            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS


LOREN KROLL, by RONALD KROLL and                                    UNPUBLISHED
SUSAN KROLL, Legal Guardians,                                       June 25, 2020

               Plaintiffs-Appellees,

v                                                                   No. 341895
                                                                    Muskegon Circuit Court
DELORES DEMORROW and MONTAGUE AREA                                  LC No. 16-006224-NI
PUBLIC SCHOOLS,

               Defendants-Appellants.


                                         ON REMAND

Before: METER, P.J., and SAWYER and CAMERON, JJ.

PER CURIAM.

      This matter is again before this Court following remand by the Michigan Supreme Court.
We again reverse and remand.

       In our original opinion, we reversed the order of the trial court denying defendants’ motion
for summary disposition. Kroll v DeMorrow, unpublished opinion per curiam (No. 341895, issued
2/26/2019). The Supreme Court by order reversed our holding related to cause-in-fact and vacated
our judgment on proximate cause, and remanded for further proceedings. Kroll v DeMorrow, ___
Mich ___ (No. 159413, rel’d 1/17/2020). After further consideration on remand, we conclude that
defendant DeMorrow was entitled to summary disposition because there is no genuine issue of
material fact that she was not grossly negligent and, accordingly, defendant Montague Area Public
Schools (MAPS) was entitled to summary disposition because, absent DeMorrow’s gross
negligence, MAPS cannot be held vicariously liable.

        This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Ray v Swager, 501 Mich 52, 61-62; 903 NW2d 366 (2017). Defendants moved for summary
disposition under MCR 2.116(C)(7) and (C)(10).




                                               -1-
        Summary disposition is proper under MCR 2.116(C)(7) if “immunity by law” requires
entry of judgment. The moving party may submit affidavits, depositions, admissions, or other
documentary evidence, and this evidence must be considered in a light most favorable to the
nonmoving party. Moraccini v Sterling Heights, 296 Mich App 387, 391; 822 NW2d 799 (2012),
lv den 492 Mich 870 (2012). “If there is no factual dispute, whether a plaintiff’s claim is barred
under a principle set forth in MCR 2.116(C)(7) is a question of law for the court to decide. But
when a relevant factual dispute does exist, summary disposition is not appropriate.” Id. (quotation
marks and citation omitted). “The determination whether a governmental employee’s conduct
constituted gross negligence under MCL 691.1407 is generally a question of fact, but, if reasonable
minds could not differ, a court may grant summary disposition.” Oliver v Smith, 269 Mich App
560, 563; 715 NW2d 314 (2006).

        Summary disposition is proper under MCR 2.116(C)(10) if “there is no genuine issue as to
any material fact, and the moving party is entitled to judgment or partial judgment as a matter of
law.” In considering a motion under MCR 2.116(C)(10), a court must consider all evidence
submitted by the parties in a light most favorable to the nonmoving party. El-Khalil v Oakwood
Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019). “A genuine issue of material fact
exists when the record leaves open an issue upon which reasonable minds might differ.” Id.
(quotation marks and citation omitted).

     We turn first to the question whether there is a genuine issue of material fact that
DeMorrow was not grossly negligent. We conclude that there is not.

        Gross negligence is defined by statute as “conduct so reckless as to demonstrate a
substantial lack of concern for whether an injury results.” MCL 691.1407(8). By defining gross
negligence in this manner, the Legislature limited the situations where governmental employees
can be held liable for their conduct to situations where their conduct was substantially more than
negligent. Maiden v Rozwood, 461 Mich 109, 122; 597 NW2d 817 (1999); see also Xu v Gay, 257
Mich App 263, 271; 668 NW2d 166 (2003) (stating that “[e]vidence of ordinary negligence does
not create a question of fact regarding gross negligence”). In Tarlea v Crabtree, 263 Mich App
80, 90; 687 NW2d 333 (2004), this Court stated the following regarding gross negligence:

       Simply alleging that an actor could have done more is insufficient under Michigan
       law, because, with the benefit of hindsight, a claim can always be made that extra
       precautions could have influenced the result. However, saying that a defendant
       could have taken additional precautions is insufficient to find ordinary negligence,
       much less recklessness. Even the most exacting standard of conduct, the negligence
       standard, does not require one to exhaust every conceivable precaution to be
       considered not negligent.

               The much less demanding standard of care—gross negligence—suggests,
       instead, almost a willful disregard of precautions or measures to attend to safety
       and a singular disregard for substantial risks. It is as though, if an objective
       observer watched the actor, he could conclude, reasonably, that the actor simply
       did not care about the safety or welfare of those in his charge.




                                               -2-
        There is conflicting evidence regarding whether DeMorrow activated the bus’s caution
light before the accident. But, as will be discussed below, we conclude that, even accepting
plaintiffs’ evidence that DeMorrow did not activate the bus’s lights, this omission does not support
a conclusion that DeMorrow was grossly negligent.

        According to plaintiffs, by failing to activate the overhead caution lights, DeMorrow
violated MCL 257.1855(2)(b). This statute provides, in pertinent part:

               (2) The driver of a school bus while operating upon the public highways or
       private roadways open to the public shall receive or discharge pupils from the bus
       in the following manner:

                                               * * *

                (b) If the pupils are required to cross the roadway, the driver of a school bus
       equipped with red and amber alternately flashing overhead lights . . . shall activate
       the alternately flashing overhead amber lights not less than 200 feet before the stop,
       stop the bus on the roadway or private road to provide for the safety of the pupils
       being boarded or discharged, deactivate the alternately flashing overhead amber
       lights, and activate the alternately flashing overhead red lights while receiving or
       discharging pupils. The bus shall stop in the extreme right-hand lane for the
       purpose of boarding or discharging pupils. Before resuming motion, the driver
       shall deactivate these lights and allow congested traffic to disperse where
       practicable. The deactivation of these lights is the signal for stopped traffic to
       proceed.

        Assuming, as we must, that DeMorrow failed to activate the caution lights, she violated
MCL 257.1855(2)(b). A violation of the statute creates a rebuttable presumption of negligence.
Candelaria v BC Gen Contractors, Inc, 236 Mich App 67, 82 n 5; 600 NW2d 348 (1999). But,
evidence of ordinary negligence does not create a question of fact regarding gross negligence. Xu,
257 Mich App at 271. Accordingly, even assuming that DeMorrow violated MCL 257.1855(2)(b),
that does not create a question of fact regarding whether DeMorrow was grossly negligent.

        DeMorrow’s failure to activate the overhead caution lights, at most, creates a rebuttable
presumption that DeMorrow was negligent, Candelaria, 236 Mich App at 82 n 5, i.e., that
DeMorrow failed to exercise the care that a reasonably careful person would use under the
circumstances, Case v Consumers Power Co, 463 Mich 1, 6-7; 615 NW2d 17 (2000). But plaintiff
did not present evidence to create a genuine issue of material fact that DeMorrow’s conduct was
so reckless as to demonstrate a substantial lack of concern for whether an injury results. MCL
691.1407(8).

         There is a factual dispute whether Loren was in the process of crossing the road when she
was hit by Ryan Yost’s pickup truck. Yost and his passenger, EhanTiemeyer, testified that Loren
was in the road when she was hit. Juan Guerrero, a passenger on the bus, averred that he was
sitting on the driver’s side of the bus that morning. He was able to see Loren in plaintiffs’ driveway
waiting for the bus. Juan saw Loren start to walk across the road before the bus came to a complete
stop. But, plaintiffs’ reconstruction expert, Timothy Brown, stated that he had reviewed


                                                 -3-
depositions, the crash and investigation reports, and photographs of the accident. He opined that,
more likely than not, Loren “was on or near the shoulder of the road at the end of her driveway
and near the end of the pavement” when she was struck by Yost’s pickup truck. Loren’s injuries,
the blood seen in the driveway, and the damage to Yost’s pickup truck were not consistent with
the theory that Loren was walking in the road when she was struck. Additionally, Deputy Steve
Ward stated that, if Loren had been crossing the road when she was hit, he would expect that Loren
would have been hit on her left side. If Loren had been standing in the driveway, it was possible
that she could have been struck by the far right edge of the snowplow blade that was on Yost’s
pickup truck, which could explain the damage to her right hip.

        Although there is a factual dispute concerning Loren’s location when she was struck by the
vehicle, we conclude that the dispute is not material because, even when viewing the evidence in
a light most favorable to plaintiffs, reasonable minds could not conclude that DeMorrow’s
“conduct [was] so reckless as to demonstrate a substantial lack of concern for whether an injury
result[ed].”

        DeMorrow stated in her deposition that she had started to slow the bus down. According
to DeMorrow, when she is picking up a student who has to cross the road to board the bus, after
she brings the bus to a complete stop, she flips a switch that opens the door, activates the bus’s red
stop lights, and extends the bus’s stop sign. The student is not supposed to cross the road until
DeMorrow gives the student “the signal” to cross the road. DeMorrow signals a student by
extending her left arm and moving it in “a passing fashion.” Similarly, Juan and his sister Yvette
averred that one of the bus rules was that a student was not to start to cross the road until DeMorrow
gave a hand signal. DeMorrow gave the hand signal after the bus came to a complete stop and
turned on the overhead red stop lights.

        There was also evidence that Loren did not always wait to cross the road until DeMorrow
stopped the bus and signaled her. DeMorrow testified that Loren “[q]uite often” started to cross
the road after she activated the bus’s red lights and before she gave the signal to Loren. DeMorrow
had told Loren in the past that Loren needed to wait for the signal before she crossed the road.
DeMorrow had reported Loren’s conduct to Robert Lash, the MAPS’s transportation supervisor.
The last report was about two years ago. Juan and Yvette averred that Loren often walked into the
road without waiting for DeMorrow to signal her. DeMorrow often warned Loren not to cross the
road before DeMorrow gave her the signal

        DeMorrow was aware that a pickup truck was coming down the road from the opposite
direction. While the slowing of the bus may have suggested to Loren that the bus would stop for
her, there is no evidence that DeMorrow gave Loren any instructions or gestured for her to cross
the road. The bus had not yet come to a stop when Loren was hit by Yost’s pickup truck, and there
is no evidence that DeMorrow from afar signaled Loren to cross the road. Additionally, while
there was evidence that Loren often did not wait until she was signaled by DeMorrow to cross the
road, there was no evidence to indicate that DeMorrow knew that Loren had started to cross the
road. DeMorrow testified that, after she saw Loren in plaintiffs’ driveway, she kept her eyes on
the road. While Juan stated that he saw Loren begin to cross the road before the bus stopped, he
did not aver that he told DeMorrow that Loren had started to cross the road. In conclusion, where
DeMorrow did not give Loren any instructions to cross the road and DeMorrow did not know that
Loren had started to cross the road, reasonable minds could not conclude that DeMorrow, by


                                                 -4-
failing to activate the caution lights, simply did not care about the safety or welfare of Loren.
Tarlea, 263 Mich App at 90. Therefore, even when viewing the evidence in a light most favorable
to plaintiffs, we conclude that DeMorrow was not grossly negligent. Accordingly, she was entitled
to summary disposition.

       Having resolved the gross negligence issue, we now turn to whether MAPS can be held
vicariously liable. We conclude that it cannot.

       MCL 691.1407 provides, in pertinent part:

              (1) Except as otherwise provided in this act, a governmental agency is
       immune from tort liability if the governmental agency is engaged in the exercise or
       discharge of a governmental function. . . .

               (2) 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 or caused by the volunteer
       while acting on behalf of a governmental agency if all of the following are met:

              (a) The officer, employee, member, or volunteer 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 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.

There are six exceptions, including the motor vehicle exception, MCL 691.1405, to the immunity
granted to governmental agencies. Goodhue v Dep’t of Transp, 319 Mich App 526, 531 n 1; 904
NW2d 203 (2017).

       In Yoches v Dearborn, 320 Mich App 461, 475-476; 904 NW2d 887 (2017), this Court
addressed when a governmental agency can be held vicariously liable for the acts of its employees.
After quoting MCL 691.1407, the Court stated:

               This statutory language is unambiguous. MCL 691.1407(1) provides
       immunity to a governmental agency without regard to an employee’s gross
       negligence. MCL 691.1407(2) provides immunity for governmental employees,
       but MCL 691.1407(2)(c) provides an exception to that immunity when the
       employee’s conduct constitutes gross negligence. Although Subsection (2)(c)
       establishes an exception to the grant of immunity to an officer or employee of a
       governmental agency, it does not provide that a governmental agency otherwise
       entitled to immunity can be vicariously liable for the officer’s or employee’s gross


                                               -5-
         negligence. Consequently, if an exception to governmental immunity does not
         apply “as otherwise provided in this act,” e.g., pursuant to the motor vehicle
         exception, the [defendant] would not be vicariously liable for [it’s employee’s]
         negligence, regardless of whether it rises to the level of gross negligence. See, e.g.,
         Hobrla v Glass, 143 Mich App 616, 624; 372 NW2d 630 (1985) (providing that
         under MCL 691.1407(1), “[t]he department’s immunity extends to allegations of
         vicarious liability, since the individual defendants, even if they acted negligently,
         were also engaged at the time the tort was committed [in] the exercise or discharge
         of a governmental function”)[.] [Id. at 476-477.]

        MAPS cannot be held vicariously liable for the alleged gross negligence of DeMorrow.
None of the six exceptions to the immunity granted to governmental agencies applies. The trial
court held that the motor vehicle exception did not apply because the school bus did not physically
touch Loren,1 and plaintiffs have not challenged that ruling on appeal. Because no exception to
governmental immunity applies, MAPS cannot be held vicariously liable for DeMorrow’s
negligence, even if her conduct rose to the level of gross negligence. Id.

        We also reject plaintiffs’ suggestion that, because the trial court never determined whether
MAPS could be held vicariously liable for DeMorrow’s gross negligence, it is premature for this
Court to decide the issue. The applicability of governmental immunity is a question of law, Ray,
501 Mich at 61, and there are no factual disputes relevant to whether MAPS can be held vicariously
liable for DeMorrow’s alleged gross negligence. It would be a waste of judicial resources to
require that this issue first be addressed by the trial court.

       Reversed and remanded with instructions to the trial court to enter summary disposition in
favor of defendants. We do not retain jurisdiction. Defendants may tax costs.




                                                                /s/ Patrick M. Meter
                                                                /s/ David H. Sawyer
                                                                /s/ Thomas C. Cameron




1
    See Robinson v City of Detroit, 462 Mich 439; 613 NW2d 307 (2000).


                                                  -6-
