Kersch Ray v. Eric Swager
903 NW2d 366
Mich.2017Background
- Thirteen-year-old Kersch Ray, a Chelsea High School cross-country runner, was struck by a car during an early-morning team practice after coach Eric Swager instructed the team to cross an intersection while the “Do Not Walk” signal was lit.
- Most runners safely crossed; Kersch and a few at the back were hit. Kersch sustained severe injuries and has no memory of the accident.
- Plaintiffs sued Swager and the driver (Platt); Swager moved for summary disposition asserting governmental immunity under MCL 691.1407(2).
- The trial court denied Swager’s motion, finding proximate cause and gross negligence were factual questions for a jury.
- The Court of Appeals reversed, concluding Swager could not be the proximate cause because other factual causes (the driver, Kersch’s actions, and being struck by the vehicle) were more immediate.
- The Michigan Supreme Court vacated the Court of Appeals, holding that proximate cause for GTLA purposes is a legal-causation inquiry (distinct from but-for causation) focusing on foreseeability and whether the government actor’s conduct was the one most immediate, efficient, and direct legal cause; remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Swager was “the proximate cause” under MCL 691.1407(2)(c) | Swager’s instruction to cross created the dangerous situation that led to Kersch’s injuries; a reasonable jury could find Swager the proximate cause | Swager argued governmental immunity applies because his conduct was not “the proximate cause”; other factual causes (driver, Kersch, vehicle) were more immediate | Proximate cause under GTLA is legal causation distinct from factual causation; courts must assess foreseeability and legal responsibility; Court of Appeals erred by only weighing but-for causes and must reconsider whether Swager could be the one most immediate, efficient, and direct proximate cause |
| Whether proximate cause analysis under MCL 691.1407(2)(c) requires weighing but‑for causes | (Plaintiffs) Legal causation and foreseeability should determine proximate cause; do not reduce proximate cause to a but-for competition | (Defendant/Ct of Appeals) Focus on which factual cause was most immediate (weigh but-for causes) | The Supreme Court held weighing but‑for causes is not the proper proximate-cause inquiry; factual causation is a prerequisite but legal causation (foreseeability/scope of liability) is decisive |
| Role of nonhuman forces (e.g., fire or vehicle) in proximate cause under GTLA | (Plaintiffs) Nonhuman events may bear on foreseeability but cannot alone be the proximate cause to bar liability for human actor’s gross negligence | (Dissent/Ct of Appeals view) The most immediate factual cause—human or nonhuman—can be treated as proximate cause | Court: Only human actor’s breach can be a proximate cause for GTLA purposes; nonhuman forces affect foreseeability and may be superseding causes but are not by themselves the proximate cause |
| Standard for assessing negligence of child-plaintiff in proximate-cause inquiry | Plaintiffs urged consideration of child’s age and circumstances to determine contributory negligence and proximate cause | Defendant and Court of Appeals emphasized that Kersch’s own actions could be a more immediate factual cause | Supreme Court: When assessing whether a child’s conduct is a proximate cause, apply the subjective standard (child of similar age, intelligence, capacity, and experience) and include that in proximate-cause/legal-responsibility analysis |
Key Cases Cited
- Robinson v. City of Detroit, 462 Mich 439 (2000) (interpreted “the proximate cause” in GTLA as the one most immediate, efficient, and direct cause)
- Beals v. Michigan, 497 Mich 363 (2015) (applied Robinson; held lack of factual causation defeated proximate-cause showing under GTLA)
- Stoll v. Laubengayer, 174 Mich 701 (1913) (early definition of “the proximate cause” as the immediate, efficient, direct cause)
- Craig v. Oakwood Hosp., 471 Mich 67 (2004) (explained proximate cause encompasses both cause in fact and legal cause)
- Moning v. Alfono, 400 Mich 425 (1977) (listed proximate cause elements and noted factual causation as prerequisite)