Opinion
353401
09-02-2021
MYAIR BARNETT, by her Next Friend, REGINA PORTER, Plaintiff-Appellee, v. DEJA SHARDONNAY JACKSON, NINA RICCI JACKSON, and FLINT MASS TRANSPORTATION AUTHORITY, Defendants, and FRANCHEZKA FLYNN, Defendant-Appellant.
UNPUBLISHED
Genesee Circuit Court LC No. 18-111579-NO
Before: Shapiro, P.J., and Jansen and Beckering, JJ.
PER CURIAM.
Defendant Franchezka Flynn appeals as of right the trial court's order denying her motion for summary disposition based on governmental immunity. We affirm.
Defendants Deja Shardonnay Jackson, Nina Ricci Jackson, and Flint Mass. Transportation Authority are not parties to this appeal.
I. BACKGROUND
This case arises from a motor vehicle accident occurring on June 27, 2018, on N. Grand Traverse Street in Flint. Defendant Flint Mass. Transportation Authority (MTA) provides transportation services for children to and from various charter or private schools. The routes used during student transport hours were called "peak service" routes. The peak-service routes had established stops in neighborhoods typically within two blocks of the homes of the students.
Although these MTA buses had a classic school-bus shape (long-nosed), they were white rather than school-bus yellow and had an MTA logo rather than a school logo on the side. The bus had the yellow and white four-way flashers typical to city buses but lacked the red flashing lights that school buses are required to have as well as the extendable stop sign used to prevent traffic from moving around a bus while students are alighting.
At around 5:00 p.m., Flynn was driving and the seven-year-old plaintiff was riding the bus home from North Ridge Academy. At least three other students were on the bus. Flynn had been driving a bus for MTA for approximately two months. Normally, plaintiff's older brother rode the bus with her, and after exiting he would escort her to the back of the bus and then across the street after the bus left. On July 27, 2018, the last day of school, plaintiff was not accompanied by her brother, and Flynn stopped on Grand Traverse, directly across from plaintiff's house, although this was not the established bus stop and, according to Flynn, there was a crosswalk "four or five houses" away. Flynn testified that she activated the bus's four-way flashers upon stopping. Before plaintiff exited the bus, a black car crossed the double yellow line and went around the bus. According to Flynn, the seven-year-old then exited the bus, put her bookbag over her head because it was raining, and "took off" running across the street in front of the bus.
Sixteen-year-old defendant Deja Jackson was driving home from her ex-boyfriend's house at that time. She turned right onto Grand Traverse from Welch Street, and saw the black car pass the bus. Jackson had ridden an MTA bus to and from school herself, but there was nothing about this bus that told her that it was transporting students. She testified that when she stopped behind the bus, its four-way flashers were not turned on, contrary to Flynn's testimony that they were. Having seen the black car go around the bus and seeing no pedestrians or other indication that she should not go around the bus, Jackson proceeded and struck plaintiff just as she came out from in front of the bus. Jackson testified that she was not speeding and there was no testimony to the contrary. Kevin Galloway, the assistant manager of transportation services for MTA and Flynn's supervisor, came to the scene and finished the route. Flynn was issued a written reprimand from Galloway for allowing a passenger to cross the street in front of the bus instead of behind.
She also testified that when she used to ride the MTA buses home from school "younger students . . . either had to have a parent present or had to be let off at the corners and stuff, they couldn't be let off in the middle of the [block]." She also stated that she did not think this MTA bus was carrying students because "as late as it was, I didn't really think school would be getting out" and that she could not see who the passengers were because of the bus's tinted windows.
Plaintiff, by her next friend, filed a complaint against Flynn, MTA, Jackson, and Nina Jackson, the owner of the vehicle Jackson was driving. Relevant to this appeal, plaintiff alleged gross negligence against Flynn and that MTA was vicariously liable for Flynn's conduct under the doctrine of respondeat superior. Flynn and MTA moved for summary disposition under MCR 2.116(C)(7) (immunity) and (10) (no genuine issue of material fact). The trial court granted MTA summary disposition because the accident did not involve physical contact of the bus with another vehicle or a pedestrian. See Curtis v City of Flint, 253 Mich.App. 555, 562; 655 N.W.2d 791 (2002).
The court, however, denied Flynn summary disposition, concluding that there were genuine issues of material fact on gross negligence and causation.
II. ANALYSIS
Flynn argues that she is entitled to summary disposition because there is not a genuine issue of material fact on either factual or legal causation. We disagree.
We review de novo a trial court's decision to grant or deny summary disposition. Galea v FCA U.S. LLC, 323 Mich.App. 360, 368; 917 N.W.2d 694 (2018). Summary disposition may be granted under MCR 2.116(C)(7) for an "immunity granted by law." In RDM Holdings, Ltd v Continental Plastics Co, 281 Mich.App. 678, 687; 762 N.W.2d 529 (2008), we summarized the standards for analyzing a motion brought under that subrule:
[T]his Court must consider not only the pleadings, but also any affidavits, depositions, admissions, or other documentary evidence filed or submitted by the parties. The contents of the complaint must be accepted as true unless contradicted by the documentary evidence. This Court must consider the documentary evidence in a light most favorable to the nonmoving party. If there is no factual dispute, whether a plaintiff's claim is barred under a principle set forth in MCR 2.116(C)(7) is a question of law for the court to decide. If a factual dispute exists, however, summary disposition is not appropriate. [Citations omitted.]Flynn also moved for summary disposition under MCR 2.116(C)(10). "Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." West v Gen Motors Corp, 469 Mich. 177, 183; 665 N.W.2d 468 (2003). A genuine issue of material fact exists if, when reviewing the record in the light most favorable to the nonmoving party, an issue upon which reasonable minds might differ remains open. Debano-Griffin v Lake Co, 493 Mich. 167, 175; 828 N.W.2d 634 (2013).
Under the governmental tort liability act (GTLA), MCL 691.1401 et seq., governmental employees acting within the scope of their authority are generally immune from tort liability. Tarlea v Crabtree, 263 Mich.App. 80, 89; 687 N.W.2d 333 (2004). However, governmental employees are not immune from liability if their conduct amounts to "gross negligence that is the proximate cause of the injury or damage." MCL 691.1407(2)(c).
It is undisputed that at the time of the accident Flynn was acting within the scope of her authority and was engaged in a governmental function. And, at least for purposes of this appeal, Flynn does not contest the trial court's conclusion that genuine issues of material fact existed regarding gross negligence. Thus, the sole issue before us is whether plaintiff established a question of material fact as to causation. "The determination whether a governmental employee's conduct constituted gross negligence that proximately caused the complained-of injury under MCL 691.1407 is generally a question of fact, but, if reasonable minds could not differ, a court may grant summary disposition." Briggs v Oakland Co, 276 Mich.App. 369, 374; 742 N.W.2d 136 (2007).
"In a negligence action, a plaintiff must establish both factual causation, i.e., the defendant's conduct in fact caused harm to the plaintiff, and legal causation, i.e., the harm caused to the plaintiff was the general kind of harm the defendant negligently risked." Ray v Swager, 501 Mich. 52, 63; 903 N.W.2d 366 (2017) (quotation marks and citation omitted). "Factual causation requires showing that 'but for' the defendant's actions, plaintiff's injury would not have occurred." Kroll v DeMorrow, 505 Mich. 954, 954 (2020). "The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result." Skinner v Square D Co, 445 Mich. 153, 165; 516 N.W.2d 475 (1994) (quotation marks and citations omitted). "If factual causation cannot be established, then proximate cause, that is, legal causation, is no longer a relevant issue." Ray, 501 Mich. at 64.
In its opinion and order regarding summary disposition, after providing the proper framework as provided in Ray, 501 Mich. 52, the trial court concluded as follows:
Plaintiff puts forth assertions that she believes create factual issues regarding gross negligence and proximate cause that meet the standard put forth in Ray. These include: the extreme young age of the child (who was without the assistance of her older brother that day), the drop off in the middle of a busy block and not at an intersection, the failure to activate the flashing red lights, the failure to escort or assist the child, and the allowance of the child to walk in front of the bus, which created a blind spot. Much of this conduct was criticized by an MTA representative in a report issued after the accident. The driver of the car that hit the Plaintiff testified that she was not speeding and that there was no way for her to see the child.
Based upon Ray, the Court finds that there are genuine issues of material fact with regard to Plaintiff's claim that Defendant Flynn was grossly negligent and that this was the proximate cause of her injuries.
Plaintiff points to several aspects of Flynn's conduct that create a question of fact whether or not her actions and inactions were a cause in fact of the accident. First, she stopped the bus in the middle of the street rather than at the corner where there was a crosswalk or at an established bus stop. Second, she dropped the seven-year old off in the middle of a busy street on the side of the street opposite her home despite the fact that the child was unaccompanied by her brother and there was no adult waiting to escort her from the bus and across the street. Third, she either failed to observe the black car that went around the bus prior to the child getting out or noted it but failed to take action to make sure that other drivers knew not to pass the bus by either putting her hand out the window, honking the horn, or moving the bus so as to block the road. Fourth, Jackson testified that the rear flashers on the bus were not activated. Fifth, when she saw the child turn left (toward the front of the bus) instead of right (toward the back of the bus) at the bus door, Flynn did not call out to her, or honk the horn or take any other action to protect the child. While defendant seeks to focus on each of these actions in isolation, the trial court properly considered the entirety of defendant's conduct. Further, because this case involves multiple actors and "myriad variables," summary disposition is not favored. See Ray v Swager (On Remand), 321 Mich.App. 755, 762; 909 N.W.2d 817 (2017). In sum, viewed in a light most favorable to plaintiff, there is sufficient evidence from which a reasonable jury could conclude that, but for Flynn's conduct, plaintiff's injuries would not have occurred.
Flynn testified that she did put the flashers on, but in a motion for summary disposition we resolve all factual disputes in favor of the nonmovant. See Debano-Griffin, 493 Mich. at 175. Flynn also relies on testimony from Jackson that she believes she would have proceeded around the bus even if the flashers were on, as she would have concluded the bus was broken down given that it was stopped in the middle of the street and not near a bus stop. However, testimony as to what Jackson would have done under different circumstances than those that actually existed is a credibility question relevant to causation that must be resolved by a jury. See Martin v Ledingham, 488 Mich. 987, 988 (2010) (holding that testimony that a witness would have acted differently under different circumstances "presents a question of fact and an issue of credibility for the jury to resolve.").
We also conclude that the trial court did not err by finding that summary disposition was precluded on the question of proximate or legal causation. "[S]o long as the defendant is a factual cause of the plaintiff's injuries, then the court should address legal causation by assessing foreseeability and whether defendant's conduct was the proximate cause." Ray, 501 Mich. at 74. Proximate cause or legal causation "requires a determination of whether it was foreseeable that the defendant's conduct could result in harm to the victim." Id. at 65. For the conduct of a governmental employee to be "the proximate cause" under the GTLA, it must be "the one most immediate, efficient, and direct cause of the injury . . . ." Id. (quotation marks and citation omitted). Summary disposition should not be granted if reasonable minds could differ on the question of proximate causation. See id. at 65.
"[B]efore an actor can be a proximate cause, there must be the prerequisite determination that the actor was negligent-that is, that the actor breached a duty." Id. at 74. In this case, given plaintiff's age, a jury could reasonably determine that she was not negligent, in which case her actions cannot be a proximate cause of her injury. Similarly, the jury could conclude that Jackson acted reasonably by proceeding around a bus that appeared to be disabled. Given that only negligent acts may be deemed to be a proximate cause, if the jury finds no negligence on the part of plaintiff or Jackson, then Flynn's conduct is highly likely to be deemed the proximate cause. In any event, even if another actor was negligent and a proximate cause of plaintiff's injuries, the question remains whether Flynn's actions were "the proximate cause," i.e., whether Flynn's actions were the "most immediate, efficient, and direct cause" of the injuries." Id. at 76 (emphasis added). Considering the numerous actions or inactions by Flynn that plaintiff claims breached the standard of care, a reasonable jury could conclude that Flynn was the proximate cause of the accident.
Affirmed.
Plaintiff may tax costs as the prevailing party. MCR 7.219(A).
Jansen, J. (dissenting)
For the reasons that follow, I respectfully dissent.
The majority opinion concludes that Flynn is not entitled to summary disposition because there are genuine issues of material fact regarding factual and legal causation. I disagree, and would reverse the trial court order in relevant part, and remand for entry of an order granting Flynn summary disposition.
The issue on appeal is whether Flynn's actions were a cause in fact and the proximate cause of plaintiff's injuries. "Proximate cause is an essential element of a negligence claim." Ray v Swager, 501 Mich. 52, 63; 903 N.W.2d 366 (2017). A governmental employee's gross negligence is the proximate cause of an injury if it is" 'the one most immediate, efficient, and direct cause' preceding the injury." Love v Detroit, 270 Mich.App. 563, 565; 716 N.W.2d 604 (2006), quoting Robinson v Detroit, 462 Mich. 439, 462; 613 N.W.2d 307 (2000). Proximate cause should not be confused with cause in fact, or factual causation, which means that a plaintiff's injury would not have occurred "but for" the actions of a defendant. Ray, 501 Mich. at 63. A court must determine that a defendant's negligence was a cause in fact of a plaintiff's injuries before it can conclude that it was the proximate or legal cause of the injuries. Id. at 64. "In a negligence action, a plaintiff must establish both factual causation, i.e., 'the defendant's conduct in fact caused harm to the plaintiff,' and legal causation, i.e., the harm caused to the plaintiff 'was the general kind of harm the defendant negligently risked.'" Id. (quotations omitted). "The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough[.]" Skinner v Square D Co, 445 Mich. 153, 165; 516 N.W.2d 475 (1994) (quotation marks and citations omitted). A plaintiff presents sufficient evidence of causation to create a question of fact for the jury in response to a motion for summary disposition if she establishes a logical sequence of cause and effect irrespective of the existence of other plausible theories that may have evidentiary support; however, causation cannot be established by mere speculation. Patrick v Turkelson, 322 Mich.App. 596, 617; 913 N.W.2d 369 (2018).
Although the trial court quoted Ray in its opinion and order regarding summary disposition and stated," 'The analysis under this framework begins with determining whether the defendant's gross negligence was a cause in fact of the plaintiff's injuries[, ]'" the court failed to explicitly determine whether Flynn's actions were a cause in fact before reaching a conclusion about proximate cause. "Proximate cause is distinct from cause in fact," and "[c]ourts must not conflate these two concepts." Ray, 501 Mich. at 63. The court must find cause in fact before it finds proximate cause. Id. at 64. "Factual causation requires showing that 'but for' the defendant's actions, plaintiff's injury would not have occurred." Kroll v DeMorrow, 505 Mich. 954, 954; 936 N.W.2d 828 (2020). "If factual causation cannot be established, then proximate cause, that is, legal causation, is no longer a relevant issue." Ray, 501 Mich. at 64. See also Skinner, 445 Mich. at 163 (where the plaintiffs were unsuccessful in establishing a genuine issue of factual causation, the Court did not address proximate cause).
Nonetheless, plaintiff failed to meet her burden to establish that Flynn's actions were a cause in fact of plaintiff's injuries. The facts of this matter are fairly uncontested. The accident was clearly caught on camera, and is shown in both videos provided to this Court. The only factual dispute is whether Flynn activated the four-way flashers on the bus when it was stopped, which is not visible from either video. Flynn testified that she activated the four-way flashers; Jackson testified that they were not on. In Kroll, the issue was whether the defendant bus driver's alleged failure to activate the caution lights on the bus was a cause in fact of the student's injuries. Kroll, 505 Mich. at 954. The Supreme Court found that the evidence viewed in the light most favorable to the plaintiffs established sufficient evidence to bar summary disposition on factual cause because the driver that hit the student testified that it was his habit to stop when the caution lights on a bus were activated, and had the caution lights been on in this case, he would have stopped. Id. This testimony created a genuine issue of material fact as to whether the accident would have occurred but for the bus driver's failure to turn on the lights because the driver would have slowed to a stop before hitting the student. Id.
Although it is disputed whether Flynn activated the four-way flashers, the facts of this case are distinguishable from Kroll. Jackson testified that the four-way flashers were not on; however, when asked if the lights had been on would that have alerted her not to go around, she answered, "Not particularly due to the type of bus it is because sometimes that particular bus company has a lot of breakdowns too so-and as late as it was, I didn't really think school would be getting out." Had she seen the flashers on, she would not have acted differently because perhaps the battery had died. She testified that she was taught in driver's training not to cross a double yellow line, "but if the bus was broken down I would have to pass the bus." Jackson testified that she stopped behind the bus and waited, but did not see any pedestrians, so she proceeded to pass. Plaintiff relies on Jackson's initial testimony that the MTA bus did not look like a school bus, and if it had, she would have acted differently. However, Jackson then testified that the actual shape of the bus looked like a school bus, but was a different color, and she was well aware that MTA buses transported school children because she rode them to school as a student. Thus, the factual dispute regarding whether Flynn had the flashers on does not create a question of fact regarding cause in fact where Jackson testified that had they been on, she still would have passed.
The other assertions by plaintiff that the trial court relied on to create a question of fact are too speculative to establish cause in fact. Patrick, 322 Mich.App. at 617. In Beals v Michigan, 497 Mich. 363, 365; 871 N.W.2d 5 (2015), the issue was whether a defendant lifeguard's failure to intervene in the deceased's drowning was the proximate cause of the death. In Ray, 501 Mich. at 70-71, the Supreme Court clarified the analysis regarding this issue in Beals:
While our analysis in that case was somewhat opaque, we believe Beals is best understood as holding that the lifeguard could not have been "the proximate cause" of the decedent's drowning because the plaintiff failed to show even a genuine issue of causation. When a plaintiff attempts to establish factual causation circumstantially, that circumstantial proof must go beyond mere speculation. The plaintiff in Beals failed to make this showing. We emphasized that any connection between the lifeguard's breach of a duty and the drowning was only speculative. We also noted that "it [was] unclear that even a prudent lifeguard would have been able to observe and prevent the [deceased's] drowning," which further illustrated that the casual connection was "simply too tenuous." In other words, the plaintiff failed to show that the lifeguard was a but-for cause of the decedent's death.
Here, too, the assertions made by plaintiff relied on by the trial court attempting to connect any breach by Flynn to plaintiff's injuries were circumstantial, and too tenuous to establish cause in fact. Id. These are the same assertions relied on by the majority opinion, which are merely speculation. Jackson testified that Flynn did not stick her hand out the window to warn her of any students crossing the street. Flynn testified that the window by the driver's seat of the bus does open, but she was not taught to stick her hand out. Actually, she was taught that it was against procedure to wave or hold cars, and she was not allowed to do so by sticking her arm out the window. Galloway testified that this was not part of MTA training, but it was not prohibited either. There is no allegation that Flynn was in violation of any traffic law. Rather, Galloway testified that there is no MTA policy in place that customers walk to the back of the bus to cross the street; however, it was recommended that the bus drop off customers and then pull away so there is a clear line of sight. Additionally, Galloway testified that it was not recommended that bus drivers get off the bus, leaving customers unattended, to assist someone to cross the street. There were three other students on board when this accident occurred. Although the peak service routes did not have designated bus stops, Flynn pulled the bus over in the middle of the block directly across from plaintiff's home. Although plaintiff was young and unaccompanied by her brother that day, she was also unaccompanied by her brother the two days preceding the accident, and correctly crossed the street at the back of the bus without incident. In every motor vehicle accident we can speculate as to other possible scenarios; this speculation, however, does not create a question of fact. It was error for the trial court to rely on speculative testimony provided by Jackson to conclude that questions of fact existed regarding whether Flynn was a cause in fact of plaintiff's injuries.
Although Flynn fails to challenge on appeal the trial court's conclusion that questions of fact existed regarding whether her actions constituted gross negligence, these facts, even if true, also do not rise to the level of gross negligence.
Therefore, I would conclude that there is no genuine issue of material fact that Flynn's actions were not a cause in fact of plaintiff's injuries because plaintiff failed to meet her burden of providing circumstantial proof beyond mere speculation of what Flynn could have done differently. I would reverse the trial court order in relevant part, and remand for entry of an order granting Flynn summary disposition because she is entitled to governmental immunity. MCR 2.116(C)(7) and (10).
When there is a lack of cause in fact, proximate cause becomes irrelevant. Ray, 501 Mich. at 64; Skinner, 445 Mich. at 163. However, because the majority addresses this issue, I further conclude that Flynn was not the proximate cause of plaintiff's injuries.
Proximate cause is" 'the one most immediate, efficient, and direct cause' preceding the injury." Love, 270 Mich.App. at 565, quoting Robinson, 462 Mich. at 462. "The" proximate cause is different from "a" proximate cause, which implies the possibility of many proximate causes. Robinson, 462 Mich. at 459-462. "Further, recognizing that 'the' is a definite article, and 'cause' is a singular noun, it is clear that the phrase 'the proximate cause' contemplates one cause." Id. at 462. The Michigan Supreme Court recently explained the proper process to determine proximate cause under the governmental tort liability act (GTLA), MCL 691.1401 et seq.:
We take this opportunity to clarify the role that factual and legal causation play when analyzing whether a defendant's conduct was "the proximate cause" of a plaintiff's injuries under the GTLA. In any negligence case, including one involving a government actor's gross negligence, a court must determine whether "the defendant's negligence was a cause in fact of the plaintiff's injuries . . . ." But the court must also assess proximate cause, that is, legal causation, which requires a determination of whether it was foreseeable that the defendant's conduct could result in harm to the victim. A proper legal causation inquiry considers whether an actor should be held legally responsible for his or her conduct, which requires determining whether the actor's breach of a duty to the plaintiff was a proximate cause of the plaintiff's injury. It is not uncommon that more than one proximate cause contributes to an injury. However, under the GTLA, we have held that when assessing whether a governmental employee was "the proximate cause" of the plaintiff's injuries, a court must determine whether the defendant's conduct was "the one most immediate, efficient, and direct cause of the injury . . . ." [Ray, 501 Mich. at 64-65 (footnotes omitted).]
Proximate cause may not be determined by weighing factual causes. Id. at 66.
An appropriate proximate cause analysis must include the legal responsibility of all of the actors involved, and whether each actor was negligent. Id. at 74. The trial court did not determine whether Jackson was negligent, and therefore, the proximate cause. The majority concludes that the jury could find that Jackson acted reasonably by passing a bus appearing to be disabled. However, Jackson knew that MTA buses transported school children based on her own experience riding the bus as a student. She admitted that she crossed the double yellow line in the middle of the road, and would have passed the bus regardless of whether the flashers were on. See MCL 257.638(1) ("A vehicle shall not be driven to the left side of the center of a 2-lane highway . . . in overtaking and passing another vehicle proceeding in the same direction unless the left side or center lane is clearly visible and is free of oncoming traffic . . . ."). A violation of a statute creates a rebuttable presumption of negligence. Candelaria v BC Gen Contractors, Inc, 236 Mich.App. 67, 82 n 5; 600 N.W.2d 348 (1999).
Additionally, the trial court failed to analyze whether plaintiff was negligent and a proximate cause of her own injuries, taking her age into account. The majority concludes that given the plaintiff's young age, a jury could reasonably determine that she was not negligent. However, "determining whether a child was negligent requires application of a subjective standard. The court must assess whether the child acted with the degree of care that would reasonably be expected of a child of similar age, intelligence, capacity, and experience under the circumstances of the case." Ray, 501 Mich. at 75 (footnotes omitted). Here, the trial court failed to assess plaintiff's negligence at all. Plaintiff was seven years old at the time of the accident. Although her older brother did not accompany her on the date of the accident, she was without her brother the two days before the accident, and had walked to the back of the bus before crossing the street. It was raining on the day of the accident, and plaintiff held her backpack over her head when she crossed the street in front of the bus.
In Ray, a 13-year old student was hit by a car while running during cross-country practice having crossed the street when the "Do Not Walk" symbol was illuminated, and the defendant coach instructed the runners to cross. Ray, 501 Mich. at 59-60. The student's parents sued the coach and the driver of the vehicle that hit the student, and the coach moved for summary disposition based on governmental immunity. Id. at 60. The trial court denied the motion, and on appeal, this Court reversed, holding that the" 'most proximate cause of [the student's] injuries is the fact that he was struck by a moving vehicle.'" Id. at 61 (citation omitted). The Supreme Court remanded to this Court for an appropriate proximate cause analysis under the standard provided above where this Court failed to analyze the negligence of the other actors involved, and to consider whether the coach's "actions alongside any other potential proximate causes . . . were, or could have been, the one most immediate, efficient, and direct cause of the injuries." Id. at 76 (quotation marks and citation omitted).
On remand, this Court determined that there were material questions of fact that prevented the Court from determining proximate cause and resolving the coach's claim for governmental immunity. Ray v Swager (On Remand), 321 Mich.App. 755, 760-761, 909 N.W.2d 917 (2017). This Court noted that the actions of three people could be the proximate cause-the student, the coach, and the driver; however, the factual record was highly contested, and contained numerous accounts of the incident, including what the coach said, and to whom he said it. Id. at 761. There were disputes regarding on how far the student was behind the coach, whether he heard the coach's instruction to cross the road, and disputes regarding the driver's speed. Id. at 762. The factual disputes precluded summary disposition. Id. at 761. "[G]iven the myriad variables affecting the actors' respective negligence and legal responsibility, and in light of the factual disputes relating to these issues, we cannot conclude as a matter of law that [the coach] was not grossly negligent and that this gross negligence did not constitute the proximate cause of [the student's] injuries." Id. at 762. Therefore, the Court affirmed the denial of the coach's motion for summary disposition. Id.
This case is factually distinguishable from the facts in Ray. Here, the facts are generally uncontested. Flynn stopped the bus on the side of the road in the middle of the block directly across the street from plaintiff's home, as she had done on that bus route for several months, because these "peak service" routes did not have designated bus stops. The stops were made to be within two blocks of a student's home. Plaintiff exited the bus, crossed the street in the front of the bus, and was struck by Jackson's vehicle as it crossed the double yellow line. The accident was captured on two videos. Although the trial court erred in failing to consider the actions and possible negligence of Jackson and plaintiff as other proximate causes, in considering them now, I cannot conclude that Flynn's actions were "the one most immediate, efficient, and direct cause" of plaintiff's injuries. Id. at 760. It was not foreseeable that plaintiff would cross in front of the bus that day. Id. Unaccompanied by her brother the two days before the accident, she properly exited the bus, and went to the rear to cross. The only contested factual issue is whether Flynn turned on the four-way flashers of the bus as she was stopped. Regardless, Jackson testified that had the flashers been on, she would not have altered her course of action because it was possible that the bus was disabled on the side of the road, and she would need to pass to get by. This single factual dispute does not rise to the level of the "myriad variables affecting the actors' respective negligence and legal responsibility" present in Ray (On Remand), 321 Mich.App. at 762, and therefore, does not preclude summary disposition. Therefore, because there is no genuine issue of material fact that Flynn's actions were not "the" proximate cause of plaintiff's injuries, considered in light of all the proximate causes, I would conclude that Flynn is entitled to summary disposition under MCR 2.116(C)(7) because she is entitled to governmental immunity.