By Kelly Caplan
BridgeTower Media Newswires
DETROIT-Where a disabled man drowned in a swimming pool at a community center operated by the City of Troy, the city is entitled to governmental immunity regardless of any gross negligence of its employees, a panel of the Michigan Court of Appeals has ruled.
The panel reversed the trial court's orders denying defendants' motions for summary disposition, but remanded to provide plaintiff an opportunity to seek leave to amend her complaint.
The unpublished per curiam opinion, Estate of Tschirhart v. City of Troy, was issued by Judges Karen M. Fort Hood, Deborah A. Servitto, and Mark T. Boonstra.
Plaintiff's counsel Mark R. Bendure, of Bendure & Thomas in Grosse Pointe Park, said he and his client are considering their options in going forward.
"I am troubled that the court declared that the inattention of the guards could not have been a proximate cause when there has been no discovery about how the drowning occurred, why the guards were inattentive, how long it took before the decedent could no longer be saved, and a variety of other important details necessary to make an informed decision on causation," he said.
Julie Quinlan Dufrane, assistant city attorney for defendant City of Troy, could not offer comment due to the remand and the potential for continuing litigation.
Background
Thirty-two-year-old Shaun Tschirhart, who had a history of epilepsy, was participating in a recreational program for disabled adults provided by the City of Troy at a swimming pool at the Troy Community Center.
Tschirhart submerged himself in the pool and likely suffered an epileptic seizure. He was underwater for approximately 50 seconds before anyone noticed he was in danger. He was removed from the pool, and it was approximately 90 seconds before defendants started CPR, according to the COA opinion.
Tschirhart was taken by ambulance to a hospital where he was pronounced dead. The medical examiner determined the cause of death was "drowning due to epileptic seizures disorder."
Plaintiff sued the City of Troy, the lifeguards on duty, club attendants, and the pool manager for wrongful death in Oakland Circuit Court, alleging they were grossly negligent in failing to supervise and timely intervene.
Defendants moved for summary disposition, arguing they were entitled to immunity under the governmental tort liability act (GTLA), and further alleging that plaintiff failed to plead facts in avoidance of immunity.
Defendant Susan O'Connor filed a separate motion for summary disposition, but plaintiff argued that summary disposition was premature because discovery had not been conducted. The trial court agreed and denied defendants' motions.
Defendants appealed.
Analysis
The Court of Appeals agreed with both parties that the city was entitled to governmental immunity regardless of any gross negligence of its employees, citing MCL 691.1407(1).
The panel then turned to the plaintiff's allegations of gross negligence on the part of the defendant employees, and determined that governmental immunity applied.
The panel said that, in order to be the proximate cause of an injury, gross negligence must be "'the one most immediate, efficient, and direct cause' preceding the injury."
"First, we conclude that, even assuming arguendo that the defendant employees' conduct constituted gross negligence, it was not the cause of the decedent's death," the panel wrote. "We also conclude that, to the extent that plaintiff's complaint was predicated, not on defendants' failures after the decedent entered the pool, but on their failures to prevent the drowning beforehand, plaintiffs failed to establish gross negligence."
In order for a plaintiff to succeed in a tort action against a governmental employee, "the plaintiff must prove both that (1) the governmental employee's conduct demonstrated a substantial lack of concern for whether his conduct would cause injury to the plaintiff, and (2) the alleged misconduct was the proximate cause of the plaintiff's injury," the court said, citing Tarlea v Crabtree, 263 Mich App 80, 83; 687 NW2d 333 (2004).
In Tarlea, the Court of Appeals said gross negligence suggests "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."
The court said it did not believe that an objective observer watching the events as alleged in plaintiff's complaint "'could conclude, reasonably, that the actor[s] simply did not care about the safety or welfare' of the decedent," and that failing to provide the decedent with a lifejacket or other safety device did not rise to that level of gross negligence.
"Plaintiff did not plead facts to support a conclusion that allowing the decedent to swim without a flotation device demonstrated a substantial lack of concern for the decedent's risk of injury," the court said. "Plaintiff did not plead any unusual circumstances, such as the depth of the pool, warranting use of a lifejacket by an adult swimmer. Plaintiff did not allege that the decedent was unable to swim, or that the decedent's seizures were so frequent that there was a significant likelihood that one would occur while he was in the pool."
Amendment
The plaintiff argued she should be given the opportunity to amend her complaint.
The panel agreed, noting it was unclear whether there were other facts that could support a valid claim.
"[O]ur Supreme Court's decisions in Beals, 497 Mich 363, and Ray I, 501 Mich 52, indicate that a plaintiff claiming gross negligence from a lifeguard's untimely attempt to rescue a drowning victim generally cannot satisfy the causation element because of the uncertainty over whether a quicker rescue would have been successful," the court said. "However, although these decisions would seem to foreclose any likelihood that plaintiff could successfully allege and establish a viable claim in avoidance of governmental immunity, we have determined that remand to afford plaintiff an opportunity to seek leave to amend her complaint under MCR 2.118 is appropriate."
Published: Fri, May 01, 2020
