There must be fault in wrongful death actions

The trial court correctly granted appellee-Smith's (the PR) motion for summary disposition of appellant-Sparkman's emergency petition. Given that Sparkman failed to show that the estate possessed a legitimate or viable wrongful death claim against interested party-Comerica Bank, a wrongful death claim did not comprise a part of the SA between the estate and Comerica Bank, and Smith did not violate her fiduciary responsibilities to the estate. The decedent died by suicide. Comerica Bank filed a claim against the estate. During negotiations for a potential settlement, attorneys for the estate advised Comerica Bank of potential wrongful death or "lender liability" claims against the bank. The negotiations culminated in the SA. Sparkman (the decedent's son) filed an emergency petition urging the probate court to approve the settlement, on the condition that the probate court hold in escrow a portion of the settlement to which he claimed entitlement. The court held that "Sparkman did not establish a genuine issue of material fact that the estate possessed a good-faith, viable wrongful death claim against Comerica Bank." The evidence, including a memorandum authored by estate counsel G and the depositions of estate co-counsel G, M, and Z, established that no legitimate wrongful death claim could have been pursued in good faith against Comerica Bank. Sparkman did not identify a viable legal theory under which the estate could have proven some "wrongful act, neglect, or fault of" Comerica Bank that resulted in the decedent's suicide. The court concluded that the facts did not give rise to a reasonable inference that Comerica Bank engaged in any purposeful conduct that might form the basis for an intentional tort. In the context of a negligence action, the Supreme Court explained in Johnson that no duty to prevent a suicide exists unless the death was foreseeable. Nothing in the record suggested that Comerica Bank could or should have reasonably foreseen the decedent's death. No evidence reasonably substantiated that the estate in good faith could have asserted a wrongful death claim against Comerica Bank. Sparkman argued that a potential wrongful death claim against Comerica Bank nonetheless factored into the SA because the release of even a doubtful claim may qualify as consideration for a SA. However, the authorities he cited "clarify that withdrawal of good-faith claims may constitute consideration for entering into a" SA. The evidence showed that although the estate investigated whether a possible wrongful death claim could be brought, it determined that there were no facts or viable legal theory that would support a good-faith wrongful death claim against Comerica Bank, and Sparkman did not show that a colorable wrongful death claim was taken into account by the estate and Comerica Bank when they entered into the SA. His suggestion that Comerica Bank received no consideration in the SA if the estate did not have a valid wrongful death claim to release ignored the terms of the SA. The decedent and his business entities gave Comerica Bank mortgage notes and made other promises to pay back loans. Thus, the estate's SA promise to pay Comerica Bank $4,120,775 may be treated as a preexisting obligation. But the parties' waiver of certain terms of their original agreement amounted to consideration adequate to support their modification. Further, the estate gave Comerica Bank a broad release of any potential claims against the bank. The estate's release constituted adequate consideration for the SA. Affirmed.