Opinion
362353
12-21-2023
KENNEDY AMMAN and CORI AMMAN, Plaintiffs-Appellants, v. BETHANY BUSCH, Defendant-Appellee.
UNPUBLISHED
Saginaw Circuit Court LC No. 17-035098-CZ
Before: GLEICHER, C.J., and SWARTZLE and YATES, JJ.
PER CURIAM.
This is the second time this case has come before this Court. In 2020, we reversed a trialcourt order denying summary disposition to most of the defendants, but we affirmed the trial-court order denying summary disposition to defendant, Bethany Busch. See Amman v Chesaning Union Sch, unpublished per curiam opinion of the Court of Appeals, issued August 27, 2020 (Docket Nos. 346483 and 346484). On remand, plaintiffs, Kennedy Amman and her mother, Cori Amman, proceeded to trial against Busch, but the jury found that Busch did not engage in gross negligence. After the trial court entered a judgment of no cause in favor of Busch, plaintiffs appealed of right, challenging the exclusion of evidence at trial. We affirm.
I. FACTUAL BACKGROUND
On February 4, 2016, at Chesaning High School, a piano fell off of a dolly and onto plaintiff Kennedy Amman's left foot during her choir practice. The piano was kept on the dolly at all times, even when it was not in use. On the day of the incident, defendant Busch, the choir teacher, moved the piano on a dolly as she typically did each day. Plaintiff was near the piano as defendant moved it, and the piano fell off of the dolly and onto plaintiff's foot, causing injury. Plaintiffs filed this action against several defendants on June 29, 2017. But because of problems with personal service, plaintiffs had to file a separate complaint against defendant Busch on December 18, 2017, setting forth claims of gross negligence and battery. On September 18, 2018, the trial court dismissed the battery claim, so the case against defendant Busch proceeded only on plaintiffs' gross-negligence claim.
During the course of discovery, affidavits from three students were produced. Two of those affidavits included statements defendant Busch allegedly made about the piano before the incident took place. Defendant purportedly complained to the class that the piano was unstable on the dolly and told the class that she was going to inform the school administration about the piano. All three affidavits also contained similar statements that the school's prior choir teacher, Yasmin Gewirtz,had allegedly made about the piano. In the prior appeal, defendant Busch argued that the students' affidavits should not have been considered in denying summary disposition because the affidavits violated a scheduling order and contained inadmissible hearsay. We rejected both of those claims, stating that "[b]ecause 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." Amman, unpub op at 4. We rejected the hearsay argument, ruling that "the statements in the affidavits allegedly made by Busch do not constitute inadmissible hearsay" because "[t]hese 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." Id. Moreover, we reasoned that even if those statements were hearsay, they were admissible pursuant to MRE 801(d)(2)(A) as admissions of a party opponent. Id. We noted, "however, that if the statements in the affidavits attributed to the former choir teacher that 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." Id. at 4-5.
Throughout their briefs, both sides incorrectly refer to the prior choir teacher as "Ms. Gerwitz." As her deposition testimony clearly established, her name is Yasmin Gewirtz.
In upholding the trial court's denial of summary disposition to defendant Busch, we stated that "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." Id. at 5. Also, "plaintiffs point[ed] 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 and had 'told them this is an accident waiting to happen' and that the piano needed to be bolted down." Id. at 5-6. Therefore, we concluded that "[t]his 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." Id. at 6. We forecasted that "[t]he parties, no doubt, will dispute whether Busch made such comments and also whether the alleged comments, even if made, demonstrate gross negligence." Id. But we held nonetheless that, "viewing the evidence in the light most favorable to plaintiffs, reasonable minds could differ regarding whether Busch's conduct constituted gross negligence." Id.
On remand, defendant moved to exclude all references to Gewirtz on the basis of relevancy. Given that the school was no longer a defendant and Gewirtz was not a party to the case, defendant asserted that the alleged remarks by Gewirtz about the piano were irrelevant because they did not bear upon whether defendant was grossly negligent. Defendant contended that plaintiffs had failed to show any connection between defendant and Gewirtz's alleged statements, so defendant moved to exclude Gewirtz as a witness and to prohibit all references to Gewirtz. Additionally, defendant sought to exclude as a witness one of the students who submitted an affidavit because that student's testimony would relate only to Gewirtz, not to defendant's alleged statements about the piano.
Plaintiffs insisted that Gewirtz's remarks about the piano were relevant to demonstrate that defendant Busch had notice about the piano's dangerous condition. Plaintiffs argued that, because Gewirtz made statements to the class about the piano, she likely had also made statements to other school staff members, such as defendant. Similarly, plaintiffs essentially contended that, because Gewirtz made statements about the piano that were similar to defendant's subsequent statements, Gewirtz and defendant must have discussed the piano. Plaintiffs asserted that the jury should hear that testimony and decide for itself.
In an oral ruling from the bench on May 23, 2022, the trial court granted defendant's motion in limine to exclude all references to Gewirtz, concluding that "the question of whether or not the prior music teacher said something is entirely irrelevant to whether or not the Defendant Busch was grossly negligent in relation to this particular case." As the trial court explained, "Ms. Gerwitz [sic] is totally irrelevant. We've got enough issues, we don't need other issues or other nonissues being brought into this case." Later, the trial court entered an order stating that Gewirtz was not a party to the case and the school had been dismissed. On appeal, plaintiffs challenge the trial court's exclusion of Gewirtz as a witness and all references to her. Plaintiffs assert that that evidence was relevant and not hearsay. Plaintiffs alternatively insist that the law-of-the-case doctrine foreclosed the exclusion of the evidence.
II. LEGAL ANALYSIS
We review for an abuse of discretion the trial court's decision to admit or exclude evidence. Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich, 333 Mich.App. 457, 477; 960 N.W.2d 186 (2020). An abuse of discretion occurs when the "decision falls outside the range of reasonable and principled outcomes." Id. at 477-478 (quotation marks and citation omitted). If the trial court makes a determination that is legally incorrect, it necessarily abuses its discretion. Id. at 478. We review preliminary or underlying questions of law de novo. Id. Ordinarily, we review de novo questions of law, such as issues involving the law of the case. Rott v Rott, 508 Mich. 274, 286; 972 N.W.2d 789 (2021). But because plaintiffs failed to present that issue in the trial court, we have no obligation to review the unpreserved issue. Tolas Oil &Gas Exploration Co v Bach Servs &Mfg, LLC, __Mich App__, __;__ N.W.2d __(2023) (Docket No. 359090); slip op at 2-3. We may, however, address an unpreserved issue "if the issue involves a question of law and the facts necessary for its resolution have been presented." Id. at __; slip op at 3 (quotation marks and citation omitted). Whether the law-of-the-case doctrine applies is a question of law, and all facts necessary for the resolution of that issue have been presented.
A. EXCLUSION OF EVIDENCE
Plaintiffs assert that the trial court abused its discretion by excluding the evidence relating to Gewirtz and her alleged statements made about the piano because those statements were relevant to whether defendant had notice of the piano's condition and they were not hearsay. As an initial matter, defendant did not request to exclude the evidence on the basis that it was hearsay. Rather, defendant attempted to exclude the evidence on the basis of relevance, and the trial court based its ruling on relevance, not hearsay. Therefore, we need not address plaintiffs' arguments regarding hearsay. Instead, we must focus exclusively on the issue of relevance.
Under Michigan law, "governmental agencies and their employees are generally immune from tort liability when they are engaged in the exercise or discharge of a governmental function." Ray v Swager, 501 Mich. 52, 62; 903 N.W.2d 366 (2017). But if a governmental employee acted in a grossly negligent manner, immunity does not apply. MCL 691.1407(2)(c). Gross negligence is "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results." MCL 691.1407(8)(a). "Simply alleging that an actor could have done more is insufficient under Michigan law," and "saying that a defendant could have taken additional precautions is insufficient to find ordinary negligence, much less recklessness." Tarlea v Crabtree, 263 Mich.App. 80, 90; 687 N.W.2d 333 (2004). Instead, a plaintiff must show "almost a willful disregard of precautions or measures to attend to safety and a singular disregard for substantial risks," as "if an objective observer watched the actor [and] . . . conclude[d], reasonably, that the actor simply did not care about the safety or welfare of those in his charge." Id.
As a general rule, relevant evidence is admissible. MRE 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. But relevant "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." MRE 403.
Here, after this Court reviewed the case, only Busch remained as a defendant, see Amman, unpub op at 8, and the only remaining issue was whether defendant Busch was grossly negligent in how she handled the piano. A crucial component of that issue was what Busch said and when she said it. According to the three student witnesses, Gewirtz made remarks about the piano being unstable and stated that she was going to inform the school administration about it. But Gewirtz made those alleged remarks sometime during her tenure as the choir teacher, which ended in 2013. The record does not establish when Gewirtz made the remarks, but it must have happened before defendant took over as the choir teacher during the school year that ran from 2015 into 2016. There is no indication that the two teachers ever worked at the school at the same time. The three student affidavits do not indicate that Gewirtz made the remarks to defendant or in defendant's presence, and the affidavits do not establish any connection between Gewirtz and defendant. Consequently, the affidavits did not show that defendant received notice of the piano issue from Gewirtz.
Had the trial court permitted plaintiffs to call Gewirtz as a witness at trial, her value to the plaintiffs' case would have been negligible, at best. Although several students provided affidavits that attributed statements about the piano to Gewirtz, during Gewirtz's deposition, she denied that she made statements about the piano on the dolly being wobbly. Specifically, Gewirtz denied that she ever had "any issues with the piano slipping on the dolly" when she moved it twice each day. Beyond that, Gewirtz made clear that she never "complain[ed] to maintenance at Chesaning High School regarding any issues with the piano on the dolly[,]" she never told "anyone that the piano should have been bolted down onto the dolly[,]" and she never said "that the piano was an accident waiting to happen[.]" Moreover, when asked, Gewirtz said she did not recall ever telling a student that the piano was misaligned on the dolly so she was "going to go to the administrative office and tell them about it[.]" Accordingly, allowing Gewirtz to testify at trial simply would have set up a credibility contest between Gewirtz and the students about what Gewirtz said several years before defendant Busch started teaching choir classes at Chesaning High School.
Even if Gewirtz and defendant used similar words about the piano, that is inconsequential. Contrary to plaintiffs' contention, their use of similar language does not establish that Gewirtz and defendant must have spoken with one another about the piano. On that matter, plaintiffs are simply speculating and attempting to draw connections that do not exist. Further, Gewirtz never admitted in her deposition that she spoke to defendant about the piano before the incident. Rather, Gewirtz testified that she spoke briefly to defendant after the incident occurred, and there was no indication from that conversation that Gewirtz had shared information about the piano with defendant before the incident. By all accounts, the conversation was brief and entailed Gewirtz merely asking about the incident itself.
The deposition testimony of plaintiff Cori Amman similarly did not reveal any connection between Gewirtz and defendant. Cori Amman spoke to defendant several weeks after the incident, and, according to Cori Amman, defendant said she discussed the piano with "other teachers" and "told them this is an accident waiting to happen. It needs to be bolted down." Plaintiffs speculate that Gewirtz must have been one of those "other teachers," but, beyond speculation, plaintiffs offer no evidence to support that claim. Gewirtz was the choir teacher years before defendant, and there were surely many other teachers at the school to whom defendant could have been referring when she spoke of "other teachers."
Although plaintiffs provided ample evidence that Gewirtz gave notice to the school about the piano, plaintiffs never connected that notice to defendant Busch. On remand, the only subject at issue was whether defendant was grossly negligent. Gewirtz was not a party, nor was the school. The remarks of the prior choir teacher unconnected to defendant had no bearing on what defendant knew about the piano. Plaintiffs offered speculation, but made no connection, linking notice from Gewirtz to defendant Busch. Thus, the trial court's exclusion of the evidence as irrelevant was not outside the range of principled outcomes, so plaintiffs have failed to demonstrate that the trial court abused its discretion in excluding the evidence.
We note that plaintiffs seem to overstate the breadth of the excluded evidence. The only evidence excluded was that relating to Gewirtz. Defendant's statements about the piano were not excluded. At trial, two student witnesses and plaintiff Cori Amman testified about statements that defendant allegedly made about the piano, and plaintiffs' counsel vigorously cross-examined defendant about those statements.
B. LAW OF THE CASE
Plaintiffs insist that, based on our decision in the prior appeal, the law-of-the-case doctrine mandated admission of evidence relating to Gewirtz. The law-of-the-case doctrine was "judicially created" in order "to promote consistency throughout the life of a lawsuit." Rott, 508 Mich. at 286. Our Supreme Court has expressly ruled that "if an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same." Id. (quotation marks and citations omitted). That doctrine, however, applies only when issues are "actually decided, either implicitly or explicitly, in the prior appeal." Id. at 287 (quotation marks and citations omitted).
Here, plaintiffs have misinterpreted our prior ruling. We previously addressed: (1) whether the three student affidavits violated a scheduling order, see Amman, unpub op at 4; and (2) whether defendant Busch and the other defendants were entitled to summary disposition, id. at 6-7. As part of our discussion of whether Busch was entitled to summary disposition, we concluded that certain statements she made were not hearsay. Id. at 4-5. In the prior appeal, the parties did not dispute, and we did not decide, whether all evidence involving Gewirtz was relevant. On remand, both the motion in limine and the trial court's rulings were predicated on relevance, not hearsay. Also, the trial court addressed whether Gewirtz could testify as a witness at trial. Although we previously addressed whether Gewirtz's statements mentioned in the students' affidavits were hearsay, see Amman, unpub op at 4-5, we did not determine whether Gewirtz's knowledge about the piano was relevant or whether Gewirtz herself should be kept off the witness stand on the basis of relevance. In other words, the motion in limine and the trial court's ruling were broader and based on different grounds than we addressed because they concerned all evidence involving Gewirtz. Accordingly, the evidentiary issues that the trial court resolved on remand were not actually decided on the prior appeal, so the law-of-the-case doctrine is inapplicable.
Affirmed.
Brock A. Swartzle, Christopher P. Yates
GLEICHER, C.J. (dissenting).
During a choir class at Chesaning High School, a piano fell off a dolly and onto plaintiff Kennedy Amman's foot, crushing it. The sole issue at trial was whether defendant Bethany Busch, the choir teacher who was moving the piano when it fell, knew of the piano's unsteadiness. The trial court derailed Kennedy's case by precluding her from presenting any evidence that a previous choir teacher, Yasmin Gewirtz, had publicly complained of the piano's instability. The majority affirms, holding that because Gewirtz disavowed having made the statements attributed to her and claimed she had never spoken to Busch about the piano, the trial court's exclusion of the evidence was not an abuse of discretion. I respectfully dissent.
I. BACKGROUND
Kennedy and her mother, plaintiff Cori Amman, sued the Chesaning school district, the school principal, and Busch. The three defendants unsuccessfully sought summary disposition in the trial court. This Court reversed regarding the school district and the principal, holding that summary disposition in their favor was warranted. Amman v Chesaning Union Schs, unpublished per curiam opinion of the Court of Appeals, issued August 27, 2020 (Docket Nos. 346483 and 346484). But we upheld the denial of summary disposition as to Busch, holding that the evidence supported a gross negligence claim arising from Busch's decision to move the unstable piano with a group of students standing nearby. In large part, we rested our opinion on the fact that a former choir teacher, Gewirtz, had allegedly noticed the piano's unsteadiness and commented about it at the school.
At the summary disposition stage, we noted several students' affidavits quoting Gewirtz's comments about the piano, specifically its dangerousness. Alyssa Tinklepaugh averred that Gewirtz "had trouble moving the piano on the dolly," that she had students help her move the piano because the piano was too heavy to move herself, and that she had "complained to the whole class that the piano on the dolly was not level, or that it was unstable, and that she was going to go to the Administrative Offices and let them know about this." Two weeks before the accident, Tinklepaugh asserted, Busch had "made almost the exact same comment that [Gewirtz had] made, namely that the piano on the dolly was 'unstable,' and that she was going to 'inform the front office,' and similar such words."
Brionna Harrison, another student, affirmed in an affidavit that Gewirtz "had trouble moving the piano on the dolly on her own," that she had students help her move the piano on at least one occasion, and that she had "said things to the effect of, 'This piano is wobbly' and 'This is not sturdy' meaning the piano on the dolly." Harrison's affidavit continued that on at least one occasion, Gewirtz had "openly complained during class that the piano on the dolly was wobbly." Violet Foster, another classmate, affirmed that Gewirtz would call on students in class to help her move the piano on the dolly, that Gewirtz was unable to move it on her own, and that Foster heard Gewirtz "complain about the state the piano was in, and that she wished the School would get rid of it."
In our first opinion, we held that these affidavits, in combination with evidence that Busch herself had voiced concerns about the piano, provided evidentiary support for Kennedy's gross negligence claim. We highlighted that the statements were admissible because they were not offered to prove that the piano was wobbly (this fact was essentially admitted), but instead to prove that Busch knew or should have known of the piano's instability on the dolly.
Predictably, at the trial, proof of Busch's knowledge of the piano's unsteadiness was the key to Kennedy's case against Busch. Because she was a governmental employee, Busch's liability hinged on whether a jury determined that she was grossly negligent.
Gross negligence is "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results." MCL 691.1407(8)(a). 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 v Crabtree, 263 Mich.App. 80, 90; 687 N.W.2d 333 (2004)].
As we explained in our first opinion, if Busch had conversations with other teachers regarding the piano's danger, those conversations would be relevant to Kennedy's gross negligence claim. Busch's failure to take any precautions-despite being concerned that moving the piano on the dolly was "an accident waiting to happen"-could constitute "a willful disregard of precautions or measures to attend to safety and a singular disregard for substantial risks." Tarlea, 263 Mich.App. at 90. If Busch knew or should have known about the danger, her failure to put any safeguards in place, including simply instructing students to stand on the opposite side of the room as the piano was moved, could support a gross negligence claim.
After our remand and before the case went to trial, Busch filed a motion in limine seeking to exclude Gewirtz as a witness in the case and to prohibit Kennedy and her witnesses from testifying to Gewirtz's statements. As the majority opinion recites, the trial court granted Busch's motion on relevancy grounds. The trial court reasoned that "the question of whether or not the prior music teacher said something is entirely irrelevant to whether or not the Defendant Busch was grossly negligent in relation to this particular case." The court continued: "Ms. Gerwitz [sic] is totally irrelevant. We've got enough issues, we don't need other issues or other nonissues being brought into this case." The trial court's order stated, in relevant part, that "Defendant's motion arguing that portions of [the students'] Affidavits that mention Ms. Gerwitz [sic] shall be stricken is GRANTED. Further, Ms. Gerwitz [sic] will not be mentioned in any part of the trial, and shall not be called as a witness to the trial, as she is not a party to the suit, and the School has been dismissed."
The majority affirms, observing that the students' affidavits "do not indicate that Gewirtz made the remarks to defendant or in defendant's presence, and the affidavits do not establish any connection between Gewirtz and defendant. Consequently, the affidavits did not show that defendant received notice of the piano issue from Gewirtz." No other evidence established a connection between Gewirtz and Busch, the majority adds, summarizing that "[t]he remarks of the prior choir teacher unconnected to defendant had no bearing on what defendant knew about the piano."
II. ANALYSIS
In my view, Gewirtz's statements were relevant regarding whether Busch knew or should have known of danger presented by moving the piano on the dolly. In affirming the trial court's in limine ruling, the majority conflates the relevance of the excluded evidence with the persuasiveness (in the majority's estimation) of that evidence.
Relevant evidence is evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401 (emphasis added). To be relevant, evidence must tend" 'to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'" People v Crawford, 458 Mich. 376, 389-90; 582 N.W.2d 785 (1998), quoting MRE 401. Our Supreme Court emphasized in Crawford that "[t]he threshold is minimal: 'any' tendency is sufficient probative force." Id. at 390. Evidence is relevant if it "in some degree advances the inquiry," 1 McCormick, Evidence (6th ed), § 185, p 736, and is not objectionable simply because it fails to supply conclusive proof.
Long ago, our Supreme Court recognized that "[n]o single item of evidence can be rejected upon the sole ground that it falls short of making a case; if it contributes to that end it must be received, and its sufficiency in connection with the other evidence must be determined on a review of the whole when the case is closed." Collins v Beecher, 45 Mich. 436, 438; 8 N.W. 97 (1881). More recently, the Supreme Court amplified the same point in People v Brooks, 453 Mich. 511, 519; 557 N.W.2d 106 (1996), by quoting extensively from the McCormick treatise, "where the reader encounters the familiar formulation that 'a brick is not a wall:' "
Under our system, molded by the tradition of jury trial and predominantly oral proof, a party offers his evidence not en masse, but item by item. An item of evidence, being but a single link in the chain of proof, need not prove conclusively the proposition for which it is offered. It need not ever make that proposition appear more probable than not. Whether the entire body of one party's evidence is sufficient to go to the jury is one question. Whether a particular item of evidence is relevant to his case is quite another. It is enough if the item could reasonably show that a fact is slightly more probable than it would appear without that evidence. Even after the probative force of the evidence is spent, the proposition for which it is offered still can seem quite improbable. Thus, the common objection that the inference for which the fact is offered "does not necessarily follow" is untenable. It poses a standard of conclusiveness that very few single items of circumstantial evidence ever could meet. A brick is not a wall. [Id., quoting 1 McCormick, Evidence (4th ed), § 185, p 776.]
The statements attributed to Busch establish a fact of consequence to the action: that the piano was obviously unsteady and that any choir teacher who moved the piano knew or should have known of its dangerousness. The statements attributed to Gewirtz establish precisely the same relevant fact. Gewirtz's deposition denial that she had made the statements and her insistence that she did not recognize the piano's danger may have made the students' accounts less believable, but her testimony did not render them less relevant.
The majority concludes that because Busch could not have heard them, Gewirtz's statements were "unconnected" to Busch and "had no bearing on what [Busch] knew about the piano." But the statements' relevancy does not rise and fall on whether Busch heard them. Rather, evidence that another choir teacher knew that the piano was "an accident waiting to happen" would assist the jury in determining that Busch should have known that the piano was unsteady because its danger was obvious, and common knowledge within the school. Contrary to the majority, Busch's denial of any knowledge is not conclusive proof that she was unaware that others had expressed concerns about the piano's safety. Cross examination is all about challenging such steadfast denials and allowing a jury to assess their credibility.
The majority observes that "allowing Gewirtz to testify at trial simply would have set up a credibility contest between Gewirtz and the students about what Gewirtz said several years before defendant Busch started teaching choir classes at Chesaning High School." This is precisely what a trial is all about.
In my view, the trial court abused its discretion by preventing Kennedy from offering the strongest proof she had that Busch knew or should have known of the piano's unsteadiness when perched on a moving dolly. Gross negligence is difficult to establish, and Kennedy faced an uphill battle under the best of circumstances. The elimination of one strong brick of support for that proof made that task insurmountable. By detailing the reasons that Busch was unlikely to have been aware of Gewirtz's statements, the majority misplaces it focus, making the same error as the trial court. The jury could have considered Gewirtz's views irrelevant because Busch didn't hear them, just as the majority and the trial court did. But constructing a list of reasons a factfinder might disregard a piece of evidence doesn't equate to irrelevance as a matter of law.
Whether Busch knew or should have known about the piano's danger was the only real issue at the trial. Gewirtz's statements were relevant to whether Busch should have seen what was obvious to Gewirtz and others. Indeed, Gewirtz's statements provided the strongest possible evidence of that fact. Because the improper exclusion of this evidence was "inconsistent with substantial justice," MCR 2.613(A), I would reverse and remand for a new trial.