                           STATE OF MICHIGAN

                           COURT OF APPEALS



CATHRYN KOSTAROFF,                                               UNPUBLISHED
                                                                 May 18, 2017
              Plaintiff-Appellee,

v                                                                Nos. 330472; 330505
                                                                 Wayne Circuit Court
WYANDOTTE PUBLIC SCHOOLS,                                        LC No. 14-000660-NZ

              Defendant,

and

GAIL MELLAS, SHERRENA YAKOWICH,
JENNIFER GAYLE, MARA MOORE, and
KERSTIN MARKLEIN,

              Defendants/Third-Party Plaintiffs-
              Appellants,

and

TEMPORARY SCHOOL STAFF, INC.,

              Third-Party Defendant.


Before: M. J. KELLY, P.J., and BECKERING and SHAPIRO, JJ.

PER CURIAM.

        This is a consolidated appeal arising out of a single action. In docket no. 330472
defendants Gail Mellas, Sherrena Yakowich, Jennifer Gayle, Mara Moore, and Kerstin Marklein,
(collectively defendants) employees of Wyandotte Public Schools (WPS) at all times relevant to
the case, appeal as of right from the trial court’s order denying their motion for summary
disposition pursuant to MCR 2.116(C)(7) (government immunity). In docket no. 330505




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defendants appeal by leave granted1 the same order denying their motion for summary
disposition pursuant to MCR 2.116(C)(10) (no genuine issue of material fact). We reverse the
trial court’s denial of defendants’ motion under MCR 2.116(C)(7) in docket no. 330472.
Defendants’ appeal in docket no. 330505 is, therefore, rendered moot, and is dismissed.

        Plaintiff was contracted to be a special education teaching assistant at The Lincoln Center
(TLC), a division of Wyandotte Public Schools (WPS) specializing in special education by
Temporary School Staff, Inc. (TSS), an entity that provided contract employees to WPS on an as
needed basis. On March 23, 2012, plaintiff allegedly suffered traumatic brain and other injuries
when she attempted to restrain JT, a student at TLC with Tourette’s Syndrome, when he rocked
back and forth. JT’s helmet struck plaintiff in the head, causing her to fall backwards and hit her
head on a cement wall. In her complaint, plaintiff alleged that defendants’ negligent behavior
caused her injuries. Specifically, plaintiff asserted that the following conduct led to her injuries:
(1) Mellas, Moore, and Yakowich moved JT from a serious cognitive impairment classroom to a
moderate cognitive impairment classroom based on staff complaints; (2) knowing plaintiff
lacked the requisite qualifications, Yakowich and Gayle assigned her to serve as JT’s one-on-one
aide; and (3) rather than assisting plaintiff with JT, Marklein told plaintiff to take JT for a walk.
Plaintiff also attached an affidavit to her response to defendants’ motion for summary
disposition, making the same assertions and adding that both Mellas and Gayle had been
informed that JT was physically acting out.

        Defendants filed a motion for summary arguing under MCR 2.116(C)(7) that pursuant to
the Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq., their alleged conduct was
neither grossly negligent, nor the proximate of cause of plaintiff’s injuries, and under MCR
2.116(C)(10) that the exclusive remedy provision, MCL 418.131, of the Worker’s Disability
Compensation Act (WDCA), MCL 418.101 et seq., barred plaintiff’s claim. In her response,
plaintiff asserted that defendants waived the right to assert governmental immunity by failing to
plead governmental immunity as an affirmative defense. The trial court concluded that
defendants did not waive governmental immunity, but denied defendants’ motion concluding
that questions of fact existed with regard to the application of governmental immunity and with
regard to the exclusive remedy provision of the WDCA.

        Initially, we conclude that the trial court, while ultimately reaching the correct result,
incorrectly rejected plaintiff’s waiver argument on the grounds that governmental immunity is
not an affirmative defense. A governmental employee must raise entitlement to governmental
immunity as an affirmative defense. Odom v Wayne Co, 482 Mich 459, 479; 760 NW2d 217
(2008). An affirmative defense not raised in a party’s first responsive pleading, either originally
filed or as amended, is waived. MCR 2.111(F)(2).2




1
 Kostaroff v Wyandotte Pub Sch, unpublished order of the Court of Appeals, entered April 7,
2016 (Docket Nos. 330204 & 330505).
2
    MCR 2.111(F)(2) provides, in pertinent part:



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        However, the purpose of requiring affirmative defenses to be pled in the first responsive
pleading “is to provide the opposing party with sufficient notice of the alleged affirmative
defenses to permit that party to take a responsive position, and a stated affirmative defense that
does so will not be deemed insufficient.” Tyra v Organ Procurement Agency of Mich, 302 Mich
App 208, 213-214; 850 NW2d 667 (2013), rev’d in part on other grounds by 498 Mich 68
(2015). In other words, “a statement of an affirmative defense must contain facts setting forth
why and how the party asserting it believes the affirmative defense is applicable.” Id. at 214. In
Affirmative Defense 11, defendants stated, “The individuals should have not been sued as they
are employees of Wyandotte Public Schools and were acting in the course and scope of their
employment.” This statement satisfied the requirements, under MCR 2.111(F) and Tyra, for
pleading an affirmative defense. It set forth why and how governmental immunity applies,
essentially asserting that defendants could not be liable for plaintiff’s injuries for those actions
taken in the scope of their employment with a governmental agency, and it put plaintiff on notice
of the defense. Admittedly, defendants could have pleaded the defense more explicitly by
including the words “governmental immunity,” or citing the GTLA, but the pleading was
sufficient, and defendants were entitled to rely on the defense of governmental immunity as a
basis for their motion.3

        Turning to the merits of defendants’ motion, summary disposition is proper under MCR
2.116(C)(7) “when a claim is barred by immunity granted by law.” Beals v Michigan, 497 Mich
363, 370; 871 NW2d 5 (2015) (internal citations and quotations omitted). “To survive such a
motion, the plaintiff must allege facts justifying the application of an exception to governmental
immunity. [The reviewing court] consider[s] all documentary evidence submitted by the parties,
accepting as true the contents of the complaint unless affidavits or other appropriate documents
specifically contradict them.” Id. (quotation marks and citations omitted) (alteration in original).
When “no [material] facts are in dispute, or if reasonable minds could not differ regarding the
legal effect of the facts, the question whether [a plaintiff’s] claim is barred by governmental
immunity is an issue of law.” Pierce v Lansing, 265 Mich App 174, 177; 694 NW2d 65 (2005).4

        Under MCL 691.1407(2), a governmental employee is immune from tort liability for any
injury caused to another, if the employee acted, or reasonably believed they acted, within the
scope of their authority, unless the “employee’s conduct is both (1) grossly negligent and (2) ‘the
proximate cause’ of an injury . . . .” Beals, 497 Mich at 365. The GTLA defines “gross
       A party against whom a cause of action has been asserted . . . must assert in a
       responsive pleading the defenses the party has against the claim. A defense not
       asserted in the responsive pleading or by motion as provided by these rules is
       waived, except for the defenses of lack of jurisdiction over the subject matter of
       the action, and failure to state a claim on which relief can be granted.
3
  See Gleason v Mich Dep’t of Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003) (“A trial
court’s ruling may be upheld on appeal where the right result issued, albeit for the wrong
reason.”).
4
  We review a trial court’s determination regarding a motion for summary disposition de novo.
Odom, 482 Mich at 466. “The applicability of governmental immunity is a question of law that
this Court reviews de novo on appeal.” Beals, 497 Mich at 369.



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negligence” as “conduct so reckless as to demonstrate a substantial lack of concern for whether
an injury results.” MCL 691.1407(8)(a). Gross negligence has also “been characterized as a
willful disregard of safety measures and a singular disregard for substantial risks.” Oliver v
Smith, 290 Mich App 678, 685; 810 NW2d 57 (2010). “[E]vidence of ordinary negligence does
not create a material question of fact concerning gross negligence.” Maiden v Rozwood, 461
Mich 109, 122; 597 NW2d 817 (1999).

        The allegations in plaintiff’s complaint allege actions that could be construed as ordinary
negligence but do not set forth a claim of gross negligence. While plaintiff alleges that
defendants assigned JT to her classroom, a moderate cognitive impairment class, when he
allegedly should have been assigned to a severe cognitive impairment classroom, plaintiff fails to
allege how defendants should have known that this would have resulted in injury. Plaintiff
alleged that JT suffered from Tourette’s Syndrome, would rock back and forth, and experienced
“frequent tantrumming” but did not offer any allegations as to how being assigned to work with
him created such a risk of injury that defendants actions could be characterized as reckless or as
a willful disregard for safety measures or substantial risks. Plaintiff’s allegations suggest that
defendants could have done more to protect her from injury. However, allegations that a
defendant could have done more to prevent injury are generally insufficient to establish gross
negligence. See Tarlea v Crabtree, 263 Mich App 80, 90-91; 687 NW2d 333 (2004) (finding
that allegations that the defendants could have taken additional precautions were insufficient to
establish gross negligence). The conduct alleged does not “demonstrate a substantial lack of
concern for whether an injury” would result.

       However, even if a factual dispute exists regarding gross negligence, the trial court erred,
nevertheless, when it denied defendants’ motion because no factual dispute exists regarding
whether defendants’ conduct was the proximate cause of plaintiff’s injuries. The phrase “the
proximate cause” in MCL 691.1407(2)(c) “is best understood as meaning the one most
immediate, efficient, and direct cause preceding an injury.” Robinson v City of Detroit, 462
Mich 439, 458-459; 613 NW2d 307 (2000).

        None of defendants’ individual actions could be considered the most immediate,
efficient, or direct cause preceding plaintiff’s injuries. The decision to move JT from the serious
cognitive impairment classroom to the moderate cognitive impairment classroom, plaintiff’s
assignment to work directly with JT, and the instruction to take JT for a walk, all occurred before
plaintiff’s attempt to restrain JT during his rocking incident – which pursuant to caselaw must be
considered the most immediate cause of plaintiff’s injuries. In Beals, the Michigan Supreme
Court held that a lifeguard’s failure to intervene could not be considered the proximate cause of a
boy’s drowning death. Beals, 497 Mich at 376-377. And in Kruger v White Lake Twp, 250
Mich App 622, 626-627; 648 NW2d 660 (2002), a panel of this Court determined that police
officers’ conduct in allowing a girl to escape into traffic could not be considered the proximate
cause of her injuries. More direct causes included her escape and flight from the police station.
Id. at 627. Given this case-law, we conclude that plaintiff has failed to allege facts that could
give rise to a finding that any of the defendants’ actions were the proximate cause of her injuries.
Accordingly, defendants are all entitled to governmental immunity, and we reverse the decision
of the trial court in docket no. 330472 and remand for entry of summary disposition under MCR
2.116(C)(7) in favor of all defendants.



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       Our reversal in docket no. 330472 renders defendants appeal in docket no. 330505
concerning whether they were also entitled to summary disposition under MCR 2.116(C)(10)
based on the exclusive remedy provision of the WDCA moot. GMC v Dep’t of Treasury, 290
Mich App 355, 386; 803 NW2d 698 (2010) (stating that an issue becomes moot when “a
judgment, if entered, cannot for any reason have a practical legal effect on the existing
controversy”). Therefore, we decline to address defendants’ claims for relief in that appeal, see
King v Mich State Police Dep’t, 303 Mich App 162, 192; 841 NW2d 914 (2013) (stating that this
Court does not generally address moot questions), and we order that that appeal be dismissed.

       Reversed. We do not retain jurisdiction.




                                                           /s/ Michael J. Kelly
                                                           /s/ Jane M. Beckering
                                                           /s/ Douglas B. Shapiro




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