Opinion
SC: 160877 160878, COA: 345411 345715
11-29-2021
Deborah TSCHIRHART, Personal Representative of the Estate of Shaun M. Tschirhart, Plaintiff-Appellant/Cross-Appellee, v. CITY OF TROY, Alexander Yarbrough, Nicholas Yarbrough, Mary Alleman, and Alexis Calhoun, Defendants-Appellees, and Susan O'Connor, Defendant-Appellee/Cross-Appellant.
Order
On November 9, 2021, the Court heard oral argument on the application for leave to appeal the December 17, 2019 judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.305(H)(1). In lieu of granting leave to appeal, we VACATE that part of the Court of Appeals opinion holding that, as a matter of law, a lifeguard's delay, even if it constitutes gross negligence, cannot be a "cause in fact" of a person's drowning. As we cautioned in Beals v. Michigan , 497 Mich. 363, 377, 871 N.W.2d 5 (2015), this Court rejects the notion that "a governmental employee's failure to intervene can never constitute the proximate cause of an injury." Rather, whether summary disposition is appropriate will depend on "the facts presented in [the] case ...." Id. at 377-378, 871 N.W.2d 5. We offer no opinion on the Court of Appeals’ rulings that plaintiff failed to plead facts in avoidance of governmental immunity and that plaintiff shall be afforded an opportunity to seek leave to amend her complaint, as those issues are beyond the scope of plaintiff's application for leave to appeal. We REMAND this case to the Oakland Circuit Court for further proceedings not inconsistent with this order.
We do not retain jurisdiction.