate, or legal, cause.”
Powell-Murphy v Revitalizing Auto Communities Environmental Response Trust, 333 Mich App
234, 245; 964 NW2d 50 (2020). “Factual cause generally requires showing that ‘but for’ the
defendant’s actions, the plaintiff’s injury would not have occurred. Proximate cause, by contrast,
normally involves examining the foreseeability of consequences, and whether a defendant should
be held legally responsible for such consequences.” Id. at 245-246 (quotation marks and citation
omitted). “A plaintiff must necessarily establish factual cause in order to establish proximate
cause. While factual causation may be established with circumstantial evidence, the evidence must
support reasonable inferences of causation, not mere speculation.” Id. at 246 (quotation marks and
citations omitted). Consequently, “to provide circumstantial evidence that permits a reasonable

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inference of causation, a 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.” Id. (quotation marks and citation omitted). “The mere possibility of causation
is insufficient to survive summary disposition.” Id.
In the present case, the trial court determined that summary disposition was warranted
because there was insufficient evidence to establish the element of factual causation underlying
plaintiff’s negligence claim. The court ruled the matter was “within the realm of asking the jury
to speculate as to what caused the injury when there was nothing seen, nothing found,” and plaintiff
neglected to demonstrate that “it was more likely that not that [his injury] was caused by a firework
shell.” However, to prove causation, “a plaintiff need not prove that an act or omission was the
sole catalyst for his injuries,” rather, the plaintiff “must introduce evidence permitting the jury to
conclude that the act or omission was a cause.” Craig ex rel Craig v Oakwood Hosp, 471 Mich
67, 87; 684 NW2d 296 (2004). Stated alternatively, a plaintiff need not negate all other possible
causes in order to survive summary disposition; “[a]ll that is necessary is that the proof amount to
a reasonable likelihood of probability rather than a possibility.” Skinner v Square D Co, 445 Mich
153, 166; 516 NW2d 475 (1994) (quotation marks and citation omitted).
Viewed in the light most favorable to plaintiff, Lowrey, 500 Mich at 7, plaintiff has
established a genuine issue of material fact concerning whether a “dud firework,” or debris related
to fireworks exhibition, was the object that impacted him. In his deposition testimony, Wink
asserted that plaintiff’s injury transpired approximately 10 minutes into the fireworks presentation,
and Detective Izen expressed that she saw various debris falling from the sky as she was standing
on the field during the fireworks display. Hackett, Sergeant Luther, and MSU Department of
Public Safety Sergeant Jessica Mitchell further corroborated that the fireworks were exploding at
a low altitude, in close proximity to spectators, and with debris. Medical documentation
additionally indicated that both the paramedics and hospital staff believed that there was debris in
plaintiff’s eye, which Weeth affirmed was consistent with an injury arising from a dud firework,
specifically fireworks featuring 2 or 3-inch aerial shells.
Defendant argued in the trial court, and continues to argue on appeal, that there was “no
evidence to present to the jury to determine whether he was struck by a firework, a rock, a ball, a
fist, a bottle, an elbow, a shoe, anything.” But a “plaintiff is not required to produce evidence that
positively eliminates every other potential cause. Rather, the plaintiff’s evidence is sufficient if it
‘establishes a logical sequence of cause and effect, notwithstanding the existence of other plausible
theoriesnhjbnh, although other plausible theories may also have evidentiary support.’ ” Skinner,
445 Mich at 159-160 (citation omitted). While defendant characterizes plaintiff’s causation theory
as mere speculation, the aforementioned testimony delineates a sequence of events—from the
deployment of the fireworks to plaintiff’s injury—such that there was a reasonable likelihood of
probability a stray firework or shell may have struck plaintiff. Id. at 166. Moreover, despite
defendant’s contentions to the contrary, the discrepancies between the testimonies of defendant’s
employees and Weeth concerning the exact type of fireworks used during the subject exhibition
and the proper minimum safety zone constituted conflicts in evidence that should not be resolved
on summary disposition. Barnes v 21st Century Premier Ins Co, 334 Mich App 531, 540; 965
NW2d 121 (2020).

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In light of the foregoing, a reasonable juror could conclude that a stray firework or shell
may have struck plaintiff, and the offered evidence established more than an accident took place.
Skinner, 445 Mich at 174. In considering plaintiff’s statements, the medical evidence indicating
the presence of a foreign object in his eye, the debris seen in the vicinity, and Weeth’s expert
testimony in the light most favorable to plaintiff, there is a plausible causal relationship between
defendant’s fireworks exhibition and plaintiff’s injuries. Accordingly, the trial court improperly
granted defendant’s motion for summary disposition on this basis.2
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Brock A. Swartzle
/s/ Colleen A. O’Brien
/s/ Mariam S. Bazzi
2 Plaintiff further argues that there was a genuine issue of material fact concerning defendant’s
breach of duty. However, as we have resolved that plaintiff is entitled to relief on factual-causation
grounds, we decline to address this issue on appeal.

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