By Thomas Franz
BridgeTower Media Newswires
DETROIT - After rulings by the Michigan Court of Appeals and Michigan Supreme Court, a plaintiff who sustained a traumatic brain injury after being hit by a car during cross country practice won a $4.5 million settlement.
In Ray v. Swager, parties settled after the courts determined that a Chelsea High School cross country coach was the proximate cause of a car accident that severely injured one of the team's runners.
"We argued that our client didn't act in an unreasonable manner. He acted exactly how you would expect a typical 13-year-old to act in that situation," said plaintiff's attorney Chris Desmond of Johnson Law in Detroit.
Desmond worked the case with Ven Johnson and Ayanna Hatchett.
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Early morning practice
The case followed a September 2011 early morning cross country practice for Chelsea High School.
There were about 20 athletes participating in a team run that morning. At a point during the run, coach Eric Swager directed runners to cross Old US-12.
Kersch Ray, a 13-year-old freshman at that time, was running toward the back of the pack as the team crossed the road.
A vehicle struck Ray and another teammate as they were crossing the road. Ray sustained multiple broken bones and a traumatic brain injury.
The speed limit on that section of road is 50 mph. The driver was not cited for speeding, and he didn't have a phone on him in addition to having his radio off without any food or drink in the car.
"There was an accident reconstruction expert who said this accident was unavoidable for him because of the combination of the lighting conditions and the stopping distance based on the speed limit. He wouldn't have been able to avoid this accident," Desmond said.
Because of the brain injury, Ray received a certificate of completion from Chelsea High School but was unable to be given a diploma.
"He fell into a coma for two weeks after the accident. For a significant period of time, he was in a wheelchair. It affected the right side of his body. He has reduced use of his right arm and sometimes needs the assistance of a cane or walker still," Desmond said.
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Proximate cause
The case traveled back and forth between courts to settle the issue of whether the coach was the proximate cause of Ray's injuries.
The defendant argued that he was entitled to governmental immunity because he was not grossly negligent and also not the proximate cause of the accident.
The COA determined that summary disposition should have been granted at the trial court level, but the MSC vacated the COA ruling to remand the case back to the COA with a clarified definition of the phrase "the proximate cause."
Following that, the same COA panel that originally granted summary disposition ruled that Swager was not entitled to that motion. The case then settled just prior to proceeding to trial in late November of this past year.
Desmond explained that the inconsistencies in Ray v. Swager were related to Robinson v. City of Detroit, a 2000 MSC case that determined in a gross negligence matter under the governmental tort liability act, the plaintiff must show the governmental actor was grossly negligent and that the governmental actor's gross negligence was "the" proximate cause as opposed to "a" proximate cause.
"In Robinson, they said in a gross negligence case, you have to be able to show that the governmental actor was 'the' proximal cause, and the MSC said the phrase 'the proximate cause' meant the most immediate, efficient and direct cause of the plaintiff's injuries," Desmond said.
For Ray v. Swager, Desmond said the MSC opinion explained that courts have been misunderstanding the term "the proximate cause." Desmond said the new opinion brought in a greater element of legal cause into the equation.
"In Ray v. Swager, the court said it's a little more complicated, that you have to look at the various causes involved in an accident and figure out which one is the proximate cause. That involves this analysis of foreseeability, weighing societal interests and what society thinks from a liability standpoint who or who shouldn't be held liable for an accident," Desmond said.
The court also explained that in order to be a proximate cause for an injury, someone must first be deemed a negligent actor, and Desmond said that was especially significant for this case.
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Finding negligence
With the driver already determined to have not been negligent in his actions causing the accident, the case came down to the runner and coach for determining negligence.
Desmond said Johnson and Hatchett deposed all members of the cross country team along with Swager to determine what happened during the accident.
"Coach's position was that our client couldn't hear him direct the runners across the street, but the runners said the opposite, so that created issues of credibility," Desmond said. "Until those issues of credibility could've been resolved, it's difficult for a court to say that we don't have the right to proceed to trial."
Desmond said Ray acted like any young runner on the team would have.
"It's early in cross country season, he has his coach who's telling him to act in a certain way. He has 20 teammates acting in that same way. It would be reasonable to expect a 13-year-old to do what he did," Desmond said.
The depositions revealed that there were other runners just a few feet in front of Ray when he and another runner were hit. Further testimony showed that during that portion of practice, the entire team was supposed to be together without anyone falling behind or getting significantly ahead.
There was also testimony from coaching experts who said it's best practice to have an adult in the back of the pack so there are eyes on every runner.
"Since Coach Swager was not in the back of the pack, there were no other adults back with Ray and the other runners who were involved in the accident or behind the road at the time of the accident," Desmond said.
The MSC ruled that if a reasonable finder of fact can't determine if either the runner or the driver were negligent, then the only proximate cause left in that chain of events was Swager, the governmental defendant, Desmond said.
Defense attorneys Timothy Mullins and Kenneth Chapie did not respond to requests for comment on this case.
Published: Tue, Jan 08, 2019
