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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

JA’KWON TIGGS, by Next Friend JESSICA 

TIGGS,

Plaintiff-Appellee,

UNPUBLISHED

May 8, 2018

v No. 338798

Genesee Circuit Court

FLINT COMMUNITY SCHOOLS, FLINT 

BOARD OF EDUCATION, FLINT SCHOOL 

DISTRICT, and IAN MOTEN,

LC No. 17-108607-CZ

Defendants,

and

LISA ANDERSON,

Defendant-Appellant.

Before: BORRELLO, P.J., and SAWYER and JANSEN, JJ.

PER CURIAM.

Defendant, Lisa Anderson, appeals as of right an order denying her motion for summary 

disposition in this negligence action. We reverse and remand for entry of summary disposition 

in favor of defendant only. 

This matter arises out of an incident in which defendant, Ian Moten (Moten), a guest 

teacher for Flint Community Schools, put duct tape over the mouths of several first grade 

students. Flint Community Schools, the Flint Board of Education, and the Flint School District 

(school district entities) were dismissed from this action because plaintiff, Jessica Tiggs, did not 

contest summary disposition in their favor. Moten was represented by separate counsel in the 

lower court, and the motion for summary disposition was not filed on his behalf. Thus, 

plaintiff’s specific allegations against Moten are not subject to this appeal. 

Defendant argues on appeal that the trial court erred in denying summary disposition in 

her favor pursuant to the governmental tort liability act (GTLA), MCL 691.1401 et seq., because 

she was not the proximate cause of the injuries of the minor plaintiff, Ja’Kwon Tiggs, and her 

conduct did not constitute gross negligence. We agree. 
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Defendant and the school district entities moved for summary disposition pursuant to 

MCR 2.116(C)(7) on the ground of governmental immunity. The trial court granted partial 

summary disposition to the school district entities, but denied defendant summary disposition on 

the basis that gross negligence and proximate cause were questions of fact for a jury. This Court 

reviews a trial court’s decision regarding a motion for summary disposition de novo. Gorman v 

American Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d 223 (2013). This Court 

reviews only the evidence that was presented at the time the trial court made its decision on the 

motion. Id. at 120. If a claim is barred because of “immunity granted by law,” summary 

disposition is appropriate pursuant to MCR 2.116(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, when reviewing a motion under 

MCR 2.116(C)(7). Dextrom v Wexford Co, 287 Mich App 406, 428; 789 NW2d 211 (2010). “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 [of] whether the claim is barred is an issue of law for the court.” Id. at 429 (citations 

omitted). If a question of fact does exist to the extent that recovery could be provided by factual 

development, dismissal is inappropriate. Id. 

We conclude that because there is no genuine issue of material fact regarding gross 

negligence and proximate causation, the trial court erred by denying defendant summary 

disposition. Defendant’s conduct as the Executive Director of Human Resources and Legal 

Affairs for Flint Community Schools did not rise to the level of gross negligence, and further, 

was not the proximate cause of minor plaintiff’s injuries. Therefore, the gross negligence 

exception to governmental immunity is inapplicable. 

Michigan jurisprudence is clear that civil immunity is provided to governmental 

employees for injuries they cause while they are acting in the scope of their employment “if they 

are acting or reasonably believe they are acting within the scope of their authority, if they are 

engaged in the exercise or discharge of a governmental function, and if their conduct does not 

amount to gross negligence that is the proximate cause of the injury or damage.” Love v Detroit, 

270 Mich App 563, 565; 716 NW2d 604 (2006), citing Robinson v Detroit, 462 Mich 439, 458; 

613 NW2d 307 (2000), citing MCL 691.1407(2). “Gross negligence” is defined by the GTLA as 

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

results.” MCL 691.1407(7)(a). A governmental employee’s gross negligence is the proximate 

cause of an injury if it is “ ‘the one most immediate, efficient, and direct cause’ preceding the 

injury.” Love, 270 Mich App at 563, quoting Robinson, 462 Mich at 462. Evidence of ordinary 

negligence is not enough to establish a material question of fact regarding whether a government 

employee was grossly negligent. Chelsea Inv Group LLC v Chelsea, 288 Mich App 239, 265; 

792 NW2d 781 (2010). Furthermore, “[t]he determination whether a governmental employee’s 

conduct constituted gross negligence that proximately caused the complained-of injury under 

MCL 691.1407 is generally a question of fact, but, if reasonable minds could not differ, a court 

may grant summary disposition.” Briggs v Oakland Co, 276 Mich App 369, 374; 742 NW2d 

136 (2007).
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A school district is a political subdivision subject to the GTLA. MCL 691.1401(e). For 

purposes of governmental immunity, the term “governmental function” is to be broadly 

construed. NL Ventures VI Farmington, LLC v Livonia, 314 Mich App 222, 244; 886 NW2d 772 

(2016). It has long been held that the operation of a public school is a uniquely governmental 

function. Deaner v Utica Community Sch Dist, 99 Mich App 103, 108; 297 NW2d 625 (1980). 

The hiring and supervision of teachers is also “a function that is the essence of government.” 

McIntosh v Becker, 111 Mich App 692, 697; 314 NW2d 728 (1981). It is undisputed that 

defendant was acting within the scope of her authority, and was engaged in a governmental 

function, at the time of this incident. Love, 270 Mich App at 565. On December 3, 2013, 

defendant was the active Executive Director of Human Resources and Legal Affairs for Flint 

Community Schools. Therefore, defendant is entitled to governmental immunity unless her 

actions constitute “gross negligence that is the proximate cause of the injury or damage.” Love, 

270 Mich App at 565. Defendant’s actions must be both grossly negligent and the proximate 

cause of minor plaintiff’s injuries for defendant to be immune. Id. 

I. GROSS NEGLIGENCE

As stated supra, gross negligence is “conduct so reckless as to demonstrate a substantial 

lack of concern for whether an injury results.” MCL 691.1407(7)(a). The Court explained this 

standard in Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004):

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. However, saying that a defendant 

could have taken additional precautions is insufficient to find ordinary negligence, 

much less recklessness. Even the most exacting standard of conduct, the 

negligence standard, does not require one to exhaust every conceivable precaution 

to be considered not negligent.

The much less demanding standard of care—gross negligence—suggests, instead, 

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 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. 

In Tarlea, a student at a summer football conditioning camp passed away after participating in a 

11⁄2 mile run. Id. at 86. This Court determined that the football coaches in charge of the camp 

were not grossly negligent because they took many precautions to safeguard the football players, 

such as offering water breaks, allowing the students to take a break in the shade during the run, 

making the run voluntary, and allowing the students to run in shorts and t-shirts because of the 

heat. Id. at 86, 91-92. 

Similarly, in Vermilya v Dunham, 195 Mich App 79, 80-81; 489 NW2d 496 (1992), the 

minor plaintiff was injured at school when other students pushed a steel soccer goal on top of 

him. The minor plaintiff’s father filed suit against the school principal, who was granted 

summary disposition in the lower court because the principal was not grossly negligent. Id. at 

81. The minor plaintiff’s father appealed, and this Court affirmed summary disposition in the 
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principal’s favor. Id. at 83. This Court agreed that the principal was not grossly negligent 

because he became aware that the goals could be tipped over one to two weeks before the 

incident, he spoke to the maintenance supervisor regarding anchoring the goals, he made 

announcements telling students to stay off of the goals, and he disciplined students who failed to 

comply. Id. 

In this case, plaintiff’s argument is based on hindsight: she argues that defendant was 

“aware that [ ] Moten had the propensity to cause harm to children under his supervision and 

[defendant] could have prevented the unfortunate incidents that caused the filing of this lawsuit.” 

Moten was hired as a guest teacher for the district in 2010 by the then-active Executive Director 

of Human Resources, Karen Pugh. At that time, defendant was the Risk and Benefits Manager 

for the district. Pugh did not discuss her decision to hire Moten with defendant before or after he 

was hired. Defendant had no involvement in Moten’s hiring. Defendant did not replace Pugh as 

the Executive Director of Human Resources until January 2013. In Vermilya, the school 

principal became aware that the goal posts were unanchored one or two weeks before the minor 

plaintiff was injured, and took steps to alleviate the problem. Vermilya, 195 Mich App at 83. In 

contrast, defendant did not know that Moten threatened to duct tape the students’ mouths before 

it actually occurred. She was not notified of the duct tape incident until after it occurred, and 

was directed by the superintendent to act accordingly. At that point, she pulled Moten’s

personnel file, and saw the correspondence from 2010 and 2012 requesting that he not report to 

two of the district schools, and his employment application disclosing an incident in which he 

left his own minor child in the car at the YMCA. Following the duct tape incident, defendant

sent Moten a letter ending his employment with the district.

Defendant’s actions do not demonstrate that she acted with “a willful disregard of 

precautions or measures to attend to safety and a singular disregard for substantial risks.” 

Tarlea, 263 Mich App at 90. She was unaware of the previous incidents included in Moten’s 

personnel file as she had no reason to investigate his guest teacher services before the duct tape 

incident. She also was unaware that Moten threatened to bring duct tape to school and tape the 

students’ mouths before the actual occurrence. Although she had access to Moten’s file 

beginning in January 2013, the reports of his prior inappropriate behavior were added to his file 

in 2010 and 2012, there was no reason for defendant to be aware of these documents before the 

duct tape incident on December 3, 2013. Plaintiff has not demonstrated that these prior incidents 

necessarily would have been a basis to discontinue Moten’s employment. There was no 

indication that he was disciplined for his prior actions, or that he could lose employment as a 

result. Therefore, defendant did not act in a reckless manner and with a “substantial lack of 

concern for whether an injury results” by failing to discontinue Moten’s services, and she was 

not grossly negligent. MCL 691.1407(7)(a).

As noted above, defendant’s actions must be both grossly negligent and the proximate 

cause of plaintiff’s injuries for defendant to have immunity from liability. Love, 270 Mich App 

at 565. Given that defendant was not grossly negligent, the trial court’s denial of summary 

disposition in favor of defendant was in error on that basis alone. However, because the parties 

discussed proximate cause on appeal, we address it herein. 
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II. PROXIMATE CAUSE

“Proximate cause is an essential element of a negligence claim.” Ray v Swager, 501 

Mich 52, 63; 903 NW2d 366 (2017). Proximate cause requires an examination of the 

foreseeability of consequences, and whether a defendant is legally responsible for those 

consequences. Id. Proximate cause should not be confused with cause in fact, or factual 

causation, which means that a plaintiff’s injury would not have occurred “but for” the actions of 

a defendant. Id. A court must determine that a defendant’s negligence was a cause in fact of a 

plaintiff’s injuries before it can conclude that it was the proximate or legal cause of the injuries. 

Id. at 64. “In a negligence action, a plaintiff must establish both factual causation, i.e., ‘the 

defendant’s conduct in fact caused harm to the plaintiff,’ and legal causation, i.e., the harm 

caused to the plaintiff ‘was the general kind of harm the defendant negligently risked.’ ” Id. 

(quotations omitted). 

The second element that needs to be met for the gross negligence exception to 

governmental immunity to apply is that defendant’s grossly negligent actions were the 

“proximate cause” of plaintiff’s injuries. Love, 270 Mich App at 565. Proximate cause is “ ‘the 

one most immediate, efficient, and direct cause’ preceding the injury.” Id. at 563, quoting 

Robinson, 462 Mich at 462. “The” proximate cause is different from “a” proximate cause, which 

implies the possibility of many proximate causes. Robinson, 462 Mich at 459-462. The 

Michigan Supreme Court recently explained the proper process to determine proximate cause 

pursuant to the GTLA:

We take this opportunity to clarify the role that factual and legal causation play 

when analyzing whether a defendant’s conduct was “the proximate cause” of a 

plaintiff’s injuries under the GTLA. In any negligence case, including one 

involving a government actor’s gross negligence, a court must determine whether 

“the defendant’s negligence was a cause in fact of the plaintiff’s injuries . . . .” 

But the court must also assess proximate cause, that is, legal causation, which 

requires a determination of whether it was foreseeable that the defendant’s 

conduct could result in harm to the victim. A proper legal causation inquiry 

considers whether an actor should be held legally responsible for his or her 

conduct, which requires determining whether the actor’s breach of a duty to the 

plaintiff was a proximate cause of the plaintiff’s injury. It is not uncommon that 

more than one proximate cause contributes to an injury. However, under the 

GTLA, we have held that when assessing whether a governmental employee was 

“the proximate cause” of the plaintiff’s injuries, a court must determine whether 

the defendant’s conduct was “the one most immediate, efficient, and direct cause 

of the injury . . . .” [Ray, 501 Mich at 64-65 (quotations omitted).]

Proximate cause may not be determined by weighing factual causes. Id. at 66. Breaches of a 

duty by a human actor only can be a proximate cause; whereas, “nonhuman and natural forces”

cannot be a proximate cause, but can be “superseding causes that relieve the actor of liability if 

the intervening force was not reasonably foreseeable.” Id. at 72. 

In applying this standard, there is no genuine issue of material fact that defendant’s 

conduct was not the proximate cause of minor plaintiff’s injuries. Whether defendant should be 
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held legally responsible for her conduct requires determining whether the breach of any duty of 

care that she owed minor plaintiff was a proximate cause of his injuries. Ray, 501 Mich at 65. 

Defendant was not involved in the decision to hire Moten to provide guest teacher services. 

Accordingly, plaintiff essentially asserts that defendant breached a duty of care to minor plaintiff 

by allowing Moten to continue guest teaching, despite his record of prior indiscretions. 

However, the last report in Moten’s personnel file was dated from December 2012, and 

defendant did not become the Executive Director of Human Resources and Legal Affairs until 

January 2013. She was not notified of the duct tape incident until after it occurred. Defendant 

was unaware of Moten’s prior inappropriate behavior noted in his personnel file because in the 

time between when she took over as Executive Director of Human Resources and the duct tape 

incident, she had no reason to inquire into his file. 

This Court has previously upheld summary disposition in favor of school boards on 

claims of negligent hiring and supervision because screening, hiring, and supervision of teachers 

is a governmental function. See McIntosh, 111 Mich App at 695-696 (school district immune 

from liability for alleged negligence in screening, hiring, and supervising teacher who slandered, 

assaulted, and battered minor plaintiff); Bozarth v Harper Creek Bd of Ed, 94 Mich App 351, 

353-354; 288 NW2d 424 (1979) (school board entitled to governmental immunity on negligent 

hiring and supervision claim of teacher who sexually assaulted minor plaintiff). Furthermore, 

“[w]hen a plaintiff attempts to establish factual causation circumstantially, that circumstantial 

proof must go beyond pure speculation.” Ray, 501 Mich at 70. Plaintiff’s assertion that 

defendant “could have prevented the unfortunate incidents that caused the filing of this lawsuit”

is purely speculative.

We therefore conclude that it was not foreseeable that defendant’s alleged failure to 

inquire into Moten’s teaching history and discontinue his guest teaching services before this 

incident would result in harm to minor plaintiff. Even if defendant had been aware of the 

contents of Moten’s file, it was not foreseeable that he would go so far as to duct tape students’

mouths. The prior complaints about Moten were that he did not follow lesson plans or keep his 

classroom under control. Nothing in Moten’s personnel file suggested he might become physical 

with students. For example, in an effort to manage his classroom, Moten had previously sent 

students into the hallway. Based on these prior reports, it was not foreseeable that Moten would 

resort to duct taping students’ mouths to control the classroom. 

Defendant’s conduct was not the “one most immediate, efficient, and direct cause” of 

minor plaintiff’s injury. Love, 270 Mich App at 565, quoting Robinson, 462 Mich at 462. It is 

factually undisputed that Moten placed the duct tape on the minor plaintiff’s mouth, and it was 

therefore Moten’s breach of the duty of care owed to students by guest teachers that was the 

proximate cause of the minor plaintiff’s injuries. Accordingly, there are no questions of fact 

barring the grant of summary disposition in favor of defendant. 

Reversed and remanded for entry of summary disposition in favor of defendant only. We 

do not retain jurisdiction. 

/s/ Stephen L. Borrello

/s/ David H. Sawyer

/s/ Kathleen Jansen