Friday, November 17, 2006

A Michigan "What If"?

What if a school bus driver got tired of the kids in her bus, pulled over on the inside shoulder of I-94 without turning on her overhead red flashing lights or extending her stop sign, told the kids to "get off and cross the road", then sat on the shoulder blocking oncoming traffic from seeing the children. The kids, intimidated by the many lanes of high speed traffic, wait for a while before one finally tries to cross. Would the school district or bus driver have any potential liability if that child was struck by a car - the driver of which could not see the child prior to impact because his line of sight was blocked by the school bus? According to the Michigan Supreme Court... absolutely not.

The school district would enjoy governmental immunity. Although there is a motor vehicle exception to governmental immunity, the exception would not apply because there was no direct physical contact between the bus and the vehicle that hit the child, nor was there direct contact between the child and the bus.

The bus driver would be deemed grossly negligent for such an act - that's obvious - and normally an act of gross negligence would prevent a claim of governmental immunity. But it wouldn't be "the one most immediate, efficient, and direct cause preceding" the child's injury. The child's "decision to cross the street at the moment when she did" would be "the immediate, efficient, and direct cause of her injury." Thus the school bus driver would also be immune from liability.

Note, the school bus driver in the actual case did not stop on the highway - she stopped at an intersection and, with her overhead lights off, told a child to get off the bus and cross the road. The dissenting judge in the Court of Appeals, after expressly reciting the rule that the facts in a summary disposition case are to be taken in the light most favorable to the non-moving party, observed that there was "testimony indicat[ing] that [the child] failed to immediately heed this instruction". This appears to reference testimony from a witness who was not even at the scene, and was applied to somehow free the court to ignore witness testimony that the child immediately crossed. The I-94 scenario is not an exaggeration - this decision would grant immunity given those facts.

Just ask the folks at "Overlawyered" where you are unlikely to read about this case - as long as the atrocity favors the defendant, atrocious outcomes in tort cases are fine. Right? (Helfer v Center Line Public Schools - Court of Appeals Decision; Supreme Court Reversal)

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