Michigan High Court to Address Scope of “Gross Negligence” Exception to Governmental Immunity

In an order issued on December 23, 2014, the Michigan Supreme Court has granted oral argument to consider the state’s application in this wrongful death case.  (Estate of Beals.Order).

The plaintiff is the estate of an individual who was a student at a state technical college that provided vocational and technical training to individuals with disabilities.  The decedent was a student at the college, who had been diagnosed with autism and learning disabilities.

Despite his disabilities, the decedent was an accomplished swimmer.  During an open swim time at the college’s pool, the decedent swam to the deep end of the pool, submerged, and never resurfaced, until he was brought to the surface by other students who noticed his plight.  The pool’s student lifeguard, who was described by witnesses as being distracted and inattentive around the time of the incident, was unable to resuscitate the decedent.  He was declared dead upon arrival at the hospital.  The cause of death was accidental drowning.

The estate sued the state of Michigan, the college, and the lifeguard who was on duty at the time of the accident.  The government moved for summary disposition, arguing that the lifeguard’s conduct did not arise to “gross negligence” within the meaning of Michigan Compiled Laws (MCL) 691.1407 the “gross negligence” exception to immunity, and even if his conduct did satisfy the statutory definition, it was not, as is required  by the Governmental Tort Liability Act, MCL 691.1407(2)(c) “the proximate cause” of the decedent’s accident and death.  The trial court denied the government’s summary motion to dismiss the case.

The Court of Appeals affirmed in a 2 to 1 unpublished opinion (Judges Meter and Shapiro in the majority; Judge O’Connell, dissenting).  Estate of Beals v. State of Michigan, et al.

The central issue in the case was whether the lifeguard’s conduct was “the proximate cause of the injury or damage.” MCL 691.1407(2)(c) (emphasis added). To apply the statute, the Courts have held it must be determined whether a reasonable person could find that the governmental defendant’s conduct or actions were “the one most immediate, efficient, and direct cause” of the injury alleged.  Robinson v. City of Detroit, 462 Mich. 439, 462 (2000).

The factual dispute centered on whether the lifeguard’s conduct or actions, or lack of action was, in the language of the jurisprudence interpreting MCL 691.1407(2)(c) “the one most immediate, efficient, and direct cause of” the decedent’s death.

The majority opinion reasons that reasonable minds could disagree on whether the lifeguard’s action or inaction was the proximate cause.  However, the dissenting judge, Judge O’Connell reasoned that since there was a chain of events that lead to the decedent’s death, most of which were caused by the decedent’s participating in the open swim, swimming to the deep end of the pool, and going under, it was impossible to conclude that the lifeguard’s conduct alone was “the most direct and immediate cause”.  Since a “chain of events” cannot serve as a substitute for the statutory standard, it could not be the source of tort liability against a governmental employee under the Governmental Tort Liability Act (the GTLA).

The Supreme Court’s order requests the parties to brief the issue simply as whether the lifeguard’s  “alleged failure to act was the proximate cause of the decedent’s death. MCL 691.1407(2)(c)” of the GTLA.

It should be noted that at least until now the Supreme Court has applied a narrow construction to the statutory exceptions to the government’s suit immunity.  That rule applies with equal force to the “statutory” gross negligence standard, which, unlike the common-law articulation, includes the requirements enunciated in the statutory definition found in MCL 691.1407(2)(c).  With the recent liberalization of the interpretive principles and the Court’s apparent willingness to look to common law rules that predated the passage of the GTLA, it will be interesting to see how the litigants and the Court address this significant case.

This case will also likely garner significant attention because related inferior appellate court cases have recently addressed the scope of the “gross negligence” exception to governmental immunity in actions against individual governmental actors.  Seethe following link, in which I discuss these cases:

Gross Negligence Exception to Immunity Under Attack in Cases Against “Emergency First Responders”

I have been directly involved in at least four cases as the government’s appellate attorney (Odom v. Wayne County, Hamed v. Wayne County, Atkins v. SMART Bus, and the Court of Appeals opinions in Gentry v. Wayne County and Truett v. Wayne County), and tangentially involved writing as amicus curiae in many others, which have demonstrated and continued the trend the government and its individual actors should be protected to a great degree to allow the smooth and uninterrupted operation of government affairs in day-to-day life.  I continue to believe that unnecessary litigation and large damages claims are inconsistent with this.  The Michigan Supreme Court’s decisions, which I secured in Odom, Hamed, and Atkins, as well as the Court of Appeals opinions in Gentry and Truett, were instrumental in advancing this overarching theme that should be the focus of those defending actions against the government.

If anyone has questions about any of these opinions, please call the Law Offices of Carson J. Tucker.

Effective appellate representation demands different skills than those required by litigation attorneys.  Mr. Tucker is adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying appealable errors, and developing a strategy to raise issues that will be addressed by appellate courts, Mr. Tucker is capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.

Mr. Tucker’s research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provides his clients with efficient and immediate assistance with complex and high-exposure cases.

Mr. Tucker is experienced at navigating through all appellate courts to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.

During the past decade, Mr. Tucker has been responsible for several seminal decisions in workers’ compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage.

Because of his specialized knowledge and focus on appellate law and his recognized expertise, Mr. Tucker has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court.

Mr. Tucker presented direct representation to the defendants and prosecuted the entire appeal, including all appellate briefings and oral arguments before the Court of Appeals and Supreme Court in the following cases, among others:

  • Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
  • Atkins v. SMART, 492 Mich. 707 (August 20, 2012), application granted, and briefed and argued by Carson J. Tucker in the Supreme Court
  • Gentry v. Wayne County Deputy Sheriff Daniel Carmona, unpublished opinion of hte Michigan Court of Appeals, dated October 11, 2011 (Docket No. 296580), briefed and argued by Carson J. Tucker in the Court of Appeals
  • Hamed v. Wayne County, 490 Mich. 1 (July 29, 2011), briefed and argued by Carson J. Tucker in the Court of Appeals and Supreme Court
  • Odom v. Wayne County, 482 Mich. 459 (December 30, 2008), application for leave to appeal granted, and briefed and argued by Carson J. Tucker in the Supreme Court

Mr. Tucker has also served as special appellate counsel for governmental entities and organizations in writing amicus curiae briefs in the Supreme Court and Court of Appeals in the following cases, among others:

  • Hannay v MDOT, ___ Mich. ___ (December 19, 2014), application granted, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
  • Yono v. MDOT, ___ Mich ___ (2014), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
  • Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker
  • Hagerty v. Manistee County Road Commission, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker

Mr. Tucker can be reached at +17342183605.


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