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

KENNEDY AMMAN and CORI AMMAN,

Plaintiffs-Appellants,

UNPUBLISHED

December 21, 2023

v No. 362353

Saginaw Circuit Court

BETHANY BUSCH, LC No. 17-035098-CZ

Defendant-Appellee.

Before: GLEICHER, C.J., and SWARTZLE and YATES, JJ.

GLEICHER, C.J. (dissenting).

During a choir class at Chesaning High School, a piano fell off a dolly and onto plaintiff 

Kennedy Amman’s foot, crushing it. The sole issue at trial was whether defendant Bethany Busch, 

the choir teacher who was moving the piano when it fell, knew of the piano’s unsteadiness. The 

trial court derailed Kennedy’s case by precluding her from presenting any evidence that a previous 

choir teacher, Yasmin Gewirtz, had publicly complained of the piano’s instability. The majority 

affirms, holding that because Gewirtz disavowed having made the statements attributed to her and 

claimed she had never spoken to Busch about the piano, the trial court’s exclusion of the evidence 

was not an abuse of discretion. I respectfully dissent. 

I. BACKGROUND

Kennedy and her mother, plaintiff Cori Amman, sued the Chesaning school district, the 

school principal, and Busch. The three defendants unsuccessfully sought summary disposition in

the trial court. This Court reversed regarding the school district and the principal, holding that 

summary disposition in their favor was warranted. Amman v Chesaning Union Schs, unpublished 

per curiam opinion of the Court of Appeals, issued August 27, 2020 (Docket Nos. 346483 and 

346484). But we upheld the denial of summary disposition as to Busch, holding that the evidence 

supported a gross negligence claim arising from Busch’s decision to move the unstable piano with

a group of students standing nearby. In large part, we rested our opinion on the fact that a former 

choir teacher, Gewirtz, had allegedly noticed the piano’s unsteadiness and commented about it at

the school. 
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At the summary disposition stage, we noted several students’ affidavits quoting Gewirtz’s 

comments about the piano, specifically its dangerousness. Alyssa Tinklepaugh averred that 

Gewirtz “had trouble moving the piano on the dolly,” that she had students help her move the 

piano because the piano was too heavy to move herself, and that she had “complained to the whole 

class that the piano on the dolly was not level, or that it was unstable, and that she was going to go 

to the Administrative Offices and let them know about this.” Two weeks before the accident, 

Tinklepaugh asserted, Busch had “made almost the exact same comment that [Gewirtz had] made, 

namely that the piano on the dolly was ‘unstable,’ and that she was going to ‘inform the front 

office,’ and similar such words.”

Brionna Harrison, another student, affirmed in an affidavit that Gewirtz “had trouble 

moving the piano on the dolly on her own,” that she had students help her move the piano on at 

least one occasion, and that she had “said things to the effect of, ‘This piano is wobbly’ and ‘This 

is not sturdy’ meaning the piano on the dolly.” Harrison’s affidavit continued that on at least one 

occasion, Gewirtz had “openly complained during class that the piano on the dolly was wobbly.” 

Violet Foster, another classmate, affirmed that Gewirtz would call on students in class to help her 

move the piano on the dolly, that Gewirtz was unable to move it on her own, and that Foster heard 

Gewirtz “complain about the state the piano was in, and that she wished the School would get rid 

of it.”

In our first opinion, we held that these affidavits, in combination with evidence that Busch 

herself had voiced concerns about the piano, provided evidentiary support for Kennedy’s gross 

negligence claim. We highlighted that the statements were admissible because they were not 

offered to prove that the piano was wobbly (this fact was essentially admitted), but instead to prove 

that Busch knew or should have known of the piano’s instability on the dolly. 

Predictably, at the trial, proof of Busch’s knowledge of the piano’s unsteadiness was the 

key to Kennedy’s case against Busch. Because she was a governmental employee, Busch’s 

liability hinged on whether a jury determined that she was grossly negligent.

Gross negligence is “conduct so reckless as to demonstrate a substantial lack of concern 

for whether an injury results.” MCL 691.1407(8)(a). This Court has described gross negligence 

as 

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. [Tarlea v Crabtree, 263 Mich 

App 80, 90; 687 NW2d 333 (2004)]. 

As we explained in our first opinion, if Busch had conversations with other teachers regarding the 

piano’s danger, those conversations would be relevant to Kennedy’s gross negligence claim. 

Busch’s failure to take any precautions—despite being concerned that moving the piano on the 

dolly was “an accident waiting to happen”—could constitute “a willful disregard of precautions or 

measures to attend to safety and a singular disregard for substantial risks.” Tarlea, 263 Mich App 

at 90. If Busch knew or should have known about the danger, her failure to put any safeguards in 
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place, including simply instructing students to stand on the opposite side of the room as the piano 

was moved, could support a gross negligence claim.

After our remand and before the case went to trial, Busch filed a motion in limine seeking 

to exclude Gewirtz as a witness in the case and to prohibit Kennedy and her witnesses from 

testifying to Gewirtz’s statements. As the majority opinion recites, the trial court granted Busch’s 

motion on relevancy grounds. The trial court reasoned that “the question of whether or not the 

prior music teacher said something is entirely irrelevant to whether or not the Defendant Busch 

was grossly negligent in relation to this particular case.” The court continued: “Ms. Gerwitz [sic] 

is totally irrelevant. We’ve got enough issues, we don’t need other issues or other nonissues being 

brought into this case.” The trial court’s order stated, in relevant part, that “Defendant’s motion 

arguing that portions of [the students’] Affidavits that mention Ms. Gerwitz [sic] shall be stricken 

is GRANTED. Further, Ms. Gerwitz [sic] will not be mentioned in any part of the trial, and shall 

not be called as a witness to the trial, as she is not a party to the suit, and the School has been 

dismissed.” 

The majority affirms, observing that the students’ affidavits “do not indicate that Gewirtz 

made the remarks to defendant or in defendant’s presence, and the affidavits do not establish any 

connection between Gewirtz and defendant. Consequently, the affidavits did not show that 

defendant received notice of the piano issue from Gewirtz.” No other evidence established a 

connection between Gewirtz and Busch, the majority adds, summarizing that “[t]he remarks of the 

prior choir teacher unconnected to defendant had no bearing on what defendant knew about the 

piano.”

II. ANALYSIS

In my view, Gewirtz’s statements were relevant regarding whether Busch knew or should 

have known of danger presented by moving the piano on the dolly. In affirming the trial court’s 

in limine ruling, the majority conflates the relevance of the excluded evidence with the 

persuasiveness (in the majority’s estimation) of that evidence.

Relevant evidence is evidence “having any tendency to make the existence of any fact that 

is of consequence to the determination of the action more probable or less probable than it would 

be without the evidence.” MRE 401 (emphasis added). To be relevant, evidence must tend “ ‘to 

make the existence of any fact that is of consequence to the determination of the action more 

probable or less probable than it would be without the evidence.’ ” People v Crawford, 458 Mich 

376, 389-90; 582 NW2d 785 (1998), quoting MRE 401. Our Supreme Court emphasized in 

Crawford that “[t]he threshold is minimal: ‘any’ tendency is sufficient probative force.” Id. at 

390. Evidence is relevant if it “in some degree advances the inquiry,” 1 McCormick, Evidence 

(6th ed), § 185, p 736, and is not objectionable simply because it fails to supply conclusive proof. 

Long ago, our Supreme Court recognized that “[n]o single item of evidence can be rejected 

upon the sole ground that it falls short of making a case; if it contributes to that end it must be 

received, and its sufficiency in connection with the other evidence must be determined on a review 

of the whole when the case is closed.” Collins v Beecher, 45 Mich 436, 438; 8 NW 97 (1881). 

More recently, the Supreme Court amplified the same point in People v Brooks, 453 Mich 511, 
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519; 557 NW2d 106 (1996), by quoting extensively from the McCormick treatise, “where the 

reader encounters the familiar formulation that ‘a brick is not a wall:’ ”

Under our system, molded by the tradition of jury trial and predominantly oral 

proof, a party offers his evidence not en masse, but item by item. An item of 

evidence, being but a single link in the chain of proof, need not prove conclusively 

the proposition for which it is offered. It need not ever make that proposition appear 

more probable than not. Whether the entire body of one party’s evidence is 

sufficient to go to the jury is one question. Whether a particular item of evidence 

is relevant to his case is quite another. It is enough if the item could reasonably 

show that a fact is slightly more probable than it would appear without that 

evidence. Even after the probative force of the evidence is spent, the proposition 

for which it is offered still can seem quite improbable. Thus, the common objection 

that the inference for which the fact is offered “does not necessarily follow” is 

untenable. It poses a standard of conclusiveness that very few single items of 

circumstantial evidence ever could meet. A brick is not a wall. [Id., quoting 1 

McCormick, Evidence (4th ed), § 185, p 776.]

The statements attributed to Busch establish a fact of consequence to the action: that the 

piano was obviously unsteady and that any choir teacher who moved the piano knew or should 

have known of its dangerousness. The statements attributed to Gewirtz establish precisely the 

same relevant fact. Gewirtz’s deposition denial that she had made the statements and her insistence 

that she did not recognize the piano’s danger may have made the students’ accounts less believable, 

but her testimony did not render them less relevant. 

The majority concludes that because Busch could not have heard them, Gewirtz’s

statements were “unconnected” to Busch and “had no bearing on what [Busch] knew about the 

piano.” But the statements’ relevancy does not rise and fall on whether Busch heard them. Rather,

evidence that another choir teacher knew that the piano was “an accident waiting to happen” would 

assist the jury in determining that Busch should have known that the piano was unsteady because 

its danger was obvious, and common knowledge within the school. Contrary to the majority, 

Busch’s denial of any knowledge is not conclusive proof that she was unaware that others had 

expressed concerns about the piano’s safety. Cross examination is all about challenging such 

steadfast denials and allowing a jury to assess their credibility.1

In my view, the trial court abused its discretion by preventing Kennedy from offering the 

strongest proof she had that Busch knew or should have known of the piano’s unsteadiness when 

perched on a moving dolly. Gross negligence is difficult to establish, and Kennedy faced an uphill 

battle under the best of circumstances. The elimination of one strong brick of support for that 

proof made that task insurmountable. By detailing the reasons that Busch was unlikely to have 

been aware of Gewirtz’s statements, the majority misplaces it focus, making the same error as the 

 

1 The majority observes that “allowing Gewirtz to testify at trial simply would have set up a 

credibility contest between Gewirtz and the students about what Gewirtz said several years before 

defendant Busch started teaching choir classes at Chesaning High School.” This is precisely what 

a trial is all about. 
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trial court. The jury could have considered Gewirtz’s views irrelevant because Busch didn’t hear 

them, just as the majority and the trial court did. But constructing a list of reasons a factfinder 

might disregard a piece of evidence doesn’t equate to irrelevance as a matter of law. 

Whether Busch knew or should have known about the piano’s danger was the only real 

issue at the trial. Gewirtz’s statements were relevant to whether Busch should have seen what was 

obvious to Gewirtz and others. Indeed, Gewirtz’s statements provided the strongest possible 

evidence of that fact. Because the improper exclusion of this evidence was “inconsistent with 

substantial justice,” MCR 2.613(A), I would reverse and remand for a new trial.

/s/ Elizabeth L. Gleicher