Kennedy Amman v. Chesaning Union Schools ( 2020 )

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
KENNEDY AMMAN and CORI AMMAN, UNPUBLISHED
August 27, 2020
Plaintiffs-Appellees,
v No. 346483
Saginaw Circuit Court
CHESANING UNION SCHOOLS, CHESANING LC No. 17-033583-CZ
HIGH SCHOOL, and KIMBERLY VINCKE,
Defendants-Appellants.
KENNEDY AMMAN and CORI AMMAN,
Plaintiffs-Appellees,
v No. 346484
Saginaw Circuit Court
BETHANY BUSCH, LC No. 17-035098-CZ
Defendant-Appellant.
Before: GADOLA, P.J., and GLEICHER and STEPHENS, JJ.
PER CURIAM.
In these consolidated cases, defendants, Chesaning Union Schools, Chesaning High
School, Kimberly Vincke, and Bethany Busch, appeal by right the trial court’s order denying their
motion for summary disposition under MCR 2.116(C)(7) and (10). We affirm in part and reverse
in part.
I. FACTS
This case involves an accident at Chesaning High School in which plaintiff, Kennedy
Amman, was injured when a piano fell off a dolly and onto her left foot. At the time of the accident,
Kennedy was a student at the school and participated in choir class. Each day, the choir teacher,
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defendant Busch, moved a piano on a dolly from the side of the choir room to the center of the
choir room. There is no indication that the piano was ever removed from the dolly, and instead
remained on the dolly even when in use. Testimony indicated that the piano is heavy and requires
two maintenance workers to lift it onto the dolly. Testimony also indicated that the school did not
have a policy requiring students to keep away from the piano and dolly while it was being moved.
On the day of the accident, Busch moved the piano toward the center of the room as she
typically did. As Kennedy and another student walked near Busch while she moved the piano, the
piano fell off the dolly onto Kennedy’s foot. Kennedy’s friend and Busch together lifted the piano
off Kennedy’s foot. The school principal, defendant Vincke, was contacted and arrived at the
choir room shortly thereafter. Vincke wheeled Kennedy to the school office using a wheelchair.
Testimony indicated that although Kennedy was crying and in pain, there was no blood,
and she was awake, coherent, and responsive. Vincke directed the school’s receptionist to contact
Kennedy’s mother, plaintiff Cori Amman. According to the receptionist, while speaking with Cori
she asked Cori whether she should call 911 for Kennedy, but Cori declined. Kennedy testified that
when she requested that Vincke call 911, Vincke explained that Cori was on her way. When Cori
arrived, she did not call an ambulance, choosing instead to take Kennedy to her own physician
rather than to an emergency room. When her physician was unable to remove Kennedy’s boot
from her foot, however, Cori followed the physician’s recommendation and drove Kennedy to an
emergency room. It was thereafter determined that Kennedy had suffered substantial injury to her
foot, requiring numerous surgeries.
Plaintiffs brought this action, alleging that Busch and Vincke were grossly negligent, and
that the school also was liable, contending that the events fell within the public building exception
to governmental immunity because the piano and dolly constituted a dangerous and defective
condition of the school building. After discovery, defendants moved for summary disposition
under MCR 2.116(C)(7), (8), and (10), arguing that plaintiffs’ claims were barred by governmental
immunity. Defendants specifically argued that plaintiffs could not show that Busch’s and Vincke’s
actions rose to the level of gross negligence, and that plaintiffs could not show that the piano and
dolly were a fixture of the building, making the public building exception inapplicable.
In response to defendants’ motion, plaintiffs submitted affidavits from three students. Two
of the students asserted that before the accident they heard Busch state that the piano and dolly
were “unstable” and “wobbly,” and that she planned to report the piano’s condition to the school
office. All three students stated in their affidavits that they had heard the prior choir teacher make
similar remarks during her tenure. Plaintiffs also argued that in her deposition, Cori testified that
after the accident Busch told her that she had previously discussed the piano with other teachers
and told them that the piano and dolly was “an accident waiting to happen” and that the piano
needed to be bolted down.
At the hearing on the motion for summary disposition, defendants challenged the
admissibility of the three affidavits, arguing that plaintiffs had violated the discovery scheduling
order by failing to provide the affidavits earlier, and also that the affidavits contained inadmissible
hearsay. Plaintiffs responded that the three students were included on a supplemental witness list
long before discovery ended and that nothing prohibited defendants from contacting the students.
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The trial court held that the statements in the affidavits were not hearsay and were admissible under
MRE 801(d)(2) as admissions by a party-opponent.
The trial court denied defendants’ motion for summary disposition,1 concluding that
reasonable minds could differ on whether Busch and Vincke were grossly negligent, and also
regarding whether the piano and dolly constituted a fixture. The trial court also denied defendants’
subsequent motion for reconsideration. Regarding the affidavits, the trial court concluded that
defendants were aware that the three students were potential witnesses and could have deposed
them or taken other action. The trial court held, however, that defendants would be permitted
additional time to depose the witnesses prior to trial. Defendants now appeal.
II. ANALYSIS
A. STANDARDS OF REVIEW
We review de novo a trial court’s decision on a motion for summary disposition. Johnson
v Vanderkooi, 502 Mich. 751, 761; 918 NW2d 785 (2018). Summary disposition under MCR
2.116(C)(7) is warranted when a claim is barred by immunity granted by law. Seldon v Suburban
Mobility Auth for Regional Transp, 297 Mich. App. 427, 432; 824 NW2d 318 (2012). When
reviewing a trial court’s decision on a motion for summary disposition under MCR 2.116(C)(7),
this Court considers all documentary evidence and accepts the complaint as factually accurate
unless it is specifically contradicted by affidavits or other documentation. Frank v Linkner, 500
Mich. 133, 140; 894 NW2d 574 (2017).
Summary disposition under MCR 2.116(C)(10) is warranted when there is no genuine issue
as to any material fact and the moving party is entitled to judgment as a matter of law. Dawoud v
State Farm Mut Auto Ins Co, 317 Mich. App. 517, 520; 895 NW2d 188 (2016). When reviewing a
trial court’s decision granting summary disposition under MCR 2.116(C)(10), we consider all
documentary evidence submitted by the parties in the light most favorable to the nonmoving party.
Id. A genuine issue of material fact exists when reasonable minds could differ regarding an issue
left open by the record. El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 160; 934 NW2d
665 (2019).
We review de novo the applicability of governmental immunity, which is a question of
law. Ray v Swager, 501 Mich. 52, 61; 903 NW2d 366 (2017). We also review de novo issues
involving the proper interpretation of statutes, Frank, 500 Mich. at 140-141, and the interpretation
of the rules of evidence. Chapin v A & L Parts, Inc, 274 Mich. App. 122, 126; 732 NW2d 578
(2007). We review for an abuse of discretion a trial court’s decision regarding the admission of
evidence. Id.
1
The trial court considered the motion under MCR 2.116(C)(7) and (10), explaining that because
defendants relied upon documentary evidence outside of the pleadings, the motion could not
properly be brought under MCR 2.116(C)(8).
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B. THE AFFIDAVITS
Defendants contend that the trial court abused its discretion by considering the three student
affidavits in denying their motion for summary disposition because plaintiffs violated the trial
court’s discovery scheduling order by not producing the affidavits earlier. Defendants further
contend that the affidavits contain inadmissible hearsay. We disagree.
Michigan has a broad discovery policy. Augustine v Allstate Ins Co, 292 Mich. App. 408,
419; 807 NW2d 77 (2011). The purpose of pretrial discovery is to make available to the parties
all the relevant facts that might be admitted into evidence in advance of trial, and to advise the
parties of the witnesses that might be called. See Grubor Enterprises, Inc v Kortidis, 201 Mich
App 625, 628; 506 NW2d 614 (1993). The trial court, however, has latitude in directing the
progress of discovery in a lawsuit. MCR 2.401(B)(2)(a)(iii) grants the trial court the power to
define the period of discovery through a scheduling order. Establishing a cutoff date for discovery
and enforcing or extending the deadlines established by the trial court in a scheduling order are
within the trial court’s traditional exercise of authority. See Kemerko Clawson, LLC v RXIV Inc,
269 Mich. App. 347, 349-351; 711 NW2d 801 (2005). Similarly, the trial court has discretion to
determine whether to sanction a party for failing to comply with a scheduling order. See Duray
Dev, LLC v Perrin, 288 Mich. App. 143, 164; 792 NW2d 749 (2010).
In this case, defendants fail to show what harm befell them from the late production of the
affidavits that would warrant the sanction of excluding the affidavits. The trial court extended
discovery on several occasions, and plaintiffs’ supplemental witness list included the three students
as potential witnesses to be called at trial. Defendants had knowledge of, and the ability to contact,
the students long before discovery ended, and the trial court ultimately granted defendants
additional time to depose the students after learning of the affidavits. Because defendants have
not demonstrated that the late production of the affidavits prejudiced their motion, we conclude
that the trial court did not abuse its discretion by permitting plaintiffs to submit the affidavits in
support of their response to defendants’ motion for summary disposition.
We also conclude that the statements in the affidavits allegedly made by Busch do not
constitute inadmissible hearsay. Hearsay is “a statement, other than the one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
MRE 801(c). Here, two students asserted that before the accident they heard Busch state that the
piano and dolly were “unstable” and “wobbly,” and that she planned to report the piano’s condition
to the school office. These statements were not offered to prove that the piano was, in fact, wobbly
or unstable, but rather were offered to prove that Busch believed those assertions to be true. These
statements therefore are not hearsay. The statements are also not hearsay if offered against Busch
because they are a party’s own statement offered against that party. MRE 801(d)(2)(A). 2 We
agree, however, that if the statements in the affidavits attributed to the former choir teacher that
2
We reject defendants’ argument that MRE 613(b) renders MRE 801(d)(2) inapplicable. MRE
613(b) contains an explicit exception for the admissions of a party-opponent as defined in MRE
801(d)(2).
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the piano on the dolly was unstable are offered to prove the truth of the matter asserted, they are
inadmissible hearsay to the extent those statements are offered against Busch.
C. GROSS NEGLIGENCE
Defendants further contend that the trial court erred in denying summary disposition to
defendants Busch and Vincke on the grounds of governmental immunity. We agree that defendant
Vincke is entitled to summary disposition, but disagree that the trial court erred by failing to grant
summary disposition to defendant Busch.
Under the government tort liability act, MCL 691.1401 et seq., government agencies and
their employees are entitled to immunity from tort liability when they are engaged in the exercise
or discharge of governmental functions. Ray, 501 Mich. at 62. Specifically, MCL 691.1407(2)
provides that a government employee acting within the scope of his or her authority is immune
from tort liability, except in cases in which his or her actions constituted gross negligence. Tarlea
v Crabtree, 263 Mich. App. 80, 89; 687 NW2d 333 (2004). Gross negligence is defined as “conduct
so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL
691.1407(8)(a). Whether a government employee’s conduct constitutes gross negligence under
MCL 691.1407 generally is a question of fact, but if reasonable minds could not differ, the trial
court may grant summary disposition. Briggs v Oakland Co, 276 Mich. App. 369, 374; 742 NW2d
136 (2007). Ordinary negligence cannot create an issue of material fact on whether gross
negligence occurred; instead, a party must show that the actions were reckless. Wood v Detroit,
323 Mich. App. 416, 423-424; 917 NW2d 709 (2018). This Court has described gross negligence
as
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. [Tarlea, 263 Mich. App. at 90.]
The argument that a government actor could have done more to avoid the risk of harm is
insufficient under Michigan law to establish gross negligence because “with the benefit of
hindsight, a claim can always be made that extra precautions could have influenced the result.” Id.
In fact, “saying that a defendant could have taken additional precautions is insufficient to find
ordinary negligence, much less recklessness.” Id.
In this case, the parties do not dispute that defendants Busch and Vincke were government
employees acting within the scope of their authority and that they were engaged in the exercise or
discharge of a governmental function at the time of the accident. Defendants contend, however,
that plaintiffs failed to establish that Busch and Vincke were grossly negligent, and therefore
plaintiffs’ claims against the two individuals are barred by governmental immunity.
With regard to defendant Busch, the evidence offered by plaintiffs that Busch acted with
gross negligence are the statements of two students that before the accident they heard Busch
comment that the piano was unstable and that Busch was planning to tell, or already had told, the
front office about it. In addition, plaintiffs point to the deposition testimony of Cori, Kennedy’s
mother, that after the accident Busch told her that she had discussed the piano with other teachers
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and had “told them this is an accident waiting to happen” and that the piano needed to be bolted
down. This evidence, when viewed in the light most favorable to plaintiffs, provides at least some
evidence that Busch was aware that the piano was not secure on the dolly. The parties, no doubt,
will dispute whether Busch made such comments and also whether the alleged comments, even if
made, demonstrate gross negligence. However, viewing the evidence in the light most favorable
to plaintiffs, reasonable minds could differ regarding whether Busch’s conduct constituted gross
negligence. See Briggs, 276 Mich. App. at 374.
We conclude, however, that Vincke’s actions, even when viewed in the light most
favorable to plaintiffs, could not reasonably be viewed as gross negligence, or even ordinary
negligence. The evidence demonstrated that Vincke went to the choir room and found Kennedy
coherent and awake. Although Kennedy was clearly in pain, she was not bleeding. Cori,
Kennedy’s mother, was immediately contacted. Cori declined at that time to have the school call
911. Upon arriving at the school and assessing Kennedy’s condition, Cori herself did not call for
an ambulance nor take Kennedy to the emergency room, choosing instead to take Kennedy to her
primary care physician. Only when advised by her primary care physician to take Kennedy to the
emergency room did Cori do so. Under these circumstances, and viewing the evidence most
favorably to plaintiffs, we conclude that reasonable minds could not differ in concluding that
Vincke did not engage in conduct “so reckless as to demonstrate a substantial lack of concern for
whether an injury results,” MCL 691.1407(8)(a), by declining to call for an ambulance, and
therefore was not grossly negligent. The trial court therefore erred in denying defendants’ motion
for summary disposition as to defendant Vincke.
D. PUBLIC BUILDING EXCEPTION
Defendants also contend that the school defendants were entitled to summary disposition
because plaintiffs’ claims against them are barred by governmental immunity, given there is no
issue of material fact regarding whether the piano and dolly constituted a fixture of the school
building. We agree.
Government agencies are immune from tort liability when they are engaged in the exercise
of a governmental function, and operating a school constitutes a governmental function. Stringwell
v Ann Arbor Pub Sch Dist, 262 Mich. App. 709, 712; 626 NW2d 825 (2004). However, MCL
691.1406 provides an exception to the general rule of governmental immunity related to public
buildings, and states in relevant part:
Governmental agencies have the obligation to repair and maintain public
buildings under their control when open for use by members of the public.
Governmental agencies are liable for bodily injury and property damage resulting
from a dangerous or defective condition of a public building if the governmental
agency had actual or constructive knowledge of the defect and, for a reasonable
time after acquiring knowledge, failed to remedy the condition or to take action
reasonably necessary to protect the public against the condition. Knowledge of the
dangerous and defective condition of the public building and time to repair the same
shall be conclusively presumed when such defect existed so as to be readily
apparent to an ordinary observant person for a period of 90 days or longer before
the injury took place. . . .
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To avoid governmental immunity under the public building exception, a plaintiff must
establish that
(1) a governmental agency is involved, (2) the public building in question is open
for use by members of the public, (3) a dangerous or defective condition of the
public building itself exists, (4) the governmental agency had actual or constructive
knowledge of the alleged defect, and (5) the governmental agency failed to remedy
the alleged defective condition after a reasonable amount of time. [Renny v Dep’t
of Transp, 478 Mich. 490, 496; 734 NW2d 518 (2007).]
In this case, for purposes of this issue the parties dispute only whether the piano on the
dolly constituted a dangerous or defective condition of the school. To establish that the public
building exception applies, the alleged dangerous condition must be “a defect of the building itself
and not merely a transient condition” of the building. Johnson v City of Detroit, 457 Mich. 695,
703-704; 579 NW2d 895 (1998) (citation omitted). A fixture attached to a building is considered
to be “of the building itself” and therefore can support a claim under the public-building exception.
See Fane v Detroit Library Comm, 465 Mich. 68, 77-78; 631 NW2d 678 (2001). A fixture is
considered part of a public building when (1) it is annexed to the realty, (2) its adaptation or
application to the realty is appropriate, and (3) it was intended as a permanent accession to the
realty. Id. Annexation can be actual, meaning permanently affixed to the building, or constructive,
meaning that the item cannot be removed without impairing the value of both the item and the
building. Id. at 79-80.
Whether an item constitutes a fixture is determined case by case. Velmer v Baraga Area
Sch, 430 Mich. 385, 394; 424 NW2d 770 (1988). In Velmer, our Supreme Court held that a heavy
milling machine with an attached electrical conduit requiring an electrician to disconnect it could
constitute a fixture. The Court reasoned that the machine was “heavy, stationary, and not subject
to tipping over or being thrown.” Id. at 393. By contrast, in Carmack v Macomb Co Community
College, 199 Mich. App. 544, 547; 502 NW2d 746 (1993), we held that a set of gymnastic uneven
parallel bars, which was “easily moveable and was removed on an almost daily basis,” was not
part of the school building, despite being temporarily bolted to the floor. In Fane, our Supreme
Court held that a ramp placed “at the doorstep” to a building but not affixed to it could not support
a claim that it was constructively annexed to the building. Fane, 465 Mich. at 79-80.
In this case, the piano and dolly were not permanently affixed to the choir room. Rather,
the piano was left on the dolly for the purpose of moving it, and it was in fact moved each day by
the teacher. The piano and the dolly thus were not a fixture and therefore cannot form a dangerous
or defective condition necessary to support the public building exception to governmental
immunity. Because plaintiffs did not establish a claim under the public building exception, the
trial court erred in denying summary disposition to the school defendants.
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We affirm the trial court’s order denying summary disposition to defendant Busch. We
reverse the trial court’s order denying summary disposition to Vincke and the school defendants,
and we remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Michael F. Gadola
/s/ Elizabeth L. Gleicher
/s/ Cynthia Diane Stephens
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