
    Michael A. RAY and Jacqueline M. Ray, as co-conservators for Kersch Ray, a minor, Plaintiffs-Appellees, v. Eric SWAGER, Defendant-Appellant, and Scott Allen Platt, Heather Marie Platt, and Liberty Mutual Insurance Company, Defendants.
    No. 322766
    Court of Appeals of Michigan.
    Submitted August 23, 2017, at Lansing. Decided October 24, 2017, at 9:10 a.m.
    Johnson Law, PLC (by Christopher P. Desmond and Ven R. Johnson ) for Kersch Ray.
    Giarmarco, Mullins & Horton, PC (by Timothy J. Mullins and John L. Miller ) for Eric Swager.
    Before: Boonstra, P.J., and Saad and Hoekstra, JJ.
    ON REMAND
   Per Curiam.

This case is before us on remand from the Michigan Supreme Court. Previously, defendant Eric Swager appealed in 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 on the basis of our 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 Ray v. Swager , unpublished opinion of the Court of Appeals, issued October 15, 2015 (Docket No. 322766), 2015 WL 6087208. Ray sought leave to appeal in the Michigan Supreme Court, and the Michigan Supreme Court, after hearing oral argument on the application, announced a new framework to clarify the process for determining "the proximate cause" in the context of the GTLA. See Ray v. Swager , 501 Mich. 52, 64-65, 903 N.W.2d 366 (2017). The Supreme Court vacated our decision and remanded for reconsideration in light of its decision. Id. at 83, 903 N.W.2d 366 . 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 we remand to the trial court for further proceedings.

On 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-country 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 the 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 a car driven by Platt.

Following the accident, Ray filed the instant 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 because 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 as of right in this Court, and we reversed the decision of the trial court and remanded for 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 of running into the street and the fact that Ray was hit by a car driven by Platt.

The Michigan Supreme Court vacated our decision and remanded for reconsideration under a framework that clarifies "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." Ray , 501 Mich. at 64-65, 903 N.W.2d 366. The analysis under this framework begins with determining whether the defendant's gross negligence was a cause in fact of the plaintiff's injuries. Id. at 65, 903 N.W.2d 366. Provided that a defendant's gross negligence was a factual cause, the court must then consider whether the defendant was a proximate-i.e., legal-cause by addressing foreseeability and whether the defendant may be held legally responsible for his or her conduct. Id. at 65, 74, 903 N.W.2d 366. 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 65, 74-76, 903 N.W.2d 366. Determining if there were other proximate causes requires consideration of whether any other human actor was negligent because "only a human actor's breach of a duty can be a proximate cause." Id. at 72, 903 N.W.2d 366. "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 purposes of the GTLA. Id.

Once 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 83, 903 N.W.2d 366. This requires "considering defendant's actions alongside any other potential proximate causes to determine whether defendant's actions were, or could have been, 'the one most immediate, efficient, and direct cause' of the injuries." Id. at 76, 903 N.W.2d 366. 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 71-72, 903 N.W.2d 366.

Considering this standard in the context of the current case, we conclude that there are material questions of factual dispute that 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 id. at 64-65, 903 N.W.2d 366. 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.

In our 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 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, 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 about whether he accelerated as he approached the yellow traffic 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, 664 N.W.2d 269. Therefore, we affirm the circuit court order denying Swager's motion for summary disposition.

Affirmed and remanded for further proceedings. We do not retain jurisdiction.

Saad and Hoekstra, JJ., concurred.

Boonstra, P.J. (concurring).

I concur with the majority opinion, but write separately to emphasize the following additional points.

First, courts must be ever vigilant to decide cases on the basis of 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 the world of an appellate court whose charge is to assess whether legal error occurred in a lower court-even sympathetic judges must set emotion aside and dispassionately decide the legal issues presented without bias or favor toward any party. Appeals to emotion, while understandable, belong elsewhere.

Second, I am compelled to suggest that this Court and the trial courts of this state would benefit from further articulation of the framework that the Supreme Court outlined in its recent decision in this case. See Ray v. Swager , 501 Mich. 52, 903 N.W.2d 366 (2017). While the Majority indicated that its decision was intended to "clarif[y] 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 [governmental tort liability act (GTLA), MCL 691.1401 et seq . ]," id . at 64-65, 903 N.W.2d 366, I am convinced that I am far from alone in scratching my head as I attempt to envision how that framework will (and indeed how it can) be applied in the trial courts of this state. Indeed, in my view, the Dissent was appropriately concerned that the approach of the Majority "will almost inevitably result in jurisprudential confusion and upset in lower courts." Id . at 97 n. 25, 903 N.W.2d 366 ( WILDER , J., dissenting ). While I appreciate that the Majority did not share the Dissent's concern, id . at 71 n. 43, 903 N.W.2d 366 (opinion of the Court), the Majority also expressly "decline[d] to address how a court ought to decide, in a case in which there is more than one proximate cause, whether the defendant's conduct is 'the proximate cause.' " Id . at 66 n. 26, 903 N.W.2d 366.

Why do I envision Ray resulting in confusion below? Because, respectfully, the Majority did not, in my judgment, achieve the well-intentioned clarity that it sought. It did appropriately recognize that long-standing confusion has existed in the caselaw of this state (and elsewhere) because courts have at various times given the term "proximate cause" two entirely distinct (and inconsistent) meanings. Such confusion indeed merits clarification. To some extent, the Majority (as well as the Dissent) achieved some clarification on that score simply by acknowledging and addressing the past discordant uses of the term "proximate cause."

However, I would respectfully suggest that we have not yet achieved clarity with regard to the meaning of "the proximate cause" in the GTLA. See MCL 691.1407(2)(c). The Majority and the Dissent seem to agree that the dispositive issue is what the Legislature intended when, in 1986 it adopted a "narrow exception" to the "broad immunity" that is afforded to governmental actors for the consequences of any "gross negligence," see, e.g., Ray, 501 Mich. at 81, 903 N.W.2d 366 (opinion of the Court); id . at 94, 903 N.W.2d 366 ( WILDER , J., dissenting ), and therefore what the Legislature intended when it limited the liability flowing from that narrow exception to "conduct ... that is the proximate cause of the injury or damage," MCL 691.1407(2)(c) (emphasis added). But the Majority and the Dissent disagree about what the Legislature in fact intended by the term "the proximate cause."

Resolving that dispute is obviously above my pay grade. I will therefore endeavor only to point out some of the problems that I foresee as the lower courts attempt to follow the Supreme Court's new framework. In defining "proximate cause" as "legal causation," (thus abandoning the alternative description of "proximate cause"-as encompassing both factual causation and legal causation together-that the Court recognized it had sometimes employed in earlier decisions), the Court noted that "[proximate cause] 'involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences.' " Ray, 501 Mich. at 63, 903 N.W.2d 366 (opinion of the Court), quoting Skinner v. Square D Co. , 445 Mich. 153, 163, 516 N.W.2d 475 (1994) ). Further, the Court stated:

[P]roximate cause, that is, legal causation, ... requires a determination of whether it was foreseeable that the defendant's conduct could result in harm to the victim. 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. [ Ray , 501 Mich. at 65, 903 N.W.2d 366 (opinion of the Court) (footnotes omitted).]

At the outset, I foresee confusion arising from what I believe will be perceived as a circularity of reasoning in the latter sentence of this quotation. Specifically, the Court seems to be saying that whether conduct is a "proximate cause" is to be determined by assessing whether the actor "should be legally held responsible," but that one determines whether an actor should be held legally responsible by assessing whether his conduct was a "proximate cause." This statement strikes me as the equivalent of the tautological equation "If A, then B. If B, then A." Its meaning and the reasoning in support of it appear unclear. What is a lower court to do?

I also see confusion arising from the Court's decision not to provide guidance for how to determine which of potentially multiple proximate causes is "the proximate cause" under the GTLA. The Court repeatedly reendorsed its earlier definition of "the proximate cause" as " 'the one most immediate, efficient, and direct cause' " of the injury. See id . at 59, 65, 76, 83, 903 N.W.2d 366, quoting Robinson v. Detroit , 462 Mich. 439, 446, 462, 613 N.W.2d 307 (2000). However, as noted, the Court declined to address how a determination of "the proximate cause" should be made; instead, the Court stated, "For today, it is enough to clarify that only another legal cause can be more proximate than the defendant's conduct." Ray , 501 Mich. at 66 n. 26, 903 N.W.2d 366 (opinion of the Court). At the same time, the Court stated that while a cause necessarily must be a "factual cause" before it can be a "proximate cause" (meaning legal cause), " 'the proximate cause' is not determined by weighing factual causes." Id . at 66, 903 N.W.2d 366. Further, "[d]etermining proximate cause under the GTLA, or elsewhere, does not entail the weighing of factual causes but instead assesses the legal responsibility of the actors involved." Id . at 71-72, 903 N.W.2d 366. Still further, the Court found error in this Court's "attempt[ ] to discern whether any of the other factual causes was a more direct cause of plaintiff's injury than defendant's action." Id . at 74, 903 N.W.2d 366. Rather, the Court stated:

Determining whether an actor's conduct was "the proximate cause" under the GTLA does not involve a weighing of factual causes. Instead, so long as the defendant is a factual cause of the plaintiff's injuries, then the court should address legal causation by assessing foreseeability and whether the defendant's conduct was the proximate cause. [Id .]

I glean from this that lower courts are being directed, in assessing "the proximate cause," to ignore from a factual standpoint whether a cause is " 'the one most immediate, efficient, and direct cause' " of the injury, in favor of assessing from a foreseeability standpoint whether a cause is " 'the one most immediate, efficient, and direct cause' " of the injury." Id . at 59, 65, 76, 83, 903 N.W.2d 366, quoting Robinson , 462 Mich. at 446, 462, 613 N.W.2d 307. What this means is, to me, far from clear. It appears to mean that courts must compare legal causes, not factual causes (notwithstanding that, as the Court explained, a cause must be a factual cause before it can be a legal cause). And a legal cause appears to be one from which it was foreseeable that injury could result, in which case it would be appropriate to hold the actor legally responsible for his or her conduct. But where there are multiple such legal causes, what is the basis of the comparison? Is it, for example, "from which of the legal causes was it most foreseeable that injury would result?" If so, how is a court to make such a determination? Is it simply a subjective assessment of which actor one feels should most be held legally responsible? And how does foreseeability, or relative foreseeability (if such can be determined), or a subjective assessment of the most responsible actor, translate into a test that supposedly inquires into whether a cause is " 'the one most immediate, efficient, and direct cause' " of the injury? Ray , 501 Mich. at 59, 65, 76, 83, 903 N.W.2d 366, quoting Robinson , 462 Mich. at 446, 462, 613 N.W.2d 307. Do not those descriptors by their very nature require a factual assessment?

I also foresee confusion arising from the Court's statement that "before an actor can be a proximate cause, there must be the prerequisite determination that the actor was negligent-that is, that the actor breached a duty." Ray , 501 Mich. at 59, 65, 76, 83, 903 N.W.2d 366 (opinion of the Court). The Court made this assertion without citing any authority. Does this mean that all factual disputes regarding negligence must be resolved before courts can even consider issues of proximate cause? Does this mean, practically speaking, that issues of proximate cause generally cannot be decided before trial? Does this run counter to the intent of the GTLA " 'to prevent a drain on the state's financial resources, by avoiding even the expense of having to contest on the merits any claim barred by governmental immunity' " by treating government tortfeasors differently from private ones? Costa v. Community Emergency Med. Servs., Inc ., 475 Mich. 403, 410, 716 N.W.2d 236 (2006), quoting Mack v. Detroit , 467 Mich. 186, 203 n. 18, 649 N.W.2d 47 (2002).

Does this also mean that for every injury, someone must have been negligent? What if there were intervening (albeit factual) causes that were more immediate, efficient, and direct, see Ray , 501 Mich at 59, 65, 76, 83 (opinion of the Court), but that were not the result of negligence? Must those causes now be ignored in favor of assigning liability to a less immediate, efficient, and direct cause that did involve negligence? I note that the Court, in declaring that "nonhuman and natural forces, such as a fire, cannot be considered 'the proximate cause' of a plaintiff's injuries for the purposes of the GTLA," id . at 72, 903 N.W.2d 266, also stated that "these forces bear on the question of foreseeability, in that they may constitute superseding causes that relieve the actor of liability if the intervening force was not reasonably foreseeable." Id . But the Court did not appear to acknowledge any corresponding relief of liability when there is a superseding cause by a nonnegligent human actor. See id . (stating that "only a human actor's breach of a duty can be a proximate cause" but discussing only "nonhuman and natural forces" as superseding causes.). Was it the Court's intent to exclude such a possibility? Would that mean that whenever there is an injury, someone must be held accountable, so that even when there is an intervening nonnegligent human cause that may be the "most immediate, efficient, and direct cause of the injury," we must look beyond it to assign liability to a negligent human actor (even though the negligent actor's conduct may have been a less immediate, efficient, and direct cause)?

I also foresee confusion arising from the Court's introduction of a new but undefined term: "potential proximate cause." Specifically, the Court directed that "determining whether a defendant's actions are the proximate cause "would require 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 76, 903 N.W.2d 366, quoting Robinson , 462 Mich. at 446, 613 N.W.2d 307. But what is a "potential proximate cause"? Does the Court mean "a proximate cause" that is potentially "the proximate cause"? Does the Court mean a factual cause, given that the Court stated that "factual causation is a condition precedent to proximate cause," Ray , 501 Mich. at 78-79, 903 N.W.2d 366 (opinion of the Court), that "one's conduct cannot be a or the 'proximate cause' of a plaintiff's injury without also being a factual cause thereof," id. at 79, 903 N.W.2d 366, but also that "just because something is a factual cause of an injury does not mean it is a or the 'proximate cause' thereof,"

id . ? Yet the Court also said that "[d]etermining whether an actor's conduct was 'the proximate cause' under the GTLA does not involve a weighing of factual causes." Id . at 74, 903 N.W.2d 366. What precisely, then, does one weigh when weighing potential proximate causes?

For all these reasons and more, I fear that the Court's opinion raises more questions than it answers. And I fear that the result may be that trial courts will throw up their hands and simply allow everything to proceed to trial, even when circumstances may not warrant a trial. Perhaps it is, in part, for this reason that the Dissent characterizes the Majority as having "massively expand[ed] the exception to governmental immunity provided by MCL 691.1407(2)(c)." Id . at 100, 903 N.W.2d 366 ( WILDER , J., dissenting ).

Finally, for the reasons stated, and because it is evident that the courts, including the Justices of our Supreme Court, are unable to agree regarding the intent of the Legislature in this regard, I implore the Legislature to state its intent expressly. It is the Legislature that created the "narrow exception" to the "broad immunity" afforded to governmental actors under MCL 691.1407(2)(c) when they engage in grossly negligent conduct. And it is the Legislature that can avert further and prolonged judicial wrangling over legislative intent, and further confusion in the trial courts, by restating its intent clearly and explicitly (and perhaps, as the Dissent suggests, without referring to the much-maligned term "proximate cause"). 
      
      See Poppen v. Tovey , 256 Mich. App 351, 354, 664 N.W.2d 269 (2003) ("If the facts are not in dispute and reasonable minds could not differ concerning the legal effect of those facts, whether a claim is barred by immunity is a question for the court to decide as a matter of law.").
     
      
      " 'Gross negligence' means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results." MCL 691.1407(8)(a).
     
      
      In other words, appellate courts should be mindful of Justice Holmes's observation made over a century ago: "Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend." [Northern Securities Co. v. United States , 193 U.S. 197, 400-401, 24 S.Ct. 436, 48 L.Ed. 679 (1904) ( Holmes , J., dissenting).]
     
      
      Four Justices joined the majority opinion. Three Justices joined the dissenting opinion. To avoid confusion, I will refer to the majority opinion as "the Majority" or "the Court" and to the dissenting opinion as "the Dissent."
     
      
      While the view of the Majority prevailed and its opinion therefore represents precedent that binds the lower courts, I would suggest that the very nature of the Court's 4-3 split on this issue and the manner in which the Majority and the Dissent seem to talk past each other without really joining issue, confirm that confusion will continue to reign, and that it will continue to rain down on the lower courts until the legal framework is further clarified.
     
      
      See, e.g., Ray ., 501 Mich. at 63, 903 N.W.2d 366 (opinion of the Court) ("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."); id . at 71, 903 N.W.2d 366 ("We recognize that our caselaw is not without its blemishes."). See also, id . at 90 n. 8, 903 N.W.2d 366 ( Wilder , J., dissenting ) (noting "the confusion wrought by the duality of meaning we have varyingly ascribed in our negligence jurisprudence to the phrase 'proximate cause' ").
     
      
      Indeed, the Dissent suggests that "[b]ecause of the confusion wrought by the duality of meaning [of] 'proximate cause,' it would arguably be a best practice to discontinue the use of that phrase entirely." Id . at 90 n. 8, 903 N.W.2d 366 ( Wilder , J., dissenting). There may be wisdom in that. But, for now, we remain trapped in a "proximate cause" world.
     
      
      Cf. 2 Restatement Torts, 2d, § 440, p. 465 (defining "superseding cause" as "an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about") (emphasis added); see also 2 Restatement Torts, 2d, § 442A, comment a, p. 469 (noting that an intervening force may be "a force of nature, or the act of a human being, or of an animal").
     