RAY v SWAGER
No. 152723
Michigan Supreme Court
July 31, 2017
Argued on application for leave to appeal on October 19, 2016. Chief Justice: Stephen J. Markman. Justices: Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein, Joan L. Larsen, Kurtis T. Wilder. Reporter of Decisions: Kathryn L. Loomis.
Syllabus
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
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
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
- 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 proximatе cause of the injury or damage. - 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.
- 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.
- 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 inMCL 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. - 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.
- 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. - 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 cаse. 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
“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
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
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
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
In this case, Swager was immune under
©2017 State of Michigan
OPINION
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 ERIC SWAGER, Defendant-Appellee, and SCOTT ALLEN PLATT, HEATHER MARIE PLATT, and LIBERTY MUTUAL INSURANCE COMPANY, Defendants.
BEFORE THE ENTIRE BENCH
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),
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 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.
Plaintiffs sued defendant and the driver.3 Defendant moved for summary disposition under
Defendant appealed by right, and the Court of Appeals reversed in an unpublished per curiam opinion.4 The panel concluded
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 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.
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
[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.
(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
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
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
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
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
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”
by severing it from the сoncept 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
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.“).
This formulation, which is the “most general and pervasive approach” to proximate
“peculiar and appropriаte” legal meaning should not be ascribed to the Legislature‘s reference to proximate cause in the GTLA.34 Accordingly, we presume that by
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, 462 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.
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 spеculative.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
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
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
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 theAlthough Dean does nоt 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 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
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 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 betweеn 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
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 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
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
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
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 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; 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
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
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
The dissent‘s approach, under which even inanimate objects could be the proximate cause, fails to give meaning to the 1986 amendment of the
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
David F. Viviano
Bridget M. McCormack
Richard H. Bernstein
Joan L. Larsen
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
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
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:
- The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority.
- The governmental agency is engaged in the exercise or discharge of a governmental function.
- 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:
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 NW 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).]
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” 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
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
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
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 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
Because it is the Legislature‘s intent that controls, we are charged under
Nevertheless, that is prеcisely what the majority now does. Long before
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
Additionally, after holding that lower courts are not permitted to weigh factual causes when determining “the proximate cause” under
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, р 731. There is, in fact, support for that proposition in our Model Civil Jury Instructions, specifically in
Nor does the
Indeed, the majority tacitly acknowledges this impact of its construction, stating that the current approach, which permits factual causаtion 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
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 (2000). One need not delve into statutory history, as the majority does, to discern that
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
In the alternative, the majority contends that a narrow interpretation of
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 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 US 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—аmong 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, ___ 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 US at 586 (Scalia, J., dissenting), quoting Planned Parenthood of Southeastern Pa v Casey, 505 US 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 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
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
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
Notes
[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 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.]
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. 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.
We disagree with the dissent‘s suggestion that the Court in Stoll v Laubengayer, 174 Mich 701; 140 NW 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 NW 768 (1921). Under the contributory negligence doctrine, abolished in Michigan in 1979, see
Not to mention Adas, 160 Mich App at 300-301, which was decided just a year afterIt 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 оf 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.]