Ray v. Swager

501 Mich. 52

903 N.W.2d 366

Michael A. RAY and Jacqueline M. Ray as Coconservators for Kersch Ray, a Minor, Plaintiffs–Appellants,

v. Eric SWAGER, Defendant–Appellee,andScott Allen Platt, Heather Marie Platt, and Liberty Mutual Insurance Company, Defendants.

No. 152723

Supreme Court of Michigan.

Argued on application for leave to appeal on October 19, 2016

Decided July 31, 2017

Johnson Law, PLC (by Ven R. Johnson and Christopher P. Desmond), for Michael A. Ray, Jaqueline M. Ray, and Kersch Ray.

Giarmarco, Mullins & Horton, PC (by Timothy J. Mullins and John L. Miller ), for Eric Swager.

BEFORE THE ENTIRE BENCH

Viviano, J.

At issue is whether the conduct of defendant Eric Swager,¹ who is a government employee, was—for purposes of the governmental tort liability act (GTLA), MCL 691.1401 et seq. —"the proximate cause" of the injuries suffered by plaintiff, Kersch Ray.² We hold that the Court of Appeals failed to correctly analyze proximate cause because it only weighed various factual causes of plaintiff's injuries to determine whether one of them was a more direct cause of plaintiff's injuries than defendant's conduct. Under the GTLA, a proper proximate cause analysis must assess foreseeability and the legal responsibility of the relevant actors to determine whether the conduct of a government actor, or some other person, was "the proximate cause," that is, as our caselaw has described it, "the one most immediate, efficient, and direct cause" of the plaintiff's injuries. Accordingly, in lieu of granting leave to appeal, we vacate the Court of Appeals' decision and remand to the Court of Appeals for further proceedings not inconsistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

In the fall of 2011, the then-thirteen-year-old plaintiff was a member of the Chelsea High School cross-country team. Defendant was the coach. Shortly after the season began, defendant held an early morning practice; it was plaintiff's first morning practice as a member of the team. The practice began at 5:59 a.m., when it was still dark outside. At the beginning of the practice, defendant took the team off school grounds to run on public roads. During the run, the team approached an intersection with a two-lane highway. The "Do Not Walk" symbol was illuminated because the traffic light was green for the highway traffic. Defendant and the group of runners he was with, which consisted of most of the team, stopped at the intersection. Defendant saw a vehicle in the distance, but he determined that it was far enough away to safely cross. He instructed the runners to cross the intersection by stating, "Let's go." It is unclear whether all the team members, including plaintiff, heard the instruction. Although most of the team safely crossed the road, a few runners in the back of the group were still in or near the roadway when the vehicle entered the intersection. The vehicle hit plaintiff and one of his teammates as they were crossing the road. Plaintiff was severely injured, and he has no memory of the accident.

In his deposition, the driver of the vehicle testified that he suddenly saw the runners crossing the intersection off to the right side of the road but that he did not see plaintiff in the intersection or have time to brake. The driver testified that he was not distracted and had been driving below the posted speed limit. While the driver initially admitted that he sped up when the traffic light turned yellow, he later stated that he did not recall whether he did anything in reference to the yellow light. The Washtenaw County Sheriff's officer who conducted an accident reconstruction concluded that the driver was not responsible for the accident.

Plaintiffs sued defendant and the driver.³ Defendant moved for summary disposition under MCR 2.116(C)(7), asserting governmental immunity pursuant to the GTLA. Defendant also moved for summary disposition under MCR 2.116(C)(8) and (10). The trial court denied defendant's motion, stating that whether defendant's actions were grossly negligent and whether his actions were the proximate cause of plaintiff's injuries were questions of fact for the jury to decide.

Defendant appealed by right, and the Court of Appeals reversed in an unpublished per curiam opinion.⁴ The panel concluded that any factual disputes were not material because reasonable minds could not conclude that defendant was the proximate cause of plaintiff's injuries.⁵ The panel determined that the presence of the driver in the roadway and plaintiff's own actions were more immediate and direct causes of plaintiff's injuries and held that "the most proximate cause of [plaintiff's] injuries is the fact that he was struck by a moving vehicle."⁶

Plaintiff filed an application for leave to appeal in this Court, and we ordered oral argument on plaintiff's application, directing the parties to address

whether a reasonable jury could determine that the defendant's conduct was "the proximate cause" of plaintiff Kersch Ray's injuries where the defendant's actions placed the plaintiff in the dangerous situation that resulted in the plaintiff's injuries. MCL 691.1407(2)(c) ; Robinson v. City of Detroit, 462 Mich. 439, 462, 613 N.W.2d 307 (2000) ; Beals v. Michigan, 497 Mich. 363, 871 N.W.2d 5 (2015).^{[7 ]}

II. STANDARD OF REVIEW

The applicability of governmental immunity is a question of law that is reviewed de novo.⁸ We also review de novo a trial court's decision regarding a motion for summary disposition.⁹

III. BACKGROUND

Under the GTLA, governmental agencies and their employees are generally immune from tort liability when they are engaged in the exercise or discharge of a governmental function.¹⁰ The act provides several exceptions to this general rule. One such exception is in MCL 691.1407(2), which provides in pertinent part:

[E]ach ... employee of a governmental agency ... is immune from tort liability for an injury to a person or damage to property caused by the ... employee ... while in the course of employment ... if all of the following are met:

(a) The ... employee ... is acting or reasonably believes he or she is acting within the scope of his or her authority.

(b) The governmental agency is engaged in the exercise or discharge of a governmental function.

(c) The ... employee's ... conduct does not amount to gross negligence that is the proximate cause of the injury or damage.

Defendant, as a governmental employee, has the burden "to raise and prove his entitlement to immunity as an affirmative defense."¹¹ There is no dispute regarding whether defendant acted within the scope of his authority as a governmental employee for the school or whether he was engaged in the exercise or discharge of a governmental function. And the issue of whether defendant was grossly negligent is not presently before this Court. Accordingly, the only issue before us is whether there is a question of material fact regarding whether defendant was "the proximate cause" of plaintiff's injuries under MCL 691.1407(2)(c).

IV. ANALYSIS

Proximate cause, also known as legal causation, is a legal term of art with a long pedigree in our caselaw.¹² Proximate cause is an essential element of a negligence claim.¹³ It "involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences."¹⁴ Proximate cause is distinct from cause in fact, also known as factual causation, which "requires showing that ‘but for’ the defendant's actions, the plaintiff's injury would not have occurred."¹⁵ Courts must not conflate these two concepts.¹⁶ We recognize that our own decisions have not always been perfectly clear on this topic given that we have used "proximate cause" both as a broader term referring to factual causation and legal causation together and as a narrower term referring only to legal causation.¹⁷ All this broader characterization recognizes, however, is that "a court must find that the defendant's negligence was a cause in fact of the plaintiff's injuries before it can hold that the defendant's negligence was the proximate or legal cause of those injuries."¹⁸ In a negligence action, a plaintiff must establish both factual causation, i.e., "the defendant's conduct in fact caused harm to the plaintiff," and legal causation, i.e., the harm caused to the plaintiff "was the general kind of harm the defendant negligently risked."¹⁹

If factual causation cannot be established, then proximate cause, that is, legal causation, is no longer a relevant issue.²⁰

We take this opportunity to clarify the role that factual and legal causation play when analyzing whether a defendant's conduct was "the proximate cause" of a plaintiff's injuries under the GTLA.²¹ In any negligence case, including one involving a government actor's gross negligence, a court must determine whether "the defendant's negligence was a cause in fact of the plaintiff's injuries ...."²² But the court must also assess proximate cause, that is, legal causation, which requires a determination of whether it was foreseeable that the defendant's conduct could result in harm to the victim.²³ A proper legal causation inquiry considers whether an actor should be held legally responsible for his or her conduct, which requires determining whether the actor's breach of a duty to the plaintiff was a proximate cause of the plaintiff's injury.²⁴ It is not uncommon that more than one proximate cause contributes to an injury.²⁵ However, under the GTLA, we have held that when assessing whether a governmental employee was "the proximate cause" of the plaintiff's injuries, a court must determine whether the defendant's conduct was "the one most immediate, efficient, and direct cause of the injury ...."²⁶

Contrary to the dissent's assertion, "the proximate cause" is not determined by weighing factual causes. Such an approach distorts the meaning of "the proximate cause" by severing it from the concept of legal causation. There is no basis in our caselaw or our rules of statutory...