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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

LOGAN SCHAUB, by Next Friend MICHAEL 

SCHAUB,

Plaintiff-Appellee/Cross-Appellant,

UNPUBLISHED

November 15, 2018

v No. 340993

Grand Traverse Circuit Court

JAMES ALBERT SEYLER, LC No. 2017-031989-NI

Defendant/Cross-Appellee,

and

RYANN ELISE HERMAN and TRAVERSE 

CITY AREA PUBLIC SCHOOLS,

Defendants-Appellants.

Before: MURPHY, P.J., and SAWYER and SWARTZLE, JJ.

PER CURIAM.

Plaintiff, then a 14-year-old 9th grade student, was injured when struck by a vehicle as he 

was crossing the street to his school bus. Defendant RyAnn Elise Herman, an alternate bus 

driver employed by Traverse City Area Public Schools (TCAPS), who had never driven 

plaintiff’s route before, had missed plaintiff’s stop. Herman turned the bus around and missed 

plaintiff’s stop again. Herman stopped the bus a short distance away on the opposite side of the 

road. Plaintiff attempted to cross the street in order to board the bus, and he was struck by a 

vehicle being driven by defendant James Albert Seyler. Plaintiff brought a claim against

Herman for negligent operation of a government-owned vehicle and gross negligence, against 

TCAPS for statutory liability under MCL 691.1405 and ownership liability under MCL 257.401,

and against Seyler for negligence. 

Herman and TCAPS filed a motion for summary disposition under MCR 2.116(C)(7) 

(immunity granted by law), (8) (failure to state a claim on which relief can be granted), and (10) 

(no genuine issue of material fact). Seyler filed a separate motion for summary disposition under 

MCR 2.116(C)(8) and (10). The trial court denied Herman’s and TCAPS’s motion to the extent 

that it sought dismissal of plaintiff’s claims of gross negligence against Herman and statutory 

liability against TCAPS under MCL 691.1405, and it granted summary disposition on the 
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remaining two claims against Herman and TCAPS. In a separate order, the trial court granted 

Seyler’s motion for summary disposition. 

Herman and TCAPS appeal as of right the trial court’s order to the extent that it partially 

denied their motion for summary disposition. Plaintiff cross-appeals the trial court’s grant of 

summary disposition in favor of Seyler. We reverse those portions of the trial court’s order 

denying summary disposition to Herman and TCAPS. We also affirm the grant of summary 

disposition in favor of Seyler. We remand this case for entry of summary disposition in favor of 

defendants on all counts.

I. FACTS

On the morning of October 11, 2016, plaintiff was injured after he was struck by Seyler’s 

car. That morning, he wore a black sweatshirt with a large reflective logo on its front, a black 

hat, and black sweatpants with white stripes running down the pant legs. He also wore a pair of 

grey and red shoes, carried a black backpack, and sported a pair of black headphones. There was 

some limited natural light that morning, enough to “see your hand in front of your face,”

according to plaintiff.

The bus was driven by Herman, an alternate bus driver employed by TCAPS who had 

never driven plaintiff’s route before the day of the accident and testified that she did not have 

time to study the route before departing to pick up students. Herman failed to stop in front of 

plaintiff’s house at the normal stop. After a student made Herman aware of her mistake, Herman 

turned the bus around. According to Herman, it was her intent to continue past plaintiff’s stop 

again in order to turn the bus around a second time so that she could load plaintiff on the 

appropriate side of the road.

An unidentified student offered Herman assistance in locating plaintiff’s stop. On the 

bus’s interior video, the student warned Herman that they were approaching plaintiff’s stop, and 

approximately 19 seconds later, Herman brought the bus to a halt, sitting approximately halfway 

into the travel portion of the highway and halfway into the gravel shoulder of the road. 

Plaintiff’s mother, Nicole Anderson, explained that when the bus stopped, it stopped across the 

street and just to the left of plaintiff’s usual bus stop. Herman indicated that she pulled over only 

to determine how to go about executing a proper stop to load plaintiff onto the bus. 

Herman activated her turn signal, and cars began to pass around the bus. Video footage 

taken from the bus revealed that after two of them had passed, someone—a student or Herman—

noted that plaintiff was “walking down,” although it is unclear whether this meant that plaintiff 

was walking into the roadway or moving to position himself in front of the bus. In an affidavit 

submitted to the trial court, a student passenger on the bus at the time of the accident testified 

that “[i]t was clear to [her] that the bus driver was waiting for [plaintiff] and he was going to 

cross the road to get on the bus,” and that it was “also clear that the bus driver was not going to 

pull back around to [plaintiff’s] actual stop.” 

There was conflicting testimony regarding whether the bus’s external lights were 

activated prior to the accident. Plaintiff stated that he never saw any lights illuminated on the 

bus other than brake lights. Herman initially stated that only the bus’s turn signal and headlights 
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were activated. Seyler indicated that no external lights were activated on the bus except for the 

turn signal, adding that the bus’s internal lights were also inactive. Video footage taken from the 

front external view of the bus showed that approximately 12 seconds after the student notified 

Herman that plaintiff was “walking down,” the bus’s flashing amber lights were activated. 

McNeil testified that he and Seyler saw the flashing lights from a short distance behind the bus. 

Around 57 seconds later, the bus’s flashing amber lights were deactivated. Melissa Orth, who 

was traveling immediately in front of Seyler, testified that the bus’s flashing amber lights were 

activated just before Herman pulled over to allow traffic to pass, and were deactivated once the 

bus came to a complete stop. Herman stated that this was not a signal for plaintiff to attempt to 

board the bus, but a signal to oncoming traffic to proceed with caution.

A student let Herman know that plaintiff was approaching, but she did not activate her 

flashing lights, because to do so would have been unlawful according to the training she received 

at TCAPS. Herman explained that activating the flashing lights while stopped would not give 

other drivers adequate notice that the bus was loading a student. 

A student on the bus called out to plaintiff that the bus was meant for him, and plaintiff 

testified that children on the bus were beckoning for him to board. Plaintiff looked both ways 

down the road and, to the extent that he could remember, he did not notice any oncoming traffic. 

He began to cross the street. In total, eight vehicles went around the bus before the accident. 

While Herman stated that plaintiff was not running, video surveillance taken from the rear 

interior of the bus clearly showed that plaintiff was running across the road. Additionally, Orth 

testified that when she glanced in her rearview mirror, she saw a student running in front of 

Seyler’s truck.

Seyler, the ninth vehicle to navigate around the bus, attempted to go around the bus. His 

headlights were illuminated and he proceeded within the posted speed limit. Even so, although 

Seyler checked for pedestrians, he did not see plaintiff. Plaintiff was situated somewhere in the 

roadway to the side of the bus when he was struck by Seyler’s vehicle. The student who 

submitted an affidavit on plaintiff’s behalf testified that she could hear Seyler’s vehicle 

accelerate just before the collision. Herman and McNeil believed that they heard the squeal of 

Seyler’s brakes being applied just before the impact, but Seyler stated that he did not apply his 

brakes.

Plaintiff was thrown onto the hood of Seyler’s car and carried to a location off to the side 

of the road. At that point, Herman activated the flashing amber and flashing red lights and 

immediately notified dispatch of the accident. Approximately one minute later in the video 

footage of the incident, Herman can be heard stating, “I didn’t—I had no idea he was going to 

cross. I thought that car was going to go and then he was going to cross.”

After the accident, an investigating deputy took a statement from Herman in which she 

informed the deputy that it was her intent to “activate her emergency lights, reenter the roadway, 

and back the short distance up back to his bus stop.” The deputy issued plaintiff a verbal 

warning for failing to yield to the vehicular right of way when crossing the road, but issued no 

traffic citations to Herman or Seyler.
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Plaintiff, by his father and next friend, Michael Schaub, filed this cause of action against 

defendants, alleging five separate counts against defendants: (1) negligent operation of a 

government-owned vehicle against Herman; (2) gross negligence against Herman; (3) statutory 

liability against TCAPS under MCL 691.1405; (4) ownership liability against TCAPS under 

MCL 257.401; and (5) negligence against Seyler.

Herman and TCAPS filed a motion for summary disposition under MCR 2.116(C)(7), 

(8), and (10). Seyler filed a separate motion for summary disposition under MCR 2.116(C)(8) 

and (10). The trial court denied summary disposition of plaintiff’s claim of gross negligence 

against Herman, holding that reasonable minds could differ on the questions of (1) whether 

Herman was grossly negligent; and (2) whether such gross negligence was the proximate cause 

of plaintiff’s injuries. The trial court also denied summary disposition of plaintiff’s claim of 

statutory liability under MCL 691.1405 against TCAPS, holding that the bus was “running and 

engaged in the ongoing process of collecting students to take them to school,” and was therefore 

“operating” under the statute regardless of whether it was moving at the time of the impact or 

whether it contacted plaintiff. The trial court further held that genuine issues of material fact 

remained as to whether Herman negligently operated the bus and whether plaintiff’s injuries 

resulted from such negligent operation. The trial court granted summary disposition of 

plaintiff’s other claims against Herman and TCAPS. Considering the claim of negligence 

against Seyler, the trial court analogized the facts in this case to those in Huggins v Scripter, 469 

Mich 898, 669 NW2d 813 (2003), concluding that plaintiff was more negligent than Seyler 

because plaintiff ran across a dark road while wearing dark clothing, Seyler was traveling within 

the speed limit with his eyes on the road, and the deputy issued plaintiff a citation but not Seyler.

II. STANDARD OF REVIEW

This Court reviews de novo a trial court’s decision on a motion for summary disposition. 

Dextrom v Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010). A motion for summary 

disposition under MCR 2.116(C)(7) may be raised on the ground that a claim is barred because 

of immunity granted by law. In support of a motion under subrule (C)(7), a party may provide 

affidavits, pleadings, depositions, admissions, and other documentary evidence. MCR 

2.116(G)(5). Unlike a motion brought under subrule (C)(10), “a movant under MCR 

2.116(C)(7) is not required to file supportive material, and the opposing party need not reply 

with supportive material.” Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). 

However, if provided, the substance of this material must be admissible in evidence. Id. When 

reviewing motions under subrule (C)(7), 

this Court must accept all well-pleaded factual allegations as true and construe 

them in favor of the plaintiff, unless other evidence contradicts them. If any 

affidavits, depositions, admissions, or other documentary evidence are submitted, 

the court must consider them to determine whether there is a genuine issue of 

material fact. If no facts are in dispute, and if reasonable minds could not differ 

regarding the legal effect of those facts, the question whether the claim is barred 

is an issue of law for the court. However, if a question of fact exists to the extent 

that factual development could provide a basis for recovery, dismissal is 

inappropriate. [Dextrom, 287 Mich App at 429 (citations omitted).]
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“[O]nly factual allegations, not legal conclusions, are taken as true under MCR 2.116(C)(7) and 

(8).” Davis v Detroit, 269 Mich App 376, 379 n 1; 711 NW2d 462 (2005).

Motions under MCR 2.116(C)(8) test the legal sufficiency of the complaint. Maiden, 461 

Mich at 119. “All well-pleaded factual allegations are accepted as true and construed in a light 

most favorable to the nonmovant. A motion under MCR 2.116(C)(8) may be granted only where 

the claims alleged are so clearly unenforceable as a matter of law that no factual development 

could possibly justify recovery.” Id. (citations and quotation marks omitted). When considering 

motions under subrule (C)(8), a court only examines the pleadings. MCR 2.116(G)(5).

Under MCR 2.116(C)(10), summary disposition may be granted if “there is no genuine 

issue as to any material fact, and the moving party is entitled to judgment or partial judgment as 

a matter of law.” Motions for summary disposition under MCR 2.116(C)(10) test the factual 

sufficiency of the complaint. Maiden, 461 Mich at 120. “A question of fact exists when 

reasonable minds could differ as to the conclusions to be drawn from the evidence.” Dextrom, 

287 Mich App at 416. When evaluating motions brought under subrule (C)(10), a trial court 

must consider—in the light most favorable to the nonmoving party—the parties’ affidavits, 

pleadings, depositions, admissions, and other documentary evidence. Id., citing MCR 

2.116(G)(5). Such evidence is required when disposition is sought pursuant to subrule (C)(10). 

MCR 2.116(G)(3)(b). Motions under subrule (C)(10) “must specifically identify the issues as to 

which the moving party believes there is no genuine issue as to any material fact.” MCR 

2.116(G)(4). The nonmoving party may not rest upon its pleading, but must set forth specific 

facts showing that there is a genuine issue for trial. Id. If the nonmoving party fails to do so, the 

moving party is entitled to judgment as a matter of law. Maiden, 461 Mich at 120. The Court 

may not resolve factual disputes or weigh credibility when deciding a motion for summary 

disposition. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994).

Further, “[t]he applicability of governmental immunity is a question of law that is 

reviewed de novo.” Ray v Swager, 501 Mich 52, 61; 903 NW2d 366 (2017). Issues of statutory 

construction are reviewed de novo as well. Chandler v Muskegon Co, 467 Mich 315, 319; 652 

NW2d 224 (2002).

III. ANALYSIS

A. GROSS NEGLIGENCE

TCAPS and Herman first argue that the trial court erred when it denied summary 

disposition of plaintiff’s claim of gross negligence against Herman because plaintiff failed to 

create a genuine issue of material fact whether Herman’s conduct was “so reckless as to 

demonstrate a substantial lack of concern for whether an injury results.” See MCL 

691.1407(8)(a). We agree.

Under MCL 691.1407(1) of the governmental tort liability act (GTLA), “a governmental 

agency is immune from tort liability if the governmental agency is engaged in the exercise or 

discharge of a governmental function.” Likewise, an employee of a governmental agency is also 

immune from tort liability for injuries to persons that occur in the course of the governmental 

employee’s employment or service on behalf of the agency so long as:
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(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. [MCL 

691.1407(2)(a) through (c).]

Gross negligence, in this context, “means conduct so reckless as to demonstrate a substantial lack 

of concern for whether an injury results.” MCL 691.1407(8)(a). It requires conduct that is 

“ ‘substantially more than negligent.’ ” Bellinger v Kram, 319 Mich App 653, 659-660; 904 

NW2d 870 (2017), quoting Maiden, 461 Mich at 122. Stated another way, gross negligence may 

be characterized by “ ‘a willful disregard of safety measures and a singular disregard for 

substantial risks.’ ” Bellinger, 319 Mich App at 660, quoting Oliver v Smith, 290 Mich App 678, 

685; 810 NW2d 57 (2010). Typically, allegations of inaction or claims that a defendant could 

have taken additional precautions do not establish gross negligence. Bellinger, 319 Mich App at 

660

Herman owed plaintiff a duty as a school bus driver transporting student passengers. 

“Unquestionably, there is a legal relationship between a school bus driver and a 

passenger/student such that the law imposes a legal obligation on the driver for the benefit of the 

passenger.” Nolan v Bronson, 185 Mich App 163, 170; 460 NW2d 284 (1990), overruled on 

other grounds by Chandler, 467 Mich at 319-322. “The duty of care required of a school bus 

driver for the benefit of a passenger is the care a reasonable person would exercise under the 

circumstances.” Nolan, 185 Mich App at 175. MCL 257.1855(2)(b) provides the proper 

procedure for loading a student onto a school bus when the student is required to cross the street 

to board the bus:

If the pupils are required to cross the roadway, the driver of a school bus equipped 

with red and amber alternately flashing overhead . . . shall activate the alternately 

flashing overhead amber lights not less than 200 feet before the stop, stop the bus 

on the roadway or private road to provide for the safety of the pupils being 

boarded or discharged, deactivate the alternately flashing overhead amber lights, 

and activate the alternately flashing overhead red lights while receiving or 

discharging pupils. The bus shall stop in the extreme right-hand lane for the 

purpose of boarding or discharging pupils. Before resuming motion, the driver 

shall deactivate these lights and allow congested traffic to disperse where 

practicable. The deactivation of these lights is the signal for stopped traffic to 

proceed.

The problem with an argument establishing a breach of duty under this procedure is that 

there is no evidence to support the necessary predicate to the duty—that plaintiff was required to 

cross the roadway. Not only did Herman state that she was not anticipating that plaintiff would 

cross the road at that point and she was waiting to be able to turn the bus around and pick him up 

on his side of the road, but there is no evidence that she instructed plaintiff to cross. That is, an 
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argument for gross negligence could be made had Herman, without properly activating her 

lights, instructed plaintiff to cross. But the evidence does not support such a conclusion. At 

best, the evidence might suggest that, contrary to Herman’s position now, she was stopped at the 

side of the road not waiting for the opportunity to turn around, but considering whether to turn 

around or instruct plaintiff to cross. But, before she did either, a student on the bus encouraged 

plaintiff to cross without being instructed by Herman to do so, which plaintiff did.

Plaintiff contends that Herman was grossly negligent because she should have activated

the bus’s flashing red lights in order to control the flow of traffic once she became aware that 

plaintiff was crossing the street. Evidence was presented that Herman was eventually made 

aware that plaintiff was crossing the street before the accident. Nevertheless, plaintiff’s 

argument does not account for the increased potential for other accidents and injuries that might 

have resulted from a decision to do so. Or, for that matter, after reviewing the video, it is not 

clear there was sufficient time for Herman to react and activate the lights after discovering that 

plaintiff was crossing without being directed to do so. We reject plaintiff’s assertion that, under 

the unique facts of this case, failing to activate the bus’s red crossing lights rendered Herman 

grossly negligent.

B. THE MOTOR VEHICLE EXCEPTION TO GOVERNMENTAL IMMUNITY

Herman and TCAPS next argue that plaintiff failed to establish a genuine issue of 

material fact as to whether the bus was “operating” as a motor vehicle sufficient to invoke the 

motor vehicle exception to governmental immunity. We disagree with this particular point, but 

do agree that the motor vehicle exception does not apply in this case.

Pursuant to MCL 691.1405, “[g]overnmental agencies shall be liable for bodily injury 

and property damage resulting from the negligent operation by any officer, agent, or employee of 

the governmental agency, of a motor vehicle of which the governmental agency is owner . . . .” 

This is known as the motor vehicle exception to governmental tort liability. Strozier v Flint 

Community Sch, 295 Mich App 82, 88; 811 NW2d 59 (2011). Michigan courts have grappled 

with the proper interpretation of the word “operation” in this context, as the Legislature did not 

offer a statutory definition of the term. In Martin v Rapid Inter-Urban Transit Partnership, 480 

Mich 936, 936; 740 NW2d 657 (2007), the Michigan Supreme Court held that “[t]he loading and 

unloading of passengers is an action within the ‘operation’ of a shuttle bus.” Id. Nevertheless, 

an injury does not “result[] from” the negligent operation of a government-owned vehicle under 

MCL 691.1405 unless the government-owned vehicle makes direct physical contact with the 

plaintiff in some capacity. Curtis v Flint, 253 Mich App 555, 561; 655 NW2d 791 (2002); 

Robinson v Detroit, 462 Mich 439, 456-457; 613 NW2d 307 (2000).

In this case, the loading of passengers “is an action within the ‘operation’ of a . . . bus.” 

See Martin, 480 Mich at 936. However, plaintiff has never offered any evidence to suggest that 

the bus physically contacted him or Seyler’s vehicle. Accordingly, plaintiff has failed to 

establish a genuine issue of material fact regarding whether he could invoke the motor vehicle 

exception to governmental tort liability. See Helfer v Ctr Line Pub Sch, 477 Mich 931, 931; 723 

NW2d 459 (2006).
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D. COMPARATIVE FAULT

Plaintiff, in his brief on cross-appeal, argues that the trial court erred when it held that 

plaintiff’s claim of negligence against Seyler was barred by the doctrine of comparative fault

because the trial court failed to analyze the involvement of all pertinent actors. We disagree.

Plaintiff is correct that the doctrine of comparative fault requires an analysis of all the 

pertinent actors’ fault. MCL 500.3135(2)(b) provides that in cases involving motor vehicle 

accidents, “damages shall not be assessed in favor of a party who is more than 50% at fault.” 

Under MCL 600.6304(1)(b) and (2):

(1) In an action based on tort or another legal theory seeking damages for personal 

injury, property damage, or wrongful death involving fault of more than 1 person, 

including third-party defendants and nonparties, the court, unless otherwise 

agreed by all parties to the action, shall instruct the jury to answer special 

interrogatories or, if there is no jury, shall make findings indicating both of the 

following:

* * *

(b) The percentage of the total fault of all persons that contributed 

to the death or injury . . . , regardless of whether the person was or 

could have been named as a party to the action.

(2) In determining the percentages of fault under subsection (1)(b), the trier of fact 

shall consider both the nature of the conduct of each person at fault and the extent 

of the causal relation between the conduct and the damages claimed.

“The doctrine of comparative fault requires that every actor exercise reasonable care.” Zaremba 

Equip, Inc v Harco Nat’l Ins Co, 280 Mich App 16, 33; 761 NW2d 151 (2008). Several 

Michigan statutes work in conjunction “to allocate liability according to the relative fault of all 

persons contributing to the accrual of a plaintiff’s damages.” Lamp v Reynolds, 249 Mich App 

591, 596; 645 NW2d 311 (2002) (emphasis added). Because the trial court concluded that 

Herman was potentially negligent, the trial court erred in comparing plaintiff’s fault only to 

Seyler’s, when it should have also accounted for the amount of fault attributable to Herman’s 

conduct But this error becomes harmless with our conclusion that summary disposition should 

have been granted in favor of both TCAPS and Herman. That is, in light of our conclusion, the 

parties to compare under the comparative negligence analysis are plaintiff and Seyler. And, 

because the trial concluded there was no dispute that plaintiff was more negligent than Seyler, it 

necessarily follows that the trial court would conclude that, if only plaintiff’s and Seyler’s 

negligence are to be compared, plaintiff would necessarily have to have been more than 50% at 
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fault. Accordingly, even though the trial court’s analysis was somewhat faulty in light of its 

other decisions, ultimately it can be affirmed.1 

In light of our conclusions on these issues, we need not address the remaining issues 

presented in this case.

We reverse the portion of the trial court’s order denying summary disposition with 

respect to plaintiff’s claim of gross negligence against Herman, reverse the portion of the trial 

court’s order denying summary disposition of plaintiff’s claim of statutory liability against 

TCAPS under the motor vehicle exception to governmental immunity, and affirm the trial court’s 

order granting Seyler’s motion for summary disposition. We remand this case for further 

proceedings consistent with this opinion. We do not retain jurisdiction. Defendants may tax 

costs. 

/s/ David H. Sawyer

/s/ Brock A. Swartzle

 1 It should be noted that we are not necessarily concluding that the evidence supports a 

conclusion of any negligence by Seyler. We only conclude that, even if Seyler was at all 

negligent, under the trial court’s analysis plaintiff still had to have been more than 50% at fault.