Order                                                                                        Michigan Supreme Court
                                                                                                   Lansing, Michigan

  July 22, 2020                                                                                     Bridget M. McCormack,
                                                                                                                   Chief Justice

  160877-8 & (39)                                                                                         David F. Viviano,
                                                                                                          Chief Justice Pro Tem

  DEBORAH TSCHIRHART, Personal                                                                          Stephen J. Markman
  Representative of the ESTATE OF SHAUN M.                                                                   Brian K. Zahra
  TSCHIRHART,                                                                                          Richard H. Bernstein
               Plaintiff-Appellant/Cross-Appellee,                                                     Elizabeth T. Clement
  v                                                                 SC: 160877; 160878                 Megan K. Cavanagh,
                                                                                                                        Justices
                                                                    COA: 345411; 345715
                                                                    Oakland CC: 2018-165013-NO
  CITY OF TROY, ALEXANDER YARBROUGH,
  NICHOLAS YARBROUGH, MARY ALLEMAN,
  and ALEXIS CALHOUN,
             Defendants-Appellees,
  and
  SUSAN O’CONNOR,
             Defendant-Appellee/Cross-Appellant.
  ___________________________________________/
         On order of the Court, the application for leave to appeal the December 17, 2019
  judgment of the Court of Appeals and the application for leave to appeal as cross-
  appellant are considered. We direct the Clerk to schedule oral argument on the
  application. MCR 7.305(H)(1).
          The appellant shall file a supplemental brief within 42 days of the date of this
  order addressing whether the Court of Appeals erred in concluding that, under this
  Court’s precedent, a lifeguard’s delay, even if it constitutes gross negligence, is not a
  cause in fact of drowning for purposes of determining governmental immunity under
  MCL 691.1407(2)(c) because of the inherent uncertainty of successful rescue. See Beals
  v Michigan, 497 Mich 363 (2015); Ray v Swager, 501 Mich 52 (2017). In addition to the
  brief, the appellant shall electronically file an appendix conforming to MCR 7.312(D)(2).
  In the brief, citations to the record must provide the appendix page numbers as required
  by MCR 7.312(B)(1). The appellees shall file a supplemental brief within 21 days of
  being served with the appellant’s brief. The appellees shall also electronically file an
  appendix, or in the alternative, stipulate to the use of the appendix filed by the appellant.
  A reply, if any, must be filed by the appellant within 14 days of being served with the
  appellees’ brief. The parties should not submit mere restatements of their application
  papers. The application for leave to appeal as cross-appellant is DENIED, because we
  are not persuaded that the question presented should be reviewed by this Court.




                           I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           July 22, 2020
         a0707t
                                                                               Clerk
