MARICEL PAGAN V GRAND RAPIDS PUBLIC SCHL DIST
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
MARICEL PAGAN, Personal Representative of
the ESTATE OF KEVIN FLEMINGS,
UNPUBLISHED
July 19, 2002
Plaintiff-Appellant,
v
GRAND RAPIDS PUBLIC SCHOOL DISTRICT,
SUSAN PORTER, JEANA YOUNG, IRMA
BENETES, VARIETY CHILDREN’S CHARITY
OF WESTERN MICHIGAN, INC., d/b/a
VARIETY CLUB OF GRAND RAPIDS d/b/a
VARIETY CLUB,
No. 229947
Kent Circuit Court
LC No. 99-003511-NO
Defendants-Appellees.
Before: Wilder, P.J., and Bandstra and Hoekstra, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting defendants’ motions for
summary disposition. We affirm.
This case arises from the events leading to the death of plaintiff’s son, a physically and
mentally disabled eight-year-old boy, who choked on a rubber ball and died in January 1999.
The child had attended a defendant Grand Rapids Public School District’s school for special
needs children. At a school-sponsored Christmas party, each child received a “treat bag” from
defendant Variety Club. According to plaintiff, she discovered the treat bag in the child’s
backpack when he returned home from school that day. The bag contained, among other things,
the rubber ball.1 Plaintiff believed that the ball was too small to give to either of her children.
However, instead of throwing the ball away, she left the ball in the bag and placed the bag on top
of the refrigerator, which she believed was out of the reach of both of her children.
Approximately three weeks later, she heard the child making choking sounds and discovered the
ball lodged in his throat. After attempting to dislodge the ball, she called 911 and continued to
try to dislodge the ball until emergency personnel arrived. The emergency personnel were able
1
The record reveals that the rubber ball was slightly larger than a golf ball.
-1-
to remove the ball from the child’s throat before taking him to the hospital in an ambulance.
After two days, the child was removed from life support and died.
On appeal, plaintiff argues that the trial court erred in granting summary disposition in
favor of defendants with respect to her amended complaint, in which she alleged negligence,
gross negligence and willful and wanton misconduct, all forms or degrees of negligence, on the
part of defendants. Specifically, plaintiff disagrees with the trial court’s conclusion that any
chain of proximate cause between defendants’ acts or omissions and the child’s death was
broken by an intervening superseding cause. We review a trial court’s grant of summary
disposition de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201
(1998).
In order to establish a prima facie case of negligence, a plaintiff must prove: “(1) a duty
owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages.”
Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). The element of causation
requires the existence of both cause in fact and proximate cause. Id. at n 6; Reeves v Kmart
Corp, 229 Mich App 466, 479; 582 NW2d 841 (1998). “Proximate cause is that which operates
to produce particular consequences without the intervention of any independent, unforeseen
cause, without which the injuries would not have occurred.” Helmus v Dep’t of Transportation,
238 Mich App 250, 256; 604 NW2d 793 (1999), citing Ross v Glaser, 220 Mich App 183, 192193; 559 NW2d 331 (1996). Without the existence of proximate cause, liability does not attach.
Helmus, supra at 255.
“An intervening cause, one which actively operates to produce harm to another after the
negligence of the defendant, may relieve a defendant from liability.” Meek v Dep’t of
Transportation, 240 Mich App 105, 120; 610 NW2d 250 (2000). “An intervening cause breaks
the chain of causation and constitutes a superseding cause which relieves the original actor of
liability, unless it is found that the intervening act was ‘reasonably foreseeable.’” McMillian v
Vliet, 422 Mich 570, 576; 374 NW2d 679 (1985). An intervening superseding cause need not be
a negligent act. See Dunn v Lederle Laboratories, 121 Mich App 73, 84; 328 NW2d 576 (1982)
(many unforeseeable intervening forces destroy causation and negate liability, including nontortious forces).
First, we note that proximate cause, while usually a factual issue to be decided by a trier
of fact, Dep’t of Transportation v Christensen, 229 Mich App 417, 424; 581 NW2d 807 (1998),
may be an issue of law for the court to decide “[i]f the facts bearing upon proximate cause other
than causation in fact are not in dispute and if reasonable minds could not differ about applying
the legal concept of proximate cause to those facts,” id.; Rogalski v Tavernier, 208 Mich App
302, 306; 527 NW2d 73 (1995). Here, the material facts are not in dispute. Thus, the trial court
was correct to decide the issue as a matter of law. Rogalski, supra.
Having reviewed the record before us and the applicable law, we conclude that the trial
court did not err in granting summary disposition in favor of defendants. We agree with the trial
court’s analysis that an intervening third party removed the danger, i.e., the ball, and that there
was a supervening cause. Thus, any potential negligence by defendants was cut off by the
intervening and superseding cause. Regardless of whether the child’s parent’s actions were
-2-
negligent,2 plaintiff removed the ball from the child’s possession and placed it out of reach of the
child, thus breaking the chain in any proximate cause connection between defendants’ action and
the child’s death. Plaintiff admitted that she has no idea how the child regained possession of the
ball, and thus the intervening force or act was neither anticipated nor reasonably foreseeable.
Under these circumstances, defendants were entitled to judgment as a matter of law.3
Affirmed.
/s/ Kurtis T. Wilder
/s/ Richard A. Bandstra
/s/ Joel P. Hoekstra
2
We need not reach the cases on which plaintiff relies concerning parental negligence such as
Wymer v Holmes, 144 Mich App 192; 375 NW2d 384 (1985), because the trial court in the
present case clearly recognized that in order to apply its intervening superseding cause analysis,
it did not have to resolve whether the child’s parents were at fault. The trial court stated that
although under certain circumstances parental negligence can serve to be an intervening or
superseding cause, “that was [not] the case here, because I believe that the mother may very well
have acted in a way that she deemed to be reasonable, and so it’s not based on negligent conduct,
it’s based on this superseding and intervening cause coming about.”
3
To the extent that plaintiff argues that the trial court erred in its determination that remoteness
in time acted to sever any proximate causation between plaintiffs and defendants, we find this
argument without merit. Contrary to plaintiff’s contention, remoteness in time, while not
dispositive, is indeed a factor relevant to proximate cause analysis. Poe v City of Detroit, 179
Mich App 564, 576-577; 446 NW2d 523 (1989). Moreover, the trial court made only passing
reference to the time frame of events in the instant action, and nowhere in its opinion does it
indicate that remoteness in time was a factor in its ultimate conclusion.
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
