Kennedy Amman v. Bethany Busch ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
KENNEDY AMMAN and CORI AMMAN, UNPUBLISHED
December 21, 2023
Plaintiffs-Appellants,
v No. 362353
Saginaw Circuit Court
BETHANY BUSCH, LC No. 17-035098-CZ
Defendant-Appellee.
Before: GLEICHER, C.J., and SWARTZLE and YATES, JJ.
PER CURIAM.
This is the second time this case has come before this Court. In 2020, we reversed a trial-
court order denying summary disposition to most of the defendants, but we affirmed the trial-court
order denying summary disposition to defendant, Bethany Busch. See Amman v Chesaning Union
Sch, unpublished per curiam opinion of the Court of Appeals, issued August 27, 2020 (Docket
Nos. 346483 and 346484). On remand, plaintiffs, Kennedy Amman and her mother, Cori Amman,
proceeded to trial against Busch, but the jury found that Busch did not engage in gross negligence.
After the trial court entered a judgment of no cause in favor of Busch, plaintiffs appealed of right,
challenging the exclusion of evidence at trial. We affirm.
I. FACTUAL BACKGROUND
On February 4, 2016, at Chesaning High School, a piano fell off of a dolly and onto plaintiff
Kennedy Amman’s left foot during her choir practice. The piano was kept on the dolly at all times,
even when it was not in use. On the day of the incident, defendant Busch, the choir teacher, moved
the piano on a dolly as she typically did each day. Plaintiff was near the piano as defendant moved
it, and the piano fell off of the dolly and onto plaintiff’s foot, causing injury. Plaintiffs filed this
action against several defendants on June 29, 2017. But because of problems with personal service,
plaintiffs had to file a separate complaint against defendant Busch on December 18, 2017, setting
forth claims of gross negligence and battery. On September 18, 2018, the trial court dismissed the
battery claim, so the case against defendant Busch proceeded only on plaintiffs’ gross-negligence
claim.
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During the course of discovery, affidavits from three students were produced. Two of those
affidavits included statements defendant Busch allegedly made about the piano before the incident
took place. Defendant purportedly complained to the class that the piano was unstable on the dolly
and told the class that she was going to inform the school administration about the piano. All three
affidavits also contained similar statements that the school’s prior choir teacher, Yasmin Gewirtz,1
had allegedly made about the piano. In the prior appeal, defendant Busch argued that the students’
affidavits should not have been considered in denying summary disposition because the affidavits
violated a scheduling order and contained inadmissible hearsay. We rejected both of those claims,
stating that “[b]ecause defendants have not demonstrated that the late production of the affidavits
prejudiced their motion, we conclude that the trial court did not abuse its discretion by permitting
plaintiffs to submit the affidavits in support of their response to defendants’ motion for summary
disposition.” Amman, unpub op at 4. We rejected the hearsay argument, ruling that “the statements
in the affidavits allegedly made by Busch do not constitute inadmissible hearsay” because “[t]hese
statements were not offered to prove that the piano was, in fact, wobbly or unstable, but rather
were offered to prove that Busch believed those assertions to be true.” Id. Moreover, we reasoned
that even if those statements were hearsay, they were admissible pursuant to MRE 801(d)(2)(A)
as admissions of a party opponent. Id. We noted, “however, that if the statements in the affidavits
attributed to the former choir teacher that the piano on the dolly was unstable are offered to prove
the truth of the matter asserted, they are inadmissible hearsay to the extent those statements are
offered against Busch.” Id. at 4-5.
In upholding the trial court’s denial of summary disposition to defendant Busch, we stated
that “the evidence offered by plaintiffs that Busch acted with gross negligence are the statements
of two students that before the accident they heard Busch comment that the piano was unstable
and that Busch was planning to tell, or already had told, the front office about it.” Id. at 5. Also,
“plaintiffs point[ed] to the deposition testimony of Cori, Kennedy’s mother, that after the accident
Busch told her that she had discussed the piano with other teachers and had ‘told them this is an
accident waiting to happen’ and that the piano needed to be bolted down.” Id. at 5-6. Therefore,
we concluded that “[t]his evidence, when viewed in the light most favorable to plaintiffs, provides
at least some evidence that Busch was aware that the piano was not secure on the dolly.” Id. at 6.
We forecasted that “[t]he parties, no doubt, will dispute whether Busch made such comments and
also whether the alleged comments, even if made, demonstrate gross negligence.” Id. But we held
nonetheless that, “viewing the evidence in the light most favorable to plaintiffs, reasonable minds
could differ regarding whether Busch’s conduct constituted gross negligence.” Id.
On remand, defendant moved to exclude all references to Gewirtz on the basis of relevancy.
Given that the school was no longer a defendant and Gewirtz was not a party to the case, defendant
asserted that the alleged remarks by Gewirtz about the piano were irrelevant because they did not
bear upon whether defendant was grossly negligent. Defendant contended that plaintiffs had failed
to show any connection between defendant and Gewirtz’s alleged statements, so defendant moved
to exclude Gewirtz as a witness and to prohibit all references to Gewirtz. Additionally, defendant
1
Throughout their briefs, both sides incorrectly refer to the prior choir teacher as “Ms. Gerwitz.”
As her deposition testimony clearly established, her name is Yasmin Gewirtz.
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sought to exclude as a witness one of the students who submitted an affidavit because that student’s
testimony would relate only to Gewirtz, not to defendant’s alleged statements about the piano.
Plaintiffs insisted that Gewirtz’s remarks about the piano were relevant to demonstrate that
defendant Busch had notice about the piano’s dangerous condition. Plaintiffs argued that, because
Gewirtz made statements to the class about the piano, she likely had also made statements to other
school staff members, such as defendant. Similarly, plaintiffs essentially contended that, because
Gewirtz made statements about the piano that were similar to defendant’s subsequent statements,
Gewirtz and defendant must have discussed the piano. Plaintiffs asserted that the jury should hear
that testimony and decide for itself.
In an oral ruling from the bench on May 23, 2022, the trial court granted defendant’s motion
in limine to exclude all references to Gewirtz, concluding that “the question of whether or not the
prior music teacher said something is entirely irrelevant to whether or not the Defendant Busch
was grossly negligent in relation to this particular case.” As the trial court explained, “Ms. Gerwitz
[sic] is totally irrelevant. We’ve got enough issues, we don’t need other issues or other nonissues
being brought into this case.” Later, the trial court entered an order stating that Gewirtz was not a
party to the case and the school had been dismissed. On appeal, plaintiffs challenge the trial court’s
exclusion of Gewirtz as a witness and all references to her. Plaintiffs assert that that evidence was
relevant and not hearsay. Plaintiffs alternatively insist that the law-of-the-case doctrine foreclosed
the exclusion of the evidence.
II. LEGAL ANALYSIS
We review for an abuse of discretion the trial court’s decision to admit or exclude evidence.
Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich, 333 Mich App 457, 477; 960 NW2d
186 (2020). An abuse of discretion occurs when the “decision falls outside the range of reasonable
and principled outcomes.” Id. at 477-478 (quotation marks and citation omitted). If the trial court
makes a determination that is legally incorrect, it necessarily abuses its discretion. Id. at 478. We
review preliminary or underlying questions of law de novo. Id. Ordinarily, we review de novo
questions of law, such as issues involving the law of the case. Rott v Rott, 508 Mich 274, 286; 972
NW2d 789 (2021). But because plaintiffs failed to present that issue in the trial court, we have no
obligation to review the unpreserved issue. Tolas Oil & Gas Exploration Co v Bach Servs & Mfg,
LLC, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No. 359090); slip op at 2-3. We
may, however, address an unpreserved issue “if the issue involves a question of law and the facts
necessary for its resolution have been presented.” Id. at ___; slip op at 3 (quotation marks and
citation omitted). Whether the law-of-the-case doctrine applies is a question of law, and all facts
necessary for the resolution of that issue have been presented.
A. EXCLUSION OF EVIDENCE
Plaintiffs assert that the trial court abused its discretion by excluding the evidence relating
to Gewirtz and her alleged statements made about the piano because those statements were relevant
to whether defendant had notice of the piano’s condition and they were not hearsay. As an initial
matter, defendant did not request to exclude the evidence on the basis that it was hearsay. Rather,
defendant attempted to exclude the evidence on the basis of relevance, and the trial court based its
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ruling on relevance, not hearsay. Therefore, we need not address plaintiffs’ arguments regarding
hearsay. Instead, we must focus exclusively on the issue of relevance.
Under Michigan law, “governmental agencies and their employees are generally immune
from tort liability when they are engaged in the exercise or discharge of a governmental function.”
Ray v Swager, 501 Mich 52, 62; 903 NW2d 366 (2017). But if a governmental employee acted in
a grossly negligent manner, immunity does not apply. MCL 691.1407(2)(c). Gross negligence is
“conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”
MCL 691.1407(8)(a). “Simply alleging that an actor could have done more is insufficient under
Michigan law,” and “saying that a defendant could have taken additional precautions is insufficient
to find ordinary negligence, much less recklessness.” Tarlea v Crabtree, 263 Mich App 80, 90;
687 NW2d 333 (2004). Instead, a plaintiff must show “almost a willful disregard of precautions
or measures to attend to safety and a singular disregard for substantial risks,” as “if an objective
observer watched the actor [and] . . . conclude[d], reasonably, that the actor simply did not care
about the safety or welfare of those in his charge.” Id.As a general rule, relevant evidence is admissible. MRE 402. Evidence is relevant if it has
“any tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” MRE 401. But
relevant “evidence may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” MRE 403.
Here, after this Court reviewed the case, only Busch remained as a defendant, see Amman,
unpub op at 8, and the only remaining issue was whether defendant Busch was grossly negligent
in how she handled the piano. A crucial component of that issue was what Busch said and when
she said it. According to the three student witnesses, Gewirtz made remarks about the piano being
unstable and stated that she was going to inform the school administration about it. But Gewirtz
made those alleged remarks sometime during her tenure as the choir teacher, which ended in 2013.
The record does not establish when Gewirtz made the remarks, but it must have happened before
defendant took over as the choir teacher during the school year that ran from 2015 into 2016. There
is no indication that the two teachers ever worked at the school at the same time. The three student
affidavits do not indicate that Gewirtz made the remarks to defendant or in defendant’s presence,
and the affidavits do not establish any connection between Gewirtz and defendant. Consequently,
the affidavits did not show that defendant received notice of the piano issue from Gewirtz.
Had the trial court permitted plaintiffs to call Gewirtz as a witness at trial, her value to the
plaintiffs’ case would have been negligible, at best. Although several students provided affidavits
that attributed statements about the piano to Gewirtz, during Gewirtz’s deposition, she denied that
she made statements about the piano on the dolly being wobbly. Specifically, Gewirtz denied that
she ever had “any issues with the piano slipping on the dolly” when she moved it twice each day.
Beyond that, Gewirtz made clear that she never “complain[ed] to maintenance at Chesaning High
School regarding any issues with the piano on the dolly[,]” she never told “anyone that the piano
should have been bolted down onto the dolly[,]” and she never said “that the piano was an accident
waiting to happen[.]” Moreover, when asked, Gewirtz said she did not recall ever telling a student
that the piano was misaligned on the dolly so she was “going to go to the administrative office and
tell them about it[.]” Accordingly, allowing Gewirtz to testify at trial simply would have set up a
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credibility contest between Gewirtz and the students about what Gewirtz said several years before
defendant Busch started teaching choir classes at Chesaning High School.
Even if Gewirtz and defendant used similar words about the piano, that is inconsequential.
Contrary to plaintiffs’ contention, their use of similar language does not establish that Gewirtz and
defendant must have spoken with one another about the piano. On that matter, plaintiffs are simply
speculating and attempting to draw connections that do not exist. Further, Gewirtz never admitted
in her deposition that she spoke to defendant about the piano before the incident. Rather, Gewirtz
testified that she spoke briefly to defendant after the incident occurred, and there was no indication
from that conversation that Gewirtz had shared information about the piano with defendant before
the incident. By all accounts, the conversation was brief and entailed Gewirtz merely asking about
the incident itself.
The deposition testimony of plaintiff Cori Amman similarly did not reveal any connection
between Gewirtz and defendant. Cori Amman spoke to defendant several weeks after the incident,
and, according to Cori Amman, defendant said she discussed the piano with “other teachers” and
“told them this is an accident waiting to happen. It needs to be bolted down.” Plaintiffs speculate
that Gewirtz must have been one of those “other teachers,” but, beyond speculation, plaintiffs offer
no evidence to support that claim. Gewirtz was the choir teacher years before defendant, and there
were surely many other teachers at the school to whom defendant could have been referring when
she spoke of “other teachers.”
Although plaintiffs provided ample evidence that Gewirtz gave notice to the school about
the piano, plaintiffs never connected that notice to defendant Busch. On remand, the only subject
at issue was whether defendant was grossly negligent. Gewirtz was not a party, nor was the school.
The remarks of the prior choir teacher unconnected to defendant had no bearing on what defendant
knew about the piano. Plaintiffs offered speculation, but made no connection, linking notice from
Gewirtz to defendant Busch. Thus, the trial court’s exclusion of the evidence as irrelevant was not
outside the range of principled outcomes, so plaintiffs have failed to demonstrate that the trial court
abused its discretion in excluding the evidence.2
B. LAW OF THE CASE
Plaintiffs insist that, based on our decision in the prior appeal, the law-of-the-case doctrine
mandated admission of evidence relating to Gewirtz. The law-of-the-case doctrine was “judicially
created” in order “to promote consistency throughout the life of a lawsuit.” Rott, 508 Mich at 286.
Our Supreme Court has expressly ruled that “if an appellate court has passed on a legal question
and remanded the case for further proceedings, the legal questions thus determined by the appellate
court will not be differently determined on a subsequent appeal in the same case where the facts
2
We note that plaintiffs seem to overstate the breadth of the excluded evidence. The only evidence
excluded was that relating to Gewirtz. Defendant’s statements about the piano were not excluded.
At trial, two student witnesses and plaintiff Cori Amman testified about statements that defendant
allegedly made about the piano, and plaintiffs’ counsel vigorously cross-examined defendant about
those statements.
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remain materially the same.” Id. (quotation marks and citations omitted). That doctrine, however,
applies only when issues are “actually decided, either implicitly or explicitly, in the prior appeal.”
Id. at 287 (quotation marks and citations omitted).
Here, plaintiffs have misinterpreted our prior ruling. We previously addressed: (1) whether
the three student affidavits violated a scheduling order, see Amman, unpub op at 4; and (2) whether
defendant Busch and the other defendants were entitled to summary disposition, id. at 6-7. As part
of our discussion of whether Busch was entitled to summary disposition, we concluded that certain
statements she made were not hearsay. Id. at 4-5. In the prior appeal, the parties did not dispute,
and we did not decide, whether all evidence involving Gewirtz was relevant. On remand, both the
motion in limine and the trial court’s rulings were predicated on relevance, not hearsay. Also, the
trial court addressed whether Gewirtz could testify as a witness at trial. Although we previously
addressed whether Gewirtz’s statements mentioned in the students’ affidavits were hearsay, see
Amman, unpub op at 4-5, we did not determine whether Gewirtz’s knowledge about the piano was
relevant or whether Gewirtz herself should be kept off the witness stand on the basis of relevance.
In other words, the motion in limine and the trial court’s ruling were broader and based on different
grounds than we addressed because they concerned all evidence involving Gewirtz. Accordingly,
the evidentiary issues that the trial court resolved on remand were not actually decided on the prior
appeal, so the law-of-the-case doctrine is inapplicable.
Affirmed.
/s/ Brock A. Swartzle
/s/ Christopher P. Yates
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