MICHAEL A. RAY and JACQUELINE M. RAY, as co-conservators for KERSCH RAY, a minor, Plaintiffs-Appellees,
ERIC SWAGER, Defendant-Appellant, and SCOTT ALLEN PLATT, HEATHER MARIE PLATT, AND LIBERTY MUTUAL INSURANCE COMPANY, Defendants.
Circuit Court LC No. 12-001337-NI
Before: Boonstra, P.J., and Saad and Hoekstra, JJ.
case is before us on remand from the Michigan Supreme Court.
Previously, defendant Eric Swager appealed to this Court as
of right, asserting that the trial court erred by denying his
motion for summary disposition on governmental immunity
grounds under the Governmental Tort Liability Act (GTLA), MCL
691.1401 et seq. In our prior opinion, we reversed
the trial court's decision and remanded for entry of
summary disposition in Swager's favor based on the
conclusion that reasonable minds could not conclude that
Swager was "the proximate cause" of plaintiff
Kersch Ray's injuries. Ray v Swager, unpublished
opinion of the Court of Appeals, issued October 15, 2015
(Docket No. 322766). Ray appealed to the Michigan Supreme
Court, and the Michigan Supreme Court announced a new
framework to clarify the process for determining "the
proximate cause" in the context of the GTLA. See Ray
v Swager, ___ Mich. ___, ___: N.W.2d ___ (2017); slip op
at 8-16. The Supreme Court vacated our decision and remanded
for reconsideration in light of its decision in Ray.
Id. at 28. On remand, because issues of material
fact remain that preclude summary disposition, we affirm the
trial court's denial of Swager's motion for summary
disposition and remand for further proceedings.
September 2, 2011, 13-year-old Ray was struck by an
automobile driven by Scott Platt. The accident occurred at
the intersection of Freer Road and Old US-12 while Ray was
running with the Chelsea High School cross-county team.
Swager-the team's coach-was running with the team that
morning. As the team approached the intersection in question,
they encountered a "red hand" on the pedestrian
signal, indicating that pedestrians should not cross the
road. See MCL 257.613(2)(b). Although the eyewitness accounts
vary, there is evidence that Swager said something to effect
of "let's go, " and the team crossed the
street. Ray, who was in the back of the group, ran into the
road and he was hit by Platt.
the accident, Ray filed the current lawsuit. Swager moved for
summary disposition on governmental immunity grounds,
asserting that he was entitled to immunity as a governmental
employee under MCL 691.1407(2) because he had not been
"grossly negligent" and his conduct was not
"the proximate cause" of plaintiff's injuries.
The trial court denied Swager's motion, concluding that
the case was "fact laden." Swager then appealed to
this Court as of right, and we reversed the decision of the
trial court and remanded for the entry of summary disposition
in favor of Swager. Specifically, we concluded that
Swager's verbal remarks could not reasonably be
considered "the proximate cause" of Ray's
injuries within the meaning of the GTLA considering the other
more immediate and direct causes of Ray's injuries,
including Ray's own conduct in entering the street and
the fact that Ray was hit by a car driven by Platt.
Michigan Supreme Court vacated our decision and remanded for
reconsideration under a framework that clarifies "the
role that factual and legal causation plan when analyzing
whether a defendant's conduct was 'the proximate
cause' of a plaintiff's injuries under the
GTLA." Ray, ___ Mich. at ___; slip op at 8. The
analysis under this framework begins by determining whether
the defendant's gross negligence was a cause in fact of
the plaintiff's injuries. Id. at 8, 28. Provided
that a defendant's gross negligence is a factual cause,
it must then be considered whether the defendant was a
proximate or legal cause by addressing foreseeability and
whether the actor may be held legally responsible for his or
her conduct. Id. at 8-9, 18. In addition to
considering the governmental actor's conduct, it must
also be decided whether there are other proximate causes of
the injury. Id. at 9, 18-19. Determining whether
there are other proximate causes requires consideration of
whether any other human person was negligent because
"only a human actor's breach of a duty can be a
proximate cause." Id. at 16, 18-19.
"Nonhuman and natural forces" may bear on the
question of foreseeability and intervening causes for
purposes of analyzing proximate cause, but they can never be
considered the proximate cause of a plaintiff's injuries
for the purposes of the GTLA. Id. at 16.
the various proximate causes have been determined, the
question then becomes whether, taking all possible proximate
causes into account, the government actor's gross
negligence was "the proximate cause" of injury.
Id. at 28. This requires "considering [the]
defendant's actions alongside any other potential
proximate causes to determine whether [the] defendant's
actions were, or could have been, 'the one most
immediate, efficient, and direct cause' of the
injuries." Id. at 20. The relevant inquiry is
not whether the defendant's conduct was the immediate
factual cause of injury, but whether, weighing the legal
responsibilities of the actors involved, the government actor
could be considered "the proximate cause."
Id. at 15-16.
this standard in the context of the current case, we conclude
that there are material questions of factual dispute which
prevent us from assessing the actors' respective
negligence, weighing their competing legal responsibilities,
determining "the proximate cause" of Ray's
injuries, and resolving Swager's claim to governmental
immunity as a matter of law.In particular, from the record
before us, it appears there are three persons whose conduct
could potentially be considered a proximate cause-Swager,
Ray, and Platt. See Ray, Mich. at; slip op at 18.
However, the record before us is not uncontested with regard
to the facts and circumstances surrounding the actions taken
by these individuals. Instead, there are numerous accounts of
the accident in the record before us, and these accounts
differ widely in terms of the configuration of the group of
runners, precisely what Swager said, and to whom he said it.
previous opinion, we concluded that these factual disputes
were not material because, even if Ray heard Swager,
Swager's verbal remarks were simply too remote to be
considered the one most immediate, efficient and direct cause
of Ray's injuries given that Ray ultimately ran into the
street under his own power and he was then struck by a car
driven by Platt. Ray, unpub op at 3-4. However,
under the standard set forth by the Supreme Court in
Ray, these factual disputes now preclude summary
disposition. For instance, one of the main points of factual
contention is how far Ray trailed the group of runners.
Ray's location relative to the rest of the group bears on
whether he even heard Swager, whether Swager's
instruction applied to Ray, whether Ray had a duty to
independently evaluate the safety of the road before
crossing, and whether Ray could be considered negligent in
relying on Swager's remark. Whether Swager's
instruction applied to Ray-and how far Ray trailed the
group-is also material to determining whether Swager was
grossly negligent in giving this instruction and whether it
was foreseeable that Ray would follow Swager into the road
without looking. Aside from the actions of Swager and Ray,
there are also factual disputes regarding Platt's
conduct, including debate over whether he accelerated as he
approached a yellow light despite the presence of numerous
runners in the area. In short, given the myriad variables
affecting the actors' respective negligence and legal
responsibility, and in light of the factual disputes relating
to these issues, we cannot conclude as a matter of law that
Swager was not grossly negligent and that this gross
negligence did not constitute the proximate cause of
Ray's injuries. See MCL 691.1407(2)(c). Consequently,
Swager was not entitled to summary disposition based on
immunity granted by the GTLA. See Poppen, 256
Mich.App. at 354. Thus, we affirm the circuit court order
denying Swager's motion for summary disposition.
and remanded for further proceedings. We do not retain
Boonstra, P.J. (concurring).
concur with the majority opinion, but write separately to
emphasize the following additional points.
courts must be ever vigilant to decide cases based on legal
merits, not emotion. This case presents an incident that by
any measure was nothing short of tragic, and one young man
and his family will suffer a lifetime of consequences that
the rest of us can at best only imagine. In the face of such
tragedy, judges should be appropriately sympathetic. Human
empathy survives the donning of a black robe. That said, it
is equally true (though perhaps less understood) that in a
world of pure legal issues-such as that of an appellate court
whose charge is to assess whether legal error occurred in a
lower court-even sympathetic judges must set ...