If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

ESTATE OF SHAUN M. TSCHIRHART, by 

DEBORAH TSCHIRHART, Personal 

Representative,

Plaintiff-Appellant,

UNPUBLISHED

May 18, 2023

v No. 361649

Oakland Circuit Court

CITY OF TROY, ALEXANDER YARBROUGH, 

NICHOLAS YARBROUGH, MARY ALLEMAN, 

SUSAN O’CONNOR, and ALEXIS CALHOUN,

LC No. 2018-165013-NO

Defendants-Appellees.

Before: LETICA, P.J., and BORRELLO and RIORDAN, JJ.

PER CURIAM.

In this wrongful death by drowning case, plaintiff, Deborah Tschirhart, as personal 

representative of the Estate of Shaun M. Tschirhart, the decedent, appeals as of right the order 

denying her motion to amend the complaint and the dismissal of the case in favor of defendants, 

city of Troy, Alexander Yarbrough, Nicholas Yarbrough, Mary Alleman, Susan O’Connor, and 

Alexis Calhoun. We affirm in part, reverse in part, and remand for proceedings consistent with 

this opinion.

I. BASIC FACTS AND PROCEDURAL HISTORY

This case was previously before this Court in Estate of Tschirhart v City of Troy, 

unpublished per curiam opinion of the Court of Appeals, issued December 17, 2019 (Docket Nos. 

345411; 345715). In the consolidated case, defendants appealed the trial court’s decision denying 

summary disposition premised on MCR 2.116(C)(7) (governmental immunity) and (C)(8) (failure 

to state a claim), in this case alleging wrongful death arising from a drowning in a public swimming 

pool. This Court delineated the facts as follows:

This action arises from the drowning death of plaintiff’s 32-year-old 

disabled son in a swimming pool at the Troy Community Center, a facility operated 

by defendant city of Troy. The decedent, who had a history of epilepsy, was a 
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participant in the Friendship Club, a recreational program for disabled adults 

provided by the city of Troy. He was participating in a Friendship Club swimming 

outing when he drowned. Defendants Alexander Yarbrough and Nicholas 

Yarbrough were lifeguards on duty at the time of the decedent’s death. Defendant 

Alexis Calhoun was the pool manager. Defendants Susan O’Connor and Mary 

Alleman were employed as Friendship Club attendants.

Plaintiff’s complaint alleges that the decedent submerged himself in the 

pool and likely suffered an epileptic seizure. He was under water for approximately 

50 seconds before anyone noticed that he was in danger. When Alleman saw that 

the decedent was in danger, she poked him with a Styrofoam tube, but he failed to 

respond. Alleman then entered the water and the decedent was eventually removed 

from the pool. According to plaintiff, approximately 90 seconds elapsed before 

defendants Alexander Yarbrough, Nicholas Yarbrough, and Alexis Calhoun 

initiated cardiopulmonary resuscitation (CPR). The decedent was transported by 

ambulance to the hospital where he was pronounced dead. The medical examiner 

determined that the decedent’s cause of death was “drowning due to epileptic 

seizures disorder.” Plaintiff brought this action for wrongful death, alleging that 

defendants were grossly negligent in failing to supervise the decedent and timely 

intervene when he failed to resurface. Defendants city of Troy, the Yarbroughs, 

Alleman, and Calhoun moved for summary disposition under MCR 2.116(C)(7) 

and (8), alleging that they were entitled to immunity under the governmental tort 

liability act (GTLA), MCL 691.1401 et seq., and that plaintiff failed to plead facts 

in avoidance of immunity. Defendant O’Connor filed a separate motion for 

summary disposition under subrule (C)(7). Plaintiff argued in response that 

summary disposition was premature because discovery had not been conducted. 

The trial court agreed and denied defendants’ motions. Defendants [c]ity of Troy, 

the Yarbroughs, Alleman, and Calhoun appeal as of right in Docket No. 345411, 

and defendant O’Connor appeals as of right in Docket No. 345715. [Id. at slip op 

2.]

Addressing the merits, this Court concluded that summary disposition was appropriate in 

favor of defendant city of Troy because the city was immune regardless of an employee’s gross 

negligence. And, this point was conceded by plaintiff on appeal. Id. at slip op 3. This Court 

further held that governmental immunity applied to the allegations of gross negligence on the part 

of defendant employees. Even assuming that the conduct of defendant employees constituted 

gross negligence, it was concluded that their actions did not constitute the proximate cause of the 

decedent’s death in light of Ray v Swager, 501 Mich 52, 63; 903 NW2d 366 (2017) and Beals v 

Michigan, 497 Mich 353, 376-377; 871 NW2d 5 (2015). Estate of Tschirhart, unpublished per 

curiam opinion, slip op 3-8. Despite concluding that defendants were entitled to summary 

disposition in their favor, we remanded the matter to the trial court to allow plaintiff to amend her 

complaint under MCR 2.118, stating:

Plaintiff argues that, if this Court holds that the trial court erred by denying 

defendants’ summary disposition motions, she should be permitted the opportunity 

to amend her complaint. MCR 2.116(I)(5) provides that “[i]f the grounds asserted 

are based on subrule (C)(8), (9), or (10), the court shall give the parties an 
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opportunity to amend their pleadings as provided by MCR 2.118, unless the

evidence then before the court shows that amendment would not be justified.” 

Because summary disposition was warranted under subrule (C)(7), plaintiff was not 

entitled as a matter of right to the opportunity to amend her pleadings. The trial 

court may, however, grant plaintiff leave to amend in accordance with 

MCR 2.118(A)(2). In this case, it is unclear whether there are other facts that could 

support a valid claim. Under the circumstances, we believe that remand to provide 

plaintiff with an opportunity to file an amended complaint is appropriate.

In sum, we conclude that plaintiff’s complaint failed to allege sufficient 

facts that defendants’ conduct constituted gross negligence that was a factual cause 

of the decedent’s death. Accordingly, we reverse the trial court’s orders denying 

defendants’ motions for summary disposition. However, we remand to afford 

plaintiff an opportunity to seek leave to amend her complaint under MCR 2.118.

Plaintiff filed an application for leave to appeal our decision. In a written order, our 

Supreme Court vacated our decision in part, stating:

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 NW2d 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. 

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. 

[Tschirhart v City of Troy, 508 Mich 983; 966 NW2d 343 (2021).]

In the trial court, plaintiff moved for leave to file an amended complaint. Plaintiff relied 

on MCR 2.118(A)(2), noting that leave to amend shall be freely given when justice so requires. 

Plaintiff further alleged that grounds to deny leave, including delay, prejudice, and futility did not 

apply. Defendants opposed the amendment, asserting that it was futile and contending that 

plaintiff failed to state a claim in avoidance of immunity and failed to identify viable claims and 

duties against defendant city’s employees. It was contended that defendants had no obligation to 

prevent a drowning but were merely required to attempt a rescue of a swimmer in distress. 

Defendants also alleged that count VI of the proposed amended complaint, alleging gross 

negligence against defendant city of Troy, should be stricken because summary disposition was 

previously granted in favor of defendant city, and plaintiff did not appeal the ruling.

The trial court denied the motion to amend, stating:
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The defendant [sic] argues, among other things, to be cognizable, defendant [sic] 

must have an affirmative duty to prevent a particular harm. And plaintiff, in her 

pleadings - - she’s the representative - - in any event, plaintiff’s pleadings state that 

defendant [sic] did have an affirmative duty to prevent plaintiff from - - I should 

say the decedent - - from drowning.

Specifically, number one, that the defendant [sic] had a duty to prevent [the 

decedent] from drowning before entering the pool.

And I don’t mean this disrespectfully, but the Court does agree that it is 

linguistically nonsensical to say that. I’ll just leave it at that. I don’t need any 

further explanation. I agree with the defendants’ characterization. You can’t - -

I’ll leave it at that.

The second would be the defendant [sic], per plaintiff, that the defendant 

[sic] had a duty to prevent plaintiff from drowning after entering the pool.

And that’s this Court’s ruling on that, with all due respect, the Court finds 

that is not a basis for an amendment. This is, this characterization, or this proposed 

amendment, in this Court’s opinion, is but the original complaint all over again. If 

the plaintiff’s criticism specifically is that the defendant [sic] did nothing while [the 

decedent] was drowning, well, that criticism is precisely the plaintiff’s original 

criticism.

The appellate courts corrected this Court by stating that the complaint that 

was filed and pled originally was not actionable, and the appellate court authorized 

or conceived, must have conceived of a feasible claim and permitted plaintiff to 

seek leave to amend the complaint to articulate such a conceivable claim. And in 

this Court’s opinion, and respectfully, the Court finds that one has not yet been pled 

by plaintiff.

I’m repeating myself, but plaintiff has not pled anything different than what 

is in the original complaint, it’s just through different words. So, for that reason, 

respectfully, the Court denied plaintiff’s motion for leave to amend the complaint.

The trial court entered an order denying plaintiff’s motion for leave to file an amended complaint, 

citing the reasons stated on the record. From this decision, plaintiff appeals.

II. STANDARD OF REVIEW

A trial court’s decision addressing a motion to amend the complaint is reviewed for an 

abuse of discretion. Wolfenbarger v Wright, 336 Mich App 1, 14; 969 NW2d 518 (2021); Sanders 

v Perfecting Church, 303 Mich App 1, 9; 840 NW2d 401 (2013). An abuse of discretion occurs 

when the trial court’s determination falls outside the scope of reasonable and principled outcomes. 

Charter Twp of Ypsilanti v Dahabra, 338 Mich App 287, 292; 979 NW2d 725 (2021). To the 

extent a court rule is in question, the appellate court reviews the interpretation of a court rule, a 

question of law, de novo. Tyler v Findling, 508 Mich 364, 369; 972 NW2d 833 (2021).
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III. ANALYSIS

Plaintiff asserts that the trial court improperly denied the motion to amend the complaint. 

We agree that the trial court erred, in part, by denying plaintiff’s motion to amend the complaint 

pertaining to defendant employees. Because plaintiff did not appeal the dismissal of defendant 

city of Troy and previously conceded that this party should be dismissed, the claim of gross 

negligence in count VI of the proposed amended complaint naming defendant city of Troy was 

improper.

“Michigan is a notice-pleading state.” Johnson v QFD, Inc, 292 Mich App 359, 368; 807 

NW2d 719 (2011). In Michigan, the primary purpose of a pleading is to provide notice of the 

nature of the claim or defense sufficient to allow the opposite party to take a responsive position. 

Dalley v Dykema Gossett, PLLC, 287 Mich App 296, 305; 788 NW2d 679 (2010). Under 

MCR 2.111(B)(1), a complaint must include “[a] statement of the facts, without repetition, on 

which the pleader relies in stating the cause of action, with the specific allegations necessary 

reasonably to inform the adverse party of the nature of the claims the adverse party is called on to 

defend[.]” To determine the exact nature of a plaintiff’s claims, this Court will go beyond the 

procedural labels in the complaint and read the complaint as a whole to ascertain the exact nature 

of the claims. Johnson, 292 Mich App at 368.

MCR 2.118 governs amended and supplemental pleadings, and provides:

(A)Amendments.

(1) A party may amend a pleading once as a matter of course within 14 days after 

being served with a responsive pleading by an adverse party, or within 14 days after 

serving the pleading if it does not require a responsive pleading.

(2) Except as provided in subrule (A)(1), a party may amend a pleading only by 

leave of the court or by written consent of the adverse party. Leave shall be freely 

given when justice so requires.

(3) On a finding that inexcusable delay in requesting an amendment has caused or 

will cause the adverse party additional expense that would have been unnecessary 

had the request for amendment been filed earlier, the court may condition the order 

allowing amendment on the offending party’s reimbursing the adverse party for the 

additional expense, including reasonable attorney fees.

(4) Amendments must be filed in writing, dated, and numbered consecutively, and 

must comply with MCR 2.113. Unless otherwise indicated, an amended pleading 

supersedes the former pleading.

The purpose of this rule is to facilitate the amendment of pleadings except where prejudice to the 

opposing party would occur. Ben P Fyke & Sons, Inc v Gunter Co, 390 Mich 649, 656-658; 213 

134 (1973). Generally, a motion to amend should be granted. Id. A denial of the amendment 

motion should occur for only particularized reasons
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“In the absence of any apparent or declared reason -- such as undue delay, bad faith 

or dilatory motive on the part of the movant, repeated failure to cure deficiencies 

by amendments previously allowed, undue prejudice to the opposing party by virtue 

of allowance of the amendment, futility of amendment, etc. -- the leave sought 

should, as the rules require, be ‘freely given.’ ” [Ben P Fyke, 390 Mich at 656 

quoting Foman v Davis, 371 US 178, 182; 83 S Ct 227, 230; 9 L Ed 2d 222, 226 

(1962).]

See also Charter Twp of Pittsfield v Washtenaw Co Treasurer, 338 Mich App 440, 458-459; 980 

NW2d 119 (2021) (“Because a court should freely grant leave to amend a complaint when justice 

so requires, a motion to amend should ordinarily be denied only for particularized reasons.”). A 

trial court may deny leave to amend because of undue delay, undue prejudice to the defendant, or 

futility. Id. at 459.

To protect the policy favoring amendment, the trial court should exercise its discretion by 

making specific findings in support of the motion. Ben P Fyke, 390 Mich at 656-657. When a 

trial court considers whether the opposing party will suffer prejudice, it refers to the deprivation 

of a fair trial or surprise; it does not consider the impact on the result of the trial. Id. The timing 

of the offered amendment is considered, not the impact on the merits if amendment is denied. Id. 

at 657-658.

When deciding plaintiff’s motion to amend the complaint, the trial court concluded the 

Court of Appeals corrected the trial court’s erroneous ruling regarding summary disposition, and 

plaintiff essentially in its proposed amended complaint raised the same allegations set forth in the 

first complaint. Thus, the trial court denied the motion to amend determining that it would be 

futile because the same claims were pleaded albeit “through different words.”

We conclude the trial court employed an erroneous rationale and abused its discretion by 

denying plaintiff’s motion to amend with regard to defendant’s employees. Wolfenbarger, 336 

Mich App at 14. The general rule is that leave to amend shall be freely granted. Defendants did 

not claim or identify any undue delay or undue prejudice arising from the proposed amended 

complaint. Therefore, leave should have been freely granted unless it could be shown that 

amendment would be futile. Ben P Fyke & Sons, Inc, 390 Mich at 656.

With regard to futility, the trial court erred in denying amendment by only relying on the 

opinion issued by the Court of Appeals, and failing to consider the subsequent Supreme Court 

order, which stated in pertinent part:

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 NW2d 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. 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 
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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. [Tschirhart, 508 Mich at 983.]

In light of the Supreme Court order, a lifeguard’s delay, even if it constitutes gross negligence can 

be a cause in fact of a person’s drowning, a governmental employee’s failure to intervene can 

constitute the proximate cause of an injury, and the propriety of summary disposition under the 

circumstances is contingent upon the facts of the case.

Defendants submit that plaintiff failed to properly plead a duty, gross negligence, and facts 

in avoidance of governmental immunity. But, Michigan is a notice-pleading state, Johnson, 292 

Mich at 358, where the function of a pleading is to give notice of the nature of the claim in a 

manner that allows the opposing party to respond, Dalley, 287 Mich App at 305. Under 

MCR 2.111(B)(1), a complaint must include “[a] statement of the facts, without repetition, on 

which the pleader relies in stating the cause of action, with the specific allegations necessary 

reasonably to inform the adverse party of the nature of the claims the adverse party is called on to 

defend[.]”

The amended complaint alleged that the decedent had a history of epilepsy, was known to 

have seizures, and defendants’ employees were aware of these facts. It was further asserted that 

video surveillance demonstrated that the decedent was in an area of the pool, the depth of the pool 

would allow a drowning to occur without a life jacket, the decedent submerged completely 

underwater because of a seizure, and this seizure occurred near defendants O’Connor (the 

swimming trainer) and Alleman (an aide). Despite the decedent’s presence under water, 

“defendants” allegedly did not recognize the decedent’s “dire situation” or render aid. Instead, 

defendant Alleman purportedly picked up a Styrofoam tube and poked the decedent with it. The 

amended complaint submitted that the failure to check on the decedent and to merely poke his 

body “demonstrated a clear, willful disregard, and a substantial lack of concern” for the decedent’s 

well-being. It was further alleged that the decedent’s body was “eventually” removed from the 

pool but it still took another 11⁄2 minutes before chest compressions were administered. Plaintiff 

claimed that there was a “complete lack of preparedness and awareness” on the part of defendants,

and the conduct “was so reckless as to demonstrate a substantial lack of concern for whether” the 

decedent suffered injury or death.

Under the circumstances, plaintiff sufficiently pleaded that the decedent was a participant 

in defendants’ swimming program, that he had a history of seizures, that he was in the pool without 

a life jacket or life-saving protection, that he went under water, that Alleman did not immediately 

respond to the submersion but merely poked the decedent with a pool noodle, that “eventually” 

the decedent was removed from the pool, and that there was a delay in providing chest 

compressions to the decedent. Plaintiff further alleged that the conduct amounted to gross 

negligence because it demonstrated a substantial lack of concern for whether injury or death 

results. Under Michigan’s notice-pleading rules, plaintiff sufficiently alleged that defendants’ 

actions or omissions were the proximate cause of the death and that defendant city’s employees 

were nonetheless responsible because the action or inaction was the product of gross negligence, 

allegations in avoidance of governmental immunity. It is noteworthy that, if as defendants allege, 

a video of the drowning existed, it was not submitted in the lower court record. Further, the motion 
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for summary disposition was not premised on MCR 2.116(C)(10). Therefore, no assessment was 

made that despite the allegations raised, a claim of gross negligence could not be established in 

light of any video.

Defendant O’Connor alleged that she was appropriately dismissed from the lawsuit by this

Court and in accordance with the Supreme Court order because the Supreme Court order 

concluded that lifeguards could not be a cause in fact of a person’s drowning. Because O’Connor 

was not a lifeguard, she submits that amendment of the complaint with regard to her was 

appropriately denied. However, no answer was ever filed to the complaint, and O’Connor does 

not deny that she was an employee of defendant city of Troy. The Supreme Court order addressed 

lifeguards specifically but then noted that “a governmental employee’s” failure to intervene can 

constitute the proximate cause of an injury. In light of the Supreme Court statement in its order, 

O’Connor could be deemed the proximate cause of the injury contingent upon the facts presented 

in the case. Therefore, O’Connor’s challenge lacks merit. Tschirhart, 508 Mich at 983.

Defendants also contend that it is “simply nonsense” that plaintiff alleged facts that 

separated the duty to prevent the drowning from facts before entry into the pool and facts that 

failed to prevent the drowning after entry into the pool. We do not control the manner of plaintiff’s 

pleadings, and leave to amend a pleading shall be freely granted. Defendants may later move to 

dismiss allegations in the complaint that purportedly do not give rise to a duty or are characterized 

as nonsensical under MCR 2.116(C)(8).

We recognize that defendants repeatedly submitted that there was no duty to prevent a 

drowning and the only actual duty was to intervene in a perilous situation. Defendants, however,

failed to cite any authority in support of that position. Further, defendants failed to recognize the 

semantics of the presentation of its theory. Specifically, plaintiff seemingly submitted that the 

grossly negligent response to the intervention in the perilous situation caused the drowning, not 

that defendants owed a duty to prevent any drowning. It seemed that plaintiff alleged that the 

decedent was in the pool, defendant city’s employees did not observe the decedent submerge under 

water, the employees did not immediately respond but merely poked the decedent with a pool 

noodle, and the employees delayed in the removal of the decedent from the pool and in providing 

chest compressions. In short, plaintiff did seemingly allege that the employees response to the 

perilous situation was grossly negligent.

Finally, defendants alleged that the pleadings were insufficient because the amended 

complaint did not allege where the defendant lifeguards and aides were during the incident and 

what they were doing. Defendants further asserted that plaintiff must have acquired a video of the 

incident because of the references to the timing of the incident. It is unclear whether plaintiff 

acquired any video and used it to prepare the complaints because it was not submitted in the record. 

Again, Michigan is a notice-pleading state. Whether a video, sworn statements, or deposition 

testimony would support plaintiff’s pleadings was not at issue in the trial court. Rather, the issue 

was whether plaintiff sufficiently pleaded the claims raised in the proposed amended complaint. 

We conclude that she did with regard to defendant city’s employees. Yet, defendants appeared to 

argue that the facts will not demonstrate gross negligence, even though, at this time, the inquiry 

was the sufficiency of the pleading only. In light of the Supreme Court order, the trial court abused 

its discretion by denying the motion to amend the complaint with regard to defendant employees. 
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And for the reasons we have discussed, it was appropriate to deny the request to amend the 

complaint pertaining to defendant city.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this 

opinion. We do not retain jurisdiction. No taxable costs, no party having prevailed in full.

/s/ Anica Letica

/s/ Stephen L. Borrello

/s/ Michael J. Riordan