RAY v SWAGER

Docket No. 152723. Argued on application for leave to appeal on October 19, 2016. 

Decided July 31, 2017.

Michael A. Ray and Jacqueline M. Ray, acting as coconservators for their minor child,

Kersch Ray, filed an action in the Washtenaw Circuit Court against Eric Swager, Scott A. Platt, 

and others, in part alleging that Swager was liable for the injuries suffered by Kersch when 

Kersch was struck by an automobile driven by Platt. Kersch was thirteen years old and a 

member of the Chelsea High School cross-country team at the time of the accident; Swager was 

the coach of the team and a teacher at the high school. Kersch was struck by the car driven by 

Platt when Kersch was running across an intersection with his teammates and Swager during an 

early morning team practice. Plaintiffs alleged that Swager had instructed the runners to cross 

the road even though the “Do Not Walk” symbol was illuminated. Swager moved for summary 

disposition under MCR 2.116(C)(7), arguing that as a governmental employee he was entitled to 

immunity from liability under MCL 691.1407(2) of the governmental tort liability act (GTLA), 

MCL 691.1401 et seq. The circuit court, Carol A. Kuhnke, J., denied Swager’s motion, 

concluding that whether Swager’s actions were grossly negligent and whether he was the 

proximate cause of Kersch’s injuries—and therefore not entitled to immunity under the GTLA—

were questions of fact for the jury to decide. Plaintiffs appealed. In an unpublished per curiam 

opinion, issued October 15, 2015 (Docket No. 322766), the Court of Appeals, BOONSTRA, P.J., 

and SAAD and HOEKSTRA, JJ., reversed and remanded the case to the circuit court for entry of 

summary disposition in favor of Swager. The Court of Appeals reasoned that Swager was 

immune from liability under MCL 691.1407(2) because reasonable minds could not conclude 

that Swager was the proximate cause of Kersch’s injuries; rather, Platt’s presence in the roadway 

and Kersch’s own actions were the immediate and direct causes of Kersch’s injuries, and the 

most proximate cause of Kersch’s injuries was being struck by a moving vehicle. Plaintiffs 

sought leave to appeal. The Supreme Court ordered and heard oral argument on whether to grant 

plaintiffs’ application for leave to appeal or take other action. 499 Mich 988 (2016). 

In an opinion by Justice VIVIANO, joined by Justices MCCORMACK, BERNSTEIN, and 

LARSEN, the Supreme Court, in lieu of granting leave to appeal, held:

The Court of Appeals failed to correctly analyze proximate cause. For purposes of MCL 

691.1407(2), the phrase “the proximate cause” refers to legal causation, which is distinct and 

separate from factual causation. A proper proximate cause analysis under the GTLA does not 

Michigan Supreme Court

Lansing, Michigan

Syllabus Chief Justice:

Stephen J. Markman

Justices:

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein

Joan L. Larsen

Kurtis T. Wilder

This syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader.

Reporter of Decisions:

Kathryn L. Loomis
involve weighing but-for, i.e., factual, causes when assessing whether a defendant is the

proximate cause of the plaintiff’s injury. Instead, so long as the defendant’s conduct is a factual 

cause of the plaintiff’s injuries, the court must assess foreseeability and the legal responsibility of 

the relevant actors to determine whether the conduct of a government actor, or some other 

person, is the proximate cause of a plaintiff’s injury—that is, the one most immediate, efficient, 

and direct cause of the plaintiff’s injuries. The Court of Appeals failed to correctly analyze 

proximate cause because it only weighed factual causes. Dean v Childs, 474 Mich 914 (2016), is 

overruled, and to the extent Beals v Michigan, 497 Mich 363, 375 (2015), relied on the order in 

Dean, that portion of Beals is disavowed.

1. Under the GTLA, governmental agencies and their employees are generally immune 

from tort liability when they are engaged in the exercise or discharge of a governmental function. 

An exception to the broad grant of tort liability, MCL 691.1407(2) provides that a governmental 

employee is immune from tort liability caused by the employee during the course of his or her 

employment if (1) the employee is acting or reasonably believes he or she is acting within the 

scope of his or her authority, (2) the governmental agency is engaged in the exercise or discharge 

of a governmental function, and (3) the employee’s conduct does not amount to gross negligence 

that is the proximate cause of the injury or damage. 

2. In every negligence action, including one involving a government actor’s gross 

negligence, the plaintiff must establish both factual causation and legal causation (also known as 

proximate cause); these concepts are separate and distinct. Although prior opinions have not 

always been clear, the legal term of art “proximate cause” is distinct from factual causation and 

the two terms must not be conflated. Proximate cause is a term with a well-established peculiar 

and appropriate meaning in the common law that involves examining the foreseeability of the 

consequences of an actor’s conduct to determine whether a defendant should be held legally 

responsible for those consequences; factual causation, on the other hand, requires a plaintiff to 

establish that but-for the defendant’s conduct, the plaintiff’s injury would not have occurred. 

While this Court has used the term “proximate cause” both as a broader term referring to factual 

causation and legal causation together and as a narrower term referring only to legal causation, 

the broader characterization merely recognizes that a court must find that the defendant’s 

negligence was a cause in fact of the plaintiff’s injuries before it can hold that the defendant’s 

negligence was the proximate or legal cause of those injuries; in other words, proximate cause is 

not in issue if the plaintiff cannot establish factual causation. 

3. A proper proximate cause analysis under the GTLA may not weigh but-for causes 

when assessing whether a defendant’s conduct is the proximate cause of the plaintiff’s injury. 

While a court must determine whether the defendant’s conduct was a cause in fact of the 

plaintiff’s injuries, a 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 plaintiff and whether the defendant’s conduct was the one most immediate, 

efficient, and direct cause of the injury. The dissent’s approach—which includes the weighing of 

factual causes in its proximate cause analysis—distorts the meaning of the phrase “the proximate 

cause” by severing it from the concept of legal causation, an approach not supported by caselaw 

or rules of statutory construction.
4. The Legislature’s use of the phrase “the proximate cause” in MCL 691.1407(2) is 

consistent with the common-law understanding of that phrase at the time the GTLA was 

amended by 1986 PA 175. “Proximate cause” is a legal term of art with a well-established 

peculiar and appropriate meaning in the common law. For almost one hundred years, this Court 

has recognized that proximate cause involves the foreseeability of the consequences of the 

conduct of human actors. Robinson v Detroit, 462 Mich 439 (2000), and Beals, 497 Mich 363 

are consistent with this understanding. Nothing in MCL 691.1407(2) evidences an intent by the 

Legislature to mandate a court to weigh the but-for causes of a plaintiff’s injury when addressing 

the issue of proximate cause.

5. In Dean v Childs, 262 Mich App 51 (2004), the Court of Appeals held that the GTLA 

did not bar a claim against a firefighter who was alleged to have been grossly negligent when 

fighting a house fire that killed the plaintiff’s children. The Supreme Court’s subsequent order in 

Dean, 474 Mich 914—which reversed the judgment of the Court of Appeals and adopted the 

reasoning of the dissenting Court of Appeals judge—is overruled. The dissenting Court of 

Appeals judge erroneously weighed factual causes to conclude that the fire was the proximate 

cause of the deaths of the plaintiff’s children. Moreover, only a human actor’s breach of a duty 

can be a proximate cause; nonhuman and natural forces, like a fire, cannot be the proximate 

cause of a plaintiff’s injuries for purposes of the GTLA. Rather, the nonhuman and natural 

forces affect the question of foreseeability in a proximate cause determination because such 

factors may constitute superseding causes that relieve the actor of liability if the intervening 

force was not reasonably foreseeable. To the extent that Beals relied on the Supreme Court’s

order in Dean, that portion of the Beals opinion is disavowed. 

6. The dissent’s approach, which would weigh but-for causes to determine the most 

immediate, efficient, and direct factual cause of the plaintiff’s injuries, is unsupported by the 

language of the statute or the common-law understanding of proximate cause and would 

eliminate the narrow exception to governmental immunity created by MCL 691.1407(2)(c). 

Moreover, the approach would give no meaning to the 1986 amendment of the GTLA because it 

would immunize government actors for every harm that is a foreseeable result of their gross 

negligence.

7. In this case, it was undisputed that Swager acted within the scope of his authority as a 

governmental employee for the school and that he was engaged in the exercise or discharge of a 

governmental function at the time Kersch was injured. The Court of Appeals correctly addressed

whether Kersch, Platt, and the vehicle itself were factual causes of Kersch’s injuries because 

one’s conduct cannot be the proximate cause without also being a factual cause. However, the 

panel’s analysis was incomplete because its inquiry confused proximate cause with cause in fact; 

in other words, it failed to properly distinguish between factual causation and legal causation. 

The Court of Appeals erred by attempting to determine whether any of the other factual causes 

was a more direct cause of Kersch’s injury than Swager’s alleged gross negligence, without first 

determining whether any of the asserted but-for causes were proximate causes. It also failed to 

determine whether Platt was negligent, a prerequisite to determining whether he was a proximate 

cause of Kersch’s injuries. The Court of Appeals similarly failed to correctly analyze whether 

Kersch, a child, was negligent and a proximate cause of his own injuries; the Court should have 

assessed his actions to determine whether he acted with the degree of care that would reasonably 
be expected of a child of similar age, intelligence, capacity, and experience under the 

circumstance of the case. Finally, even if the Court of Appeals had determined that another actor 

was negligent and was a proximate cause of Kersch’s injuries, it still would have needed to 

determine whether the defendant’s conduct was the proximate cause. This would require

considering the defendant’s actions alongside any other proximate causes to determine whether 

the defendant’s actions were, or could have been, the one most immediate, efficient, and direct 

cause of the injuries. On remand, summary disposition would be appropriate if reasonable minds 

could not differ on this question. 

Court of Appeals opinion vacated and the case remanded to the Court of Appeals for 

further proceedings.

Justice WILDER, joined by Chief Justice MARKMAN and Justice ZAHRA, dissenting, 

disagreed with the majority’s conclusions regarding the analysis to be used when determining 

whether, under MCL 691.1407(2)(c), a government actor’s gross negligence was “the proximate 

cause” of a plaintiff’s injury. In Robinson, 462 Mich 439, this Court interpreted the phrase “the 

proximate cause” consistently with the common law to mean the one most immediate, efficient, 

and direct cause of the plaintiff’s injury, and that analysis necessarily entails the consideration of 

factual causation. To determine which cause—among more than one—was “most immediate, 

efficient, and direct,” one must consider the panoply of but-for causes and weigh their 

immediacy, efficiency, and directness. From Stoll v Laubengayer, 174 Mich 701 (1913), and 

Glinski v Szylling, 358 Mich 182 (1959) (opinion by SMITH, J.), through more current decisions 

in Robinson, 462 Mich 439, and Beals, 497 Mich 363, this Court has consistently afforded the

phrase “proximate cause,” its common-law meaning—that is, one that treated the question of 

proximate cause as incorporating consideration of both factual (i.e., but-for) causation as well as

legal causation. 

“Legal cause” is a misnomer insomuch as it has nothing at all to do with causation; it 

instead involves examining the foreseeability of consequences and whether a defendant should 

be held legally responsible for such consequences. In other words, legal causation is a limitation 

to the scope of liability under the GTLA, not a means of assigning liability. This does not, 

however, render legal causation irrelevant. If after comparing the immediacy, efficiency, and 

directness of all potential but-for causes of an injury, a court determines that the most immediate, 

efficient, and direct cause was the governmental actor’s gross negligence, the court should then 

assess whether the governmental actor’s conduct was also a legal cause of the injury (i.e., 

whether the injury was a foreseeable consequence of the governmental actor’s conduct). If not, 

the actor is immune under MCL 691.1407(2)(c).

The majority’s interpretation largely divorced the meaning of the phrase “the proximate 

cause” from the concept of factual causation, in that the majority conflated but-for cause and 

legal cause, treating “legal cause” as if it had something to do with causation. The majority’s 

interpretation of “the proximate cause” is also inconsistent with the meaning that “the proximate 

cause” had in this state’s common law at the time MCL 691.1407(2)(c) was enacted. While the 

phrase “proximate cause” has been used synonymously with the term “legal cause,” prior 

opinions of this Court—Craig v Oakwood Hosp, 471 Mich 67 (2004); Skinner v Square D Co, 

445 Mich 153 (1994); Moning v Alfono, 400 Mich 425 (1977); Glinski, 358 Mich 182; Stoll, 174 

Mich 701—demonstrate that before and after the Legislature’s 1986 amendment of the GTLA, 

factual causation was an established element of the proximate cause analysis; indeed, they 
establish that the sine qua non of proximate cause was cause in fact. In addition, contrary to the 

majority’s unsupported assertion, intervening natural forces and inanimate objects can be the 

proximate cause of a plaintiff’s injury under the common law. 

The majority’s expansive interpretation of MCL 691.1407(2)(c)—that courts may not 

weigh but-for causes but must instead focus mainly on the legal cause analysis—was

inconsistent with this Court’s duty to construe exceptions to governmental immunity narrowly. 

Any ambiguity in whether the Legislature intended the phrase “proximate cause” to refer to legal 

cause only or to refer to both factual cause and legal cause, had to be resolved in favor of using 

the more inclusive definition because doing so would lead to a narrower exception, and the 

Legislature’s manifest intent to create an exception to governmental immunity did not obviate 

the Court’s duty to construe that exception narrowly. Because the Legislature is presumed to 

have been aware that the exception set forth by MCL 691.1407(2) would be construed narrowly, 

had the Legislature wished to create a broad exception, it would have used language clearly 

demonstrating that intent. 

The majority’s failure to acknowledge that its holding is patently inconsistent with 

Robinson and Beals, and its resulting failure to perform a stare decisis analysis regarding 

Robinson and Beals, will undermine the rule of law, resulting in jurisprudential upset and 

uncertainty, with lower courts following either the Robinson/Beals analysis or the conflicting 

analysis announced in this case. The majority should have offered guidance on how to apply its 

holding—specifically, guidance regarding how to determine “the one most immediate, efficient, 

and direct cause” without weighing factual causes. The majority also should have explained 

how, in the wake of its decision, a plaintiff can carry the burden of pleading his or her claim in 

avoidance of MCL 691.1407(2). Lacking any practical guidance on how one determines 

proximate causation without weighing factual causes, it would seem nearly impossible for a 

plaintiff to satisfy that pleading requirement.

In this case, Swager was immune under MCL 691.1407(2), and thus entitled to summary 

disposition, because it was either Kersch’s conduct or that of the driver—but not Swager’s 

conduct—that was the one most immediate, efficient, and direct cause of Kersch’s injuries.

Accordingly, Justice WILDER would have affirmed on the basis that the Court of Appeals 

reached the correct outcome by duly following Robinson and Beals.

©2017 State of Michigan
FILED July 31, 2017

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

SUPREME COURT

MICHAEL A. RAY and JACQUELINE M. 

RAY as Coconservators for KERSCH RAY, 

a Minor,

Plaintiffs-Appellants,

v No. 152723

ERIC SWAGER,

Defendant-Appellee,

and

SCOTT ALLEN PLATT, HEATHER 

MARIE PLATT, and LIBERTY MUTUAL 

INSURANCE COMPANY, 

Defendants.

BEFORE THE ENTIRE BENCH

VIVIANO, J.

Michigan Supreme Court

Lansing, Michigan

OPINION Chief Justice:

Stephen J. Markman

Justices:

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein

Joan L. Larsen

Kurtis T. Wilder
2

At issue is whether the conduct of defendant Eric Swager,

1 who is a government 

employee, was—for purposes of the governmental tort liability act (GTLA), MCL 

691.1401 et seq.—“the proximate cause” of the injuries suffered by plaintiff, Kersch 

Ray.2

 We hold that the Court of Appeals failed to correctly analyze proximate cause 

because it only weighed various factual causes of plaintiff’s injuries to determine whether 

one of them was a more direct cause of plaintiff’s injuries than defendant’s conduct. 

Under the GTLA, a proper proximate cause analysis must assess foreseeability and the 

legal responsibility of the relevant actors to determine whether the conduct of a 

government actor, or some other person, was “the proximate cause,” that is, as our 

caselaw has described it, “the one most immediate, efficient, and direct cause” of the 

plaintiff’s injuries. Accordingly, in lieu of granting leave to appeal, we vacate the Court 

of Appeals’ decision and remand to the Court of Appeals for further proceedings not 

inconsistent with this opinion. 

I. FACTS AND PROCEDURAL HISTORY

In the fall of 2011, the then-thirteen-year-old plaintiff was a member of the 

Chelsea High School cross-country team. Defendant was the coach. Shortly after the 

season began, defendant held an early morning practice; it was plaintiff’s first morning 

 1 Defendants Scott A. Platt, Heather M. Platt, and Liberty Mutual Insurance Company are 

not involved in this appeal. For ease of reference, when we refer to “defendant” in this 

opinion, we are only referring to Eric Swager.

2 Plaintiffs Michael A. Ray and Jacqueline M. Ray are Kersch Ray’s parents and 

coconservators. For ease of reference, when referring to Kersch Ray alone, we use the 

term “plaintiff.”
3

practice as a member of the team. The practice began at 5:59 a.m., when it was still dark 

outside. At the beginning of the practice, defendant took the team off school grounds to

run on public roads. During the run, the team approached an intersection with a two-lane 

highway. The “Do Not Walk” symbol was illuminated because the traffic light was 

green for the highway traffic. Defendant and the group of runners he was with, which 

consisted of most of the team, stopped at the intersection. Defendant saw a vehicle in the 

distance, but he determined that it was far enough away to safely cross. He instructed the 

runners to cross the intersection by stating, “Let’s go.” It is unclear whether all the team 

members, including plaintiff, heard the instruction. Although most of the team safely 

crossed the road, a few runners in the back of the group were still in or near the roadway 

when the vehicle entered the intersection. The vehicle hit plaintiff and one of his 

teammates as they were crossing the road. Plaintiff was severely injured, and he has no 

memory of the accident.

In his deposition, the driver of the vehicle testified that he suddenly saw the 

runners crossing the intersection off to the right side of the road but that he did not see 

plaintiff in the intersection or have time to brake. The driver testified that he was not 

distracted and had been driving below the posted speed limit. While the driver initially

admitted that he sped up when the traffic light turned yellow, he later stated that he did 

not recall whether he did anything in reference to the yellow light. The Washtenaw 

County Sheriff’s officer who conducted an accident reconstruction concluded that the 

driver was not responsible for the accident.
4

Plaintiffs sued defendant and the driver.3 Defendant moved for summary 

disposition under MCR 2.116(C)(7), asserting governmental immunity pursuant to the 

GTLA. Defendant also moved for summary disposition under MCR 2.116(C)(8) and 

(10). The trial court denied defendant’s motion, stating that whether defendant’s actions 

were grossly negligent and whether his actions were the proximate cause of plaintiff’s 

injuries were questions of fact for the jury to decide.

Defendant appealed by right, and the Court of Appeals reversed in an unpublished 

per curiam opinion.4

 The panel concluded that any factual disputes were not material 

because reasonable minds could not conclude that defendant was the proximate cause of 

plaintiff’s injuries.5

 The panel determined that the presence of the driver in the roadway 

and plaintiff’s own actions were more immediate and direct causes of plaintiff’s injuries

and held that “the most proximate cause of [plaintiff’s] injuries is the fact that he was 

struck by a moving vehicle.”6

Plaintiff filed an application for leave to appeal in this Court, and we ordered oral 

argument on plaintiff’s application, directing the parties to address

 3 Plaintiffs’ suit against the driver, defendant Scott A. Platt, is not at issue here.

4 Ray v Swager, unpublished per curiam opinion of the Court of Appeals, issued October 

15, 2015 (Docket No. 322766), pp 3-4.

5 Id. at 2-3. 

6 Id. at 3-4. Because the panel held that defendant was not the proximate cause of 

plaintiff’s injuries, it did not address whether reasonable minds could conclude that 

defendant was grossly negligent. Id. at 4 n 4.
5

whether a reasonable jury could determine that the defendant’s conduct was 

“the proximate cause” of plaintiff Kersch Ray’s injuries where the 

defendant’s actions placed the plaintiff in the dangerous situation that 

resulted in the plaintiff’s injuries. MCL 691.1407(2)(c); Robinson v City of 

Detroit, 462 Mich 439, 462 (2000); Beals v Michigan, 497 Mich 363 

(2015).[7]

II. STANDARD OF REVIEW

The applicability of governmental immunity is a question of law that is reviewed 

de novo.8

 We also review de novo a trial court’s decision regarding a motion for 

summary disposition.9

III. BACKGROUND

Under the GTLA, governmental agencies and their employees are generally 

immune from tort liability when they are engaged in the exercise or discharge of a 

governmental function.

10 The act provides several exceptions to this general rule. One 

such exception is in MCL 691.1407(2), which provides in pertinent part:

[E]ach . . . employee of a governmental agency . . . is immune from tort 

liability for an injury to a person or damage to property caused by the . . . 

employee . . . while in the course of employment . . . if all of the following 

are met: 

(a) The . . . employee . . . is acting or reasonably believes he or she is 

acting within the scope of his or her authority. 

 7 Ray v Swager, 499 Mich 988 (2016).

8 Beals v Michigan, 497 Mich 363, 369; 871 NW2d 5 (2015). 

9 Id.

10 Id. at 370.
6

(b) The governmental agency is engaged in the exercise or discharge 

of a governmental function. 

(c) The . . . employee’s . . . conduct does not amount to gross 

negligence that is the proximate cause of the injury or damage.

Defendant, as a governmental employee, has the burden “to raise and prove his 

entitlement to immunity as an affirmative defense.”11 There is no dispute regarding 

whether defendant acted within the scope of his authority as a governmental employee 

for the school or whether he was engaged in the exercise or discharge of a governmental 

function. And the issue of whether defendant was grossly negligent is not presently 

before this Court. Accordingly, the only issue before us is whether there is a question of 

material fact regarding whether defendant was “the proximate cause” of plaintiff’s 

injuries under MCL 691.1407(2)(c).

IV. ANALYSIS

Proximate cause, also known as legal causation, is a legal term of art with a long 

pedigree in our caselaw.

12 Proximate cause is an essential element of a negligence 

claim.

13 It “involves examining the foreseeability of consequences, and whether a 

defendant should be held legally responsible for such consequences.”14 Proximate cause

 11 Odom v Wayne Co, 482 Mich 459, 479; 760 NW2d 217 (2008).

12 A legal term of art must be construed and understood according to its peculiar and 

appropriate meaning. MCL 8.3a.

13 Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977) (“The elements of an 

action for negligence are (i) duty, (ii) general standard of care, (iii) specific standard of 

care, (iv) cause in fact, (v) legal or proximate cause, and (vi) damage.”).

14 Skinner v Square D Co, 445 Mich 153, 163; 516 NW2d 475 (1994).
7

is distinct from cause in fact, also known as factual causation, which “requires showing 

that ‘but for’ the defendant’s actions, the plaintiff’s injury would not have occurred.”15 

Courts must not conflate these two concepts.16 We recognize that our own decisions 

have not always been perfectly clear on this topic given that we have used “proximate 

cause” both as a broader term referring to factual causation and legal causation together

and as a narrower term referring only to legal causation.17 All this broader 

characterization recognizes, however, is that “a court must find that the defendant’s 

negligence was a cause in fact of the plaintiff’s injuries before it can hold that the 

 15 Id.

16 See Charles Reinhart Co v Winiemko, 444 Mich 579, 586 n 13; 513 NW2d 773 (1994) 

(“The question of fact as to whether the defendant’s conduct was a cause of the plaintiff’s 

injury must be separated from the question as to whether the defendant should be legally 

responsible for the plaintiff’s injury.”) (quotation marks and citation omitted).

17 See Skinner, 445 Mich at 162-163, citing Moning, 400 Mich at 437 (“We have 

previously explained that proving proximate cause actually entails proof of two separate 

elements: (1) cause in fact, and (2) legal cause, also known as ‘proximate cause.’ ”). 

Professor Dan B. Dobbs describes the source of this confusion as follows:

One major source of confusion about “proximate cause”—and thus 

another aspect of the pesky terminology problem—lies in the fact that 

many courts define the term in a way that gives it two distinct meanings. In 

one form or another, courts often say that the plaintiff, to prove proximate 

cause, must show (a) factual cause and (b) that the general type of harm 

was foreseeable. The effect of this definition is that two distinct legal 

issues can be called by the same name. [1 Dobbs, Hayden & Bublick,

Torts, § 200, p 687.]

As we explain further below, our decision in Beals is an example of our Court’s 

conflation of factual and legal causation. See Beals, 497 Mich at 374, 378.
8

defendant’s negligence was the proximate or legal cause of those injuries.”18 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.”19 If factual 

causation cannot be established, then proximate cause, that is, legal causation, is no 

longer a relevant issue.

20

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.21 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 . . . .”22 But the court must also 

assess proximate cause, that is, legal causation, which requires a determination of 

 18 Craig v Oakwood Hosp, 471 Mich 67, 87; 684 NW2d 296 (2004). See also Prosser & 

Keeton, Torts (5th ed), § 42, pp 272-273 (“Once it is established that the defendant’s 

conduct has in fact been one of the causes of the plaintiff’s injury, there remains the 

question whether the defendant should remain legally responsible for the injury.”).

19 Dobbs, § 124, p 389.

20 See Skinner, 445 Mich at 163. Accordingly, we agree with the dissent that if an actor 

is not a factual cause of an injury, that actor cannot be considered a legal cause. We are 

therefore puzzled by the dissent’s claim that we divorce “proximate cause” from the 

concept of factual causation.

21 We note that a plaintiff must also prove that a government actor’s conduct was grossly

negligent to hold such a defendant liable under the GTLA. MCL 691.1407(2)(c).

22 Craig, 471 Mich at 87.
9

whether it was foreseeable that the defendant’s conduct could result in harm to the 

victim.23 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.24 It is not 

uncommon that more than one proximate cause contributes to an injury.

25 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 . . . .”26

Contrary to the dissent’s assertion, “the proximate cause” is not determined by

weighing factual causes. Such an approach distorts the meaning of “the proximate cause” 

 23 Weymers v Khera, 454 Mich 639, 648; 563 NW2d 647 (1997).

24 See Robinson v Detroit, 462 Mich 439, 462; 613 NW2d 307 (2000) (“The one most 

immediate, efficient, and direct cause of the plaintiffs’ injuries was the reckless conduct 

of the drivers of the fleeing vehicles.”) (emphasis added). Because a proximate cause 

inquiry seeks “to determine the appropriate scope of a negligent defendant’s liability,” 

Dobbs, § 198, p 681 (emphasis added), it “is an issue that can only arise when the [actor] 

is negligent and his negligence can be identified as creating specified risks.” Id. at § 210, 

p 731.

25 Brisboy v Fibreboard Corp, 429 Mich 540, 547; 418 NW2d 650 (1988).

26 Robinson, 462 Mich at 462. To the extent the dissent is concerned that this directive to 

consider the “one most immediate, efficient, and direct cause of the injury” provides 

lower courts with little guidance, we agree. But in the absence of briefing and argument 

on the issue, we decline to address how a court ought to decide, in a case in which there 

is more than one proximate cause, whether the defendant’s conduct is “the proximate 

cause.” For today, it is enough to clarify that only another legal cause can be more 

proximate than the defendant’s conduct.
10

by severing it from the concept of legal causation. There is no basis in our caselaw or our 

rules of statutory construction for interpreting “the proximate cause” as having nothing to 

do with the legal term of art “proximate cause.” The Legislature amended the GTLA in 

1986 to include the phrase “the proximate cause,” and so we must determine what the 

term “the proximate cause” would have meant to the Legislature then.27 Before 1986, we 

can find no case that reads the term “proximate cause,” even when preceded by a definite 

article, to mean “but-for cause.”28 Although some of our earlier decisions refer to factual 

 27 See Sam v Balardo, 411 Mich 405, 425; 308 NW2d 142 (1981) (“[W]ords employed 

by the Legislature derive their meaning from the common-law usage at the time of the 

passage of the act . . . .”).

28 This is unsurprising, as the term “proximate cause” is applied by courts to those 

“considerations which limit liability even where the fact of causation is clearly 

established.” Prosser & Keeton, § 42, p 273. Additionally, even our cases that 

confusingly treat “proximate cause” as meaning the combination of proximate cause and 

but-for cause seem to post-date the 1986 amendment of the GTLA. Our first 

characterization of “proximate cause” as meaning both “proximate cause” and “but-for 

cause” occurred in 1994. See Skinner, 445 Mich at 162-163.

We disagree with the dissent’s suggestion that the Court in Stoll v Laubengayer, 

174 Mich 701; 140 NW 532 (1913), treated “proximate cause” as a question of factual 

causation. In Stoll, we addressed whether the defendant’s alleged negligence was the 

proximate cause of a child’s fatal injuries sustained when her sleigh coasted under the 

defendant’s horse-drawn wagon. Id. at 704-706. We considered the actions of the actors 

involved and concluded that “[b]ut for th[e] act of [the decedent] (subsequent to 

defendant’s alleged negligent act, and therefore proximate to the injury) no accident 

could have occurred.” Id. at 706. Accordingly, we concluded that the child’s actions 

were a proximate cause of her injuries, so the defendant was not liable. Id. Nothing in 

Stoll purported to weigh but-for causes or suggested that the term “the proximate cause” 

somehow requires such an analysis. In fact, to do so would have been a marked 

departure from the then-applicable law of contributory negligence, which dictated that if 

the plaintiff’s negligence “was in whole or in part a proximate cause” of the injury, there 

could be no recovery. Krouse v Southern Mich R Co, 215 Mich 139, 144; 183 NW 768 

(1921). Under the contributory negligence doctrine, abolished in Michigan in 1979, see 
11

causation in connection with proximate cause,

29 these cases merely reflect the 

unremarkable proposition that an actor cannot be a “proximate cause” without also being 

a “but-for cause.”30 They do not contradict the well-established understanding of 

proximate cause, which, as we have long recognized, involves the foreseeability of the 

consequences of the conduct of human actors, regardless of whether “a proximate cause” 

or “the proximate cause” is at issue. Almost one hundred years ago this Court stated the 

rule regarding proximate cause as follows:

If a man does an act and he knows, or by the exercise of reasonable 

foresight should have known, that in the event of a subsequent occurrence, 

which is not unlikely to happen, injury may result from his act, and such 

subsequent occurrence does happen and injury does result, the act 

committed is negligent, and will be deemed to be the proximate cause of 

the injury.[31]

 

Placek v Sterling Heights, 405 Mich 638, 650; 275 NW2d 511 (1979), courts did not 

weigh but-for causes but instead considered whether the defendant’s negligence was the 

sole proximate cause. See Krouse, 215 Mich at 145. See also Hayden, Butterfield Rides 

Again: Plaintiff’s Negligence as Superseding or Sole Proximate Cause in Systems of 

Purpose Comparative Responsibility, 33 Loy LA L Rev 887, 901 (2000) (“[I]n the precomparative [negligence] era, the doctrine[] of sole proximate cause . . . functioned as 

convenient shorthand to explain an all-or-nothing result in a two-party situation.”).

29 See, e.g., Moning, 400 Mich at 440 n 13; Glinski v Szylling, 358 Mich 182; 99 NW2d 

637 (1959) (opinion by SMITH, J.); Stoll, 174 Mich at 706.

30 Craig, 471 Mich at 87.

31 Northern Oil Co v Vandervort, 228 Mich 516, 518; 200 NW 145 (1924) (quotation 

marks omitted; emphasis added), quoting Tozer v Mich Central R Co, 195 Mich 662, 

666; 162 NW 280 (1917), and Jaworski v Detroit Edison Co, 210 Mich 317; 178 NW 71 

(1920).
12

This formulation, which is the “most general and pervasive approach” to proximate 

cause,32 has been repeatedly reaffirmed by this Court.33 We see no reason why this 

 32 See Dobbs, § 198, pp 682-683 (“The most general and pervasive approach to . . .

proximate cause holds that a negligent defendant is liable for all the general kinds of 

harms he foreseeably risked by his negligent conduct and to the class of persons he put at 

risk by that conduct.”).

33 See, e.g., Moning, 400 Mich at 439 (noting that whether a cause is a proximate cause 

depends in part on foreseeability); Nielsen v Henry H Stevens, Inc, 368 Mich 216, 220-

221; 118 NW2d 397 (1962) (“To make negligence the proximate cause of an injury, the 

injury must be the natural and probable consequence of a negligent act or omission, 

which, under the circumstances, an ordinary prudent person ought reasonably to have 

foreseen might probably occur as the result of his negligent act.”) (emphasis added); 

Parks v Starks, 342 Mich 443, 448; 70 NW2d 805 (1955) (“The proximate cause of an 

injury is not necessarily the immediate cause; not necessarily the cause nearest in time, 

distance, or space. . . . In order that the plaintiff may recover it must appear that his 

injury was the natural and probable consequence of a negligent act or omission of the 

defendant which under the circumstances an ordinarily prudent person ought reasonably 

to have foreseen or anticipated might possibly occur as a result of such act or omission.”) 

(emphasis added; quotation marks and citations omitted); Nash v Mayne, 340 Mich 502, 

509; 65 NW2d 844 (1954) (“The confinement of plaintiff could not have been reasonably 

foreseen by defendant. It follows that the [conduct] of defendant could not be and was 

not the proximate cause of plaintiff’s injury.”) (emphasis added); Roberts v Lundy, 301 

Mich 726, 730; 4 NW2d 74 (1942) (“It is elementary that, before conduct can constitute 

actionable negligence . . . that conduct must be found to be the proximate cause of the 

injury. . . . It cannot be said that a reasonable man should have foreseen or anticipated 

that the act [committed] . . . would result in the injury complained of here.”) (emphasis 

added); Weissert v Escanaba, 298 Mich 443, 453; 299 NW 139 (1941) (“[T]he generally 

accepted test is that negligence is not the proximate cause of an accident unless, under all 

the circumstances, the accident might have been reasonably foreseen by a person of 

ordinary intelligence and prudence, and that it is not enough to prove that the accident is 

a natural consequence of the negligence, it must also have been the probable 

consequence.”) (emphasis added); Luck v Gregory, 257 Mich 562, 569; 241 NW 862 

(1932), citing Stoll v Laubengayer, 174 Mich 701; 140 NW 532 (1913) (“In order to 

constitute proximate cause, it must appear the injury to plaintiff was the natural and 

probable consequence of the negligence or wrongful act of the defendant, and that it 

ought to have been foreseen, in light of the attending circumstances.”).
13

“peculiar and appropriate” legal meaning should not be ascribed to the Legislature’s 

reference to proximate cause in the GTLA.34 Accordingly, we presume that by 

“proximate cause” the Legislature meant proximate cause.

Most of our caselaw interpreting the GTLA is not to the contrary. In Robinson, 

we considered “whether the city of Detroit or individual police officers face[d] civil 

liability for injuries sustained by passengers in vehicles fleeing from the police when the 

fleeing car caused an accident.”35 We held that the government officials in question were 

 

Moreover, other decisions of this Court in ordinary negligence cases have held 

that jury instructions using the phrase “the proximate cause” were erroneous because they 

were tantamount to an instruction that the plaintiff had to show that the defendant’s 

negligence was the sole proximate cause before he could recover. See, e.g., Kirby v 

Larson, 400 Mich 585, 605; 256 NW2d 400 (1977) (opinion by WILLIAMS, J.); Barringer 

v Arnold, 358 Mich 594, 600; 101 NW2d 365 (1960); Sedorchuk v Weeder, 311 Mich 6, 

10-11; 18 NW2d 397 (1945). See also Dedes v Asch, 446 Mich 99, 122; 521 NW2d 488 

(1994) (RILEY, J., dissenting) (“Indeed, this Court has long interpreted the phrase ‘the 

proximate cause’ as one that is tantamount to an instruction that, before plaintiff could 

recover, he must show that defendant’s negligence was ‘the sole’ proximate cause of the 

accident.”) (quotation marks and citation omitted), majority opinion in Dedes overruled 

by Robinson, 446 Mich at 458-459. Nothing in these decisions suggests that use of the 

phrase “the proximate cause” was akin to an instruction that the jury had to weigh the 

various factual causes in the case. 

34 MCL 8.3a. See also Hodge v State Farm Mut Auto Ins Co, 499 Mich 211, 218; 884 

NW2d 238 (2016) (“When the Legislature, without indicating an intent to abrogate the 

common law, ‘borrows terms of art in which are accumulated the legal tradition and 

meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that 

were attached to each borrowed word in the body of learning from which it was taken and 

the meaning its use will convey to the judicial mind unless otherwise instructed.’ ”), 

quoting Sekhar v United States, 570 US ___, ___; 133 S Ct 2720, 2724; 186 L Ed 2d 794 

(2013). The Legislature did not abrogate the common-law understanding of “the 

proximate cause” in the GTLA. See Robinson, 462 Mich at 462.

35 Robinson, 462 Mich at 444.
14

immune from suit because a different proximate cause—“the reckless conduct of the 

drivers of the fleeing vehicles”—was the proximate cause of the plaintiff’s injuries.36 

Robinson is therefore consistent with our holding today.

In Beals, we considered the defendant lifeguard’s failure to intervene in the 

deceased’s drowning.37 While our analysis in that case was somewhat opaque, we 

believe Beals is best understood as holding that the lifeguard could not have been “the 

proximate cause” of the decedent’s drowning because the plaintiff failed to show even a 

genuine issue of factual causation.38 When a plaintiff attempts to establish factual 

causation circumstantially, that circumstantial proof must go beyond mere speculation.39 

The plaintiff in Beals failed to make this showing. We emphasized that any connection 

between the lifeguard’s breach of a duty and the drowning was only speculative.

40 We 

also noted that “it [was] unclear that even a prudent lifeguard would have been able to 

observe and prevent the [deceased’s] drowning,” which further illustrated that the causal 

connection was “simply too tenuous.”41 In other words, the plaintiff failed to show that 

the lifeguard was a but-for cause of the deceased’s death. Accordingly, we held that the 

 36 Id. at 462 (emphasis added).

37 Beals, 497 Mich at 365. The underlying reason for the drowning was unknown. Id. at 

367.

38 See Skinner, 445 Mich at 163 (“A plaintiff must adequately establish cause in fact in 

order for legal cause or ‘proximate cause’ to become a relevant issue.”).

39 Id. at 164.

40 See Beals, 497 Mich at 374.

41 Id. at 374 n 23.
15

defendant lifeguard was not “the proximate cause” of the deceased’s death for the 

purposes of the GTLA.42 The holding, if not all of the reasoning, of Beals is consistent 

with our understanding of the GTLA’s use of “the proximate cause.”43

We recognize that our caselaw is not without its blemishes. In Dean v Childs, the 

Court of Appeals held that the GTLA did not bar a claim against a firefighter who was 

alleged to be grossly negligent when fighting a house fire that killed the plaintiff’s 

children.44 We issued an order summarily reversing for the reasons stated by the Court of 

Appeals’ dissent,45 which had weighed the various factual causes of the children’s deaths 

to conclude that the proximate cause “was the fire itself, not defendant’s alleged gross 

negligence in fighting it.”46

This analysis was erroneous. Determining proximate cause under the GTLA, or 

elsewhere, does not entail the weighing of factual causes but instead assesses the legal 

 42 Id. at 378. Because factual causation could not be established, we agree with the 

dissent that it was unnecessary for Beals to analyze legal causation.

43 We do not share the dissent’s concern that this opinion will be a cause of confusion in 

the lower courts and are disheartened by the dissent’s thinly veiled invitation to lower 

courts to ignore this opinion in favor of the dissent’s preferred interpretation of Beals. 

This makes the dissent’s claim of fealty to precedent ring hollow. Again, because Beals

involved the absence of factual causation, a necessary predicate to a finding of proximate 

cause, it does not stand for the proposition that courts should determine whether a 

defendant was “the proximate cause” under the GTLA by weighing but-for causes.

44 Dean v Childs, 262 Mich App 48, 51-52; 684 NW2d 894 (2004).

45 Dean v Childs, 474 Mich 914 (2005).

46 Dean, 262 Mich App at 61 (GRIFFIN, J., dissenting).
16

responsibility of the actors involved. Moreover, because proximate cause is concerned 

with the foreseeability of consequences, only a human actor’s breach of a duty can be a 

proximate cause.47 Consequently, nonhuman and natural forces, such as a fire, cannot be 

considered “the proximate cause” of a plaintiff’s injuries for the purposes of the GTLA. 

Instead, these forces bear on the question of foreseeability, in that they may constitute 

superseding causes that relieve the actor of liability if the intervening force was not 

reasonably foreseeable.48 The dissenting Court of Appeals opinion in Dean failed to 

recognize these principles and erroneously concluded that the fire was the proximate 

cause of the children’s deaths. Our subsequent order adopting the dissent was therefore 

in error. Accordingly, we overrule our order in Dean.

49

 47 See, e.g., Dobbs, § 198, pp 682-683 (“[A] negligent defendant is liable for all the 

general kinds of harm he foreseeably risked by his negligent conduct and to the class of 

persons he put at risk by that conduct.”); Prosser & Keeton, § 42, p 264 (“ ‘Proximate 

cause’ . . . is merely the limitation which the courts have placed upon the actor’s

responsibility for the consequences of the actor’s conduct.”) (emphasis added).

48 See McMillian v Vliet, 422 Mich 570, 576; 374 NW2d 679 (1985).

49 We do not do so lightly. “That a case was wrongly decided, by itself, does not 

necessarily mean that overruling it is appropriate.” Coldwater v Consumers Energy Co, 

___ Mich ___, ___; 895 NW2d 154 (2017); slip op at 10. Stare decisis principles dictate 

that we must also consider “whether the decision defies practical workability, whether 

reliance interests would work an undue hardship were the decision to be overruled, and 

whether changes in the law or facts no longer justify the decision.” Id. at ___; slip op at 

11.

Although Dean does not defy practical workability and there have been no 

intervening changes in law, the reliance interests are so minimal that further adherence to 

Dean is unwarranted. Dean is a peremptory order that has only been cited in two 

published decisions by Michigan courts. And there is no indication that our order “has 

caused a large number of persons to attempt to conform their conduct to a certain norm.” 

Paige v Sterling Heights, 476 Mich 495, 511; 720 NW2d 219 (2006). Therefore, we 
17

V. APPLICATION

The Court of Appeals’ proximate cause inquiry confused proximate cause with 

cause in fact. The panel focused on whether plaintiff, the driver of the vehicle, and the 

vehicle itself were factual causes of plaintiff’s injuries.50 This was a necessary inquiry 

because one’s conduct cannot be the proximate cause without also being a factual cause. 

The panel’s error was in its next step. Weighing these factual causes against defendant’s 

actions, the Court of Appeals concluded that “there were obviously more immediate, 

efficient, and direct causes of [plaintiff’s] injuries” than defendant’s conduct.51 

 

conclude that Dean has not “become so embedded, so accepted, so fundamental, to 

everyone’s expectations that to change it would produce not just readjustments, but 

practical real-world dislocations.” Robinson, 462 Mich at 466. These considerations, 

coupled with our determination that Dean was wrongly decided, persuade us to overrule 

it.

Finally, we note that in Beals we stated that Dean was analogous because both 

cases addressed claims involving a government employee’s failure to intervene to prevent 

a death. Beals, 497 Mich at 375. Our brief discussion of Dean in Beals was not 

necessary to our ultimate conclusion that the lifeguard was not “the proximate cause” 

because factual causation could not be established. Nonetheless, because we overrule 

Dean, we also disavow the portion of Beals relying on Dean. We otherwise uphold the 

result and as much of the analysis in Beals as is consistent with the principle that a 

government actor’s conduct cannot be “the proximate cause” of one’s injuries without 

being a factual cause thereof.

50 Ray, unpub op at 4 (“Had [plaintiff] himself verified that it was safe to enter the 

roadway, . . . the accident would not have occurred. Likewise, had [the driver] not been 

driving on the roadway that morning, or had he otherwise avoided [plaintiff], the accident 

would not have occurred.”).

51 Id.
18

According to the panel, “clearly the most proximate cause of [plaintiff’s] injuries is the 

fact that he was struck by a moving vehicle.”52 

The Court of Appeals’ analysis failed to properly distinguish between factual 

causation and legal causation. The panel did not assess the legal responsibility of any of 

the actors involved, but instead attempted to discern whether any of the other factual 

causes was a more direct cause of plaintiff’s injury than defendant’s actions. This was 

error. Determining whether an actor’s conduct was “the proximate cause” under the 

GTLA does not involve a weighing of factual causes. Instead, so long as the defendant is 

a factual cause of the plaintiff’s injuries, then the court should address legal causation by 

assessing foreseeability and whether the defendant’s conduct was the proximate cause.53 

To the extent the Court of Appeals’ opinion attempted to analyze this issue,54 its 

analysis was incomplete. An appropriate proximate cause analysis should have 

considered the conduct and any legal responsibility therefor of defendant, plaintiff, and 

the driver of the vehicle that struck plaintiff. Further, before an actor can be a proximate 

cause, there must be the prerequisite determination that the actor was negligent—that is,

that the actor breached a duty. In this case, the panel never determined whether the driver 

 52 Id. at 3.

53 Robinson, 462 Mich at 462.

54 See Ray, unpub op at 4 n 3 (“[Plaintiff] had an obligation to assess the dangers of the 

road and to guard against those dangers. By failing to do so, [plaintiff] was among the 

causes of the accident and, because his own actions more directly preceded the accident, 

[defendant] cannot be the proximate cause of [plaintiff’s] injuries.”) (emphasis in 

original).
19

was negligent. Without that determination, his actions could not be a proximate cause of 

plaintiff’s injuries.55 Similarly, the panel failed to correctly analyze whether plaintiff was 

negligent and a proximate cause of his own injuries. At the time of the accident, plaintiff 

was thirteen years old. Unlike adults, who are held to the reasonable person standard, 

determining whether a child was negligent requires application of a subjective standard.56 

The court must assess whether the child acted with the degree of care that would 

reasonably be expected of a child of similar age, intelligence, capacity, and experience 

under the circumstances of the case.

57 The Court of Appeals erred by singularly focusing 

 55 Because only a human actor’s breach of a duty can be a proximate cause, we reject any 

suggestion that the vehicle alone could be the proximate cause of plaintiff’s injuries. See 

Ray, unpub op at 3 (“[T]he most proximate cause of [plaintiff’s] injuries is the fact that 

he was struck by a moving vehicle.”).

56 Dobbs, § 134, p 421. See also M Civ JI 10.06 (“A minor is not held to the same 

standard of conduct as an adult.”).

57 Clemens v Sault Ste Marie, 289 Mich 254, 257; 286 NW 232 (1939). See also Burhans 

v Witbeck, 375 Mich 253, 255; 134 NW2d 225 (1965); Ackerman v Advance Petroleum 

Transp, Inc, 304 Mich 96, 106-107; 7 NW2d 235 (1942); Dobbs, § 134, p 421 (“The 

minor is . . . required to conduct himself only with the care of a minor of his own age, 

intelligence, and experience in similar circumstances . . . .”). The Court of Appeals failed 

to properly articulate this rule when it stated, “Children, even those considerably younger 

than [plaintiff], are expected to understand the danger attendant to crossing a street, and 

they are expected ‘to use care and caution to guard against the dangers of such 

crossing.’ ” Ray, unpub op at 4 n 3 (citation omitted). This analysis was incomplete 

because it failed to take into account any circumstances other than plaintiff’s age that 

might bear on whether plaintiff’s conduct was negligent. The dissent repeats this error 

when it relies solely on plaintiff’s age to conclude that plaintiff “could and should have 

verified that it was safe to enter the roadway before he voluntarily did so.”
20

on plaintiff’s age without also considering plaintiff’s subjective characteristics and the 

relevant factual context.58

Finally, even if the panel had determined that another actor was negligent and was 

a proximate cause of plaintiff’s injuries,59 it still would have needed to determine 

whether defendant’s actions were “the proximate cause.” This would require considering 

defendant’s actions alongside any other potential proximate causes to determine whether 

defendant’s actions were, or could have been, “the one most immediate, efficient, and 

direct cause” of the injuries.60 If, on the basis of the evidence presented, reasonable 

minds could not differ on this question, then the motion for summary disposition should 

be granted.61 Because the Court of Appeals did not consider these issues in the first 

instance, we remand to that Court for reconsideration.62

 58 See Thornton v Ionia Free Fair Ass’n, 229 Mich 1, 9; 200 NW 958 (1924) (“[A]ge 

alone is not the conclusive test. Experience and capacity are also to be considered.”); 

Cooper v Lake Shore & Mich S R Co, 66 Mich 261, 266; 33 NW 306 (1887) (“Every case 

[involving a child] must depend upon its own circumstances, and it would be 

unreasonable to apply [the rule of contributory negligence], under all circumstances, 

without regard to the condition of things at the time.”).

59 We emphasize that we do not decide whether a question of fact exists as to whether the 

driver, plaintiff, or both were negligent.

60 Robinson, 462 Mich at 446.

61 See Jackson v Saginaw Co, 458 Mich 141, 146; 580 NW2d 870 (1998). See also Black 

v Shafer, 499 Mich 950, 951 (2016) (“If reasonable minds could not differ regarding the 

proximate cause of a plaintiff’s injury, courts should decide the issue as a matter of 

law.”).

62 Likewise, because the Court of Appeals did not address these issues, we decline to 

address whether defendant’s actions were a but-for cause of plaintiff’s injuries or whether 

defendant was grossly negligent. See Ray, unpub op at 2 n 1, 4 n 4. Nothing in our 
21

VI. RESPONSE TO THE DISSENT

Having read the dissent with care, we are simply perplexed. We agree with the 

dissent that one cannot be the or even a proximate cause without also being a cause in 

fact. Our opinion is very clear on this point. See, e.g., page 7 of this opinion (“All this 

broader characterization recognizes, however, is that a court must find that the 

defendant’s negligence was a cause in fact of the plaintiff’s injuries before it can hold 

that the defendant’s negligence was the proximate or legal cause of those injuries.”)

(quotation marks and citation omitted); page 8 of this opinion (“If factual causation

cannot be established, then proximate cause, that is, legal causation, is no longer a 

relevant issue.”); page 11 of this opinion (“[T]hese cases merely reflect the unremarkable 

proposition that an actor cannot be a ‘proximate cause’ without being a ‘but-for 

cause.’ ”); page 17 of this opinion (“[O]ne’s conduct cannot be the proximate cause 

without also being a factual cause.”). We do not understand why the dissent repeatedly 

claims otherwise. 

Neither can we follow the conclusion the dissent draws from our shared premise. 

We must remember that we are interpreting statutory language that the Legislature 

enacted in 1986. The question, therefore, is what the Legislature would have understood 

the phrase “the proximate cause” to mean in 1986. We believe that the answer to that 

question should draw on the decades of jurisprudence in this state, leading up to that date, 

defining “proximate cause.” And, as our cases have uniformly held, one cannot be a or 

 

opinion forecloses defendant from raising these arguments on remand.
22

the “proximate cause” without being both a factual cause and a legal cause of the 

plaintiff’s injuries.

The dissent’s approach, however, would render legal cause irrelevant. Under the 

dissent’s theory, any factual cause—even an inanimate one—can be “the proximate 

cause” if it is the “most immediate, efficient and direct” factual cause of the plaintiff’s 

injuries. The dissent claims that this has been “the common-law meaning” attributed to 

the phrase “ ‘the proximate cause’ . . . in our jurisprudence since 1913.” If that were 

true—if one’s actions could, for now over one hundred years, have been “the proximate 

cause” without also being a legal cause—one would expect there to be volumes of cases 

from our Court standing for that proposition. But there is only one, our order in Dean, 

which we overrule today.63 Robinson did not hold that one’s actions could be “the 

proximate cause” without also being a legal cause; indeed, we held in Robinson that the 

drivers’ reckless conduct was the proximate cause of the accident.64 Neither did Beals; 

 63 The dissent’s reliance on Robinson, Beals, and Dean for this proposition is unavailing. 

And even if those cases fully supported the dissent, we would still find troubling its 

implicit view that three post-amendment cases tell us more about what the Legislature 

meant by its amendment of the GTLA than the decades of jurisprudence leading up to 

1986. We reject any implication from the dissent that Robinson and Beals construed 

MCL 691.1407(2)(c) in a manner that deviated from the meaning of “proximate cause” at 

common law. If so, it would be those decisions, rather than our opinion, that 

“retroactively alter the meaning” of the phrase “the proximate cause” as used in MCL 

691.1407(2)(c), because, as noted above, the Legislature has instructed us to define legal 

terms of art according to their “peculiar and appropriate meaning.” MCL 8.3a. Further, 

we do not draw any conclusions from the fact that the Legislature has not amended the 

GTLA in light of the three post-amendment cases cited by the dissent. See, e.g., 

Donajkowski v Alpena Power Co, 460 Mich 243, 258; 596 NW2d 574 (1999) 

(“[L]egislative acquiescence is an exceedingly poor indicator of legislative intent.”).

64 Robinson, 462 Mich at 462.
23

but to extent that it relied on Dean, we disavow that portion of its reasoning. Not even 

Stoll, the 1913 case the dissent trumpets as the progenitor of the (elusive) “proximate

cause without legal cause” line of cases, held any such thing.65 And the cases the dissent 

cites to support its unique pitch do not do so; they stand only for a proposition with which 

we fully agree: “Long before MCL 691.1407(2) was enacted in 1986—and many times 

since—our common-law has recognized that factual causation is . . . an integral part of 

‘proximate cause.’ ” In fact, it is more than integral: factual causation is a condition 

precedent to proximate cause. That is, one’s conduct cannot be a or the “proximate 

cause” of a plaintiff’s injury without also being a factual cause thereof. But just because 

something is a factual cause of an injury does not mean it is a or the “proximate cause” 

thereof. “Proximate cause” has for a century in Michigan, like every other American 

jurisdiction, required both a finding of factual and legal cause. And that is undoubtedly 

what the Legislature would have understood when it used this legal term of art in the 

GTLA in 1986.

The dissent would jettison this understanding in favor of an approach that weighs 

factual causes to determine which among them is the “most immediate, efficient, and 

direct.” At the outset, we are not sure how this theory can be derived from 

MCL 691.1407(2)(c). Why, one might wonder, would the Legislature choose language 

well-known in the law to denote one type of causation (“proximate cause”) if it really 

meant another (“cause in fact”)? And we struggle to understand what the dissent’s 

 65 See footnote 28 of this opinion.
24

approach would entail. Consider this case. What if: the coach had chosen a different 

route; the driver had arrived one minute earlier or one minute later to the intersection; 

plaintiff had not gone to cross-country practice that day; plaintiff had not joined the 

cross-country team; his parents had not chosen to live in this school district; his mother 

had not given birth to plaintiff; his parents had never met, etc. All of these, and more, are 

but-for causes of the accident. The “causes of an event go back to the dawn of human 

events, and beyond.”66 How from those infinite causes a court, or anyone, could 

determine which is the most immediate, efficient, and direct but-for cause, we do not 

know. The dissent provides no guidance in this regard, instead finding it “easier to 

disparage the product of centuries of common law than to devise a plausible 

substitute . . . .”67 All the dissent offers is the legally unrecognizable assertion that 

defendant’s alleged gross negligence was not the one most immediate, efficient, and 

direct cause of plaintiff’s injuries because the injuries would not have occurred but-for 

plaintiff’s conduct and that of the driver. But a test that allows the mere existence of 

other but-for causes—which are by definition present in every case—to immunize 

government actors from liability for their grossly negligent conduct is really no test at all.

 66 Prosser & Keeton, § 41, p 264. Indeed, it was factual causation’s infinitude that led 

“proximate cause” to develop, at least a hundred years ago, as the limitation that is 

“placed upon [an] actor’s responsibility for the consequences of the actor’s conduct.” Id. 

Proximate cause serves to limit “liability at some point before the want of a nail leads to 

loss of the kingdom.” CSX Transp, Inc v McBride, 564 US 685, 707; 131 S Ct 2630; 180 

L Ed 2d 637 (2011) (Roberts, C.J., dissenting).

67 McBride, 564 US at 707 (Roberts, C.J., dissenting).
25

Finally, in addition to being unsupported by the plain language of the statute or 

our caselaw, the dissent’s interpretation fails to consider the statutory history of the 

GTLA.68 We have cautioned that “courts must pay particular attention to statutory 

amendments, because a change in statutory language is presumed to reflect either a 

legislative change in the meaning of the statute itself or a desire to clarify the correct 

interpretation of the original statute.”69 Before 1986, the GTLA did not address whether 

government actors were immune from tort liability.70 After our 1984 decision in Ross v 

Consumers Power Co (On Rehearing) afforded qualified immunity from all tort liability 

to government actors if they met certain conditions,71 the Legislature amended the GTLA 

to create a narrow exception to this broad grant of immunity. The exception, which is at 

 68 “[Q]uite separate from legislative history is statutory history—the statutes repealed or 

amended by the statute under consideration. These form part of the context of the statute, 

and (unlike legislative history) can properly be presumed to have been before all the 

members of the legislature when they voted. So a change in the language of a prior 

statute presumably connotes a change in meaning.” Scalia & Garner, Reading Law: The 

Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), p 256.

69 Bush v Shabahang, 484 Mich 156, 167; 772 NW2d 272 (2009).

70 Odom, 482 Mich at 467-468.

71 Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 633-634; 363 NW2d 641 

(1984). Those conditions were “(1) [that] the acts were taken during the course of 

employment and the employees were acting, or reasonably believed that they were acting, 

within the scope of their authority, (2) [that] the acts were taken in good faith, and (3) 

[that] the acts were discretionary-decisional, as opposed to ministerial-operational.” 

Odom, 482 Mich at 468.
26

issue in this case, does not extend immunity to those government actors whose conduct 

amounts to “gross negligence that is the proximate cause of the injury or damage.”72

The dissent’s approach, under which even inanimate objects could be the

proximate cause, fails to give meaning to the 1986 amendment of the GTLA. That is, the 

dissent’s approach would immunize government actors for every harm that is a 

foreseeable result of their gross negligence.73 Under the dissent’s reasoning, as best we 

understand it, a government actor whose gross negligence foreseeably causes a fire that 

burns the plaintiff’s house to the ground could avoid liability by blaming the fire, 

notwithstanding that the resulting harm is precisely that which the actor’s conduct 

foreseeably risked. Likewise, the plaintiff foreseeably injured by the grossly negligent 

discharge of a government actor’s firearm would have no recourse—it is the bullet that is

always the more direct cause. Under this approach, government actors do not injure 

people, the implements they use do. The dissent provides no explanation to the contrary. 

We believe the dissent’s theory fails to give meaning to the 1986 amendment by

eliminating the narrow exception to government immunity created by 

 72 MCL 691.1407(2)(c).

73 This approach, which is akin to a most-recent-in-time rule, has been widely 

discredited:

It is of course obvious that if a defendant sets a fire which burns the 

plaintiff’s house, no court in the world will deny liability upon the ground 

that the fire, rather than the defendant’s act, was the nearest, or next cause 

of the destruction of the house. . . . There may have been considerable 

confusion about this in the distant past, but the question is certainly no 

longer open. [Prosser & Keeton, § 42, pp 276-277.]
27

MCL 691.1407(2)(c).74 If the Legislature had intended governmental officials to be 

absolutely immune from liability, we cannot make sense of the words they chose to 

accomplish that result. The 1986 amendment undoubtedly creates an exception, albeit a 

narrow one, to governmental immunity. To read it otherwise is to ignore the words of the 

statute.75 “Where the [statutory] language is unambiguous, we presume that the 

Legislature intended the meaning clearly expressed—no further judicial construction is 

required or permitted, and the statute must be enforced as written.”76 Here, the 

Legislature amended the GTLA to provide a narrow exception to governmental immunity 

for grossly negligent acts that were “the proximate cause” of a plaintiff’s injuries.77

“Proximate cause” has for a hundred years in this state, and elsewhere, been a legal term 

 74 The dissent contends that our argument is a “veiled reliance on the so-called ‘absurd 

results’ doctrine.” We rely on nothing of the sort. We give effect to the plain text of the 

statute, which produces no absurdity—“proximate cause” as used in the GTLA means 

what it has meant for a century in the common law of Michigan and elsewhere; one 

cannot be “the proximate cause” of an injury without being both a factual and legal cause 

thereof.

75 We are puzzled by the dissent’s criticism of us for relating the statutory history of the 

GTLA. That history, the dissent acknowledges, consists only of the unassailable fact that 

the GTLA was amended to provide a narrow exception to governmental immunity when 

a government actor’s gross negligence was the proximate cause of an injury. We are not 

aware of any rule suggesting that it is forbidden to acknowledge that a statute has been 

amended unless the statute is ambiguous—as the GTLA is not. Our charge is to give 

effect to the Legislature’s amendments, which we have done by honoring the words they 

selected—“the proximate cause.”

76 Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002) (quotation 

marks omitted).

77 MCL 691.1407(2)(c).
28

of art; one’s actions cannot be a or the “proximate cause” without being both a factual 

and a legal cause of the plaintiff’s injuries. We give the text its plain meaning.

VII. CONCLUSION

Proximate cause requires determining whether the defendant’s negligence 

foreseeably caused the plaintiff’s injuries. That negligence (or gross negligence in the 

case of the GTLA) cannot have been a proximate cause of a plaintiff’s injury if it is not 

both a factual and legal cause of the injury. A court should take all possible proximate 

causes into account when determining whether the defendant was “the proximate cause,” 

i.e., “the one most immediate, efficient, and direct cause of the injury . . . .”78 In this 

case, the Court of Appeals erred by instead attempting to discern whether the various 

but-for causes of plaintiff’s injuries were a more direct cause of those injuries than 

defendant’s alleged gross negligence, without first determining whether any of the 

asserted but-for causes were proximate causes. Accordingly, we vacate the Court of 

Appeals’ decision and remand to the Court of Appeals for further proceedings not 

inconsistent with this opinion.

David F. Viviano

Bridget M. McCormack

Richard H. Bernstein

Joan L. Larsen

 78 Robinson, 462 Mich at 462.
S T A T E O F M I C H I G A N

SUPREME COURT

MICHAEL A. RAY and JACQUELINE M. 

RAY as Coconservators for KERSCH RAY, 

a Minor,

Plaintiffs-Appellants,

v No. 152723

ERIC SWAGER,

Defendant-Appellee,

and

SCOTT ALLEN PLATT, HEATHER 

MARIE PLATT, and LIBERTY MUTUAL 

INSURANCE COMPANY,

Defendants.

WILDER, J. (dissenting).

I respectfully dissent. In my judgment, the Court of Appeals reached the correct 

outcome by duly applying our germane holdings in Robinson v Detroit, 462 Mich 439; 

613 NW2d 307 (2000), and Beals v Michigan, 497 Mich 363; 871 NW2d 5 (2015).

1

 

 1 Indeed, under the doctrine of stare decisis, the Court of Appeals was bound to follow 

those decisions. See Associated Builders & Contractors v Lansing, 499 Mich 177, 191; 

880 NW2d 765 (2016); Baumgartner v Perry Pub Sch, 309 Mich App 507, 531 n 37; 872 

NW2d 837 (2015).
2

Because the Court of Appeals committed no error in its application of Robinson and 

Beals to the facts of the instant case, I would affirm.

I

Robinson is our seminal case interpreting the “employee provision” of the 

governmental tort liability act (GTLA)2

—MCL 691.1407(2)—which provides an 

exception to the GTLA’s “broad” grant of tort immunity to governmental actors. 

Robinson, 462 Mich at 455, 458. In pertinent part, MCL 691.1407(2) provides:

Except as otherwise provided in this section, and without regard to 

the discretionary or ministerial nature of the conduct in question, each 

officer and employee of a governmental agency, each volunteer acting on 

behalf of a governmental agency, and each member of a board, council, 

commission, or statutorily created task force of a governmental agency is 

immune from tort liability for an injury to a person or damage to property 

caused by the officer, employee, or member while in the course of 

employment or service . . . while acting on behalf of a governmental agency 

if all of the following are met:

(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. [Emphasis added.]

In construing the phrase “the proximate cause” in Robinson, 462 Mich at 459, we relied 

on several well-settled principles of statutory interpretation:

 2 MCL 691.1401 et seq.
3

Because the Legislature is presumed to understand the meaning of 

the language it enacts into law, statutory analysis must begin with the 

wording of the statute itself. Each word of a statute is presumed to be used 

for a purpose, and, as far as possible, effect must be given to every clause 

and sentence. The Court may not assume that the Legislature inadvertently 

made use of one word or phrase instead of another. Where the language of 

the statute is clear and unambiguous, the Court must follow it.

These rules of statutory construction are especially germane in the 

cases now before us because Michigan strictly construes statutes imposing 

liability on the state in derogation of the common-law rule of sovereign 

immunity. This Court has repeatedly acknowledged that governmental 

immunity legislation evidences a clear legislative judgment that public and 

private tortfeasors should be treated differently. [Quotation marks and 

citations omitted.]

In light of such principles, we held that “[t]he Legislature’s use of the definite article 

‘the’ ” in the phrase “the proximate cause” clearly demonstrated “an intent to focus on 

one cause.” Id. at 458-459. Recognizing that our “duty is to give meaning to the 

Legislature’s choice of one word over the other,” we decided that the phrase “the

proximate cause” must not be interpreted as synonymous with “a proximate cause.” Id. 

at 461. Therefore, we afforded the phrase “the proximate cause” the common-law 

meaning that it has held in our jurisprudence since 1913:

We are helped by the fact that this Court long ago defined “the proximate 

cause” as “the immediate efficient, direct cause preceding the injury.” Stoll 

v Laubengayer, 174 Mich 701, 706; 140 NW 532 (1913). The Legislature 

has nowhere abrogated this, and thus we conclude that . . . the Legislature 

provided tort immunity for employees of governmental agencies unless the 

employee’s conduct amounts to gross negligence that is the one most 

immediate, efficient, and direct cause of the injury or damage, i.e., the 

proximate cause. [Id. at 462 (emphasis added).]
4

The Stoll decision on which we relied in Robinson treated the question of proximate 

“cause” as one necessarily involving the consideration of factual (i.e., but-for)3 causation. 

Stoll, 174 Mich at 706 (“But for this act of [the decedent] (subsequent to defendant’s 

alleged negligent act, and therefore proximate to the injury) no accident could have 

occurred.”).

In Beals, 497 Mich at 365-366, we applied the principles set forth in Robinson to a 

factual scenario in which the plaintiff, autistic 19-year-old William Beals, drowned in an 

indoor swimming pool while in the presence of the defendant lifeguard, William Harman,

who was a governmental employee. “Applying this Court’s rationale in Robinson,” we

held that

Harman’s failure to intervene in Beals’s drowning cannot reasonably be 

found to be “the one most immediate, efficient, and direct cause” of Beals’s 

death. While it is unknown what specifically caused Beals to remain 

submerged under the water, the record indicates that Beals voluntarily 

entered the pool and voluntarily dove under the surface of the shallow end 

into the deep end without reemerging. Although plaintiff alleges that 

Harman’s inattentiveness prevented him from attempting a timely rescue of 

Beals, in our view, it is readily apparent that the far more “immediate, 

efficient, and direct cause” of Beals’s death was that which caused him to 

remain submerged in the deep end of the pool without resurfacing.

. . . That we lack the reason for Beals’s prolonged submersion in the 

water does not make that unidentified reason any less the “most immediate, 

efficient, and direct” cause of his death. Consequently, while Harman’s 

failure to intervene may be counted among the myriad reasons that Beals 

did not survive this occurrence, it certainly was not “the proximate cause” 

 3 See generally Craig v Oakwood Hosp, 471 Mich 67, 86-87; 684 NW2d 296 (2004) 

(“The cause in fact element generally requires showing that ‘but for’ the defendant’s 

actions, the plaintiff’s injury would not have occurred.”) (quotation marks and citation 

omitted). 
5

of his death for purposes of MCL 691.1407(2)(c). [Beals, 497 Mich at 373-

374.]

In other words, even though Harman’s conduct would undoubtedly have been recognized 

as “a” potential legal cause of the drowning under our ordinary negligence jurisprudence, 

in Beals we compared a number of potential factual (i.e., but-for) causes of Beals’s

drowning and determined that the behavior of the governmental employee was not “the” 

proximate cause. 

It was unnecessary in Beals to analyze foreseeability or legal causation to 

conclude that the governmental actor was not the proximate cause of Beals’s drowning—

we were able to determine that Harman’s conduct was not the one most immediate, 

efficient, and direct cause of Beals’s death simply by comparing the but-for causes. That 

is because it is well settled in our negligence jurisprudence that the phrase “proximate 

cause” is “a legal term of art that incorporates both cause in fact and legal (or 

‘proximate’) cause.” Craig v Oakwood Hosp, 471 Mich 67, 86; 684 NW2d 296 (2004)

(emphasis added). See also Weymers v Khera, 454 Mich 639, 647; 563 NW2d 647 

(1997) (“To establish proximate cause, the plaintiff must prove the existence of both 

cause in fact and legal cause.”).

4

 Indeed, while the term “proximate cause” has also been 

 4 Accord Black v Shafer, 499 Mich 950, 951 (2016); White v Hutzel Women’s Hosp, 498 

Mich 881 (2015); O’Neal v St John Hosp & Med Ctr, 487 Mich 485, 496; 791 NW2d 853 

(2010) (opinion by HATHAWAY, J.); id. at 508 (CAVANAGH, J., concurring); Skinner v 

Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994), overruled in part on other 

grounds by Smith v Globe Life Ins Co, 460 Mich 446, 455 n 2 (1999); Moning v Alfono, 

400 Mich 425, 439-440, 440 n 13; 254 NW2d 759 (1977); Glinski v Szylling, 358 Mich 

182, 196-197; 99 NW2d 637 (1959) (opinion by SMITH, J.); Stoll, 174 Mich at 706; AutoOwners Ins Co v Seils, 310 Mich App 132, 157; 871 NW2d 530 (2015); Manzo v 

Petrella, 261 Mich App 705, 712; 683 NW2d 699 (2004); Adas v Ames Color-File, 160 

Mich App 297, 300-301; 407 NW2d 640 (1987).
6

used as a synonym for “legal cause,” see, e.g., Haliw v Sterling Heights, 464 Mich 297, 

310; 627 NW2d 581 (2001) (“[L]egal cause or ‘proximate cause’

[5] normally involves 

examining the foreseeability of consequences, and whether a defendant should be held 

legally responsible for such consequences”) (quotation marks and citation omitted), well 

before 1986 we recognized that the “sine qua non”6 of proximate cause is “cause in fact.” 

See Glinski v Szylling, 358 Mich 182, 196-197; 99 NW2d 637 (1959) (plurality opinion

by SMITH, J.).

7

 See also Moning v Alfono, 400 Mich 425, 439-440, 440 n 13; 254 NW2d 

 5 Were “legal cause” and “proximate cause” truly synonymous, there would be no need 

for this Court to refer to both concepts as a way of clarifying when it is referring to legal 

causation. As the Restatement of the Law Third, Torts recognizes, like “proximate 

cause,” the phrase “legal cause” can be a misnomer, “contribut[ing] to the misleading 

impression that limitations on liability somehow are about factual cause.” 1 Restatement 

Torts 3d: Liability for Physical & Emotional Harm, Special Note on Proximate Cause, 

ch 6, pp 492-493. See also Dobbs, Hayden & Bublick, Torts, § 200, p 687 (“One major 

source of confusion about ‘proximate cause’—and thus another aspect of the pesky 

terminology problem—lies in the fact that many courts define the term in a way that 

gives it two distinct meanings.”).

6 “Sine qua non” means “[a]n indispensable condition or thing; something on which 

something else necessarily depends.” Black’s Law Dictionary (10th ed) (emphasis 

added).

7 The four-justice plurality in Glinski, 358 Mich at 196-197 (opinion by SMITH, J.), stated 

that

[t]his expression, “proximate” cause, has bedeviled the law of torts for 

years. So much has been written concerning its “true” meaning that it 

would be a disservice to the profession, and presumptuous, to slay the 

dragon once more. Suffice to say it has no “true” meaning. It may be made 

to represent, at will, a number of entirely disparate elements in a negligence 

case, ranging from cause in fact to apportionment of damages. “No other 

formula,” writes Dean Green, “so nearly does the work of Aladdin's lamp.”

It would advance the cause of justice if a term so chameleonlike were to be 

abandoned. This is beyond our power. It is too deeply imbedded in the 
7

759 (1977) (explaining that “[p]roximate cause encompasses a number of distinct 

problems,” one of which is “[t]he problem of causation in fact”), quoting Prosser, Torts 

(4th ed), § 42, p 244. “As a matter of logic, a court must find that the defendant’s 

negligence was a cause in fact of the plaintiff’s injuries before it can hold that the 

defendant’s negligence was the . . . legal cause of those injuries.” Craig, 471 Mich at 87. 

See also 4 Harper, James & Gray, Torts (2d ed), § 20.2, pp 89-91 (“Through all the 

diverse theories of proximate cause runs a common thread; almost all agree that 

defendant’s wrongful conduct must be a cause in fact of plaintiff’s injury before there is 

liability. This notion is not a metaphysical one but an ordinary, matter-of-fact inquiry 

into the existence or nonexistence of a causal relation as lay people would view it.”). In 

other words, but-for causation is an indispensable part of the “proximate cause” inquiry. 

If something is not a factual cause of an injury, it is not a “cause” of the injury at all, and 

ergo it cannot, as a matter of logic, be a legal cause. To hold otherwise is to accept the 

paradoxical outcome that an actor who did not cause an injury may nevertheless be 

deemed its “proximate cause.”8

 

cases and the literature for surgery so drastic. But we should insist that, 

whenever it is employed, the meaning sought to be ascribed to it be 

identified. Here it is being used as a synonym for the sine qua non, cause in

fact. [Citation omitted.]

8 Because of the confusion wrought by the duality of meaning we have varyingly ascribed 

in our negligence jurisprudence to the phrase “proximate cause,” it would arguably be a 

best practice to discontinue the use of that phrase entirely. See generally Restatement,

ch 6, Special Note on Proximate Cause. But because the question before us is one of 

statutory interpretation—not negligence law—it would be inappropriate to rule on that 

issue today because any such ruling would necessarily be obiter dictum.
8

The test announced by Robinson and reaffirmed by Beals fits within this analytical 

framework and satisfies this Court’s duty to narrowly construe the exception to immunity 

provided by MCL 691.1407(2)(c).

9

 One cannot determine whether a governmental 

actor’s conduct was “the one most immediate, efficient, and direct cause” of an injury 

without considering factual causation. In other words, to determine which cause—among 

more than one—was “most immediate, efficient, and direct,” one must consider the 

panoply of but-for causes and weigh their immediacy, efficiency, and directness. Legal 

causation, on the other hand, only becomes a relevant consideration in GTLA litigation 

when “the one most immediate, efficient, and direct cause” of the injury is a cause to 

which the law will not assign liability. See Skinner v Square D Co, 445 Mich 153, 163; 

516 NW2d 475 (1994) (“A plaintiff must adequately establish cause in fact in order for 

legal cause . . . to become a relevant issue.”).10 Put differently, legal cause acts only as a 

limitation to the scope of liability under the GTLA, not a means of assigning liability.

11 

 9 To the extent that there is any ambiguity whether the Legislature intended “proximate 

cause” to denote legal cause only or to denote both factual cause and legal cause, the 

more inclusive definition (incorporating both) must be used because doing so leads to a 

narrower exception. Beals, 497 Mich at 370 (noting that the GTLA’s exceptions to the

“general rule” of governmental immunity “must be narrowly construed”). See also Mack 

v Detroit, 467 Mich 186, 196 n 10; 649 NW2d 47 (2002) (“[A]s this Court has 

consistently held since its seminal case” on the subject, “exceptions to governmental 

immunity are narrowly construed.”).

10 Skinner was subsequently overruled in part on other grounds by Smith, 460 Mich at 

455 n 2.

11 Indeed, the majority acknowledges that “the term ‘proximate cause’ is applied by 

courts to those considerations which limit liability. . . .” (Quotation marks and citation 

omitted; emphasis added.)
9

See Moning, 400 Mich at 439 (“Proximate cause encompasses a number of distinct 

problems including the limits of liability for foreseeable consequences.”) (emphasis 

added).

Applying the above principles to the documentary evidence and well-pleaded 

allegations in this case,

12 it is evident that defendant Eric Swager’s conduct was not “the 

proximate cause” of plaintiff Kersch Ray’s injuries for purposes of MCL 691.1407(2). 

Even assuming, for the sake of argument, that Swager was grossly negligent in directing 

the team to cross the road,

13 and further assuming that Ray in fact heard Swager and 

entered the roadway on Swager’s directive, no reasonable juror could conclude that 

Swager’s conduct was the one most immediate, efficient, and direct cause of Ray’s 

injuries. At a minimum, the 13-year-old Ray both could and should have verified that it 

was safe to enter the roadway before he voluntarily did so.

14 See, e.g., Ackerman v

Advance Petroleum Transp, Inc, 304 Mich 96, 106, 107; 7 NW2d 235 (1942) (ruling that 

 12 As this Court recognized in Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 

(1994), motions for summary disposition based on governmental immunity are governed 

by MCR 2.116(C)(7). “All well-pleaded allegations are viewed in the light most 

favorable to the nonmoving party unless documentary evidence is provided that 

contradicts them.” Haksluoto v Mt Clemens Regional Med Ctr, ___ Mich ___, ___; ___ 

NW2d ___ (2017) (Docket No. 153723); slip op at 3-4.

13 This is a dubious assumption. See note 35 of this opinion.

14 This is not to discount the tragic and life-altering consequences that Ray and his family 

have endured because of the accident at issue in this case. However, it is the 

Legislature’s prerogative—not this Court’s—to decide if and when governmental actors 

are immune from tort liability. Lash v Traverse City, 479 Mich 180, 194; 735 NW2d 628 

(2007). 
10

an eight-year-old child had the mental capacity to understand the dangers of crossing the 

street); Pratt v Berry, 37 Mich App 234, 238; 194 NW2d 465 (1971) (“[A]n ordinarily 

prudent seven-year-old child must look while crossing the street.”). See also Stoll, 174 

Mich at 706 (holding that a five-year-old child’s act of sledding into the street was the 

proximate cause of her death because but for that act she would not have been injured).15 

As the Court of Appeals aptly reasoned:

The contention that Ray essentially ran into the road in blind obedience to a 

verbal instruction from Swager simply does not alter the undeniable reality 

that Ray entered the road under his own power and he was then struck by a 

moving vehicle driven by someone other than Swager. Had Ray himself 

verified that it was safe to enter the roadway, as did many of his fellow 

teammates, the accident would not have occurred. Likewise, had Platt not 

been driving on the roadway that morning, or had he otherwise avoided 

Ray, the accident would not have occurred. In these circumstances, there 

were obviously more immediate, efficient, and direct causes of Ray’s 

injuries than Swager’s oral remarks. [Ray v Swager, unpublished per 

curiam opinion of the Court of Appeals, issued October 15, 2015 (Docket 

No. 322766), pp 3-4.]

Put differently, it was either Ray’s conduct or that of the driver—but not Swager’s

conduct—that was the one most immediate, efficient, and direct cause of Ray’s injuries. 

But for Ray’s conduct (his act of running into the roadway without assessing traffic 

despite a do-not-cross signal) and that of the driver (failing to yield to a pedestrian or 

failing to reasonably survey the roadway), Ray would not have sustained his injuries. 

Because Swager’s alleged gross negligence was not “the” proximate cause of Ray’s 

 15 Although minors are held to a subjective standard of care, Clemens v City of Sault Ste

Marie, 289 Mich 254, 256; 286 NW 232 (1939), plaintiffs have neither alleged nor 

offered proof of any subjective characteristic that left Ray less able to assess traffic than 

an ordinary high school freshman.
11

injuries, Swager was immune from suit under the GTLA and thus entitled to summary 

disposition. 

II

Largely characterizing proximate cause as legal cause only, the majority 

incorrectly claims that “[o]ur first characterization of ‘proximate cause’ as meaning both 

‘proximate cause’

[16] and ‘but-for cause’ ” did not occur until our decision in Skinner, 445 

Mich at 162-163. This ignores several earlier precedents, including our 1977 decision in 

Moning, 400 Mich at 439, 440 n 13 (explaining that “[p]roximate cause encompasses a 

number of distinct problems,” one of which is “[t]he problem of causation in fact”),

quoting Prosser, Torts (4th ed), § 42, p 244, the 1959 plurality decision in Glinski, 358 

Mich at 196-197 (opinion by SMITH, J.) (explaining that cause in fact is the “sine qua 

non” of proximate of cause),17 and our 1913 decision in Stoll, 174 Mich at 706 (“But for 

this act of [the decedent] (subsequent to defendant’s alleged negligent act, and therefore 

proximate to the injury) no accident could have occurred.”). The majority asserts that 

over time this Court has improperly conflated factual and legal causation, but the very 

cases that the majority cites in support, including Craig, Moning, Skinner, and Charles 

 16 I presume here that the majority means legal cause.

17 This Court has, on numerous occasions, cited the Glinski plurality as authoritative. 

See, e.g., Weymers, 454 Mich at 648 n 12; Brisboy v Fibreboard Corp, 429 Mich 540, 

547; 418 NW2d 650 (1988); Zeni v Anderson, 397 Mich 117, 141; 243 NW2d 270 

(1976). In any event, binding or not, Glinski is certainly instructive about whether the 

1986 Legislature would have considered but-for causation to be a proper part of the 

proximate cause analysis.
12

Reinhart Co v Winiemko,

18 demonstrate that this Court has on numerous occasions 

recognized that a proper proximate cause analysis cannot take place without 

consideration of the sine qua non, cause in fact. The Legislature is presumed to have 

been aware of such decisions when it amended the GTLA to afford a narrow exception to 

governmental immunity,

19 and the majority cites no authority for the proposition that 

factual causation was not considered to be part of the proximate cause analysis under our 

common law in 1986. It is in this temporal context that we must consider the proper 

construction of the phrase “the proximate cause.”

Because it is the Legislature’s intent that controls, we are charged under MCL 8.3a

with the duty of according the phrase “the proximate cause” the “peculiar and 

appropriate” legal meaning that it had at the time MCL 691.1407(2)(c) was enacted, not 

the meaning that we might wish to ascribe to that phrase today. See Sam v Balardo, 411 

Mich 405, 425; 308 NW2d 142 (1981). Consequently, this Court’s power to redefine 

over the years the phrase “proximate cause” for purposes of the common law20 does not 

 18 Charles Reinhart Co v Winiemko, 444 Mich 579, 586; 513 NW2d 773 (1994) (plurality 

opinion by RILEY, J.) (“As in any tort action, to prove proximate cause a plaintiff in a 

legal malpractice action must establish that the defendant’s action was a cause in fact of 

the claimed injury. Hence, a plaintiff ‘must show that but for the attorney’s alleged 

malpractice, he would have been successful in the underlying suit.’ ”) (citation omitted).

19 In re Bradley Estate, 494 Mich 367, 384-385; 835 NW2d 545 (2013); In re Medina, 

317 Mich App 219, 227-228; 894 NW2d 653 (2016).

20 “[I]t is axiomatic that our courts have the constitutional authority to change the 

common law in the proper case.” North Ottawa Community Hosp v Kieft, 457 Mich 394, 

403 n 9; 578 NW2d 267 (1998). “However, this Court has also explained that alteration 

of the common law should be approached cautiously with the fullest consideration of 

public policy and should not occur through sudden departure from longstanding legal 
13

grant it the constitutional authority to retroactively alter the meaning of that phrase when 

interpreting MCL 691.1407(2)(c).

Nevertheless, that is precisely what the majority now does. Long before MCL 

691.1407(2)(c) was enacted in 1986—and many times since—our common law has 

recognized that factual causation is, like legal causation, an integral part of “proximate 

cause.” See, e.g., Craig, 471 Mich at 86 (“ ‘Proximate cause’ is a legal term of art that 

incorporates both cause in fact and legal (or ‘proximate’) cause.”); Moning, 400 Mich at 

439, 440 n 13; Glinski, 358 Mich at 196-197 (opinion by SMITH, J.); Stoll, 174 Mich at 

706 (“But for this act of [the decedent] (subsequent to defendant’s alleged negligent act, 

and therefore proximate to the injury) no accident could have occurred.”) (emphasis 

added).

21 The majority, however, conflates these two prongs of proximate causation, 

treating “legal cause” as if it has something to do with causation, which it does not. See 

Dobbs, § 185, p 622 (“Scope of liability, formerly termed proximate cause, is not about 

causation at all but about the significance of the defendant’s conduct or the appropriate 

 

rules. . . . [W]hen it comes to alteration of the common law, the traditional rule must 

prevail absent compelling reasons for change.” Price v High Pointe Oil Co, Inc, 493 

Mich 238, 259-260; 828 NW2d 660 (2013). 

21 Accord Black, 499 Mich at 951; White, 498 Mich at 881; O’Neal, 487 Mich at 496 

(opinion by HATHAWAY, J.); id. at 508 (CAVANAGH, J., concurring); Skinner, 445 Mich 

at 162-163; Auto-Owners, 310 Mich App at 157; Manzo, 261 Mich App at 712; Adas, 

160 Mich App at 300-301. Similarly, a careful reading of Tozer v Mich Central R Co, 

195 Mich 662, 666; 162 NW 280 (1917), demonstrates that the Tozer Court, like Stoll

before it, considered but-for causation to be a proper part of its proximate cause analysis. 

See id. at 669 (“[I]f the cot had not been placed near the trunks, piled one upon the other, 

one or more of them would not have fallen upon Mrs. Tozer, so that we think it clear that 

the proximity of the cot to the falling trunks was the proximate cause of the injury. . . .”). 
14

scope of liability in light of moral and policy judgments about the very particular facts of 

the case.”). The majority’s conflation in this regard leads it to construe the phrase “the

proximate cause”—i.e., the one most immediate, efficient, and direct cause—as if it is 

centered mainly on legal causation (i.e., scope of liability), with cause in fact acting only 

as a threshold consideration. From a purely logical standpoint, however, it is not possible 

to use the foreseeability-based limitations on liability provided by the concept of legal 

cause to affirmatively decide which cause, among several, was most immediate, efficient, 

and direct. Only by comparing factual causes can one discern their relative immediacy, 

efficiency, and directness.22

Stated another way, while accusing the dissent of “distort[ing] the meaning of ‘the 

proximate cause’ by severing it from the concept of legal causation,”23 the majority seeks 

to divorce that same phrase largely from the concept of factual causation. But the 

majority does not explain how courts might determine what constitutes “the one most 

immediate, efficient, and direct cause”24 of an injury without weighing factual causes. 

Such a test—asking judges to determine what caused an injury without considering its

 22 Contrary to the majority’s allegations otherwise, this approach does not “render legal 

cause irrelevant.” Rather, legal cause becomes relevant after the panoply of but-for 

causes has been considered. If the one most immediate, efficient, and direct cause of an 

injury was the grossly negligent conduct of a governmental actor, a court should then 

assess whether such conduct was also a legal cause of the injury (i.e., if the injury was a 

foreseeable consequence of the governmental actor’s conduct). If not, the actor is 

immune under MCL 691.1407(2)(c).

23 Emphasis added.

24 Robinson, 462 Mich at 462.
15

potential causes—is akin to asking jurors to determine damages without any 

consideration of harm. The majority asks this state’s jurists to take the “cause” out of 

causation. Yet, the majority provides no roadmap regarding how this state’s jurists might

go about accomplishing that feat.

25 

Additionally, after holding that lower courts are not permitted to weigh factual

causes when determining “the proximate cause” under MCL 691.1407(2)(c), the majority 

goes on to state that a proper analysis does “require considering defendant’s actions 

alongside any other potential proximate causes to determine whether defendant’s actions 

were, or could have been, ‘the one most immediate, efficient, and direct cause’ of the 

injuries.” (Citations omitted). This statement makes no logical sense, however, unless

factual causation is considered to be part of the “proximate cause” analysis. By 

“proximate cause,” the majority actually means “legal cause.” And as already explained, 

“legal cause” is a misnomer insomuch as it has nothing at all to do with causation; 

instead, it “involves examining the foreseeability of consequences, and whether a 

defendant should be held legally responsible for such consequences.” Skinner, 445 Mich 

 25 This will almost inevitably result in jurisprudential confusion and upset in lower courts. 

Moreover, the majority’s failure to provide guidance about the application of its new 

interpretation of the phrase “the proximate cause” creates uncertainty for plaintiffs, who,

when suing governmental actors, have the burden of pleading their claims in avoidance of 

governmental immunity. See Mack, 467 Mich at 201 (“[I]t is the responsibility of the 

party seeking to impose liability on a governmental agency to demonstrate that its case 

falls within one of the exceptions.”). Accord Hannay v Dep’t of Transp, 497 Mich 45, 

58; 860 NW2d 67 (2014). Until the majority provides some practical guidance on how 

one determines proximate causation without weighing factual causes, it would seem nigh 

on impossible for a plaintiff to satisfy this pleading requirement. 
16

at 163; see also Dobbs, § 185, p 622 (explaining that legal cause26 “is not about causation 

at all . . . .”). It is impossible to compare the responsibility of different actors on the basis 

of foreseeability without comparing their conduct—i.e., the potential causes in fact. Put 

differently, one cannot determine legal cause without comparing factual causes. How 

“weighing” such causes differs from “considering” them “alongside” one another, the 

majority does not explain.

27

 26 Dobbs refers to “legal cause” as “scope of liability” to ease confusion in the use of the 

term “causation.” Dobbs, § 185, p 621.

27 Notwithstanding this failure to fully explain the legal rule it announces today, the 

majority criticizes this opinion for failing to provide any “explanation” regarding (1) 

whether “a government actor whose gross negligence foreseeably causes a fire that burns 

the plaintiff’s house to the ground could avoid liability by blaming the fire” and (2) 

whether a “plaintiff foreseeably injured by the grossly negligent discharge of a 

government actor’s firearm would have [any] recourse . . . .” The majority’s 

hypotheticals are so thinly fleshed out from a factual standpoint that to address them 

would be to box with shadows. It suffices to recognize—as Beals did—that “a chain of 

events might constitute the proximate cause of an injury or death in a different factual 

scenario.” Beals, 497 Mich at 377 n 31. Accordingly, the mere presence of other but-for 

causes does not necessarily immunize a government actor from liability. Instead, a trial 

court must assess whether the government actor’s gross negligence or some other but-for 

cause was the most immediate, efficient, and direct cause.

In addition, the majority asserts, without citation of authority, that inanimate 

objects or forces cannot be “the proximate cause” of an injury. This ignores the wellestablished concept “that for the overwhelming number of common law cases, ordinary 

rules of negligence and scope of liability (proximate cause)—including scope of risk 

rules—apply to intervening natural forces . . . .” Dobbs, § 210, p 731. There is, in fact, 

support for that proposition in our Model Civil Jury Instructions, specifically in M Civ JI 

15.06 (“Intervening Outside Force (Other Than Person)”), which instructs, in pertinent 

part that “if you decide that the only proximate cause of the occurrence was [ description 

of force ], then your verdict should be for the [ defendant / defendants ].” (Brackets in 

original.) See also McLane, Swift & Co v Botsford Elevator Co, 136 Mich 664, 665; 99 

NW 875 (1904) (“Defendant’s neglect to clip and ship the oats had no direct relation to 

their destruction. It simply resulted in leaving them where they were burned by a fire for 
17

Nor does the majority explain how its expansive interpretation of MCL 

691.1407(2)(c) comports with our well-established duty to construe exceptions to 

governmental immunity narrowly. See Yono v Dep’t of Transp, 499 Mich 636, 641; 885 

NW2d 445 (2016) (“[W]e are to narrowly construe exceptions to governmental 

immunity. . . .”); Beals, 497 Mich at 370 (noting that the GTLA’s exceptions to the

“general rule” of governmental immunity “must be narrowly construed”); Wilson v 

Alpena Co Rd Comm, 474 Mich 161, 166; 713 NW2d 717 (2006) (“Statutory exceptions 

to the immunity of governmental agencies are to be narrowly construed.”); Mack v 

Detroit, 467 Mich 186, 196 n 10; 649 NW2d 47 (2002) (“[A]s this Court has consistently 

held since its seminal case” on the subject, “exceptions to governmental immunity are 

narrowly construed.”). In concert, Craig, Skinner, Moning, Glinski, and Stoll clearly 

demonstrate that before 1986, during 1986, and after 1986 factual causation was a wellestablished element of “proximate cause” under our common law.28 Thus, because the 

Legislature is presumed to be aware of judicial decisions interpreting the common law

and to legislate in accordance with them,

29 it must be presumed that when the Legislature 

 

which defendant was not responsible. Defendant’s neglect was therefore, at most, the 

remote cause, while the accidental fire was the proximate cause of plaintiff’s loss.”).

28 Not to mention Adas, 160 Mich App at 300-301, which was decided just a year after 

MCL 691.1407(2)(c) was enacted and in which the Court of Appeals explained, “It is 

important to keep in mind when determining whether proximate causation exists that 

such causation is a legal relationship involving two separate and distinct concepts: cause 

in fact and legal cause.” While Adas is not binding on this Court, it is instructive about 

what the 1986 Legislature thought a proper “proximate cause” analysis entailed. See 

Medina, 317 Mich App at 227-228 (noting that the Legislature is presumed to be aware 

of decisions of the Court of Appeals).

29 Bradley Estate, 494 Mich at 384; Medina, 317 Mich App at 227-228.
18

used the phrase “the proximate cause” in MCL 691.1407(2)(c), it intended that phrase to 

include both factual causation and legal causation as described in Stoll, 174 Mich at 

706.

30 Nevertheless, the majority treats “proximate cause” as if it merely denotes “legal 

cause,” thereby construing MCL 691.1407(2)(c) as broadly as possible. By so ruling, the 

majority massively expands the exception to governmental immunity provided by MCL 

691.1407(2)(c).

Indeed, the majority tacitly acknowledges this impact of its construction, stating 

that the current approach, which permits factual causation to be considered, “fails to give 

meaning to the 1986 amendment of the GTLA,” leaving little room for exceptions to 

governmental immunity. That is, however, precisely what a narrowly drawn exception 

does—it leaves little room for exceptions to the general rule.

Moreover, contrary to the majority’s assertions, the statutory history of the GTLA 

does not compel the result reached by the majority. The majority aptly observes that 

legislative history and statutory history are distinct concepts. The cardinal rule of 

statutory interpretation, however, is that “[w]here the [statutory] language is 

unambiguous, ‘we presume that the Legislature intended the meaning clearly 

expressed—no further judicial construction is required or permitted, and the statute must 

be enforced as written.’ ” Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 

219 (2002), quoting DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 

 30 As already explained, to the extent that there is any ambiguity whether the Legislature 

intended “proximate cause” to denote legal cause only or to denote both factual cause and 

legal cause, the definition incorporating both must be used. See note 9 of this opinion.
19

(2000). One need not delve into statutory history, as the majority does, to discern that 

MCL 691.1407(2)(c) was intended to create an exception to governmental immunity. 

See Conroy v Aniskoff, 507 US 511, 519; 113 S Ct 1562; 123 L Ed 2d 229 (1993) (Scalia, 

J., concurring). As Beals recognized, the plain language of the GTLA proves the point 

quite nicely standing alone. See Beals, 497 Mich at 365 (“While governmental agencies 

and their employees are generally immune from tort liability under the [GTLA], MCL 

691.1407(2)(c) provides an exception to this general rule . . . .”). Because nothing in the 

statutory history of the GTLA contravenes the plain meaning of the statutory language, 

the majority’s discussion of statutory history, while perhaps academically interesting, is 

ultimately superfluous.

Nor does the obvious legislative intent to create an exception to governmental 

immunity obviate our duty to construe that exception narrowly. The majority disregards 

the presumption that the Legislature was aware, when it added MCL 691.1407(2)(c) to 

the GTLA, of our earlier decisions recognizing that exceptions to governmental immunity 

are narrowly construed.

31 Had the Legislature wished to provide a broad exception, it 

would have employed language manifesting that intent. It did not.

In the alternative, the majority contends that a narrow interpretation of MCL 

691.1407(2)(c) is untenable because it “would immunize government actors for every

harm that is a foreseeable result of their gross negligence.” This argument is a veiled 

 31 See, e.g., Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 601; 363 

NW2d 641 (1984), citing Manion v State Hwy Comm’r, 303 Mich 1, 19; 5 NW2d 527 

(1942).
20

reliance on the so-called “absurd results” doctrine. See generally Johnson v Recca, 492 

Mich 169; 821 NW2d 520 (2012). “To properly invoke the ‘absurd results’ doctrine,” 

however, it must be shown “that it is quite impossible that the Legislature could have 

intended” the result in question. Id. at 193 (emphasis added). A proper analysis in this

vein cannot rest merely on what seems to be the “obvious” legislative intent but should 

instead delve into substance and, in a given case, “might require a serious-minded 

analysis of the Legislature’s policy objectives in enacting the statutes, the political 

realities and disagreements within the Legislature that adopted the statutes, the necessity 

for compromise and negotiation leading to enactment of the statutes, and the public 

impetus behind the statutes . . . .” Id. at 194. Because “this Court is not empowered to 

act as the people’s lawmaker-in-chief,” “it must be assumed that the language and 

organization of the statute better embody the ‘obvious intent’ of the Legislature than does 

some broad characterization surmised or divined by judges.” Id. at 196-197. Here, the 

majority has failed to demonstrate that it is “quite impossible” that the Legislature 

intended the exception to governmental immunity set forth by MCL 691.1407(2)(c) to be 

a narrow one.

Furthermore, although it engages in little stare decisis analysis,32 the majority’s

holding is patently inconsistent with Robinson and Beals. A mere two years ago, the 

Beals majority of six—including two members of the instant majority—did precisely

what the instant majority assigns as error in this case, comparing a number of factual 

 32 A stare decisis analysis is applied solely to Dean v Childs, 474 Mich 914 (2005), which 

the majority imprudently overrules.
21

causes of the drowning and determining that the behavior of the governmental employee

was not the one most immediate, efficient, and direct cause. Beals, 497 Mich at 373-374. 

Nor is Beals an outlier in that respect. The dissenting Court of Appeals opinion on which 

we relied in Dean v Childs, 474 Mich 914 (2005), employed the same analytical 

framework. See Dean v Childs, 262 Mich App 48; 684 NW2d 894 (GRIFFIN, J., 

concurring in part and dissenting in part.) Notably, the Beals majority cited Dean

favorably, remarking that Dean and Beals were “analogous.” Beals, 497 Mich at 375. 

Nevertheless, the instant majority overrules Dean while merely criticizing our 

conspicuously similar decisions in Robinson and Beals and disavowing Beals’s reliance 

on Dean. “[W]e should be consistent rather than manipulative in” our application of 

stare decisis. See Lawrence v Texas, 539 US 558, 587; 123 S Ct 2472; 156 L Ed 2d 508 

(2003) (Scalia, J., dissenting). To maintain such consistency, it is vital that this Court

openly recognizes when it is issuing a holding that is inconsistent with settled precedent, 

even if only in part. It is poor practice for “this Court to simply ignore precedents with 

which it disagrees.” Beasley v Michigan, 483 Mich 1025, 1029 (2009) (CORRIGAN, J., 

dissenting). Doing so permits conflicting lines of caselaw to develop, which yields 

jurisprudential uncertainty and variations in outcome that turn solely on which holding—

among our several inconsistent holdings—a lower court chooses to follow. Ultimately, 

this undermines the rule of law.

As this Court unanimously recognized earlier this term, “Generally, in order to 

‘avoid an arbitrary discretion in the courts, it is indispensable that [courts] should be 

bound down by strict rules and precedents which serve to define and point out their duty 

in every particular case that comes before them[.]’ ” Coldwater v Consumers Energy Co, 
22

___ Mich ___, ___; 895 NW2d 154, 161 (2017), quoting The Federalist No. 78 

(Hamilton) (Rossiter ed, 1961), p 471 (second and third alterations in original). 

“ ‘Liberty finds no refuge in a jurisprudence of doubt.’ ” Lawrence, 539 US at 586 

(Scalia, J., dissenting), quoting Planned Parenthood of Southeastern Pa v Casey, 505 US 

833, 844; 112 S Ct 2791; 120 L Ed 2d 674 (1992). Therefore, “principles of law 

deliberately examined and decided by a court of competent jurisdiction should not be 

lightly departed,” Coldwater, ___ Mich at ___; 895 NW2d at 161 (quotation marks and 

citation omitted).

In the instant case, if the majority disagrees with the holdings in Robinson and 

Beals (as its criticism of those decisions seemingly indicates), it should perform a stare 

decisis analysis and conclusively decide whether to overrule them. As former Chief 

Justice CORRIGAN once noted in a different context,

If it intends to alter legal principles embedded in this Court’s decisions, 

then the . . . majority should explain its reasons clearly and intelligibly. 

Instead, the . . . majority overrules by indirection, or at least leaves the 

impression that it is doing so, thereby sowing the seeds of confusion and 

making it difficult for the citizens of this state to comprehend precisely 

what our caselaw requires. [Beasley, 483 Mich at 1030 (CORRIGAN, J., 

dissenting).]

Here, because the majority avoids the stare decisis question altogether, treating its 

instant holding and the holding in Beals as if they are consistent,33 two lines of cases will 

 33 The majority mischaracterizes Beals’s holding in an effort to reconcile Beals with the 

majority’s holding in this case. Beals never held that the lifeguard’s conduct was not a

cause in fact of the plaintiff’s death, likely because an expert testified that Beals’s 

drowning “ ‘could have been and should have been easily prevented.’ ” Beals, 497 Mich 

at 347 n 22. We explicitly recognized in Beals that “[b]ut for the applicable immunity 

statute, a question of fact m[ight have] remain[ed] as to defendant’s liability for the 
23

almost inevitably arise in lower courts, one following the Beals analysis and another 

attempting to follow, to the extent that it might be possible to do so, the analysis set forth

by the majority today.34 Then again, given the inherent unworkability of the purported 

“test” set forth by the majority, in the future lower courts may simply avoid the proximate 

cause issue altogether, instead focusing on the “gross negligence” requirement of MCL 

691.1407(2)(c).

35

 

deceased’s death.” Id. at 365-366. No concurrence was issued asserting that the plaintiff 

failed to establish “cause in fact,” and the lone dissent did not once mention factual 

causation. If, as the majority implies, immunity had nothing to do with our decision in 

Beals (i.e., the defendant in Beals was not liable under ordinary negligence standards 

because he was not a “cause in fact” at all), then there would be no impediment to 

extending that holding to a private entity, such that a negligent or grossly negligent

lifeguard can never be liable in negligence for a drowning death. But that is not the law 

of this state. See Rickwalt v Richfield Lakes Corp, 246 Mich App 450; 633 NW2d 418 

(2001). The Beals lifeguard’s entitlement to summary disposition was entirely dependent 

on his status as a governmental employee. Because he was a governmental employee and 

his conduct was not “the proximate cause” of the drowning under the GTLA, he was 

entitled to immunity. To suggest otherwise is to engage in revisionist history.

34 Because the majority does not overrule Beals but only partially disavows it, it is 

entirely proper to acknowledge here that Beals retains precedential value. Doing so is 

not, as the majority contends, a “thinly veiled invitation to lower courts to ignore” today’s 

majority opinion, an ironic twist of phrase when the majority chooses to partially disavow

Beals in semantic avoidance of stare decisis—disavowing rather than overruling—while 

repeatedly citing Robinson, the keystone precedent in this state’s stare decisis 

jurisprudence. Stare decisis should apply to the disavowal of this Court’s previous 

decisions no differently than it does when they are overruled. See Thomas v Washington 

Gas Light Co, 448 US 261, 272; 100 S Ct 2647; 65 L Ed 2d 757 (1980) (plurality opinion 

by Stephens, J.) (“The doctrine of stare decisis imposes a severe burden on the litigant 

who asks us to disavow one of our precedents.”).

35 On that basis, too, I believe that the Court of Appeals reached the correct outcome in 

this case. Given the other students who successfully crossed the road at Swager’s 

instruction, there does not appear to be a genuine issue of material fact that Swager’s 

alleged conduct in this case was “conduct so reckless as to demonstrate a substantial lack 

of concern for whether an injury results.” MCL 691.1407(8)(a).
24

Finally, in response to the majority’s assertion that this opinion is “unsupported by

the plain language of the statute or our caselaw,” I simply note three things. First, it is 

this opinion that relies on the language of MCL 691.1407(2)(c) to support its 

interpretation of the GTLA, while the majority is compelled to resort to an analysis of 

statutory history. See pages 18-19 of this opinion. Second, I would construe MCL 

691.1407(2)(c) by following Robinson, Dean, and Beals. Third, in stark contrast to the 

majority opinion, this opinion is not forced to overrule, disavow, or reconcile prior 

pronouncements from this Court in order to explain its result or avoid tension with 

existing precedent.

III

For all of those reasons, I dissent. Because the Court of Appeals reached the 

correct outcome for the correct reasons by following Robinson and Beals, I would affirm.

Kurtis T. Wilder

Stephen J. Markman

Brian K. Zahra