A Michigan appellate court recently upheld a trial court’s grant of summary judgment for the defendants in a high school sports injury case, reasoning the plaintiff did not provide sufficient evidence of gross negligence and proximate cause.
The injury occurred at Avondale High School in February 2011. Plaintiff Ian Raber and a fellow high school student were playing catch with a baseball during gym, when a baseball nicked the edge of Raber’s glove and collided with his unprotected chest. Raber began to make convulsive, jerking motions before collapsing on the floor. Some of the other students ran from the gym to locate defendant Kourtney Thompson, a baseball coach and social studies teacher who was tasked with overseeing the gym. Kourtney had left the students unsupervised to use the restroom and visit his classroom. Thompson ran back to the gym, determined that the plaintiff was still breathing, and called 911. Observing some jerking motions, Thompson concluded that the plaintiff might have been suffering from a seizure. He cleared the area around the plaintiff to wait for paramedics to arrive. He did not check the plaintiff’s breathing or pulse again, although the plaintiff’s face and lips were turning gray or blue. He did not 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 the 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. The plaintiff began breathing on his own while in transport and spent two weeks in the hospital. The plaintiff sustained anoxic brain damage as a result of the incident, leaving him with cognitive and motor dysfunction.
Raber brought suit, alleging gross negligence. He argued that Thompson’s failure to appropriately respond to his injury, including through the application of CPR and the use of an AED, violated Avondale’s policy regarding medical emergencies and was otherwise grossly negligent. The trial court disagreed and granted the defendants’ motion for summary disposition.
On appeal, the plaintiff argued that the trial court erred when it granted the defendants’ motion for summary disposition and determined that reasonable minds could not differ regarding whether Thompson’s alleged failure to respond to the plaintiff’s injuries constituted gross negligence.
MCL 691.1407(2) provides that governmental employees are immune from tort liability when they are acting within the scope of their authority, unless their actions constitute gross negligence. Thus, the appeals court explained, the propriety of the trial court’s summary disposition order hinged on whether the plaintiff made a showing of gross negligence in the lower court.
MCL 691.1407(2) defines gross negligence as conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results. The appeals court explained that, pursuant to Michigan precedent, a defendant is grossly negligent when an objective observer concludes that they simply did not care about the safety or welfare of those in their charge. Evidence of ordinary negligence does not create a material question of fact concerning gross negligence. Instead, to establish gross negligence, the evidence must demonstrate that the contested conduct was substantially more than negligent.
Raber argued on appeal 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 the plaintiff’s medical emergency. Specifically, he argued that a jury should determine whether Thompson should have administered CPR or applied an AED.
The appeals court concluded that 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 resulted. They reasoned that the evidence demonstrated that Thompson was genuinely concerned about the plaintiff and attempted to avoid further injury to Raber and to seek immediate assistance from medical professionals. Thompson checked that the plaintiff was breathing and called 911 immediately. He waited with the 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 the plaintiff’s breathing had been restored.
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 the plaintiff’s claim that the immediate application of those techniques could have lessened the extent of the plaintiff’s injury, Thompson’s failure to employ those techniques did not amount to gross negligence. Simply alleging that an actor could have done more, the court reasoned, 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.
The court next held that the plaintiff’s argument that Thompson failed to comply with Avondale Public Schools’ policies or other professional standards or training lacked merit, since under the circumstances, any failure by Thompson to follow a policy or procedure would not create a question of fact regarding gross negligence. Instead, any failure to abide by best practices is evidence of ordinary negligence. Moreover, a look at Avondale’s bylaws revealed that even if a failure to comply constituted evidence of gross negligence, Thompson’s response to the plaintiff’s injury complied with the rules outlined therein.
Finally, although the trial court did not reach the issue of proximate cause, the appeals court noted that the lack of proximate cause provided an independent basis for affirming the trial court’s grant of the defendants’ motion for summary disposition. To be held liable under MCL 691.1407(2), a defendant’s mere failure to intervene cannot be the most direct proximate cause when the injury itself arises from the conduct, such as the baseball throw here, of a third party. 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 the baseball that was thrown toward the plaintiff’s unprotected chest, was the most immediate, proximate cause of the plaintiff’s injury.
For these reasons, the appeals court affirmed the lower court’s grant of summary judgment to the defendants.
The sports injury attorneys at the Neumann Law Group represent injured people throughout Michigan from offices in Traverse City and Grand Rapids. Call us at (231) 463-0122 or at (616) 717-5666 for a free consultation.
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