Sherry Williams v. Grand Ledge High School

In this personal injury action arising out of a fall that occurred in a high school, plaintiff,

Sherry Williams, as next of friend for her daughter, Victoria Williams,1

a minor, appeals by right

the trial court's order granting summary disposition to defendants, Grand Ledge High School and

Grand Ledge Public Schools, based on governmental immunity. The trial court's order also

denied plaintiff's motion for leave to amend her complaint to add a claim for gross negligence

against Grand Ledge High School principal Steven Gabriel. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

On or about October 10, 2011, Victoria was a 14-year-old freshman at Grand Ledge High

School. During choir class, Victoria sat in the back row of chairs situated on the top level of

platform risers located in the middle of the choir room. At the time of the accident, the back

ledge of the upper riser was equipped with a two-inch "lip,” presumably to stop chairs from

sliding off. The risers were otherwise freestanding, with no guardrails. Victoria and her

classmates rose to their feet to participate in warm-up exercises. After approximately five



1

This opinion will refer to Sherry as "plaintiff” and will refer to Victoria by first name.

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minutes, Victoria and her classmates sat down, at the direction of Sheri Tulloch, the choir

teacher. When Victoria sat down, her chair fell backward off the risers, causing her to fall.2



On February 4, 2013, plaintiff filed a complaint and named Grand Ledge High School

and Grand Ledge Public School as defendants responsible for Victoria's injuries arising out of

the incident. The complaint alleges that Victoria injured her head and back in the fall when she

hit a "set piece” from a play that had been stored behind the risers. Plaintiff contended that

defendants were negligent for failing to maintain and repair a public building in contravention of

MCL 691.1406, due to the lack of a guardrail on the back of the riser.

The horseshoe-shaped risers are over 32 feet long, 16 feet wide, and 2 feet tall. Each of

the three levels of the risers is approximately 3 feet deep. Comprised of various sections that are

bolted and clamped together, they were installed in the choir room in approximately 1995 or

1996, when additions were made to the school. The risers are not bolted to the floor. Ronald

Hicks, a custodian at the high school, testified in his deposition that the risers had been

disassembled two or three times, but they had never been moved from the choir room. Hicks

also testified that maintenance staff moved the risers, albeit infrequently, within the choir room

when they refinished the floor. The risers are large, so in order to move them, maintenance staff

dampened the floor around the risers by mopping it, and then slid the risers. Dale Harlow,

another custodian, testified that he had never taken apart the risers during his employment. He

recalled that he had occasionally been asked to readjust clamps that held the sections together

and to tighten the connections between the sections. He had never observed the risers separated

into individual sections, and, as far as he knew, the risers remained in the same spot in the choir

room.

Tulloch, the choir director, testified in her deposition that she had observed three other

students fall from the risers in the three years prior to the fall in question, at least two of whom

fell off the back. The record does not contain evidence as to the cause of those falls.3

None of

the other students who fell were injured, although one suffered some bruising. In "the spring

before [Victoria] fell,” Tulloch testified that she made a request for a railing on along the back

row of the risers. She was unsure "how many times” she requested railings, or if she made any

other requests for railings. In his deposition, Gabriel recalled receiving an email from Tulluch

regarding getting railings after a student had fallen. The record only reveals that Gabriel was

aware of one student falling prior to the incident involving Victoria. Gabriel testified that in

response to the request, he told Tulloch that they should "[l]ook at what the options are and [to]

let [him] know what's out there, and we can go from there.”



2

Although Victoria testified in her deposition that her chair fell backward because "one leg was

off the edge of the riser,” causing her to fall when she sat down, she also testified that she does

not actually remember actually falling, and that she was told what happened by others. Her last

memory was when she was walking up the risers before warm-up exercises.

3

The record contains only excerpts of the deposition transcripts in this matter.

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On September 20, 2011, before Victoria's fall, Tulloch sent an e-mail to Gabriel and

school superintendant, Dr. Brian Metcalf, among others. Therein, Tulloch addressed some

general concerns about her choir room and she raised an issue with regard to the risers. Tulloch

did not mention the lack of a railing, but requested that the risers be "realigned and secured”

because the "kids hate sitting in certain areas for fear that their chair is going to slip in the

cracks.” Gabriel replied to the e-mail the same day, noting that, in his opinion, the "bigger safety

issue” with the risers was the lack of a railing at the top tier. Gabriel mentioned that he had

discussed the issue with Tulloch before, and that she had promised to give him an estimate of

how much it would cost to install the railing. Gabriel's response provides, in pertinent part:

As for the risers, I will have the custodial/maintenance crew look into the needed

adjustments. As you and I discussed, the bigger safety issue is the lack of a

railing al[ong the] top tier. You were going to get a quote for a railing system to

me. Please do so. I would like to get that taken care of asap.

Gabriel testified in his deposition that he raised the issue of the railing because another student

had previously fallen; at the time of his deposition, he did not recall the year that the other

student had fallen.

After receiving Gabriel's reply, Metcalf sent Gabriel an e-mail asking "[a]re the risers a

safety concern that would warrant a directive from you that they should not be used until the

railing is installed?” The record does not contain a response from Gabriel. However, the e-mail

chain contains a response from Metcalf to Gabriel in which Metcalf simply replied "Thanks

Steve!!” The same day Gabriel asked for a price quote, Tulloch forwarded to him a customer

quotation from Wenger Corporation for the purchase of guardrails.

Shortly after Victoria's fall, defendants installed guardrails on the back of the risers. An

invoice from Wenger Corporation shows that the guardrails were ordered on October 11, 2011,

and shipped on October 13, 2011. According to Gabriel's deposition testimony, a "request” for

the railings "had been put in just a week or two prior to the accident” involving Victoria.

Following discovery, defendants moved for summary disposition, contending that they

were entitled to governmental immunity. They argued that plaintiff could not maintain a claim

under MCL 691.1406, the public-building exception, because the risers were not fixtures, and

because any claim by plaintiff amounted to a design-defect claim, which was not actionable

under the exception. Plaintiff responded, arguing that her claim was viable under the publicbuilding

exception. She also sought leave to amend her complaint to add a claim against Gabriel

for gross negligence.

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The trial court granted summary disposition to defendants, finding that the risers did not

constitute fixtures; thus, they were not "of a public building.” In addition, the trial court found

that even if the risers were fixtures, plaintiff's complaint alleged a design defect, not a failure to

maintain or repair, meaning that her claim was not actionable under the public-building

exception. Finally, the trial court denied plaintiff's motion for leave to amend her complaint,

finding that the facts did not support a claim for gross negligence, and that amendment would be

futile.

II. SUMMARY DISPOSITION

We review de novo the trial court's grant of summary disposition. Henderson v Dep't of

Treasury, 307 Mich App 1, 8; 858 NW2d 733 (2014). "A defendant is entitled to summary

disposition under MCR 2.116(C)(7) if the plaintiff's claims are barred because of immunity

granted by law.” Pew v Mich State Univ, 307 Mich App 328, 331-332; 859 NW2d 246 (2014).

Defendants, as the moving parties, bore the burden to support their motion for summary

disposition with affidavits, depositions, and other documentary evidence. Id. at 332, citing MCR

2.116(G)(5), (6). "To survive a (C)(7) motion based on governmental immunity, a plaintiff must

allege facts justifying the application of an exception to governmental immunity. In reviewing a

(C)(7) motion, a court must accept all well-pleaded allegations as true and construe them in favor

of the nonmoving party.” Tellin v Forsyth Twp, 291 Mich App 692, 698; 806 NW2d 359 (2011)

(citation and quotation marks omitted). "If reasonable minds could not differ on the legal effects

of the facts, whether governmental immunity bars a plaintiff's claim is a question of law.” Pew,

307 Mich App at 332.

A. GOVERNMENTAL IMMUNITY

There is no dispute that defendants are governmental agencies. "Generally, the

governmental immunity act provides broad immunity from tort liability to governmental

agencies, officials, or employees who exercise or discharge a governmental function.” Pew, 307

Mich App at 332. See also MCL 691.1407(1). The operation of a public school is a

governmental function.” Stringwell v Ann Arbor Pub Sch Dist, 262 Mich App 709, 712; 686

NW2d 825 (2004). Therefore, defendants are entitled to governmental immunity, unless an

exception applies.

We strictly construe exceptions to the Governmental Tort Liability Act (GTLA). Tellin,

291 Mich App at 699. Plaintiff alleges that MCL 691.1406, the public-building exception,

applies in this case and allows her to pursue a claim against defendants. In order to bring suit

under the public-building exception, a plaintiff must establish:

(1) a governmental agency is involved, (2) the public building in question is open

for use by members of the public, (3) a dangerous or defective condition of the

public building itself exists, (4) the governmental agency had actual or

constructive knowledge of the alleged defect, and (5) the governmental

agency failed to remedy the alleged defective condition after a reasonable amount

of time. [Renny v Dep't of Transp, 478 Mich 490, 496; 734 NW2d 518 (2007).]

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The parties only dispute two aspects of the public-building exception: (1) whether the

risers were a condition "of the public building itself,” i.e., whether they could be considered

fixtures; and (2) whether defendants failed to maintain or repair a dangerous condition, such that

plaintiff's claim would be actionable, or whether the dangerous condition alleged was a design

defect in the risers, such that plaintiff's claim would not be actionable.

B. WHETHER THE RISERS WERE FIXTURES

To establish the applicability of the public-building exception, "the alleged defect must

be a defect of the building itself and not merely a transient condition . . . .” Johnson v. City of

Detroit, 457 Mich 695, 703-704; 579 NW2d 895 (1998) (citation omitted). Fixtures attached to

the public building are considered to be "of the building itself” and can support a claim under the

public-building exception. Fane v Detroit Library Comm, 465 Mch 68, 77; 631 NW2d 678

(2001). "Fixtures are considered part of a public building if: (1) they are annexed to the realty,

whether the annexation is actual or constructive, (2) their adaptation or application to the realty

being used is appropriate, and (3) there is an intention to make the articles a permanent accession

to the realty.” Carmack v Macomb Co Community College, 199 Mich App 544, 547; 502 NW2d

746 (1993). "The controlling intention regarding whether an object has become a fixture of the

realty is manifested by the objective, visible facts.” Id. (citation and quotation marks omitted).

Annexation to the realty may be actual, meaning that the item is permanently affixed to the

building in some fashion, or constructive. Fane, 454 Mich at 79-80. "Constructive annexation

occurs where the item cannot be removed from the building without impairing the value of both

the item and the building.” Id. at 80.

Accepting as true all well-pleaded allegations in plaintiff's complaint and construing

them in her favor, we find the trial court erred when it determined that the choir risers were not

fixtures. While it is undisputed that the risers were not actually attached to the floor, the

objective, visible facts show that the controlling intention was that the risers were to be fixtures.

See Carmack, 199 Mich App at 547. The risers' size, permanence to the choir room, and

function are revealing in that regard. Concerning the risers' size, and as noted above, they were

over 32 feet long, 16 feet wide, and 2 feet high. It is axiomatic that an item of such size would

not be easily moveable. And, in this case, the risers were, for an overwhelming majority of their

15-year existence, stationary. Even when they were moved, they were only moved within the

choir room and the infrequent moves were only accomplished through significant effort, i.e.,

wetting/lubricating the floor and requiring three individuals to push them along the wet surface.

This is in significant contrast to nonstationary items such as library chairs, ping-pong tables, and

mattresses, which our Courts have rejected as being fixtures. See Velmer v Baraga Area Sch,

430 Mich 385, 396; 424 NW2d 770 (1988) (examining various cases and contemplating that a

milling machine in a high school shop classroom could be constructively attached to the building

by its weight); Cf. Carmack, 199 Mich App at 547 (finding that gymnastic equipment was not a

fixture when it was "easily removable and was removed on an almost daily basis”). Rather, the

record evidence, when viewed in a light most favorable to plaintiff, demonstrates that the risers

functioned as a permanent fixture of the choir room, and that they were not intended to be

removed. See Velmer, 430 Mich at 394, 396 (opining that the sheer size and weight of an item

could make it a fixture for purposes of the public-building exception). Removing such a large

item from the choir room would have impaired both the value of the building and the risers. See

Fane, 454 Mich at 80. The risers would have been largely useless apart from the building, given

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their size and function, and the building—in particular, the choir room—would not have had the

same utility as it had when the risers were installed therein. As such, the risers were

constructively annexed to the public building. See Caron v Cranbrook Ed Community, 298 Mich

App 629, 632, 644; 828 NW2d 99 (2012) (finding, albeit for purposes of MCL 600.5839,4

that a

"T-shaped, three-part portable room partition” that sat on wheels in an art classroom was

"constructively annexed” to the classroom, given the size and permanent location of the partition

in the art classroom).

C. DUTY TO MAINTAIN OR REPAIR

The remaining inquiry concerns whether this case involved a failure to repair or maintain

the risers, or whether it involved a claim for a defect in the design of the risers—the installed

fixture. The public-building exception imposes on governmental agencies a duty to repair and

maintain public buildings under their control when those buildings are open to the public; the

exception does not impose liability for a design defect. Renny, 478 Mich at 505. Before our

Supreme Court's decision in Renny, the issue of whether a design defect gave rise to liability

under the public-building exception caused our courts "considerable difficulty.” Id. at 499

(citation and quotation omitted). In Renny, our Supreme Court examined the plain language of

MCL 691.1406. The statute provides, in part, that "[g]overnmental agencies have the obligation

to repair and maintain public buildings under their control when open for use by members of the

public.” MCL 691.1406. As noted in Renny, 478 Mich at 500, "[t]his sentence unequivocally

establishes the duty of a governmental agency to "repair and maintain” public buildings.” The

Court in Renny explained that the plain and ordinary meaning of the terms "repair and maintain”

did not encompass a duty to design or redesign a public building in a particular manner. Id.

"Design” is defined as to conceive; invent; contrive. By contrast, "repair” means

to restore to sound condition after damage or injury. Similarly, "maintain” means

to keep up or to preserve. Central to the definitions of "repair” and "maintain” is

the notion of restoring or returning something, in this case a public building, to a

prior state or condition. "Design” refers to the initial conception of the building,

rather than its restoration. "Design” and "repair and maintain,” then, are

unmistakably disparate concepts, and the Legislature's sole use of "repair and

maintain” unambiguously indicates that it did not intend to include design defect

claims within the scope of the public building exception. [Id. at 500-501

(citations and quotation marks omitted).]



4

MCL 600.5839 concerns actions against architects and other professionals "arising out of the

defective or unsafe condition of an improvement to real property . . . .” (Emphasis added).

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"Therefore, to avoid governmental immunity, a plaintiff must assert a claim that the defective

condition was the result of a failure to repair or maintain.” Tellin, 291 Mich App at 700.

In Tellin, this Court undertook the task of explaining the difference between "design

defects” and "repair and maintenance,” noting that "the Renny Court did not explain where the

line between the two concepts should be drawn.” Id. at 703. With regard to that line, this Court

explained:

A design defect would appear to consist of a dangerous condition inherent

in the design itself, such as its characteristics, functioning, and purpose. . . .

In contrast, a failure to repair or maintain appears to consist of something

caused by extrinsic circumstances, such as a malfunction, deterioration,

instability, or a fixture that is improperly secured or otherwise

improperly constructed or installed. Reparative or preventative measures may

also supplement the existing structure to preserve the existing design. An action

could initially be a design decision, but subsequent improper installation,

malfunction, deterioration, or instability could later transform this decision into a

failure to repair or maintain. [Id. at 705-706.]

As an example of an action that initially began as a design decision, but subsequently became an

improper installation, the panel in Tellin examined the facts of Collins v Oakland Co Comm

College, unpublished opinion per curiam of the Court of Appeals, issued March 26, 2009

(Docket No. 282351), a case where the plaintiff alleged that the placement of an electrical socket

on the floor caused her to fall. See id. at 706. In Collins, unpub op at 3, this Court held that

plaintiff's claim "amounts to nothing more than the assertion that the electrical socket was not

properly located within [the building.] This is a claim of design defect.” In Tellin, 291 Mich

App at 706, this Court provided the following example of a failure to maintain or repair versus a

design defect, using the factual scenario of Collins as an illustration:

For example, if the wiring for the electrical socket in Collins became

compromised and began electrocuting people through normal use, then a failure to

correct the problem would be a failure to repair or maintain. But tripping over the

surface because of its placement is the characteristic of the design itself, and the

placement would properly be a design decision.

An in-depth examination of the facts in Tellin is instructive in this case, given that the

parties cite the case extensively. In Tellin, the plaintiffs alleged that they were injured when an

I-beam that was designed to support the roof overhang of "the Learning Center,” a government

building in Forsyth Township, came loose and fell on them. Id. at 693-694. The roof overhang

had traditionally been supported by wooden columns, but the defendants in that case later

decided to add a steel I-beam configuration to the roof overhang in order to support the existing

columns. Id. at 694-695. After the I-beam was installed, defendants received notice that it may

have become loose. Id. at 695-696. Despite this notice, defendants did not take any action. Id.

at 696. Thereafter, the plaintiffs were injured after the I-beam became loose and fell on them.

Id.

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This Court found that the plaintiffs' injuries arose from the failure to maintain or repair

the I-beam, and not from a design defect. Id. at 706-707. This Court concluded that "plaintiffs

were not injured because of an inherent characteristic of the I-beam configuration when coupled

with the roof overhang, such as its displacement of melting snow or ice, or the fact that its base

protruded into the walkway causing patrons to trip.” Id. at 706. The panel explained that

because the I-beam was placed to "keep up” and "preserve” the Learning Center's existing roof

overhang structure, the installation of the I-beam was a preventive measure, rather than a

redesign of the roof. Id. at 706-707. As such, "[a]ny defective condition was not from the Ibeam's

inherent characteristics but from the [defendants'] failure to properly maintain the

stability of this I-beam configuration.” Id. at 707.

Turning to the instant case, in light of existing case law, we find that plaintiff's complaint

alleged a design defect in the risers, rather than a failure to maintain and/or repair the risers.

Plaintiff has not alleged any facts suggesting that defendants failed to maintain or repair—that is,

restore to sound condition or keep up or preserve—the risers with regard to the presence of

railings. See Renny, 478 Mich at 500-501. For example, there is no evidence that guardrails

were ever installed on the risers and were subsequently damaged or removed, which would lead

to a situation of failure to maintain and repair. The crux of plaintiff's complaint alleged that the

risers were defective or dangerous because they did not have a guardrail along the back of the

top tier. All they had was a two-inch lip in that location. This sounds more in the nature of a

claim that the design of the risers was defective. See id. at 501 (explaining that the word

"design” "refers to the initial concept of the building . . . .”). The complaint does not allege that

defendants failed to restore the risers "to sound condition after damage or injury” or that they

failed to "keep up” or "preserve” the risers. See id. at 500-501. In Tellin, 291 Mich App at 705,

this Court stated that "a failure to repair or maintain appears to consist of something caused by

extrinsic circumstances . . . .” (Emphasis added). Here, there was nothing extrinsic alleged by

plaintiff; rather, plaintiff alleged that the harm was caused by a lack of railings on the risers.

This is a claim of an inherent problem with the risers as conceived and constructed, rather than

extrinsic circumstances, such as, for example, a railing that became loose or unstable. See id.

The harm alleged "was a natural effect of the characteristics” of the risers' design, which would

be akin to a claim for design defect, not a failure to maintain or repair. See id.

We note that in Tellin, this Court stated that a design or repair claim could arise from,

among others, "a fixture that is improperly secured or otherwise improperly constructed or

installed.” Id. at 705-706 (emphasis added). In this case, the argument could be made that the

risers are a fixture, and that their installation in the middle of the choir room (as compared to the

back wall), with no back guardrail, was improper. However, in Tellin, this Court rejected this

type of installation claim, distinguishing it from a failure to maintain or repair. In Tellin, this

Court used the electrical socket from Collins as an example. Id. at 706. In Collins, the plaintiff

tripped over an electrical socket on the floor. If the wiring in that electrical socket became

compromised, the failure to correct the problem, reasoned the panel in Tellin, would be a failure

to maintain or repair. Id. "But tripping over the surface because of its placement is the

characteristic of the design itself, and the placement would properly be a design decision.” Id.

(Emphasis added). Turning back to the instant case, any claim that the placement of the risers in

the middle of the choir room without any sort of back guardrail is not the type of improper

installation claim that could give rise to a claim for liability under the rationale provided in

Tellin. See id. at 705-706.

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Plaintiff contends that defendants were aware, given Tulloch's deposition testimony, that

three students had fallen before Victoria fell, that the risers were dangerous, and that defendants'

knowledge of the dangerous condition turned this action into a failure to maintain or repair. She

argues that Tellin supports this position. Plaintiff's position strains the holding in Tellin. In

Tellin, 291 Mich App at 707, this Court concluded that aside from the initial placement of the Ibeam,

the defendants in that case "had a continuing duty to repair and maintain it if it became

loose, damaged, or unstable.” In contrast to remedying the situation by installing something

new—which we suggested would not be a maintenance or repair issue—this Court stressed that

the defendants "could have remedied the condition at issue here had they performed regular

maintenance to test the stability of the I-beam structure, which would likely have disclosed any

instability.” Id. The panel continued, "[t]his failure to repair or maintain is further illustrated by

the fact that the [defendants] had knowledge that this I-beam configuration was not secured.” Id.

Plaintiff's argument misconstrues this Court's holding in Tellin. In Tellin, this Court did not

suggest that the defendants' knowledge of the dangerous condition made the plaintiff's claim one

involving a failure to maintain or repair. Rather, the case involved a failure to maintain or repair

because the I-beam became loose and that condition was not remedied. Id. In other words,

defendants did not restore the I-beam to a sound condition after it became loose. The case does

not stand for the proposition that plaintiff says it does.

Lastly, we note that plaintiff attempts to rely on our Supreme Court's decision in Bush v

Oscoda Area Sch, 405 Mich 716, 727-728; 275 NW2d 268 (1979), a pre-Renny decision that was

harshly criticized in Renny. In Bush, our Supreme Court ruled that the plaintiff in that case

stated a claim within the ambit of "the defective building provision”—as the "public-building

exception” was then known—by alleging that a classroom lacked necessary safety equipment.

Assuming that a lack-of-safety-features claim exists post-Renny, such a claim does not change

the analysis in this case. Essentially, plaintiff's claim is that the risers were dangerous because

they lacked railings. Railings are generally installed as part of the construction of the thing on

which they are placed. We see no significant difference—and plaintiff has not articulated a

compelling distinction—between a claim for a lack of railings as safety features and a claim that

the design of the risers was defective because it lacked railings. Plaintiff essentially seeks to

hold defendants liable for a flaw in the design of the risers. Although the lack of a guardrail on

the back of the risers appears to have been a significant design flaw given the number of students

who fell off the risers, in light of Renny and similar precedent, this claim is not actionable under

the public-building exception. See Renny, 478 Mich at 505.5





5

Although unpublished opinions are not binding upon us, we note that in Hetherington v

University of Michigan Regents, unpublished opinion per curiam of the Court of Appeals, issued

March 17, 2009 (Docket No. 282543), this Court held that "with respect to the absence of

guardrails in particular, [which in Hetherington also pertained to risers,] we view the claim as

one alleging a design defect. Guardrails are generally included as part of the construction of a

building.”

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III. LEAVE TO AMEND

Finally, plaintiff argues that the trial court abused its discretion when it denied her motion

for leave to amend her complaint to add a claim for gross negligence against Gabriel. We review

for an abuse of discretion a circuit court's decision to grant or deny leave to amend a pleading[.]”

Boylan v Fifty Eight LLC, 289 Mich 709, 727; 808 NW2d 277 (2010). A trial court should only

deny a motion to amend a complaint for "particularized reasons,” such as "the futility of

amendment.” Id. at 728. An amendment is futile if, among other reasons, "it is legally

insufficient on its face . . . .” PT Today, Inc v Comm'r of Fin & Ins Servs, 270 Mich App 110,

143; 715 NW2d 398 (2006). Here, the trial court denied the motion for leave to amend because

it found that a claim for gross negligence against Gabriel would be futile.

As the principal of a public high school, Gabriel was an employee of a governmental

agency. Pursuant to the GTLA, Gabriel was entitled to governmental immunity, provided he met

certain conditions.6

In this regard, MCL 691.1407(2) provides:

Except as otherwise provided in this section, and without regard to the

discretionary or ministerial nature of the conduct in question, each officer and

employee of a governmental agency, each volunteer acting on behalf of a

governmental agency, and each member of a board, council, commission, or

statutorily created task force of a governmental agency is immune from tort

liability for an injury to a person or damage to property caused by the officer,

employee, or member while in the course of employment or service or caused by

the volunteer while acting on behalf of a governmental agency if all of the

following are met:

(a) The officer, employee, member, or volunteer is acting or reasonably believes

he or she is acting within the scope of his or her authority.

(b) The governmental agency is engaged in the exercise or discharge of a

governmental function.

(c) The officer's, employee's, member's, or volunteer's conduct does not amount

to gross negligence that is the proximate cause of the injury or damage.

As noted, the trial court found that amendment would have been futile because the facts

as alleged did not amount to gross negligence by Gabriel. The GTLA defines "gross negligence”

as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury

results.” MCL 691.1407(8)(a). Gross negligence refers to conduct that is "substantially more”

than mere negligent conduct. Radu v Herndon & Herndon Investigations, Inc, 302 Mich App

363, 383; 838 NW2d 720 (2013) (citation and quotation marks omitted). Gross negligence "has



6

Although not raised as an issue, this Court has held that high school principals do not qualify

for executive immunity under MCL 691.1407(5). See Eichhorn v Lamphere Sch Dist, 166 Mich

App 527, 539; 421 NW2d 230 (1988).

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been characterized as a willful disregard of safety measures and a singular disregard for

substantial risks.” Oliver v Smith, 290 Mich App 678, 685; 810 NW2d 57 (2010). "Simply

alleging that an actor could have done more is insufficient under Michigan law, because, with the

benefit of hindsight, a claim can always be made that extra precautions could have influenced the

result.” Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004). Instead, gross

negligence requires

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. [Id.]

In reviewing the issue of gross negligence, we consider the totality of the circumstances.

Kieft v Barr, 391 Mich 77, 80; 214 NW2d 838 (1974). In order to show that amendment would

not have been futile, plaintiff has to show that, in the mind of an objective observer, Gabriel

"simply did not care about the safety or welfare of those in his charge” and that he had a

"singular disregard for substantial risks.” Tarlea, 263 Mich App at 90.

The evidence shows that Gabriel was aware that at least one student had fallen, and, at

the time he became aware of the fall, Gabriel suggested to Tulloch that they look at their options

for addressing the problem with the risers. Although approximately four to six months went by

before Gabriel ordered the railings, much of the time period between the request and the order

was in the summer, presumably when school was not in session and when the risers were not in

use. And, when Tulloch raised a different concern about the risers in September 2011, Gabriel

stated that the "bigger safety issue” was the lack of a railing. Gabriel indicated he wanted to get

that "bigger safety issue” "taken care of asap.” Gabriel testified in his deposition that he raised

the issue of the railing because another student had previously fallen. In light of this evidence,

we conclude that no reasonable juror could have concluded that Gabriel demonstrated a

"substantial lack of concern for whether an injury results,” see MCL 691.1407(8)(a), or a

"willful disregard of safety measures and a singular disregard for substantial risks,” see Oliver,

290 Mich App at 685. Rather, Gabriel specifically acknowledged the risk on two occasions and

sought to come up with ways to mitigate that risk. He even brought up the risk on his own when

Tulloch brought up another issue. An objective observer, having watched Gabriel, would not

conclude that he "simply did not care about the safety or welfare of those in his charge.” Tarlea,

Mich App at 90. See also Vermilya v Dunham, 195 Mich App 79, 83; 489 NW2d 496 (1992)

(finding that a school principal was not grossly negligent in regard to the risk posed by an unanchored

soccer goal when the principal asked a maintenance supervisor to anchor the goals,

checked on the maintenance supervisor's progress, made announcements at school regarding the

risks involved in playing on the soccer goals, and disciplined students who did not heed those

warnings). Plaintiff contends that Gabriel could have done more; she argues he could have

discontinued using the risers after Metcalf suggested as much, or he could have suggested

moving the back of the risers against the wall. However, allegations that Gabriel could have

done more are simply that; they are not allegations that he ignored the risk. Allegations that an

actor could have done more are not, on their own, enough to establish gross negligence. See

-12-

Tarlea, 263 Mich App at 90. As such, amendment would be futile, and the trial court did not

abuse its discretion in denying plaintiff leave to amend. See Boylan, 289 Mich App at 728; PT

Today, Inc, 270 Mich App at 143.7



* * *



7

In passing, plaintiff argues that she is entitled to an adverse inference because a purported email

from Gabriel to Metcalf was missing. An adverse inference permits, but does not require,

the fact-finder to conclude that certain missing evidence would have been adverse to the

opposing party. Brenner v Kolk, 226 Mich App 149, 155; 573 NW2d 65 (1997). Plaintiff does

not explain how the adverse inference principle is applicable in the context of summary

disposition. Moreover, summary disposition review already requires the evidence to be viewed

in a light most favorable to the non-moving party, which in this case is plaintiff. See Tellin, 291

Mich App at 698. Accordingly, it is unclear how an adverse inference, even if applicable, would

affect the outcome in this case.

Affirmed.