STACEY HELFER V CENTER LINE PUBLIC SCHOOLS
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STATE OF MICHIGAN
COURT OF APPEALS
STACEY HELFER, Next Friend of AMBER
SEILICKI, Minor,
UNPUBLISHED
June 20, 2006
Plaintiff-Appellee,
v
No. 265757
Macomb Circuit Court
LC No. 2004-003161-NI
CENTER LINE PUBLIC SCHOOLS, and
DEANNA LYNN MULRENIN,
Defendants/Third-Party PlaintiffsAppellants,
and
MICHELLE SLOAT,
Defendant/Third-Party Defendant.
Before: White, P.J., Whitbeck, C.J., and Davis, J.
WHITBECK, C.J. (dissenting).
I respectfully dissent. Because I conclude that the government vehicle in this case did not
directly place the injury-causing object into motion and that none of Mulrenin’s actions, albeit
arguably grossly negligent, were the proximate cause of Amber Seilicki’s injury, I would
reverse.
I. The Motor Vehicle Exception
The majority interprets the language, “resulting from the negligent operation . . . of a
motor vehicle”1 to hold that “the government vehicle must directly compel the injury-causing
accident.”2 According to the majority, “it is sufficient for the government vehicle to cause an
1
MCL 691.1405.
2
Ante at ___.
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injury by placing some object in motion, and that object then injures the plaintiff.”3 The majority
then provides, for example, the situation where a police car rams another vehicle off the road and
into a pedestrian, or the situation where a government vehicle drives over debris, causing the
debris to fling into the air and strike another vehicle. According to the majority, Mulrenin
therefore placed into motion the vehicle that hit Seilicki by deactivating the bus’s warning lights.
However, in my opinion, this conclusion contradicts the majority’s own examples. In both
situations the majority cites, the government vehicle came into direct physical contact with the
injury-causing object and, in each example, that direct physical contact forced the injury-causing
object into motion. In this case, however, there was no direct physical contact between the bus
and the vehicle that hit Seilicki, nor was there direct contact between Seilicki and the bus.
Therefore, I would conclude that Seilicki’s injury did not result from the negligent operation of
the bus.
II. Governmental Employee Immunity
MCL 691.1407(2) provides in relevant part that a government employee is immune from
tort liability for injuries to a person caused by the employee while in the course of employment if
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.
(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.
Thus, if (a) and (b) have been met, as they plainly are in this case, “a governmental employee
may be liable for grossly negligent conduct if that conduct is ‘the proximate cause of the injury
or damage.’”4
“‘Gross negligence’ means conduct so reckless as to demonstrate a substantial lack of
concern for whether an injury results.”5 “[E]vidence of ordinary negligence does not create a
material question of fact concerning gross negligence. . . . To hold otherwise would create a jury
question premised on something less than the statutory standard.”6
[T]he phrase “the proximate cause,” as used in MCL 691.1407(2)(c), is not
synonymous with “a proximate cause,” and . . . to impose liability on a
3
Id.
4
Curtis v Flint, 253 Mich App 555, 562-563; 655 NW2d 791 (2002).
5
MCL 691.1407(7)(a).
6
Maiden v Rozwood, 461 Mich 109, 122-123; 597 NW2d 817 (1999).
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governmental employee for gross negligence, the employee’s conduct must be
“the one most immediate, efficient, and direct cause preceding an injury.”[7]
While plaintiff arguably presented evidence that Mulrenin was grossly negligent, this was plainly
not the proximate cause of Seilicki’s injuries.
I agree with that majority that, pursuant to MCL 257.1855(b), Mulrenin was required to
activate the red flashing lights while Seilicki exited and crossed the street. Here, there is
disputed evidence whether Mulrenin had activated any of the bus’s flashing lights at the time of
the accident. Nevertheless, Mulrenin admitted that the red flashing lights were not activated
when Seilicki exited the bus. In addition, there was testimony that (1) Seilicki was crying and
pleading with Mulrenin to let her ride the bus and became angry and embarrassed after being told
to exit the bus and that (2) Mulrenin was Seilicki’s everyday bus driver at the time of the incident
and was therefore likely aware that Seilicki was about to cross the street because Seilicki stated
that she did every time she exited the bus. Viewing the testimony in a light most favorable to
plaintiff, she has arguably presented evidence that Mulrenin was grossly negligent, that is, that
Mulrenin’s conduct was reckless and demonstrated a substantial lack of concern for whether an
injury to Seilicki would result.
However, it is manifest that none of Mulrenin’s actions or inactions were “the one most
immediate, efficient, and direct cause preceding”8 Seilicki’s injury. As Seilicki acknowledged,
she attempted to run across the street without looking for cars. Seilicki’s crossing of the street in
this manner was plainly a more immediate, efficient, and direct cause of her injury than Mulrenin
having instructed her to leave the bus. Further, although there was deposition testimony
indicating that Mulrenin may have also told Seilicki to cross the street, that same testimony
indicates that Seilicki failed to immediately heed this instruction. Thus, again, Seilicki’s
decision to cross the street at the moment when she did was the immediate, efficient, and direct
cause of her injury. While plaintiff invokes the potential for children to act impulsively, nothing
in the language of MCL 691.1407(2) or the controlling case law suggests that the voluntary act
of a child cannot constitute “the proximate cause” of injury. Therefore, the trial court erred in
failing to grant summary disposition in favor of Mulrenin with regard to governmental employee
immunity.
I would reverse and remand for entry of judgment in favor of defendants.
/s/ William C. Whitbeck
7
Curtis, supra at 563, quoting Robinson v Detroit, 462 Mich 439, 458-459, 462; 613 NW2d 307
(2000).
8
Curtis, supra at 563.
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