Kersch Ray v. Eric Swager

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Stephen J. Markman Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen
Kurtis T. Wilder
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis
RAY v SWAGER
Docket No. 152723. Argued on application for leave to appeal on October 19, 2016.
Decided July 31, 2017.
Michael A. Ray and Jacqueline M. Ray, acting as coconservators for their minor child,
Kersch Ray, filed an action in the Washtenaw Circuit Court against Eric Swager, Scott A. Platt,
and others, in part alleging that Swager was liable for the injuries suffered by Kersch when
Kersch was struck by an automobile driven by Platt. Kersch was thirteen years old and a
member of the Chelsea High School cross-country team at the time of the accident; Swager was
the coach of the team and a teacher at the high school. Kersch was struck by the car driven by
Platt when Kersch was running across an intersection with his teammates and Swager during an
early morning team practice. Plaintiffs alleged that Swager had instructed the runners to cross
the road even though the “Do Not Walk” symbol was illuminated. Swager moved for summary
disposition under MCR 2.116(C)(7), arguing that as a governmental employee he was entitled to
immunity from liability under MCL 691.1407(2) of the governmental tort liability act (GTLA),
MCL 691.1401 et seq. The circuit court, Carol A. Kuhnke, J., denied Swager’s motion,
concluding that whether Swager’s actions were grossly negligent and whether he was the
proximate cause of Kersch’s injuries—and therefore not entitled to immunity under the GTLA—
were questions of fact for the jury to decide. Plaintiffs appealed. In an unpublished per curiam
opinion, issued October 15, 2015 (Docket No. 322766), the Court of Appeals, BOONSTRA, P.J.,
and SAAD and HOEKSTRA, JJ., reversed and remanded the case to the circuit court for entry of
summary disposition in favor of Swager. The Court of Appeals reasoned that Swager was
immune from liability under MCL 691.1407(2) because reasonable minds could not conclude
that Swager was the proximate cause of Kersch’s injuries; rather, Platt’s presence in the roadway
and Kersch’s own actions were the immediate and direct causes of Kersch’s injuries, and the
most proximate cause of Kersch’s injuries was being struck by a moving vehicle. Plaintiffs
sought leave to appeal. The Supreme Court ordered and heard oral argument on whether to grant
plaintiffs’ application for leave to appeal or take other action. 499 Mich. 988 (2016).
In an opinion by Justice VIVIANO, joined by Justices MCCORMACK, BERNSTEIN, and
LARSEN, the Supreme Court, in lieu of granting leave to appeal, held:
The Court of Appeals failed to correctly analyze proximate cause. For purposes of MCL
691.1407(2), the phrase “the proximate cause” refers to legal causation, which is distinct and
separate from factual causation. A proper proximate cause analysis under the GTLA does not
involve weighing but-for, i.e., factual, causes when assessing whether a defendant is the
proximate cause of the plaintiff’s injury. Instead, so long as the defendant’s conduct is a factual
cause of the plaintiff’s injuries, the court must assess foreseeability and the legal responsibility of
the relevant actors to determine whether the conduct of a government actor, or some other
person, is the proximate cause of a plaintiff’s injury—that is, the one most immediate, efficient,
and direct cause of the plaintiff’s injuries. The Court of Appeals failed to correctly analyze
proximate cause because it only weighed factual causes. Dean v Childs, 474 Mich. 914 (2016), is
overruled, and to the extent Beals v Michigan, 497 Mich. 363, 375 (2015), relied on the order in
Dean, that portion of Beals is disavowed.
1. 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.
An exception to the broad grant of tort liability, MCL 691.1407(2) provides that a governmental
employee is immune from tort liability caused by the employee during the course of his or her
employment if (1) the employee is acting or reasonably believes he or she is acting within the
scope of his or her authority, (2) the governmental agency is engaged in the exercise or discharge
of a governmental function, and (3) the employee’s conduct does not amount to gross negligence
that is the proximate cause of the injury or damage.
2. In every negligence action, including one involving a government actor’s gross
negligence, the plaintiff must establish both factual causation and legal causation (also known as
proximate cause); these concepts are separate and distinct. Although prior opinions have not
always been clear, the legal term of art “proximate cause” is distinct from factual causation and
the two terms must not be conflated. Proximate cause is a term with a well-established peculiar
and appropriate meaning in the common law that involves examining the foreseeability of the
consequences of an actor’s conduct to determine whether a defendant should be held legally
responsible for those consequences; factual causation, on the other hand, requires a plaintiff to
establish that but-for the defendant’s conduct, the plaintiff’s injury would not have occurred.
While this Court has used the term “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,
the broader characterization merely recognizes 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; in other words, proximate cause is
not in issue if the plaintiff cannot establish factual causation.
3. A proper proximate cause analysis under the GTLA may not weigh but-for causes
when assessing whether a defendant’s conduct is the proximate cause of the plaintiff’s injury.
While a court must determine whether the defendant’s conduct was a cause in fact of the
plaintiff’s injuries, a 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 plaintiff and whether the defendant’s conduct was the one most immediate,
efficient, and direct cause of the injury. The dissent’s approach—which includes the weighing of
factual causes in its proximate cause analysis—distorts the meaning of the phrase “the proximate
cause” by severing it from the concept of legal causation, an approach not supported by caselaw
or rules of statutory construction.
4. The Legislature’s use of the phrase “the proximate cause” in MCL 691.1407(2) is
consistent with the common-law understanding of that phrase at the time the GTLA was
amended by 1986 PA 175. “Proximate cause” is a legal term of art with a well-established
peculiar and appropriate meaning in the common law. For almost one hundred years, this Court
has recognized that proximate cause involves the foreseeability of the consequences of the
conduct of human actors. Robinson v Detroit, 462 Mich. 439 (2000), and Beals, 497 Mich. 363
are consistent with this understanding. Nothing in MCL 691.1407(2) evidences an intent by the
Legislature to mandate a court to weigh the but-for causes of a plaintiff’s injury when addressing
the issue of proximate cause.
5. In Dean v Childs, 262 Mich. App. 51 (2004), the Court of Appeals held that the GTLA
did not bar a claim against a firefighter who was alleged to have been grossly negligent when
fighting a house fire that killed the plaintiff’s children. The Supreme Court’s subsequent order in
Dean, 474 Mich. 914—which reversed the judgment of the Court of Appeals and adopted the
reasoning of the dissenting Court of Appeals judge—is overruled. The dissenting Court of
Appeals judge erroneously weighed factual causes to conclude that the fire was the proximate
cause of the deaths of the plaintiff’s children. Moreover, only a human actor’s breach of a duty
can be a proximate cause; nonhuman and natural forces, like a fire, cannot be the proximate
cause of a plaintiff’s injuries for purposes of the GTLA. Rather, the nonhuman and natural
forces affect the question of foreseeability in a proximate cause determination because such
factors may constitute superseding causes that relieve the actor of liability if the intervening
force was not reasonably foreseeable. To the extent that Beals relied on the Supreme Court’s
order in Dean, that portion of the Beals opinion is disavowed.
6. The dissent’s approach, which would weigh but-for causes to determine the most
immediate, efficient, and direct factual cause of the plaintiff’s injuries, is unsupported by the
language of the statute or the common-law understanding of proximate cause and would
eliminate the narrow exception to governmental immunity created by MCL 691.1407(2)(c).
Moreover, the approach would give no meaning to the 1986 amendment of the GTLA because it
would immunize government actors for every harm that is a foreseeable result of their gross
negligence.
7. In this case, it was undisputed that Swager acted within the scope of his authority as a
governmental employee for the school and that he was engaged in the exercise or discharge of a
governmental function at the time Kersch was injured. The Court of Appeals correctly addressed
whether Kersch, Platt, and the vehicle itself were factual causes of Kersch’s injuries because
one’s conduct cannot be the proximate cause without also being a factual cause. However, the
panel’s analysis was incomplete because its inquiry confused proximate cause with cause in fact;
in other words, it failed to properly distinguish between factual causation and legal causation.
The Court of Appeals erred by attempting to determine whether any of the other factual causes
was a more direct cause of Kersch’s injury than Swager’s alleged gross negligence, without first
determining whether any of the asserted but-for causes were proximate causes. It also failed to
determine whether Platt was negligent, a prerequisite to determining whether he was a proximate
cause of Kersch’s injuries. The Court of Appeals similarly failed to correctly analyze whether
Kersch, a child, was negligent and a proximate cause of his own injuries; the Court should have
assessed his actions to determine whether he acted with the degree of care that would reasonably
be expected of a child of similar age, intelligence, capacity, and experience under the
circumstance of the case. Finally, even if the Court of Appeals had determined that another actor
was negligent and was a proximate cause of Kersch’s injuries, it still would have needed to
determine whether the defendant’s conduct was the proximate cause. This would require
considering the defendant’s actions alongside any other 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. On remand, summary disposition would be appropriate if reasonable minds
could not differ on this question.
Court of Appeals opinion vacated and the case remanded to the Court of Appeals for
further proceedings.
Justice WILDER, joined by Chief Justice MARKMAN and Justice ZAHRA, dissenting,
disagreed with the majority’s conclusions regarding the analysis to be used when determining
whether, under MCL 691.1407(2)(c), a government actor’s gross negligence was “the proximate
cause” of a plaintiff’s injury. In Robinson, 462 Mich. 439, this Court interpreted the phrase “the
proximate cause” consistently with the common law to mean the one most immediate, efficient,
and direct cause of the plaintiff’s injury, and that analysis necessarily entails the consideration of
factual causation. To determine which cause—among more than one—was “most immediate,
efficient, and direct,” one must consider the panoply of but-for causes and weigh their
immediacy, efficiency, and directness. From Stoll v Laubengayer, 174 Mich. 701 (1913), and
Glinski v Szylling, 358 Mich. 182 (1959) (opinion by SMITH, J.), through more current decisions
in Robinson, 462 Mich. 439, and Beals, 497 Mich. 363, this Court has consistently afforded the
phrase “proximate cause,” its common-law meaning—that is, one that treated the question of
proximate cause as incorporating consideration of both factual (i.e., but-for) causation as well as
legal causation.
“Legal cause” is a misnomer insomuch as it has nothing at all to do with causation; it
instead involves examining the foreseeability of consequences and whether a defendant should
be held legally responsible for such consequences. In other words, legal causation is a limitation
to the scope of liability under the GTLA, not a means of assigning liability. This does not,
however, render legal causation irrelevant. If after comparing the immediacy, efficiency, and
directness of all potential but-for causes of an injury, a court determines that the most immediate,
efficient, and direct cause was the governmental actor’s gross negligence, the court should then
assess whether the governmental actor’s conduct was also a legal cause of the injury (i.e.,
whether the injury was a foreseeable consequence of the governmental actor’s conduct). If not,
the actor is immune under MCL 691.1407(2)(c).
The majority’s interpretation largely divorced the meaning of the phrase “the proximate
cause” from the concept of factual causation, in that the majority conflated but-for cause and
legal cause, treating “legal cause” as if it had something to do with causation. The majority’s
interpretation of “the proximate cause” is also inconsistent with the meaning that “the proximate
cause” had in this state’s common law at the time MCL 691.1407(2)(c) was enacted. While the
phrase “proximate cause” has been used synonymously with the term “legal cause,” prior
opinions of this Court—Craig v Oakwood Hosp, 471 Mich. 67 (2004); Skinner v Square D Co,
445 Mich. 153 (1994); Moning v Alfono, 400 Mich. 425 (1977); Glinski, 358 Mich. 182; Stoll, 174
Mich. 701—demonstrate that before and after the Legislature’s 1986 amendment of the GTLA,
factual causation was an established element of the proximate cause analysis; indeed, they
establish that the sine qua non of proximate cause was cause in fact. In addition, contrary to the
majority’s unsupported assertion, intervening natural forces and inanimate objects can be the
proximate cause of a plaintiff’s injury under the common law.
The majority’s expansive interpretation of MCL 691.1407(2)(c)—that courts may not
weigh but-for causes but must instead focus mainly on the legal cause analysis—was
inconsistent with this Court’s duty to construe exceptions to governmental immunity narrowly.
Any ambiguity in whether the Legislature intended the phrase “proximate cause” to refer to legal
cause only or to refer to both factual cause and legal cause, had to be resolved in favor of using
the more inclusive definition because doing so would lead to a narrower exception, and the
Legislature’s manifest intent to create an exception to governmental immunity did not obviate
the Court’s duty to construe that exception narrowly. Because the Legislature is presumed to
have been aware that the exception set forth by MCL 691.1407(2) would be construed narrowly,
had the Legislature wished to create a broad exception, it would have used language clearly
demonstrating that intent.
The majority’s failure to acknowledge that its holding is patently inconsistent with
Robinson and Beals, and its resulting failure to perform a stare decisis analysis regarding
Robinson and Beals, will undermine the rule of law, resulting in jurisprudential upset and
uncertainty, with lower courts following either the Robinson/Beals analysis or the conflicting
analysis announced in this case. The majority should have offered guidance on how to apply its
holding—specifically, guidance regarding how to determine “the one most immediate, efficient,
and direct cause” without weighing factual causes. The majority also should have explained
how, in the wake of its decision, a plaintiff can carry the burden of pleading his or her claim in
avoidance of MCL 691.1407(2). Lacking any practical guidance on how one determines
proximate causation without weighing factual causes, it would seem nearly impossible for a
plaintiff to satisfy that pleading requirement.
In this case, Swager was immune under MCL 691.1407(2), and thus entitled to summary
disposition, because it was either Kersch’s conduct or that of the driver—but not Swager’s
conduct—that was the one most immediate, efficient, and direct cause of Kersch’s injuries.
Accordingly, Justice WILDER would have affirmed on the basis that the Court of Appeals
reached the correct outcome by duly following Robinson and Beals.
©2017 State of Michigan
Michigan Supreme Court
Lansing, Michigan
OPINION
Chief Justice: Justices:
Stephen J. Markman Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen
Kurtis T. Wilder
FILED July 31, 2017
STATE OF MICHIGAN
SUPREME COURT
MICHAEL A. RAY and JACQUELINE M.
RAY as Coconservators for KERSCH RAY,
a Minor,
Plaintiffs-Appellants,
v No. 152723
ERIC SWAGER,
Defendant-Appellee,
and
SCOTT ALLEN PLATT, HEATHER
MARIE PLATT, and LIBERTY MUTUAL
INSURANCE COMPANY,
Defendants.
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
1
Defendants Scott A. Platt, Heather M. Platt, and Liberty Mutual Insurance Company are
not involved in this appeal. For ease of reference, when we refer to “defendant” in this
opinion, we are only referring to Eric Swager.
2
Plaintiffs Michael A. Ray and Jacqueline M. Ray are Kersch Ray’s parents and
coconservators. For ease of reference, when referring to Kersch Ray alone, we use the
term “plaintiff.”
2
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.
3
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
3
Plaintiffs’ suit against the driver, defendant Scott A. Platt, is not at issue here.
4
Ray v Swager, unpublished per curiam opinion of the Court of Appeals, issued October
15, 2015 (Docket No. 322766), pp 3-4.
5
Id. at 2-3.
6
Id. at 3-4. Because the panel held that defendant was not the proximate cause of
plaintiff’s injuries, it did not address whether reasonable minds could conclude that
defendant was grossly negligent. Id. at 4 n 4.
4
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 (2000); Beals v Michigan, 497 Mich. 363
(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.
7
Ray v Swager, 499 Mich. 988 (2016).
8
Beals v Michigan, 497 Mich. 363, 369; 871 NW2d 5 (2015).
9
Id.
10
Id. at 370.
5
(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
11
Odom v Wayne Co, 482 Mich. 459, 479; 760 NW2d 217 (2008).
12
A legal term of art must be construed and understood according to its peculiar and
appropriate meaning. MCL 8.3a.
13
Moning v Alfono, 400 Mich. 425, 437; 254 NW2d 759 (1977) (“The elements of an
action for negligence are (i) duty, (ii) general standard of care, (iii) specific standard of
care, (iv) cause in fact, (v) legal or proximate cause, and (vi) damage.”).
14
Skinner v Square D Co, 445 Mich. 153, 163; 516 NW2d 475 (1994).
6
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
15
Id.
16
See Charles Reinhart Co v Winiemko, 444 Mich. 579, 586 n 13; 513 NW2d 773 (1994)
(“The question of fact as to whether the defendant’s conduct was a cause of the plaintiff’s
injury must be separated from the question as to whether the defendant should be legally
responsible for the plaintiff’s injury.”) (quotation marks and citation omitted).
17
See Skinner, 445 Mich. at 162-163, citing Moning, 400 Mich. at 437 (“We have
previously explained that proving proximate cause actually entails proof of two separate
elements: (1) cause in fact, and (2) legal cause, also known as ‘proximate cause.’ ”).
Professor Dan B. Dobbs describes the source of this confusion as follows:
One major source of confusion about “proximate cause”—and thus
another aspect of the pesky terminology problem—lies in the fact that
many courts define the term in a way that gives it two distinct meanings. In
one form or another, courts often say that the plaintiff, to prove proximate
cause, must show (a) factual cause and (b) that the general type of harm
was foreseeable. The effect of this definition is that two distinct legal
issues can be called by the same name. [1 Dobbs, Hayden & Bublick,
Torts, § 200, p 687.]
As we explain further below, our decision in Beals is an example of our Court’s
conflation of factual and legal causation. See Beals, 497 Mich. at 374, 378.
7
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
18
Craig v Oakwood Hosp, 471 Mich. 67, 87; 684 NW2d 296 (2004). See also Prosser &
Keeton, Torts (5th ed), § 42, pp 272-273 (“Once it is established that the defendant’s
conduct has in fact been one of the causes of the plaintiff’s injury, there remains the
question whether the defendant should remain legally responsible for the injury.”).
19
Dobbs, § 124, p 389.
20
See Skinner, 445 Mich. at 163. Accordingly, we agree with the dissent that if an actor
is not a factual cause of an injury, that actor cannot be considered a legal cause. We are
therefore puzzled by the dissent’s claim that we divorce “proximate cause” from the
concept of factual causation.
21
We note that a plaintiff must also prove that a government actor’s conduct was grossly
negligent to hold such a defendant liable under the GTLA. MCL 691.1407(2)(c).
22
Craig, 471 Mich. at 87.
8
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”
23
Weymers v Khera, 454 Mich. 639, 648; 563 NW2d 647 (1997).
24
See Robinson v Detroit, 462 Mich. 439, 462; 613 NW2d 307 (2000) (“The one most
immediate, efficient, and direct cause of the plaintiffs’ injuries was the reckless conduct
of the drivers of the fleeing vehicles.”) (emphasis added). Because a proximate cause
inquiry seeks “to determine the appropriate scope of a negligent defendant’s liability,”
Dobbs, § 198, p 681 (emphasis added), it “is an issue that can only arise when the [actor]
is negligent and his negligence can be identified as creating specified risks.” Id. at § 210,
p 731.
25
Brisboy v Fibreboard Corp, 429 Mich. 540, 547; 418 NW2d 650 (1988).
26
Robinson, 462 Mich. at 462. To the extent the dissent is concerned that this directive to
consider the “one most immediate, efficient, and direct cause of the injury” provides
lower courts with little guidance, we agree. But in the absence of briefing and argument
on the issue, we decline 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.” For today, it is enough to clarify that only another legal cause can be more
proximate than the defendant’s conduct.
9
by severing it from the concept of legal causation. There is no basis in our caselaw or our
rules of statutory construction for interpreting “the proximate cause” as having nothing to
do with the legal term of art “proximate cause.” The Legislature amended the GTLA in
1986 to include the phrase “the proximate cause,” and so we must determine what the
term “the proximate cause” would have meant to the Legislature then. 27 Before 1986, we
can find no case that reads the term “proximate cause,” even when preceded by a definite
article, to mean “but-for cause.” 28 Although some of our earlier decisions refer to factual
27
See Sam v Balardo, 411 Mich. 405, 425; 308 NW2d 142 (1981) (“[W]ords employed
by the Legislature derive their meaning from the common-law usage at the time of the
passage of the act . . . .”).
28
This is unsurprising, as the term “proximate cause” is applied by courts to those
“considerations which limit liability even where the fact of causation is clearly
established.” Prosser & Keeton, § 42, p 273. Additionally, even our cases that
confusingly treat “proximate cause” as meaning the combination of proximate cause and
but-for cause seem to post-date the 1986 amendment of the GTLA. Our first
characterization of “proximate cause” as meaning both “proximate cause” and “but-for
cause” occurred in 1994. See Skinner, 445 Mich. at 162-163.
We disagree with the dissent’s suggestion that the Court in Stoll v Laubengayer,
174 Mich. 701; 140 N.W. 532 (1913), treated “proximate cause” as a question of factual
causation. In Stoll, we addressed whether the defendant’s alleged negligence was the
proximate cause of a child’s fatal injuries sustained when her sleigh coasted under the
defendant’s horse-drawn wagon. Id. at 704-706. We considered the actions of the actors
involved and concluded that “[b]ut for th[e] act of [the decedent] (subsequent to
defendant’s alleged negligent act, and therefore proximate to the injury) no accident
could have occurred.” Id. at 706. Accordingly, we concluded that the child’s actions
were a proximate cause of her injuries, so the defendant was not liable. Id. Nothing in
Stoll purported to weigh but-for causes or suggested that the term “the proximate cause”
somehow requires such an analysis. In fact, to do so would have been a marked
departure from the then-applicable law of contributory negligence, which dictated that if
the plaintiff’s negligence “was in whole or in part a proximate cause” of the injury, there
could be no recovery. Krouse v Southern Mich R Co, 215 Mich. 139, 144; 183 N.W. 768
(1921). Under the contributory negligence doctrine, abolished in Michigan in 1979, see
10
causation in connection with proximate cause, 29 these cases merely reflect the
unremarkable proposition that an actor cannot be a “proximate cause” without also being
a “but-for cause.” 30 They do not contradict the well-established understanding of
proximate cause, which, as we have long recognized, involves the foreseeability of the
consequences of the conduct of human actors, regardless of whether “a proximate cause”
or “the proximate cause” is at issue. Almost one hundred years ago this Court stated the
rule regarding proximate cause as follows:
If a man does an act and he knows, or by the exercise of reasonable
foresight should have known, that in the event of a subsequent occurrence,
which is not unlikely to happen, injury may result from his act, and such
subsequent occurrence does happen and injury does result, the act
committed is negligent, and will be deemed to be the proximate cause of
the injury.[31]
Placek v Sterling Heights, 405 Mich. 638, 650; 275 NW2d 511 (1979), courts did not
weigh but-for causes but instead considered whether the defendant’s negligence was the
sole proximate cause. See Krouse, 215 Mich. at 145. See also Hayden, Butterfield Rides
Again: Plaintiff’s Negligence as Superseding or Sole Proximate Cause in Systems of
Purpose Comparative Responsibility, 33 Loy LA L Rev 887, 901 (2000) (“[I]n the pre-
comparative [negligence] era, the doctrine[] of sole proximate cause . . . functioned as
convenient shorthand to explain an all-or-nothing result in a two-party situation.”).
29
See, e.g., Moning, 400 Mich. at 440 n 13; Glinski v Szylling, 358 Mich. 182; 99 NW2d
637 (1959) (opinion by SMITH, J.); Stoll, 174 Mich. at 706.
30
Craig, 471 Mich. at 87.
31
Northern Oil Co v Vandervort, 228 Mich. 516, 518; 200 N.W. 145 (1924) (quotation
marks omitted; emphasis added), quoting Tozer v Mich Central R Co, 195 Mich. 662,
666; 162 N.W. 280 (1917), and Jaworski v Detroit Edison Co, 210 Mich. 317; 178 N.W. 71
(1920).
11
This formulation, which is the “most general and pervasive approach” to proximate
cause, 32 has been repeatedly reaffirmed by this Court. 33 We see no reason why this
32
See Dobbs, § 198, pp 682-683 (“The most general and pervasive approach to . . .
proximate cause holds that a negligent defendant is liable for all the general kinds of
harms he foreseeably risked by his negligent conduct and to the class of persons he put at
risk by that conduct.”).
33
See, e.g., Moning, 400 Mich. at 439 (noting that whether a cause is a proximate cause
depends in part on foreseeability); Nielsen v Henry H Stevens, Inc, 368 Mich. 216, 220-
221; 118 NW2d 397 (1962) (“To make negligence the proximate cause of an injury, the
injury must be the natural and probable consequence of a negligent act or omission,
which, under the circumstances, an ordinary prudent person ought reasonably to have
foreseen might probably occur as the result of his negligent act.”) (emphasis added);
Parks v Starks, 342 Mich. 443, 448; 70 NW2d 805 (1955) (“The proximate cause of an
injury is not necessarily the immediate cause; not necessarily the cause nearest in time,
distance, or space. . . . In order that the plaintiff may recover it must appear that his
injury was the natural and probable consequence of a negligent act or omission of the
defendant which under the circumstances an ordinarily prudent person ought reasonably
to have foreseen or anticipated might possibly occur as a result of such act or omission.”)
(emphasis added; quotation marks and citations omitted); Nash v Mayne, 340 Mich. 502,
509; 65 NW2d 844 (1954) (“The confinement of plaintiff could not have been reasonably
foreseen by defendant. It follows that the [conduct] of defendant could not be and was
not the proximate cause of plaintiff’s injury.”) (emphasis added); Roberts v Lundy, 301
Mich. 726, 730; 4 NW2d 74 (1942) (“It is elementary that, before conduct can constitute
actionable negligence . . . that conduct must be found to be the proximate cause of the
injury. . . . It cannot be said that a reasonable man should have foreseen or anticipated
that the act [committed] . . . would result in the injury complained of here.”) (emphasis
added); Weissert v Escanaba, 298 Mich. 443, 453; 299 N.W. 139 (1941) (“[T]he generally
accepted test is that negligence is not the proximate cause of an accident unless, under all
the circumstances, the accident might have been reasonably foreseen by a person of
ordinary intelligence and prudence, and that it is not enough to prove that the accident is
a natural consequence of the negligence, it must also have been the probable
consequence.”) (emphasis added); Luck v Gregory, 257 Mich. 562, 569; 241 N.W. 862
(1932), citing Stoll v Laubengayer, 174 Mich. 701; 140 N.W. 532 (1913) (“In order to
constitute proximate cause, it must appear the injury to plaintiff was the natural and
probable consequence of the negligence or wrongful act of the defendant, and that it
ought to have been foreseen, in light of the attending circumstances.”).
12
“peculiar and appropriate” legal meaning should not be ascribed to the Legislature’s
reference to proximate cause in the GTLA. 34 Accordingly, we presume that by
“proximate cause” the Legislature meant proximate cause.
Most of our caselaw interpreting the GTLA is not to the contrary. In Robinson,
we considered “whether the city of Detroit or individual police officers face[d] civil
liability for injuries sustained by passengers in vehicles fleeing from the police when the
fleeing car caused an accident.” 35 We held that the government officials in question were
Moreover, other decisions of this Court in ordinary negligence cases have held
that jury instructions using the phrase “the proximate cause” were erroneous because they
were tantamount to an instruction that the plaintiff had to show that the defendant’s
negligence was the sole proximate cause before he could recover. See, e.g., Kirby v
Larson, 400 Mich. 585, 605; 256 NW2d 400 (1977) (opinion by WILLIAMS, J.); Barringer
v Arnold, 358 Mich. 594, 600; 101 NW2d 365 (1960); Sedorchuk v Weeder, 311 Mich. 6,
10-11; 18 NW2d 397 (1945). See also Dedes v Asch, 446 Mich. 99, 122; 521 NW2d 488
(1994) (RILEY, J., dissenting) (“Indeed, this Court has long interpreted the phrase ‘the
proximate cause’ as one that is tantamount to an instruction that, before plaintiff could
recover, he must show that defendant’s negligence was ‘the sole’ proximate cause of the
accident.”) (quotation marks and citation omitted), majority opinion in Dedes overruled
by Robinson, 446 Mich. at 458-459. Nothing in these decisions suggests that use of the
phrase “the proximate cause” was akin to an instruction that the jury had to weigh the
various factual causes in the case.
34
MCL 8.3a. See also Hodge v State Farm Mut Auto Ins Co, 499 Mich. 211, 218; 884
NW2d 238 (2016) (“When the Legislature, without indicating an intent to abrogate the
common law, ‘borrows terms of art in which are accumulated the legal tradition and
meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that
were attached to each borrowed word in the body of learning from which it was taken and
the meaning its use will convey to the judicial mind unless otherwise instructed.’ ”),
quoting Sekhar v United States, 570 US ___, ___; 133 S. Ct. 2720, 2724; 186 L. Ed. 2d 794
(2013). The Legislature did not abrogate the common-law understanding of “the
proximate cause” in the GTLA. See Robinson, 462 Mich. at 462.
35
Robinson, 462 Mich. at 444.
13
immune from suit because a different proximate cause—“the reckless conduct of the
drivers of the fleeing vehicles”—was the proximate cause of the plaintiff’s injuries. 36
Robinson is therefore consistent with our holding today.
In Beals, we considered the defendant lifeguard’s failure to intervene in the
deceased’s drowning. 37 While our analysis in that case was somewhat opaque, we
believe Beals is best understood as holding that the lifeguard could not have been “the
proximate cause” of the decedent’s drowning because the plaintiff failed to show even a
genuine issue of factual causation. 38 When a plaintiff attempts to establish factual
causation circumstantially, that circumstantial proof must go beyond mere speculation. 39
The plaintiff in Beals failed to make this showing. We emphasized that any connection
between the lifeguard’s breach of a duty and the drowning was only speculative. 40 We
also noted that “it [was] unclear that even a prudent lifeguard would have been able to
observe and prevent the [deceased’s] drowning,” which further illustrated that the causal
connection was “simply too tenuous.” 41 In other words, the plaintiff failed to show that
the lifeguard was a but-for cause of the deceased’s death. Accordingly, we held that the
36
Id. at 462 (emphasis added).
37
Beals, 497 Mich. at 365. The underlying reason for the drowning was unknown. Id. at
367.
38
See Skinner, 445 Mich. at 163 (“A plaintiff must adequately establish cause in fact in
order for legal cause or ‘proximate cause’ to become a relevant issue.”).
39
Id. at 164.
40
See Beals, 497 Mich. at 374.
41
Id. at 374 n 23.
14
defendant lifeguard was not “the proximate cause” of the deceased’s death for the
purposes of the GTLA. 42 The holding, if not all of the reasoning, of Beals is consistent
with our understanding of the GTLA’s use of “the proximate cause.” 43
We recognize that our caselaw is not without its blemishes. In Dean v Childs, the
Court of Appeals held that the GTLA did not bar a claim against a firefighter who was
alleged to be grossly negligent when fighting a house fire that killed the plaintiff’s
children. 44 We issued an order summarily reversing for the reasons stated by the Court of
Appeals’ dissent, 45 which had weighed the various factual causes of the children’s deaths
to conclude that the proximate cause “was the fire itself, not defendant’s alleged gross
negligence in fighting it.” 46
This analysis was erroneous. Determining proximate cause under the GTLA, or
elsewhere, does not entail the weighing of factual causes but instead assesses the legal
42
Id. at 378. Because factual causation could not be established, we agree with the
dissent that it was unnecessary for Beals to analyze legal causation.
43
We do not share the dissent’s concern that this opinion will be a cause of confusion in
the lower courts and are disheartened by the dissent’s thinly veiled invitation to lower
courts to ignore this opinion in favor of the dissent’s preferred interpretation of Beals.
This makes the dissent’s claim of fealty to precedent ring hollow. Again, because Beals
involved the absence of factual causation, a necessary predicate to a finding of proximate
cause, it does not stand for the proposition that courts should determine whether a
defendant was “the proximate cause” under the GTLA by weighing but-for causes.
44
Dean v Childs, 262 Mich. App. 48, 51-52; 684 NW2d 894 (2004).
45
Dean v Childs, 474 Mich. 914 (2005).
46
Dean, 262 Mich. App. at 61 (GRIFFIN, J., dissenting).
15
responsibility of the actors involved. Moreover, because proximate cause is concerned
with the foreseeability of consequences, only a human actor’s breach of a duty can be a
proximate cause. 47 Consequently, 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.
Instead, 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. 48 The dissenting Court of Appeals opinion in Dean failed to
recognize these principles and erroneously concluded that the fire was the proximate
cause of the children’s deaths. Our subsequent order adopting the dissent was therefore
in error. Accordingly, we overrule our order in Dean. 49
47
See, e.g., Dobbs, § 198, pp 682-683 (“[A] negligent defendant is liable for all the
general kinds of harm he foreseeably risked by his negligent conduct and to the class of
persons he put at risk by that conduct.”); Prosser & Keeton, § 42, p 264 (“ ‘Proximate
cause’ . . . is merely the limitation which the courts have placed upon the actor’s
responsibility for the consequences of the actor’s conduct.”) (emphasis added).
48
See McMillian v Vliet, 422 Mich. 570, 576; 374 NW2d 679 (1985).
49
We do not do so lightly. “That a case was wrongly decided, by itself, does not
necessarily mean that overruling it is appropriate.” Coldwater v Consumers Energy Co,
___ Mich ___, ___; 895 NW2d 154 (2017); slip op at 10. Stare decisis principles dictate
that we must also consider “whether the decision defies practical workability, whether
reliance interests would work an undue hardship were the decision to be overruled, and
whether changes in the law or facts no longer justify the decision.” Id. at ___; slip op at
11.
Although Dean does not defy practical workability and there have been no
intervening changes in law, the reliance interests are so minimal that further adherence to
Dean is unwarranted. Dean is a peremptory order that has only been cited in two
published decisions by Michigan courts. And there is no indication that our order “has
caused a large number of persons to attempt to conform their conduct to a certain norm.”
Paige v Sterling Heights, 476 Mich. 495, 511; 720 NW2d 219 (2006). Therefore, we
16
V. APPLICATION
The Court of Appeals’ proximate cause inquiry confused proximate cause with
cause in fact. The panel focused on whether plaintiff, the driver of the vehicle, and the
vehicle itself were factual causes of plaintiff’s injuries. 50 This was a necessary inquiry
because one’s conduct cannot be the proximate cause without also being a factual cause.
The panel’s error was in its next step. Weighing these factual causes against defendant’s
actions, the Court of Appeals concluded that “there were obviously more immediate,
efficient, and direct causes of [plaintiff’s] injuries” than defendant’s conduct. 51
conclude that Dean has not “become so embedded, so accepted, so fundamental, to
everyone’s expectations that to change it would produce not just readjustments, but
practical real-world dislocations.” Robinson, 462 Mich. at 466. These considerations,
coupled with our determination that Dean was wrongly decided, persuade us to overrule
it.
Finally, we note that in Beals we stated that Dean was analogous because both
cases addressed claims involving a government employee’s failure to intervene to prevent
a death. Beals, 497 Mich. at 375. Our brief discussion of Dean in Beals was not
necessary to our ultimate conclusion that the lifeguard was not “the proximate cause”
because factual causation could not be established. Nonetheless, because we overrule
Dean, we also disavow the portion of Beals relying on Dean. We otherwise uphold the
result and as much of the analysis in Beals as is consistent with the principle that a
government actor’s conduct cannot be “the proximate cause” of one’s injuries without
being a factual cause thereof.
50
Ray, unpub op at 4 (“Had [plaintiff] himself verified that it was safe to enter the
roadway, . . . the accident would not have occurred. Likewise, had [the driver] not been
driving on the roadway that morning, or had he otherwise avoided [plaintiff], the accident
would not have occurred.”).
51
Id.
17
According to the panel, “clearly the most proximate cause of [plaintiff’s] injuries is the
fact that he was struck by a moving vehicle.” 52
The Court of Appeals’ analysis failed to properly distinguish between factual
causation and legal causation. The panel did not assess the legal responsibility of any of
the actors involved, but instead attempted to discern whether any of the other factual
causes was a more direct cause of plaintiff’s injury than defendant’s actions. This was
error. 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. 53
To the extent the Court of Appeals’ opinion attempted to analyze this issue, 54 its
analysis was incomplete. An appropriate proximate cause analysis should have
considered the conduct and any legal responsibility therefor of defendant, plaintiff, and
the driver of the vehicle that struck plaintiff. Further, 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. In this case, the panel never determined whether the driver
52
Id. at 3.
53
Robinson, 462 Mich. at 462.
54
See Ray, unpub op at 4 n 3 (“[Plaintiff] had an obligation to assess the dangers of the
road and to guard against those dangers. By failing to do so, [plaintiff] was among the
causes of the accident and, because his own actions more directly preceded the accident,
[defendant] cannot be the proximate cause of [plaintiff’s] injuries.”) (emphasis in
original).
18
was negligent. Without that determination, his actions could not be a proximate cause of
plaintiff’s injuries. 55 Similarly, the panel failed to correctly analyze whether plaintiff was
negligent and a proximate cause of his own injuries. At the time of the accident, plaintiff
was thirteen years old. Unlike adults, who are held to the reasonable person standard,
determining whether a child was negligent requires application of a subjective standard. 56
The court must assess whether the child acted with the degree of care that would
reasonably be expected of a child of similar age, intelligence, capacity, and experience
under the circumstances of the case. 57 The Court of Appeals erred by singularly focusing
55
Because only a human actor’s breach of a duty can be a proximate cause, we reject any
suggestion that the vehicle alone could be the proximate cause of plaintiff’s injuries. See
Ray, unpub op at 3 (“[T]he most proximate cause of [plaintiff’s] injuries is the fact that
he was struck by a moving vehicle.”).
56
Dobbs, § 134, p 421. See also M Civ JI 10.06 (“A minor is not held to the same
standard of conduct as an adult.”).
57
Clemens v Sault Ste Marie, 289 Mich. 254, 257; 286 N.W. 232 (1939). See also Burhans
v Witbeck, 375 Mich. 253, 255; 134 NW2d 225 (1965); Ackerman v Advance Petroleum
Transp, Inc, 304 Mich. 96, 106-107; 7 NW2d 235 (1942); Dobbs, § 134, p 421 (“The
minor is . . . required to conduct himself only with the care of a minor of his own age,
intelligence, and experience in similar circumstances . . . .”). The Court of Appeals failed
to properly articulate this rule when it stated, “Children, even those considerably younger
than [plaintiff], are expected to understand the danger attendant to crossing a street, and
they are expected ‘to use care and caution to guard against the dangers of such
crossing.’ ” Ray, unpub op at 4 n 3 (citation omitted). This analysis was incomplete
because it failed to take into account any circumstances other than plaintiff’s age that
might bear on whether plaintiff’s conduct was negligent. The dissent repeats this error
when it relies solely on plaintiff’s age to conclude that plaintiff “could and should have
verified that it was safe to enter the roadway before he voluntarily did so.”
19
on plaintiff’s age without also considering plaintiff’s subjective characteristics and the
relevant factual context. 58
Finally, even if the panel had determined that another actor was negligent and was
a proximate cause of plaintiff’s injuries, 59 it still would have needed to determine
whether defendant’s actions were “the proximate cause.” This would require 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. 60 If, on the basis of the evidence presented, reasonable
minds could not differ on this question, then the motion for summary disposition should
be granted. 61 Because the Court of Appeals did not consider these issues in the first
instance, we remand to that Court for reconsideration. 62
58
See Thornton v Ionia Free Fair Ass’n, 229 Mich. 1, 9; 200 N.W. 958 (1924) (“[A]ge
alone is not the conclusive test. Experience and capacity are also to be considered.”);
Cooper v Lake Shore & Mich S R Co, 66 Mich. 261, 266; 33 N.W. 306 (1887) (“Every case
[involving a child] must depend upon its own circumstances, and it would be
unreasonable to apply [the rule of contributory negligence], under all circumstances,
without regard to the condition of things at the time.”).
59
We emphasize that we do not decide whether a question of fact exists as to whether the
driver, plaintiff, or both were negligent.
60
Robinson, 462 Mich. at 446.
61
See Jackson v Saginaw Co, 458 Mich. 141, 146; 580 NW2d 870 (1998). See also Black
v Shafer, 499 Mich. 950, 951 (2016) (“If reasonable minds could not differ regarding the
proximate cause of a plaintiff’s injury, courts should decide the issue as a matter of
law.”).
62
Likewise, because the Court of Appeals did not address these issues, we decline to
address whether defendant’s actions were a but-for cause of plaintiff’s injuries or whether
defendant was grossly negligent. See Ray, unpub op at 2 n 1, 4 n 4. Nothing in our
20
VI. RESPONSE TO THE DISSENT
Having read the dissent with care, we are simply perplexed. We agree with the
dissent that one cannot be the or even a proximate cause without also being a cause in
fact. Our opinion is very clear on this point. See, e.g., page 7 of this opinion (“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.”)
(quotation marks and citation omitted); page 8 of this opinion (“If factual causation
cannot be established, then proximate cause, that is, legal causation, is no longer a
relevant issue.”); page 11 of this opinion (“[T]hese cases merely reflect the unremarkable
proposition that an actor cannot be a ‘proximate cause’ without being a ‘but-for
cause.’ ”); page 17 of this opinion (“[O]ne’s conduct cannot be the proximate cause
without also being a factual cause.”). We do not understand why the dissent repeatedly
claims otherwise.
Neither can we follow the conclusion the dissent draws from our shared premise.
We must remember that we are interpreting statutory language that the Legislature
enacted in 1986. The question, therefore, is what the Legislature would have understood
the phrase “the proximate cause” to mean in 1986. We believe that the answer to that
question should draw on the decades of jurisprudence in this state, leading up to that date,
defining “proximate cause.” And, as our cases have uniformly held, one cannot be a or
opinion forecloses defendant from raising these arguments on remand.
21
the “proximate cause” without being both a factual cause and a legal cause of the
plaintiff’s injuries.
The dissent’s approach, however, would render legal cause irrelevant. Under the
dissent’s theory, any factual cause—even an inanimate one—can be “the proximate
cause” if it is the “most immediate, efficient and direct” factual cause of the plaintiff’s
injuries. The dissent claims that this has been “the common-law meaning” attributed to
the phrase “ ‘the proximate cause’ . . . in our jurisprudence since 1913.” If that were
true—if one’s actions could, for now over one hundred years, have been “the proximate
cause” without also being a legal cause—one would expect there to be volumes of cases
from our Court standing for that proposition. But there is only one, our order in Dean,
which we overrule today. 63 Robinson did not hold that one’s actions could be “the
proximate cause” without also being a legal cause; indeed, we held in Robinson that the
drivers’ reckless conduct was the proximate cause of the accident. 64 Neither did Beals;
63
The dissent’s reliance on Robinson, Beals, and Dean for this proposition is unavailing.
And even if those cases fully supported the dissent, we would still find troubling its
implicit view that three post-amendment cases tell us more about what the Legislature
meant by its amendment of the GTLA than the decades of jurisprudence leading up to
1986. We reject any implication from the dissent that Robinson and Beals construed
MCL 691.1407(2)(c) in a manner that deviated from the meaning of “proximate cause” at
common law. If so, it would be those decisions, rather than our opinion, that
“retroactively alter the meaning” of the phrase “the proximate cause” as used in MCL
691.1407(2)(c), because, as noted above, the Legislature has instructed us to define legal
terms of art according to their “peculiar and appropriate meaning.” MCL 8.3a. Further,
we do not draw any conclusions from the fact that the Legislature has not amended the
GTLA in light of the three post-amendment cases cited by the dissent. See, e.g.,
Donajkowski v Alpena Power Co, 460 Mich. 243, 258; 596 NW2d 574 (1999)
(“[L]egislative acquiescence is an exceedingly poor indicator of legislative intent.”).
64
Robinson, 462 Mich. at 462.
22
but to extent that it relied on Dean, we disavow that portion of its reasoning. Not even
Stoll, the 1913 case the dissent trumpets as the progenitor of the (elusive) “proximate
cause without legal cause” line of cases, held any such thing. 65 And the cases the dissent
cites to support its unique pitch do not do so; they stand only for a proposition with which
we fully agree: “Long before MCL 691.1407(2) was enacted in 1986—and many times
since—our common-law has recognized that factual causation is . . . an integral part of
‘proximate cause.’ ” In fact, it is more than integral: factual causation is a condition
precedent to proximate cause. That is, one’s conduct cannot be a or the “proximate
cause” of a plaintiff’s injury without also being a factual cause thereof. But just because
something is a factual cause of an injury does not mean it is a or the “proximate cause”
thereof. “Proximate cause” has for a century in Michigan, like every other American
jurisdiction, required both a finding of factual and legal cause. And that is undoubtedly
what the Legislature would have understood when it used this legal term of art in the
GTLA in 1986.
The dissent would jettison this understanding in favor of an approach that weighs
factual causes to determine which among them is the “most immediate, efficient, and
direct.” At the outset, we are not sure how this theory can be derived from
MCL 691.1407(2)(c). Why, one might wonder, would the Legislature choose language
well-known in the law to denote one type of causation (“proximate cause”) if it really
meant another (“cause in fact”)? And we struggle to understand what the dissent’s
65
See footnote 28 of this opinion.
23
approach would entail. Consider this case. What if: the coach had chosen a different
route; the driver had arrived one minute earlier or one minute later to the intersection;
plaintiff had not gone to cross-country practice that day; plaintiff had not joined the
cross-country team; his parents had not chosen to live in this school district; his mother
had not given birth to plaintiff; his parents had never met, etc. All of these, and more, are
but-for causes of the accident. The “causes of an event go back to the dawn of human
events, and beyond.” 66 How from those infinite causes a court, or anyone, could
determine which is the most immediate, efficient, and direct but-for cause, we do not
know. The dissent provides no guidance in this regard, instead finding it “easier to
disparage the product of centuries of common law than to devise a plausible
substitute . . . .” 67 All the dissent offers is the legally unrecognizable assertion that
defendant’s alleged gross negligence was not the one most immediate, efficient, and
direct cause of plaintiff’s injuries because the injuries would not have occurred but-for
plaintiff’s conduct and that of the driver. But a test that allows the mere existence of
other but-for causes—which are by definition present in every case—to immunize
government actors from liability for their grossly negligent conduct is really no test at all.
66
Prosser & Keeton, § 41, p 264. Indeed, it was factual causation’s infinitude that led
“proximate cause” to develop, at least a hundred years ago, as the limitation that is
“placed upon [an] actor’s responsibility for the consequences of the actor’s conduct.” Id.
Proximate cause serves to limit “liability at some point before the want of a nail leads to
loss of the kingdom.” CSX Transp, Inc v McBride, 564 U.S. 685, 707; 131 S. Ct. 2630; 180
L. Ed. 2d 637 (2011) (Roberts, C.J., dissenting).
67
McBride, 564 U.S. at 707 (Roberts, C.J., dissenting).
24
Finally, in addition to being unsupported by the plain language of the statute or
our caselaw, the dissent’s interpretation fails to consider the statutory history of the
GTLA. 68 We have cautioned that “courts must pay particular attention to statutory
amendments, because a change in statutory language is presumed to reflect either a
legislative change in the meaning of the statute itself or a desire to clarify the correct
interpretation of the original statute.” 69 Before 1986, the GTLA did not address whether
government actors were immune from tort liability. 70 After our 1984 decision in Ross v
Consumers Power Co (On Rehearing) afforded qualified immunity from all tort liability
to government actors if they met certain conditions, 71 the Legislature amended the GTLA
to create a narrow exception to this broad grant of immunity. The exception, which is at
68
“[Q]uite separate from legislative history is statutory history—the statutes repealed or
amended by the statute under consideration. These form part of the context of the statute,
and (unlike legislative history) can properly be presumed to have been before all the
members of the legislature when they voted. So a change in the language of a prior
statute presumably connotes a change in meaning.” Scalia & Garner, Reading Law: The
Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), p 256.
69
Bush v Shabahang, 484 Mich. 156, 167; 772 NW2d 272 (2009).
70
Odom, 482 Mich. at 467-468.
71
Ross v Consumers Power Co (On Rehearing), 420 Mich. 567, 633-634; 363 NW2d 641
(1984). Those conditions were “(1) [that] the acts were taken during the course of
employment and the employees were acting, or reasonably believed that they were acting,
within the scope of their authority, (2) [that] the acts were taken in good faith, and (3)
[that] the acts were discretionary-decisional, as opposed to ministerial-operational.”
Odom, 482 Mich. at 468.
25
issue in this case, does not extend immunity to those government actors whose conduct
amounts to “gross negligence that is the proximate cause of the injury or damage.” 72
The dissent’s approach, under which even inanimate objects could be the
proximate cause, fails to give meaning to the 1986 amendment of the GTLA. That is, the
dissent’s approach would immunize government actors for every harm that is a
foreseeable result of their gross negligence. 73 Under the dissent’s reasoning, as best we
understand it, a government actor whose gross negligence foreseeably causes a fire that
burns the plaintiff’s house to the ground could avoid liability by blaming the fire,
notwithstanding that the resulting harm is precisely that which the actor’s conduct
foreseeably risked. Likewise, the plaintiff foreseeably injured by the grossly negligent
discharge of a government actor’s firearm would have no recourse—it is the bullet that is
always the more direct cause. Under this approach, government actors do not injure
people, the implements they use do. The dissent provides no explanation to the contrary.
We believe the dissent’s theory fails to give meaning to the 1986 amendment by
eliminating the narrow exception to government immunity created by
72
MCL 691.1407(2)(c).
73
This approach, which is akin to a most-recent-in-time rule, has been widely
discredited:
It is of course obvious that if a defendant sets a fire which burns the
plaintiff’s house, no court in the world will deny liability upon the ground
that the fire, rather than the defendant’s act, was the nearest, or next cause
of the destruction of the house. . . . There may have been considerable
confusion about this in the distant past, but the question is certainly no
longer open. [Prosser & Keeton, § 42, pp 276-277.]
26
MCL 691.1407(2)(c). 74 If the Legislature had intended governmental officials to be
absolutely immune from liability, we cannot make sense of the words they chose to
accomplish that result. The 1986 amendment undoubtedly creates an exception, albeit a
narrow one, to governmental immunity. To read it otherwise is to ignore the words of the
statute. 75 “Where the [statutory] language is unambiguous, we presume that the
Legislature intended the meaning clearly expressed—no further judicial construction is
required or permitted, and the statute must be enforced as written.” 76 Here, the
Legislature amended the GTLA to provide a narrow exception to governmental immunity
for grossly negligent acts that were “the proximate cause” of a plaintiff’s injuries. 77
“Proximate cause” has for a hundred years in this state, and elsewhere, been a legal term
74
The dissent contends that our argument is a “veiled reliance on the so-called ‘absurd
results’ doctrine.” We rely on nothing of the sort. We give effect to the plain text of the
statute, which produces no absurdity—“proximate cause” as used in the GTLA means
what it has meant for a century in the common law of Michigan and elsewhere; one
cannot be “the proximate cause” of an injury without being both a factual and legal cause
thereof.
75
We are puzzled by the dissent’s criticism of us for relating the statutory history of the
GTLA. That history, the dissent acknowledges, consists only of the unassailable fact that
the GTLA was amended to provide a narrow exception to governmental immunity when
a government actor’s gross negligence was the proximate cause of an injury. We are not
aware of any rule suggesting that it is forbidden to acknowledge that a statute has been
amended unless the statute is ambiguous—as the GTLA is not. Our charge is to give
effect to the Legislature’s amendments, which we have done by honoring the words they
selected—“the proximate cause.”
76
Pohutski v City of Allen Park, 465 Mich. 675, 683; 641 NW2d 219 (2002) (quotation
marks omitted).
77
MCL 691.1407(2)(c).
27
of art; one’s actions cannot be a or the “proximate cause” without being both a factual
and a legal cause of the plaintiff’s injuries. We give the text its plain meaning.
VII. CONCLUSION
Proximate cause requires determining whether the defendant’s negligence
foreseeably caused the plaintiff’s injuries. That negligence (or gross negligence in the
case of the GTLA) cannot have been a proximate cause of a plaintiff’s injury if it is not
both a factual and legal cause of the injury. A court should take all possible proximate
causes into account when determining whether the defendant was “the proximate cause,”
i.e., “the one most immediate, efficient, and direct cause of the injury . . . .” 78 In this
case, the Court of Appeals erred by instead attempting to discern whether the various
but-for causes of plaintiff’s injuries were a more direct cause of those injuries than
defendant’s alleged gross negligence, without first determining whether any of the
asserted but-for causes were proximate causes. Accordingly, we vacate the Court of
Appeals’ decision and remand to the Court of Appeals for further proceedings not
inconsistent with this opinion.
David F. Viviano
Bridget M. McCormack
Richard H. Bernstein
Joan L. Larsen
78
Robinson, 462 Mich. at 462.
28
STATE OF MICHIGAN
SUPREME COURT
MICHAEL A. RAY and JACQUELINE M.
RAY as Coconservators for KERSCH RAY,
a Minor,
Plaintiffs-Appellants,
v No. 152723
ERIC SWAGER,
Defendant-Appellee,
and
SCOTT ALLEN PLATT, HEATHER
MARIE PLATT, and LIBERTY MUTUAL
INSURANCE COMPANY,
Defendants.
WILDER, J. (dissenting).
I respectfully dissent. In my judgment, the Court of Appeals reached the correct
outcome by duly applying our germane holdings in Robinson v Detroit, 462 Mich. 439;
613 NW2d 307 (2000), and Beals v Michigan, 497 Mich. 363; 871 NW2d 5 (2015). 1
1
Indeed, under the doctrine of stare decisis, the Court of Appeals was bound to follow
those decisions. See Associated Builders & Contractors v Lansing, 499 Mich. 177, 191;
880 NW2d 765 (2016); Baumgartner v Perry Pub Sch, 309 Mich. App. 507, 531 n 37; 872
NW2d 837 (2015).
Because the Court of Appeals committed no error in its application of Robinson and
Beals to the facts of the instant case, I would affirm.
I
Robinson is our seminal case interpreting the “employee provision” of the
governmental tort liability act (GTLA) 2—MCL 691.1407(2)—which provides an
exception to the GTLA’s “broad” grant of tort immunity to governmental actors.
Robinson, 462 Mich. at 455, 458. In pertinent part, MCL 691.1407(2) provides:
Except as otherwise provided in this section, and without regard to
the discretionary or ministerial nature of the conduct in question, each
officer and employee of a governmental agency, each volunteer acting on
behalf of a governmental agency, and each member of a board, council,
commission, or statutorily created task force of a governmental agency is
immune from tort liability for an injury to a person or damage to property
caused by the officer, employee, or member while in the course of
employment or service . . . while acting on behalf of a governmental agency
if all of the following are met:
(a) The officer, employee, member, or volunteer 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 officer’s, employee’s, member’s, or volunteer’s conduct
does not amount to gross negligence that is the proximate cause of the
injury or damage. [Emphasis added.]
In construing the phrase “the proximate cause” in Robinson, 462 Mich. at 459, we relied
on several well-settled principles of statutory interpretation:
2
MCL 691.1401 et seq.
2
Because the Legislature is presumed to understand the meaning of
the language it enacts into law, statutory analysis must begin with the
wording of the statute itself. Each word of a statute is presumed to be used
for a purpose, and, as far as possible, effect must be given to every clause
and sentence. The Court may not assume that the Legislature inadvertently
made use of one word or phrase instead of another. Where the language of
the statute is clear and unambiguous, the Court must follow it.
These rules of statutory construction are especially germane in the
cases now before us because Michigan strictly construes statutes imposing
liability on the state in derogation of the common-law rule of sovereign
immunity. This Court has repeatedly acknowledged that governmental
immunity legislation evidences a clear legislative judgment that public and
private tortfeasors should be treated differently. [Quotation marks and
citations omitted.]
In light of such principles, we held that “[t]he Legislature’s use of the definite article
‘the’ ” in the phrase “the proximate cause” clearly demonstrated “an intent to focus on
one cause.” Id. at 458-459. Recognizing that our “duty is to give meaning to the
Legislature’s choice of one word over the other,” we decided that the phrase “the
proximate cause” must not be interpreted as synonymous with “a proximate cause.” Id.
at 461. Therefore, we afforded the phrase “the proximate cause” the common-law
meaning that it has held in our jurisprudence since 1913:
We are helped by the fact that this Court long ago defined “the proximate
cause” as “the immediate efficient, direct cause preceding the injury.” Stoll
v Laubengayer, 174 Mich. 701, 706; 140 N.W. 532 (1913). The Legislature
has nowhere abrogated this, and thus we conclude that . . . the Legislature
provided tort immunity for employees of governmental agencies unless the
employee’s conduct amounts to gross negligence that is the one most
immediate, efficient, and direct cause of the injury or damage, i.e., the
proximate cause. [Id. at 462 (emphasis added).]
3
The Stoll decision on which we relied in Robinson treated the question of proximate
“cause” as one necessarily involving the consideration of factual (i.e., but-for) 3 causation.
Stoll, 174 Mich. at 706 (“But for this act of [the decedent] (subsequent to defendant’s
alleged negligent act, and therefore proximate to the injury) no accident could have
occurred.”).
In Beals, 497 Mich. at 365-366, we applied the principles set forth in Robinson to a
factual scenario in which the plaintiff, autistic 19-year-old William Beals, drowned in an
indoor swimming pool while in the presence of the defendant lifeguard, William Harman,
who was a governmental employee. “Applying this Court’s rationale in Robinson,” we
held that
Harman’s failure to intervene in Beals’s drowning cannot reasonably be
found to be “the one most immediate, efficient, and direct cause” of Beals’s
death. While it is unknown what specifically caused Beals to remain
submerged under the water, the record indicates that Beals voluntarily
entered the pool and voluntarily dove under the surface of the shallow end
into the deep end without reemerging. Although plaintiff alleges that
Harman’s inattentiveness prevented him from attempting a timely rescue of
Beals, in our view, it is readily apparent that the far more “immediate,
efficient, and direct cause” of Beals’s death was that which caused him to
remain submerged in the deep end of the pool without resurfacing.
. . . That we lack the reason for Beals’s prolonged submersion in the
water does not make that unidentified reason any less the “most immediate,
efficient, and direct” cause of his death. Consequently, while Harman’s
failure to intervene may be counted among the myriad reasons that Beals
did not survive this occurrence, it certainly was not “the proximate cause”
3
See generally Craig v Oakwood Hosp, 471 Mich. 67, 86-87; 684 NW2d 296 (2004)
(“The cause in fact element generally requires showing that ‘but for’ the defendant’s
actions, the plaintiff’s injury would not have occurred.”) (quotation marks and citation
omitted).
4
of his death for purposes of MCL 691.1407(2)(c). [Beals, 497 Mich. at 373-
374.]
In other words, even though Harman’s conduct would undoubtedly have been recognized
as “a” potential legal cause of the drowning under our ordinary negligence jurisprudence,
in Beals we compared a number of potential factual (i.e., but-for) causes of Beals’s
drowning and determined that the behavior of the governmental employee was not “the”
proximate cause.
It was unnecessary in Beals to analyze foreseeability or legal causation to
conclude that the governmental actor was not the proximate cause of Beals’s drowning—
we were able to determine that Harman’s conduct was not the one most immediate,
efficient, and direct cause of Beals’s death simply by comparing the but-for causes. That
is because it is well settled in our negligence jurisprudence that the phrase “proximate
cause” is “a legal term of art that incorporates both cause in fact and legal (or
‘proximate’) cause.” Craig v Oakwood Hosp, 471 Mich. 67, 86; 684 NW2d 296 (2004)
(emphasis added). See also Weymers v Khera, 454 Mich. 639, 647; 563 NW2d 647
(1997) (“To establish proximate cause, the plaintiff must prove the existence of both
cause in fact and legal cause.”). 4 Indeed, while the term “proximate cause” has also been
4
Accord Black v Shafer, 499 Mich. 950, 951 (2016); White v Hutzel Women’s Hosp, 498
Mich. 881 (2015); O’Neal v St John Hosp & Med Ctr, 487 Mich. 485, 496; 791 NW2d 853
(2010) (opinion by HATHAWAY, J.); id. at 508 (CAVANAGH, J., concurring); Skinner v
Square D Co, 445 Mich. 153, 162-163; 516 NW2d 475 (1994), overruled in part on other
grounds by Smith v Globe Life Ins Co, 460 Mich. 446, 455 n 2 (1999); Moning v Alfono,
400 Mich. 425, 439-440, 440 n 13; 254 NW2d 759 (1977); Glinski v Szylling, 358 Mich.
182, 196-197; 99 NW2d 637 (1959) (opinion by SMITH, J.); Stoll, 174 Mich. at 706; Auto-
Owners Ins Co v Seils, 310 Mich. App. 132, 157; 871 NW2d 530 (2015); Manzo v
Petrella, 261 Mich. App. 705, 712; 683 NW2d 699 (2004); Adas v Ames Color-File, 160
Mich. App. 297, 300-301; 407 NW2d 640 (1987).
5
used as a synonym for “legal cause,” see, e.g., Haliw v Sterling Heights, 464 Mich. 297,
310; 627 NW2d 581 (2001) (“[L]egal cause or ‘proximate cause’[5] normally involves
examining the foreseeability of consequences, and whether a defendant should be held
legally responsible for such consequences”) (quotation marks and citation omitted), well
before 1986 we recognized that the “sine qua non” 6 of proximate cause is “cause in fact.”
See Glinski v Szylling, 358 Mich. 182, 196-197; 99 NW2d 637 (1959) (plurality opinion
by SMITH, J.). 7 See also Moning v Alfono, 400 Mich. 425, 439-440, 440 n 13; 254 NW2d
5
Were “legal cause” and “proximate cause” truly synonymous, there would be no need
for this Court to refer to both concepts as a way of clarifying when it is referring to legal
causation. As the Restatement of the Law Third, Torts recognizes, like “proximate
cause,” the phrase “legal cause” can be a misnomer, “contribut[ing] to the misleading
impression that limitations on liability somehow are about factual cause.” 1 Restatement
Torts 3d: Liability for Physical & Emotional Harm, Special Note on Proximate Cause,
ch 6, pp 492-493. See also Dobbs, Hayden & Bublick, Torts, § 200, p 687 (“One major
source of confusion about ‘proximate cause’—and thus another aspect of the pesky
terminology problem—lies in the fact that many courts define the term in a way that
gives it two distinct meanings.”).
6
“Sine qua non” means “[a]n indispensable condition or thing; something on which
something else necessarily depends.” Black’s Law Dictionary (10th ed) (emphasis
added).
7
The four-justice plurality in Glinski, 358 Mich. at 196-197 (opinion by SMITH, J.), stated
that
[t]his expression, “proximate” cause, has bedeviled the law of torts for
years. So much has been written concerning its “true” meaning that it
would be a disservice to the profession, and presumptuous, to slay the
dragon once more. Suffice to say it has no “true” meaning. It may be made
to represent, at will, a number of entirely disparate elements in a negligence
case, ranging from cause in fact to apportionment of damages. “No other
formula,” writes Dean Green, “so nearly does the work of Aladdin's lamp.”
It would advance the cause of justice if a term so chameleonlike were to be
abandoned. This is beyond our power. It is too deeply imbedded in the
6
759 (1977) (explaining that “[p]roximate cause encompasses a number of distinct
problems,” one of which is “[t]he problem of causation in fact”), quoting Prosser, Torts
(4th ed), § 42, p 244. “As a matter of logic, 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 . . . legal cause of those injuries.” Craig, 471 Mich. at 87.
See also 4 Harper, James & Gray, Torts (2d ed), § 20.2, pp 89-91 (“Through all the
diverse theories of proximate cause runs a common thread; almost all agree that
defendant’s wrongful conduct must be a cause in fact of plaintiff’s injury before there is
liability. This notion is not a metaphysical one but an ordinary, matter-of-fact inquiry
into the existence or nonexistence of a causal relation as lay people would view it.”). In
other words, but-for causation is an indispensable part of the “proximate cause” inquiry.
If something is not a factual cause of an injury, it is not a “cause” of the injury at all, and
ergo it cannot, as a matter of logic, be a legal cause. To hold otherwise is to accept the
paradoxical outcome that an actor who did not cause an injury may nevertheless be
deemed its “proximate cause.” 8
cases and the literature for surgery so drastic. But we should insist that,
whenever it is employed, the meaning sought to be ascribed to it be
identified. Here it is being used as a synonym for the sine qua non, cause in
fact. [Citation omitted.]
8
Because of the confusion wrought by the duality of meaning we have varyingly ascribed
in our negligence jurisprudence to the phrase “proximate cause,” it would arguably be a
best practice to discontinue the use of that phrase entirely. See generally Restatement,
ch 6, Special Note on Proximate Cause. But because the question before us is one of
statutory interpretation—not negligence law—it would be inappropriate to rule on that
issue today because any such ruling would necessarily be obiter dictum.
7
The test announced by Robinson and reaffirmed by Beals fits within this analytical
framework and satisfies this Court’s duty to narrowly construe the exception to immunity
provided by MCL 691.1407(2)(c). 9 One cannot determine whether a governmental
actor’s conduct was “the one most immediate, efficient, and direct cause” of an injury
without considering factual causation. In other words, to determine which cause—among
more than one—was “most immediate, efficient, and direct,” one must consider the
panoply of but-for causes and weigh their immediacy, efficiency, and directness. Legal
causation, on the other hand, only becomes a relevant consideration in GTLA litigation
when “the one most immediate, efficient, and direct cause” of the injury is a cause to
which the law will not assign liability. See Skinner v Square D Co, 445 Mich. 153, 163;
516 NW2d 475 (1994) (“A plaintiff must adequately establish cause in fact in order for
legal cause . . . to become a relevant issue.”). 10 Put differently, legal cause acts only as a
limitation to the scope of liability under the GTLA, not a means of assigning liability. 11
9
To the extent that there is any ambiguity whether the Legislature intended “proximate
cause” to denote legal cause only or to denote both factual cause and legal cause, the
more inclusive definition (incorporating both) must be used because doing so leads to a
narrower exception. Beals, 497 Mich. at 370 (noting that the GTLA’s exceptions to the
“general rule” of governmental immunity “must be narrowly construed”). See also Mack
v Detroit, 467 Mich. 186, 196 n 10; 649 NW2d 47 (2002) (“[A]s this Court has
consistently held since its seminal case” on the subject, “exceptions to governmental
immunity are narrowly construed.”).
10
Skinner was subsequently overruled in part on other grounds by Smith, 460 Mich. at
455 n 2.
11
Indeed, the majority acknowledges that “the term ‘proximate cause’ is applied by
courts to those considerations which limit liability. . . .” (Quotation marks and citation
omitted; emphasis added.)
8
See Moning, 400 Mich. at 439 (“Proximate cause encompasses a number of distinct
problems including the limits of liability for foreseeable consequences.”) (emphasis
added).
Applying the above principles to the documentary evidence and well-pleaded
allegations in this case, 12 it is evident that defendant Eric Swager’s conduct was not “the
proximate cause” of plaintiff Kersch Ray’s injuries for purposes of MCL 691.1407(2).
Even assuming, for the sake of argument, that Swager was grossly negligent in directing
the team to cross the road, 13 and further assuming that Ray in fact heard Swager and
entered the roadway on Swager’s directive, no reasonable juror could conclude that
Swager’s conduct was the one most immediate, efficient, and direct cause of Ray’s
injuries. At a minimum, the 13-year-old Ray both could and should have verified that it
was safe to enter the roadway before he voluntarily did so. 14 See, e.g., Ackerman v
Advance Petroleum Transp, Inc, 304 Mich. 96, 106, 107; 7 NW2d 235 (1942) (ruling that
12
As this Court recognized in Patterson v Kleiman, 447 Mich. 429, 432; 526 NW2d 879
(1994), motions for summary disposition based on governmental immunity are governed
by MCR 2.116(C)(7). “All well-pleaded allegations are viewed in the light most
favorable to the nonmoving party unless documentary evidence is provided that
contradicts them.” Haksluoto v Mt Clemens Regional Med Ctr, ___ Mich ___, ___; ___
NW2d ___ (2017) (Docket No. 153723); slip op at 3-4.
13
This is a dubious assumption. See note 35 of this opinion.
14
This is not to discount the tragic and life-altering consequences that Ray and his family
have endured because of the accident at issue in this case. However, it is the
Legislature’s prerogative—not this Court’s—to decide if and when governmental actors
are immune from tort liability. Lash v Traverse City, 479 Mich. 180, 194; 735 NW2d 628
(2007).
9
an eight-year-old child had the mental capacity to understand the dangers of crossing the
street); Pratt v Berry, 37 Mich. App. 234, 238; 194 NW2d 465 (1971) (“[A]n ordinarily
prudent seven-year-old child must look while crossing the street.”). See also Stoll, 174
Mich. at 706 (holding that a five-year-old child’s act of sledding into the street was the
proximate cause of her death because but for that act she would not have been injured). 15
As the Court of Appeals aptly reasoned:
The contention that Ray essentially ran into the road in blind obedience to a
verbal instruction from Swager simply does not alter the undeniable reality
that Ray entered the road under his own power and he was then struck by a
moving vehicle driven by someone other than Swager. Had Ray himself
verified that it was safe to enter the roadway, as did many of his fellow
teammates, the accident would not have occurred. Likewise, had Platt not
been driving on the roadway that morning, or had he otherwise avoided
Ray, the accident would not have occurred. In these circumstances, there
were obviously more immediate, efficient, and direct causes of Ray’s
injuries than Swager’s oral remarks. [Ray v Swager, unpublished per
curiam opinion of the Court of Appeals, issued October 15, 2015 (Docket
No. 322766), pp 3-4.]
Put differently, it was either Ray’s conduct or that of the driver—but not Swager’s
conduct—that was the one most immediate, efficient, and direct cause of Ray’s injuries.
But for Ray’s conduct (his act of running into the roadway without assessing traffic
despite a do-not-cross signal) and that of the driver (failing to yield to a pedestrian or
failing to reasonably survey the roadway), Ray would not have sustained his injuries.
Because Swager’s alleged gross negligence was not “the” proximate cause of Ray’s
15
Although minors are held to a subjective standard of care, Clemens v City of Sault Ste
Marie, 289 Mich. 254, 256; 286 N.W. 232 (1939), plaintiffs have neither alleged nor
offered proof of any subjective characteristic that left Ray less able to assess traffic than
an ordinary high school freshman.
10
injuries, Swager was immune from suit under the GTLA and thus entitled to summary
disposition.
II
Largely characterizing proximate cause as legal cause only, the majority
incorrectly claims that “[o]ur first characterization of ‘proximate cause’ as meaning both
‘proximate cause’[16] and ‘but-for cause’ ” did not occur until our decision in Skinner, 445
Mich. at 162-163. This ignores several earlier precedents, including our 1977 decision in
Moning, 400 Mich. at 439, 440 n 13 (explaining that “[p]roximate cause encompasses a
number of distinct problems,” one of which is “[t]he problem of causation in fact”),
quoting Prosser, Torts (4th ed), § 42, p 244, the 1959 plurality decision in Glinski, 358
Mich. at 196-197 (opinion by SMITH, J.) (explaining that cause in fact is the “sine qua
non” of proximate of cause), 17 and our 1913 decision in Stoll, 174 Mich. at 706 (“But for
this act of [the decedent] (subsequent to defendant’s alleged negligent act, and therefore
proximate to the injury) no accident could have occurred.”). The majority asserts that
over time this Court has improperly conflated factual and legal causation, but the very
cases that the majority cites in support, including Craig, Moning, Skinner, and Charles
16
I presume here that the majority means legal cause.
17
This Court has, on numerous occasions, cited the Glinski plurality as authoritative.
See, e.g., Weymers, 454 Mich. at 648 n 12; Brisboy v Fibreboard Corp, 429 Mich. 540,
547; 418 NW2d 650 (1988); Zeni v Anderson, 397 Mich. 117, 141; 243 NW2d 270
(1976). In any event, binding or not, Glinski is certainly instructive about whether the
1986 Legislature would have considered but-for causation to be a proper part of the
proximate cause analysis.
11
Reinhart Co v Winiemko, 18 demonstrate that this Court has on numerous occasions
recognized that a proper proximate cause analysis cannot take place without
consideration of the sine qua non, cause in fact. The Legislature is presumed to have
been aware of such decisions when it amended the GTLA to afford a narrow exception to
governmental immunity, 19 and the majority cites no authority for the proposition that
factual causation was not considered to be part of the proximate cause analysis under our
common law in 1986. It is in this temporal context that we must consider the proper
construction of the phrase “the proximate cause.”
Because it is the Legislature’s intent that controls, we are charged under MCL 8.3a
with the duty of according the phrase “the proximate cause” the “peculiar and
appropriate” legal meaning that it had at the time MCL 691.1407(2)(c) was enacted, not
the meaning that we might wish to ascribe to that phrase today. See Sam v Balardo, 411
Mich. 405, 425; 308 NW2d 142 (1981). Consequently, this Court’s power to redefine
over the years the phrase “proximate cause” for purposes of the common law 20 does not
18
Charles Reinhart Co v Winiemko, 444 Mich. 579, 586; 513 NW2d 773 (1994) (plurality
opinion by RILEY, J.) (“As in any tort action, to prove proximate cause a plaintiff in a
legal malpractice action must establish that the defendant’s action was a cause in fact of
the claimed injury. Hence, a plaintiff ‘must show that but for the attorney’s alleged
malpractice, he would have been successful in the underlying suit.’ ”) (citation omitted).
19
In re Bradley Estate, 494 Mich. 367, 384-385; 835 NW2d 545 (2013); In re Medina,
317 Mich. App. 219, 227-228; 894 NW2d 653 (2016).
20
“[I]t is axiomatic that our courts have the constitutional authority to change the
common law in the proper case.” North Ottawa Community Hosp v Kieft, 457 Mich. 394,
403 n 9; 578 NW2d 267 (1998). “However, this Court has also explained that alteration
of the common law should be approached cautiously with the fullest consideration of
public policy and should not occur through sudden departure from longstanding legal
12
grant it the constitutional authority to retroactively alter the meaning of that phrase when
interpreting MCL 691.1407(2)(c).
Nevertheless, that is precisely what the majority now does. Long before MCL
691.1407(2)(c) was enacted in 1986—and many times since—our common law has
recognized that factual causation is, like legal causation, an integral part of “proximate
cause.” See, e.g., Craig, 471 Mich. at 86 (“ ‘Proximate cause’ is a legal term of art that
incorporates both cause in fact and legal (or ‘proximate’) cause.”); Moning, 400 Mich. at
439, 440 n 13; Glinski, 358 Mich. at 196-197 (opinion by SMITH, J.); Stoll, 174 Mich. at
706 (“But for this act of [the decedent] (subsequent to defendant’s alleged negligent act,
and therefore proximate to the injury) no accident could have occurred.”) (emphasis
added). 21 The majority, however, conflates these two prongs of proximate causation,
treating “legal cause” as if it has something to do with causation, which it does not. See
Dobbs, § 185, p 622 (“Scope of liability, formerly termed proximate cause, is not about
causation at all but about the significance of the defendant’s conduct or the appropriate
rules. . . . [W]hen it comes to alteration of the common law, the traditional rule must
prevail absent compelling reasons for change.” Price v High Pointe Oil Co, Inc, 493
Mich. 238, 259-260; 828 NW2d 660 (2013).
21
Accord Black, 499 Mich. at 951; White, 498 Mich. at 881; O’Neal, 487 Mich. at 496
(opinion by HATHAWAY, J.); id. at 508 (CAVANAGH, J., concurring); Skinner, 445 Mich.
at 162-163; Auto-Owners, 310 Mich. App. at 157; Manzo, 261 Mich. App. at 712; Adas,
160 Mich. App. at 300-301. Similarly, a careful reading of Tozer v Mich Central R Co,
195 Mich. 662, 666; 162 N.W. 280 (1917), demonstrates that the Tozer Court, like Stoll
before it, considered but-for causation to be a proper part of its proximate cause analysis.
See id. at 669 (“[I]f the cot had not been placed near the trunks, piled one upon the other,
one or more of them would not have fallen upon Mrs. Tozer, so that we think it clear that
the proximity of the cot to the falling trunks was the proximate cause of the injury. . . .”).
13
scope of liability in light of moral and policy judgments about the very particular facts of
the case.”). The majority’s conflation in this regard leads it to construe the phrase “the
proximate cause”—i.e., the one most immediate, efficient, and direct cause—as if it is
centered mainly on legal causation (i.e., scope of liability), with cause in fact acting only
as a threshold consideration. From a purely logical standpoint, however, it is not possible
to use the foreseeability-based limitations on liability provided by the concept of legal
cause to affirmatively decide which cause, among several, was most immediate, efficient,
and direct. Only by comparing factual causes can one discern their relative immediacy,
efficiency, and directness. 22
Stated another way, while accusing the dissent of “distort[ing] the meaning of ‘the
proximate cause’ by severing it from the concept of legal causation,” 23 the majority seeks
to divorce that same phrase largely from the concept of factual causation. But the
majority does not explain how courts might determine what constitutes “the one most
immediate, efficient, and direct cause” 24 of an injury without weighing factual causes.
Such a test—asking judges to determine what caused an injury without considering its
22
Contrary to the majority’s allegations otherwise, this approach does not “render legal
cause irrelevant.” Rather, legal cause becomes relevant after the panoply of but-for
causes has been considered. If the one most immediate, efficient, and direct cause of an
injury was the grossly negligent conduct of a governmental actor, a court should then
assess whether such conduct was also a legal cause of the injury (i.e., if the injury was a
foreseeable consequence of the governmental actor’s conduct). If not, the actor is
immune under MCL 691.1407(2)(c).
23
Emphasis added.
24
Robinson, 462 Mich. at 462.
14
potential causes—is akin to asking jurors to determine damages without any
consideration of harm. The majority asks this state’s jurists to take the “cause” out of
causation. Yet, the majority provides no roadmap regarding how this state’s jurists might
go about accomplishing that feat. 25
Additionally, after holding that lower courts are not permitted to weigh factual
causes when determining “the proximate cause” under MCL 691.1407(2)(c), the majority
goes on to state that a proper analysis does “require 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.” (Citations omitted). This statement makes no logical sense, however, unless
factual causation is considered to be part of the “proximate cause” analysis. By
“proximate cause,” the majority actually means “legal cause.” And as already explained,
“legal cause” is a misnomer insomuch as it has nothing at all to do with causation;
instead, it “involves examining the foreseeability of consequences, and whether a
defendant should be held legally responsible for such consequences.” Skinner, 445 Mich.
25
This will almost inevitably result in jurisprudential confusion and upset in lower courts.
Moreover, the majority’s failure to provide guidance about the application of its new
interpretation of the phrase “the proximate cause” creates uncertainty for plaintiffs, who,
when suing governmental actors, have the burden of pleading their claims in avoidance of
governmental immunity. See Mack, 467 Mich. at 201 (“[I]t is the responsibility of the
party seeking to impose liability on a governmental agency to demonstrate that its case
falls within one of the exceptions.”). Accord Hannay v Dep’t of Transp, 497 Mich. 45,
58; 860 NW2d 67 (2014). Until the majority provides some practical guidance on how
one determines proximate causation without weighing factual causes, it would seem nigh
on impossible for a plaintiff to satisfy this pleading requirement.
15
at 163; see also Dobbs, § 185, p 622 (explaining that legal cause 26 “is not about causation
at all . . . .”). It is impossible to compare the responsibility of different actors on the basis
of foreseeability without comparing their conduct—i.e., the potential causes in fact. Put
differently, one cannot determine legal cause without comparing factual causes. How
“weighing” such causes differs from “considering” them “alongside” one another, the
majority does not explain. 27
26
Dobbs refers to “legal cause” as “scope of liability” to ease confusion in the use of the
term “causation.” Dobbs, § 185, p 621.
27
Notwithstanding this failure to fully explain the legal rule it announces today, the
majority criticizes this opinion for failing to provide any “explanation” regarding (1)
whether “a government actor whose gross negligence foreseeably causes a fire that burns
the plaintiff’s house to the ground could avoid liability by blaming the fire” and (2)
whether a “plaintiff foreseeably injured by the grossly negligent discharge of a
government actor’s firearm would have [any] recourse . . . .” The majority’s
hypotheticals are so thinly fleshed out from a factual standpoint that to address them
would be to box with shadows. It suffices to recognize—as Beals did—that “a chain of
events might constitute the proximate cause of an injury or death in a different factual
scenario.” Beals, 497 Mich. at 377 n 31. Accordingly, the mere presence of other but-for
causes does not necessarily immunize a government actor from liability. Instead, a trial
court must assess whether the government actor’s gross negligence or some other but-for
cause was the most immediate, efficient, and direct cause.
In addition, the majority asserts, without citation of authority, that inanimate
objects or forces cannot be “the proximate cause” of an injury. This ignores the well-
established concept “that for the overwhelming number of common law cases, ordinary
rules of negligence and scope of liability (proximate cause)—including scope of risk
rules—apply to intervening natural forces . . . .” Dobbs, § 210, p 731. There is, in fact,
support for that proposition in our Model Civil Jury Instructions, specifically in M Civ JI
15.06 (“Intervening Outside Force (Other Than Person)”), which instructs, in pertinent
part that “if you decide that the only proximate cause of the occurrence was [ description
of force ], then your verdict should be for the [ defendant / defendants ].” (Brackets in
original.) See also McLane, Swift & Co v Botsford Elevator Co, 136 Mich. 664, 665; 99
N.W. 875 (1904) (“Defendant’s neglect to clip and ship the oats had no direct relation to
their destruction. It simply resulted in leaving them where they were burned by a fire for
16
Nor does the majority explain how its expansive interpretation of MCL
691.1407(2)(c) comports with our well-established duty to construe exceptions to
governmental immunity narrowly. See Yono v Dep’t of Transp, 499 Mich. 636, 641; 885
NW2d 445 (2016) (“[W]e are to narrowly construe exceptions to governmental
immunity. . . .”); Beals, 497 Mich. at 370 (noting that the GTLA’s exceptions to the
“general rule” of governmental immunity “must be narrowly construed”); Wilson v
Alpena Co Rd Comm, 474 Mich. 161, 166; 713 NW2d 717 (2006) (“Statutory exceptions
to the immunity of governmental agencies are to be narrowly construed.”); Mack v
Detroit, 467 Mich. 186, 196 n 10; 649 NW2d 47 (2002) (“[A]s this Court has consistently
held since its seminal case” on the subject, “exceptions to governmental immunity are
narrowly construed.”). In concert, Craig, Skinner, Moning, Glinski, and Stoll clearly
demonstrate that before 1986, during 1986, and after 1986 factual causation was a well-
established element of “proximate cause” under our common law. 28 Thus, because the
Legislature is presumed to be aware of judicial decisions interpreting the common law
and to legislate in accordance with them, 29 it must be presumed that when the Legislature
which defendant was not responsible. Defendant’s neglect was therefore, at most, the
remote cause, while the accidental fire was the proximate cause of plaintiff’s loss.”).
28
Not to mention Adas, 160 Mich. App. at 300-301, which was decided just a year after
MCL 691.1407(2)(c) was enacted and in which the Court of Appeals explained, “It is
important to keep in mind when determining whether proximate causation exists that
such causation is a legal relationship involving two separate and distinct concepts: cause
in fact and legal cause.” While Adas is not binding on this Court, it is instructive about
what the 1986 Legislature thought a proper “proximate cause” analysis entailed. See
Medina, 317 Mich. App. at 227-228 (noting that the Legislature is presumed to be aware
of decisions of the Court of Appeals).
29
Bradley Estate, 494 Mich. at 384; Medina, 317 Mich. App. at 227-228.
17
used the phrase “the proximate cause” in MCL 691.1407(2)(c), it intended that phrase to
include both factual causation and legal causation as described in Stoll, 174 Mich. at
706. 30 Nevertheless, the majority treats “proximate cause” as if it merely denotes “legal
cause,” thereby construing MCL 691.1407(2)(c) as broadly as possible. By so ruling, the
majority massively expands the exception to governmental immunity provided by MCL
691.1407(2)(c).
Indeed, the majority tacitly acknowledges this impact of its construction, stating
that the current approach, which permits factual causation to be considered, “fails to give
meaning to the 1986 amendment of the GTLA,” leaving little room for exceptions to
governmental immunity. That is, however, precisely what a narrowly drawn exception
does—it leaves little room for exceptions to the general rule.
Moreover, contrary to the majority’s assertions, the statutory history of the GTLA
does not compel the result reached by the majority. The majority aptly observes that
legislative history and statutory history are distinct concepts. The cardinal rule of
statutory interpretation, however, is that “[w]here the [statutory] language is
unambiguous, ‘we presume that the Legislature intended the meaning clearly
expressed—no further judicial construction is required or permitted, and the statute must
be enforced as written.’ ” Pohutski v City of Allen Park, 465 Mich. 675, 683; 641 NW2d
219 (2002), quoting DiBenedetto v West Shore Hosp, 461 Mich. 394, 402; 605 NW2d 300
30
As already explained, to the extent that there is any ambiguity whether the Legislature
intended “proximate cause” to denote legal cause only or to denote both factual cause and
legal cause, the definition incorporating both must be used. See note 9 of this opinion.
18
(2000). One need not delve into statutory history, as the majority does, to discern that
MCL 691.1407(2)(c) was intended to create an exception to governmental immunity.
See Conroy v Aniskoff, 507 U.S. 511, 519; 113 S. Ct. 1562; 123 L. Ed. 2d 229 (1993) (Scalia,
J., concurring). As Beals recognized, the plain language of the GTLA proves the point
quite nicely standing alone. See Beals, 497 Mich. at 365 (“While governmental agencies
and their employees are generally immune from tort liability under the [GTLA], MCL
691.1407(2)(c) provides an exception to this general rule . . . .”). Because nothing in the
statutory history of the GTLA contravenes the plain meaning of the statutory language,
the majority’s discussion of statutory history, while perhaps academically interesting, is
ultimately superfluous.
Nor does the obvious legislative intent to create an exception to governmental
immunity obviate our duty to construe that exception narrowly. The majority disregards
the presumption that the Legislature was aware, when it added MCL 691.1407(2)(c) to
the GTLA, of our earlier decisions recognizing that exceptions to governmental immunity
are narrowly construed. 31 Had the Legislature wished to provide a broad exception, it
would have employed language manifesting that intent. It did not.
In the alternative, the majority contends that a narrow interpretation of MCL
691.1407(2)(c) is untenable because it “would immunize government actors for every
harm that is a foreseeable result of their gross negligence.” This argument is a veiled
31
See, e.g., Ross v Consumers Power Co (On Rehearing), 420 Mich. 567, 601; 363
NW2d 641 (1984), citing Manion v State Hwy Comm’r, 303 Mich. 1, 19; 5 NW2d 527
(1942).
19
reliance on the so-called “absurd results” doctrine. See generally Johnson v Recca, 492
Mich. 169; 821 NW2d 520 (2012). “To properly invoke the ‘absurd results’ doctrine,”
however, it must be shown “that it is quite impossible that the Legislature could have
intended” the result in question. Id. at 193 (emphasis added). A proper analysis in this
vein cannot rest merely on what seems to be the “obvious” legislative intent but should
instead delve into substance and, in a given case, “might require a serious-minded
analysis of the Legislature’s policy objectives in enacting the statutes, the political
realities and disagreements within the Legislature that adopted the statutes, the necessity
for compromise and negotiation leading to enactment of the statutes, and the public
impetus behind the statutes . . . .” Id. at 194. Because “this Court is not empowered to
act as the people’s lawmaker-in-chief,” “it must be assumed that the language and
organization of the statute better embody the ‘obvious intent’ of the Legislature than does
some broad characterization surmised or divined by judges.” Id. at 196-197. Here, the
majority has failed to demonstrate that it is “quite impossible” that the Legislature
intended the exception to governmental immunity set forth by MCL 691.1407(2)(c) to be
a narrow one.
Furthermore, although it engages in little stare decisis analysis, 32 the majority’s
holding is patently inconsistent with Robinson and Beals. A mere two years ago, the
Beals majority of six—including two members of the instant majority—did precisely
what the instant majority assigns as error in this case, comparing a number of factual
32
A stare decisis analysis is applied solely to Dean v Childs, 474 Mich. 914 (2005), which
the majority imprudently overrules.
20
causes of the drowning and determining that the behavior of the governmental employee
was not the one most immediate, efficient, and direct cause. Beals, 497 Mich. at 373-374.
Nor is Beals an outlier in that respect. The dissenting Court of Appeals opinion on which
we relied in Dean v Childs, 474 Mich. 914 (2005), employed the same analytical
framework. See Dean v Childs, 262 Mich. App. 48; 684 NW2d 894 (GRIFFIN, J.,
concurring in part and dissenting in part.) Notably, the Beals majority cited Dean
favorably, remarking that Dean and Beals were “analogous.” Beals, 497 Mich. at 375.
Nevertheless, the instant majority overrules Dean while merely criticizing our
conspicuously similar decisions in Robinson and Beals and disavowing Beals’s reliance
on Dean. “[W]e should be consistent rather than manipulative in” our application of
stare decisis. See Lawrence v Texas, 539 U.S. 558, 587; 123 S. Ct. 2472; 156 L. Ed. 2d 508
(2003) (Scalia, J., dissenting). To maintain such consistency, it is vital that this Court
openly recognizes when it is issuing a holding that is inconsistent with settled precedent,
even if only in part. It is poor practice for “this Court to simply ignore precedents with
which it disagrees.” Beasley v Michigan, 483 Mich. 1025, 1029 (2009) (CORRIGAN, J.,
dissenting). Doing so permits conflicting lines of caselaw to develop, which yields
jurisprudential uncertainty and variations in outcome that turn solely on which holding—
among our several inconsistent holdings—a lower court chooses to follow. Ultimately,
this undermines the rule of law.
As this Court unanimously recognized earlier this term, “Generally, in order to
‘avoid an arbitrary discretion in the courts, it is indispensable that [courts] should be
bound down by strict rules and precedents which serve to define and point out their duty
in every particular case that comes before them[.]’ ” Coldwater v Consumers Energy Co,
21
___ Mich ___, ___; 895 NW2d 154, 161 (2017), quoting The Federalist No. 78
(Hamilton) (Rossiter ed, 1961), p 471 (second and third alterations in original).
“ ‘Liberty finds no refuge in a jurisprudence of doubt.’ ” Lawrence, 539 U.S. at 586
(Scalia, J., dissenting), quoting Planned Parenthood of Southeastern Pa v Casey, 505 U.S.
833, 844; 112 S. Ct. 2791; 120 L. Ed. 2d 674 (1992). Therefore, “principles of law
deliberately examined and decided by a court of competent jurisdiction should not be
lightly departed,” Coldwater, ___ Mich at ___; 895 NW2d at 161 (quotation marks and
citation omitted).
In the instant case, if the majority disagrees with the holdings in Robinson and
Beals (as its criticism of those decisions seemingly indicates), it should perform a stare
decisis analysis and conclusively decide whether to overrule them. As former Chief
Justice CORRIGAN once noted in a different context,
If it intends to alter legal principles embedded in this Court’s decisions,
then the . . . majority should explain its reasons clearly and intelligibly.
Instead, the . . . majority overrules by indirection, or at least leaves the
impression that it is doing so, thereby sowing the seeds of confusion and
making it difficult for the citizens of this state to comprehend precisely
what our caselaw requires. [Beasley, 483 Mich. at 1030 (CORRIGAN, J.,
dissenting).]
Here, because the majority avoids the stare decisis question altogether, treating its
instant holding and the holding in Beals as if they are consistent, 33 two lines of cases will
33
The majority mischaracterizes Beals’s holding in an effort to reconcile Beals with the
majority’s holding in this case. Beals never held that the lifeguard’s conduct was not a
cause in fact of the plaintiff’s death, likely because an expert testified that Beals’s
drowning “ ‘could have been and should have been easily prevented.’ ” Beals, 497 Mich.
at 347 n 22. We explicitly recognized in Beals that “[b]ut for the applicable immunity
statute, a question of fact m[ight have] remain[ed] as to defendant’s liability for the
22
almost inevitably arise in lower courts, one following the Beals analysis and another
attempting to follow, to the extent that it might be possible to do so, the analysis set forth
by the majority today. 34 Then again, given the inherent unworkability of the purported
“test” set forth by the majority, in the future lower courts may simply avoid the proximate
cause issue altogether, instead focusing on the “gross negligence” requirement of MCL
691.1407(2)(c). 35
deceased’s death.” Id. at 365-366. No concurrence was issued asserting that the plaintiff
failed to establish “cause in fact,” and the lone dissent did not once mention factual
causation. If, as the majority implies, immunity had nothing to do with our decision in
Beals (i.e., the defendant in Beals was not liable under ordinary negligence standards
because he was not a “cause in fact” at all), then there would be no impediment to
extending that holding to a private entity, such that a negligent or grossly negligent
lifeguard can never be liable in negligence for a drowning death. But that is not the law
of this state. See Rickwalt v Richfield Lakes Corp, 246 Mich. App. 450; 633 NW2d 418
(2001). The Beals lifeguard’s entitlement to summary disposition was entirely dependent
on his status as a governmental employee. Because he was a governmental employee and
his conduct was not “the proximate cause” of the drowning under the GTLA, he was
entitled to immunity. To suggest otherwise is to engage in revisionist history.
34
Because the majority does not overrule Beals but only partially disavows it, it is
entirely proper to acknowledge here that Beals retains precedential value. Doing so is
not, as the majority contends, a “thinly veiled invitation to lower courts to ignore” today’s
majority opinion, an ironic twist of phrase when the majority chooses to partially disavow
Beals in semantic avoidance of stare decisis—disavowing rather than overruling—while
repeatedly citing Robinson, the keystone precedent in this state’s stare decisis
jurisprudence. Stare decisis should apply to the disavowal of this Court’s previous
decisions no differently than it does when they are overruled. See Thomas v Washington
Gas Light Co, 448 U.S. 261, 272; 100 S. Ct. 2647; 65 L. Ed. 2d 757 (1980) (plurality opinion
by Stephens, J.) (“The doctrine of stare decisis imposes a severe burden on the litigant
who asks us to disavow one of our precedents.”).
35
On that basis, too, I believe that the Court of Appeals reached the correct outcome in
this case. Given the other students who successfully crossed the road at Swager’s
instruction, there does not appear to be a genuine issue of material fact that Swager’s
alleged conduct in this case was “conduct so reckless as to demonstrate a substantial lack
of concern for whether an injury results.” MCL 691.1407(8)(a).
23
Finally, in response to the majority’s assertion that this opinion is “unsupported by
the plain language of the statute or our caselaw,” I simply note three things. First, it is
this opinion that relies on the language of MCL 691.1407(2)(c) to support its
interpretation of the GTLA, while the majority is compelled to resort to an analysis of
statutory history. See pages 18-19 of this opinion. Second, I would construe MCL
691.1407(2)(c) by following Robinson, Dean, and Beals. Third, in stark contrast to the
majority opinion, this opinion is not forced to overrule, disavow, or reconcile prior
pronouncements from this Court in order to explain its result or avoid tension with
existing precedent.
III
For all of those reasons, I dissent. Because the Court of Appeals reached the
correct outcome for the correct reasons by following Robinson and Beals, I would affirm.
Kurtis T. Wilder
Stephen J. Markman
Brian K. Zahra
24