                            STATE OF MICHIGAN

                            COURT OF APPEALS



IAN RABER,                                                         UNPUBLISHED
                                                                   November 8, 2016
               Plaintiff-Appellant,

v                                                                  No. 328289
                                                                   Oakland Circuit Court
AVONDALE SCHOOL DISTRICT and                                       LC No. 2014-138210-NO
KOURTNEY THOMPSON,

               Defendants-Appellees,

and

AVONDALE SCHOOL BOARD,

               Defendant.


Before: STEPHENS, P.J., and SAAD and METER, JJ.

PER CURIAM.

         Plaintiff appeals as of right an order granting summary disposition to defendants with
regard to plaintiff’s gross negligence claims. The trial court granted defendants’ motion for
summary disposition with respect to all of the named defendants. On appeal, plaintiff challenges
the trial court’s decision with regard to defendant Kourtney Thompson. We affirm.

        This case arose from an impact-related injury sustained by plaintiff, a student athlete at
Avondale High School, during an “open gym” activity hour before the start of classes on
February 14, 2011. Thompson, a baseball coach and social studies teacher, was allowed to
supervise but not coach at this preseason, voluntary activity and was supervising that morning.
Plaintiff and another student were playing catch with a baseball when the baseball, traveling at
an estimated 70 miles an hour, nicked the edge of plaintiff’s glove and collided with plaintiff’s
unprotected chest. Plaintiff began to make convulsive, jerking motions before collapsing on the
floor. Some of the other student athletes ran from the gym to locate Thompson, who had left the
students unsupervised to use the restroom and visit his classroom. Thompson ran back to the
gym, determined that plaintiff was still breathing, and called 911. Observing some jerking
motions, Thompson concluded that plaintiff might have been suffering from a seizure. He
cleared the area around plaintiff to wait for paramedics to arrive. He did not check plaintiff’s
breathing or pulse again, although plaintiff’s face and lips were turning gray or blue. He did not

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perform cardiopulmonary resuscitation (CPR) or attempt to employ an automatic external
defibrillator (AED).

        When paramedics arrived, Thompson did what he could to assist. Paramedics determined
that plaintiff was in cardiac arrest caused by the impact of the baseball, a rare occurrence. After
two shots of epinephrine, one shot of atropine, five shocks with a defibrillator, and constant
administration of CPR, they managed to obtain a pulse and assisted breathing. Plaintiff began
breathing on his own while in transport, and spent two weeks in the hospital. Plaintiff sustained
anoxic brain damage as a result of the incident, leaving him with some degree of cognitive and
motor dysfunction. Thereafter, plaintiff brought suit, alleging gross negligence. Relevant here,
plaintiff argued that Thompson’s failure to appropriately respond to plaintiff’s injury, including
through the application of CPR and use of an AED, violated Avondale’s policy regarding
medical emergencies and was otherwise grossly negligent. The trial court disagreed and granted
defendants’ motion for summary disposition.

       On appeal, plaintiff argues that the trial court erred when it granted defendants’ motion
for summary disposition and determined that reasonable minds could not differ regarding
whether Thompson’s alleged failure to respond to plaintiff’s injuries constituted gross
negligence. We disagree.

        This Court reviews de novo a trial court’s decision regarding a motion for summary
disposition. Loweke v Ann Arbor Ceiling & Partition Co LLC, 489 Mich 157, 162; 809 NW2d
553 (2011). Although defendants requested summary disposition pursuant to MCR 2.116(C)(7),
(C)(8), and (C)(10), the trial court did not specify, in its oral conclusions or written order, which
subsections it relied upon in granting defendants’ motion. At any rate, the pertinent question, as
plaintiff asserts, is whether reasonable minds could differ regarding whether Thompson’s actions
amounted to gross negligence. See, e.g., Jackson v Co of Saginaw, 458 Mich 141, 146-147; 580
NW2d 870 (1998).

        Plaintiff does not dispute that Thompson is entitled to the protections of the governmental
tort liability act (GTLA), MCL 691.1401 et seq., which limits his liability to that for gross
negligence. The relevant subsection of the GTLA provides, in pertinent part:

               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 [and] each volunteer acting on behalf 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.


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               (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.
         [MCL 691.1407(2).]1

More succinctly, MCL 691.1407(2) provides that governmental employees are immune from tort
liability when acting within the scope of their authority unless their actions constitute gross
negligence that is the proximate cause of an injury. Tarlea v Crabtree, 263 Mich App 80, 89;
687 NW2d 333 (2004). Thus, as plaintiff concedes, the propriety of the trial court’s order
granting defendants’ motion for summary disposition turns on whether plaintiff made a showing
of gross negligence in the lower court. We find that he did not.

       “Gross negligence” is defined within the GTLA as “conduct so reckless as to demonstrate
a substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a); Costa v
Community Emergency Medical Servs, Inc, 475 Mich 403, 411; 716 NW2d 236 (2006).
Similarly, this Court has explained that an actor is grossly negligent when an objective observer
concludes that “the actor simply did not care about the safety or welfare of those in his charge.”
Tarlea, 263 Mich App at 90. Moreover, “evidence of ordinary negligence does not create a
material question of fact concerning gross negligence.” Maiden v Rozwood, 461 Mich 109, 122-
123; 597 NW2d 817 (1999). Rather, to establish gross negligence the evidence must
demonstrate that “the contested conduct was substantially more than negligent.” Costa, 475
Mich at 411. Summary disposition on the issue of whether conduct constitutes gross negligence
is not appropriate if “reasonable jurors could honestly reach different conclusions . . . .
However, if reasonable minds could not differ, the issue may be determined by a motion for
summary disposition.” Oliver v Smith, 290 Mich App 678, 685; 810 NW2d 57 (2010).

        Plaintiff argues that there was sufficient evidence to allow reasonable jurors to reach
different conclusions regarding whether Thompson was grossly negligent when he “did nothing”
in response to plaintiff’s medical emergency. Specifically, plaintiff argues that a jury should
determine whether Thompson should have administered CPR or applied an AED.

        However, in light of all of the evidence presented, no reasonable juror could have found
that Thompson’s actions amounted to “conduct so reckless as to demonstrate a substantial lack of
concern for whether an injury results.” MCL 691.1407(8)(a). It is clear from the evidence that
Thompson was genuinely concerned about plaintiff and attempted to avoid further injury to
plaintiff and to seek immediate assistance from medical professionals. Thompson checked that
plaintiff was breathing and called 911 immediately. He stated, “given I had checked his chest,
and I had come to the conclusion that he was breathing, I did not check for a pulse.” He waited
with plaintiff, offering what comfort he could, for the paramedics to arrive. After paramedics
arrived, Thompson was very cooperative and rendered CPR at their direction until plaintiff’s
breathing had been restored. Thompson stated that he had never heard of anyone having a
cardiac event from playing catch and that this possibility did not occur to him. He stated that he




1
    A 2013 amendment to MCL 691.1407 did not affect the pertinent language.


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did not really know what was going on and speculated about whether plaintiff had a punctured
lung; he stated that he did not “want to make [the] situation worse.”

       Thompson admitted that he did not administer CPR or attempt to employ an AED at any
point before the arrival of the paramedics. Although there was some evidence presented to
support plaintiff’s claim that immediate application of those techniques could have lessened the
extent of plaintiff’s injury, Thompson’s failure to employ those techniques did not amount to
gross negligence. As this Court has explained, “[s]imply alleging that an actor could have done
more” is insufficient to prove gross negligence because, “with the benefit of hindsight, a claim
can always be made that extra precautions could have influenced the result.” Tarlea, 263 Mich
App at 90. Thus, merely “saying that a defendant could have taken additional precautions” will
not support a finding of gross negligence. Id.

        Thompson, who was not certified in first aid or CPR or trained on AEDs at the time of
the incident but had received some training in the past, testified that he did not recognize that
plaintiff was suffering from cardiac arrest. Thompson’s failure to accurately diagnose a rare
injury is not evidence that he “simply did not care about the safety or welfare” of plaintiff. Id.
Indeed, Thompson explained:

       I live in a world in which my job is to safeguard the safety of all students. It’s
       something I take very serious [sic]. And it’s not something I take lightly. And,
       you know, I knew that a kid in front of me needed something that went beyond
       anything I was prepared or trained to do. So my focus from that point on was to
       get him what he needed.

               There’s no way, shape or form I would just disregard [plaintiff] because
       he is a student. He is one of my guys. And he is down, I’m going to do the best I
       can to help him. And the idea of just blatantly disregarding him is ludicrous.

Further, one of the student witnesses to the incident testified that Thompson showed genuine
concern for plaintiff, an opinion plaintiff offers no evidence to refute.

        Similarly, plaintiff’s argument that Thompson failed to comply with Avondale Public
Schools’ policies or other professional standards or training lacks merit, because, under the
circumstances, any failure by Thompson to follow a policy or procedure would not create a
question of fact regarding gross negligence. Indeed, we note that a failure to abide by best
practices is evidence of ordinary negligence, and, as previously stated, evidence of ordinary
negligence is not sufficient to create a jury question regarding gross negligence. See, e.g.,
Maiden, 461 Mich at 125-128, Rakowski v Sarb, 269 Mich App 619, 635-636; 713 NW2d 787
(2006), and Xu v Gay, 257 Mich App 263, 271; 668 NW2d 166 (2003). Additionally, a look at
Avondale’s bylaws reveals that, even if a failure to comply constituted evidence of gross
negligence, Thompson’s response to plaintiff’s injury complied with the rules outlined therein.
Avondale’s policy regarding the handling of “student accidents” states that “[e]mployees should
administer first aid within the limits of their knowledge of recommended practices.” We note
that multiple Avondale officials testified that the typical procedure in cases of medical
emergencies is for the teacher to call 911 and make decisions based on the confronted
circumstances and the teacher’s abilities.

                                               -4-
         Although Thompson had been CPR-certified in the past, he was not certified in CPR or
AED administration at the time of the incident. Further, he testified that he did not make the
connection between chest trauma and a potential cardiac event, instead wondering whether
plaintiff was suffering from a seizure or punctured lung. According to a responding paramedic,
CPR or AED administration would not be appropriate to treat a seizure. Thompson therefore
reacted appropriately in administering aid within the limits of his knowledge. The failure of
Thompson, who was not trained in medicine, to recognize that plaintiff was suffering from a rare
form of cardiac arrest was not a violation of Avondale’s policy regarding the administration of
first aid.

        In the same vein, we reject defendant’s argument that a question of fact on the issue of
gross negligence was evidenced by the opinions of school officials who, in plaintiff’s
interpretation of their testimony, found Thompson’s actions unreasonable under the
circumstances. As previously discussed, even the failure to meet professional standards, while
perhaps evidence of ordinary negligence, does not constitute gross negligence as defined by the
GTLA. Rakowski, 269 Mich App at 635-636; Xu, 257 Mich App at 271. The evidence
presented, even when viewed in the light most favorable to plaintiff, simply did not establish a
question of fact regarding gross negligence.

        Plaintiff further argues that the perceived placement of importance on CPR training and
administration by the Michigan Legislature creates a question of reasonableness. This argument,
too, lacks merit. Even assuming that Thompson himself violated a statutory duty, the violation
of a statutorily imposed duty gives rise to a presumption of only ordinary negligence and not
gross negligence. Poppen v Tovey, 256 Mich App 351, 358; 664 NW2d 269 (2003).

        Finally, although the trial court did not reach the issue of proximate cause after
determining that plaintiff had failed to show that Thompson acted with gross negligence, we note
that lack of proximate cause provides an independent basis for affirming the trial court’s grant of
defendants’ motion for summary disposition. As previously noted, to impose liability on a
governmental employee under the GTLA, a plaintiff must show (1) gross negligence, and (2) that
the gross negligence was the proximate cause of the plaintiff’s injury. MCL 691.1407(2)(c).
The Michigan Supreme Court has held that the GTLA, as applied to government employees,
“contemplates one cause,” which that Court described as “the immediate efficient, direct cause
preceding the injury.” Robinson v Detroit, 462 Mich 439, 462; 613 NW2d 307 (2000) (citation
and quotation marks omitted). In other words, “[t]o be held liable under the GTLA, a
defendant’s gross negligence must be the most immediate cause of a plaintiff’s injuries—it is not
enough that the defendant’s action simply be ‘a’ proximate cause.” Tarlea, 263 Mich App at 92.
A mere failure to intervene cannot be the most direct proximate cause when the injury itself
arises from conduct, such as the baseball throw here, of plaintiff himself or a third party. See,
e.g., Beals v Michigan, 497 Mich 363, 365-366, 371-378; 871 NW2d 5 (2015) (upholding
immunity of a lifeguard after finding that the lifeguard’s failure to intervene was not “the
proximate cause” of the plaintiff’s drowning death), and Tarlea, 263 Mich App at 92-93
(upholding GTLA immunity after finding that a high school football coach’s alleged failure to
prevent the plaintiff from participating in team exercises was not the most immediate, proximate
cause of the plaintiff’s heatstroke and subsequent death, which might have been caused by a
number of factors).


                                                -5-
        Based on the evidence presented, no reasonable trier of fact could conclude that
Thompson’s alleged failure to provide the appropriate medical care, rather than, for example, the
baseball that was thrown toward plaintiff’s unprotected chest, was the most immediate,
proximate cause of plaintiff’s injury. Accordingly, the lack of proximate cause provided a
separate and independent basis to support the trial court’s decision to grant summary disposition
to defendants.

       Affirmed.



                                                           /s/ Cynthia Diane Stephens
                                                           /s/ Henry William Saad
                                                           /s/ Patrick M. Meter




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