Mobley-Street et al v. Detroit Public Schools et al

Filing 36

OPINION AND ORDER Denying 29 Motion for Summary Judgment by Defendants Andri Morning and First Student, Inc. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

T.M., by her next friend MEAKA
MOBLEY,
Plaintiff,
v.

Case Number 15-14406
Honorable David M. Lawson

DETROIT PUBLIC SCHOOLS,
CHRISTOPHER LOCKHART,
FIRST STUDENT, INC., and
ANDRI MORNING,
Defendants.
______________________________/
OPINION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT
BY DEFENDANTS ANDRI MORNING AND FIRST STUDENT, INC.
Plaintiff T.M. alleges in a complaint that she was the victim of an assault in January 2013
by her fellow students at the Marquette Academy, which is operated by defendant Detroit Public
Schools. T.M. contends that while she was walking home, the driver of a bus operated by defendant
First Student, Inc. made an unscheduled stop and allowed the assailants to debark and attack her.
The case is now before the Court on a motion for summary judgment by defendant First Student,
Inc. and its employee defendant Andri Morning. The defendants ask the Court to dismiss with
prejudice the sole claim that the plaintiff has pleaded against them, which is count I of the amended
complaint, alleging negligence and vicarious liability under state law. The Court heard oral
argument on June 27, 2016. Because discovery is not complete, fact issues need resolution, and the
record developed so far establishes a legal duty on the part of the defendants toward the plaintiff,
the Court will deny the motion for summary judgment.

I.
In January 2013, plaintiff T.M. was a student in the sixth grade at the Marquette Academy.
Defendant First Student, Inc. operates school buses and transports students under a contract with
defendant Detroit Public Schools. Defendant Andri Morning is a bus driver employed by First
Student.
On January 16, 2013, T.M. saw a fight at school involving student R. Later, at lunch, R.
asked T.M. who she thought had won the fight, and T.M. replied that she thought R. had lost. R.
and a friend of hers then told T.M. that “[t]hey were going to fight me at the end of the day.” At the
end of the school day, R. punched T.M. on the side of her face when T.M. walked out of school.
After R. hit her, T.M. fought back, but the school principal, defendant Christopher Lockhart, broke
up the fight and took T.M. back into the building. Later, T.M. saw Lockhart speaking to Morning,
who was the driver of the bus that T.M. rode to and from school. Lockhart escorted T.M. back out
of the school building, and T.M. heard Lockhart tell Morning that T.M. would walk home. Lockhart
then told T.M. to walk home and not ride the bus. T.M. complied because she wanted to avoid R.,
who rode the same bus, and she thought R. would try to start another fight with her.
T.M.’s mother testified that T.M. had called her during the school day about the fight, and
she also spoke to Principal Lockhart on the phone about the incident. Lockhart told T.M.’s mother
that he had spoken to defendant Morning and informed him that T.M. and her sister would be
walking home, and there should be no contact between T.M. and R.
As T.M. was walking home with her sister, when she was almost at the corner by her house,
she saw R. and several of R.’s friends get off the bus. R. started a fight with T.M. R. and two of her
friends joined in the fight, pinned T.M. on the ground, and hit and kicked her in the head, face, back,

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and stomach, also pulling out some of her braids. Approximately fifteen other students also had
gotten off the bus to watch the fight. Eventually, a boy in the audience broke up the fight and helped
T.M. to get up. The other students who had watched the fight got back on the bus, but the three girls
who had attacked T.M. ran away instead of reboarding the bus. T.M. testifed that she knew the
normal route that the bus took because she rode it every day, and the corner where R. got off the bus
was not a scheduled stop. Students only were allowed to exit at scheduled stops and could not get
off the bus wherever they desired.
The plaintiff contends that the record is incomplete at this early stage of the proceedings and
insufficient to allow a proper evaluation of the merits of her claims, because, among other things,
she has not had a chance to depose defendant Lockhart and other representatives of the school
district, or to take testimony from defendant Morning and other employees of defendant First
Student, Inc., such as Morning’s supervisor. As a result, there is nothing in the record to indicate
what, if anything, occurred on the bus before the students disembarked, during the fight, or
afterwards when the student onlookers got back on board and the bus left.
The plaintiff filed her amended complaint in the Wayne County, Michigan circuit court on
October 14, 2015. The complaint pleads three counts for (1) negligence, against defendants First
Student, Inc. and Andri Morning only (count I); (2) violation of the plaintiff’s substantive due
process rights under the Fourteenth Amendment, via 42 U.S.C. § 1983, against defendant
Christopher Lockhart (count II); and (3) a Monell claim for deficient supervision and training against
defendant Detroit Public Schools (count III). Defendant Detroit Public Schools removed the case
to this Court on December 21, 2015. The complaint and other papers were amended to redact the
names of the minors. Under the scheduling order entered by the Court, discovery remains open.

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Defendants First Student and Morning did not file an answer to the amended complaint, but instead
responded by filing their motion for summary judgment.
They argue that (1) as a matter of law they had no duty to the plaintiff beyond their
contractual obligation to provide transportation, because there was no “special relationship” between
the defendants and the plaintiff, where the plaintiff was an ordinary pedestrian and not on the
defendants’ bus or in their care when the fight occurred; (2) it is a well-established general rule of
law that an ordinary individual defendant has no duty to intervene and protect a plaintiff from an
intentional assault by a third-party; (3) the defendants’ conduct was not a proximate cause of the
plaintiff’s injuries, which were not a foreseeable consequence of letting students off at the wrong
bus stop; and (4) the intentional criminal assault of the plaintiff by her attackers was an intervening
and superseding cause that severed the chain of proximate cause between the defendants’ conduct
and the plaintiff’s injuries.
II.
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
When reviewing the motion record, “[t]he court must view the evidence and draw all reasonable
inferences in favor of the non-moving party, and determine ‘whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.’” Alexander v. CareSource, 576 F.3d 551, 557-58 (6th Cir. 2009)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).
“The party bringing the summary judgment motion has the initial burden of informing the
district court of the basis for its motion and identifying portions of the record that demonstrate the

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absence of a genuine dispute over material facts.” Id. at 558. (citing Mt. Lebanon Personal Care
Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002)). “Once that occurs, the
party opposing the motion then may not ‘rely on the hope that the trier of fact will disbelieve the
movant’s denial of a disputed fact’ but must make an affirmative showing with proper evidence in
order to defeat the motion.” Ibid. (quoting Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th
Cir. 1989)).
A party opposing a motion for summary judgment must designate specific facts in affidavits,
depositions, or other factual material showing “evidence on which the jury could reasonably find
for the plaintiff.” Anderson, 477 U.S. at 252. If the non-moving party, after sufficient opportunity
for discovery, is unable to meet her burden of proof, summary judgment is clearly proper. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St.
Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). A fact is “material” if
its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d
574, 581 (6th Cir. 2001). “Materiality” is determined by the substantive law claim. Boyd v.
Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is “genuine” if a “reasonable jury could
return a verdict for the nonmoving party.” Henson v. Nat’l Aeronautics & Space Admin., 14 F.3d
1143, 1148 (6th Cir. 1994) (quoting 477 U.S. at 248).
The plaintiffs brought their claims against defendants First Student and Morning under
Michigan negligence law, and the case against those defendants is before the Court under its
supplemental jurisdiction. See 28 U.S.C. § 1367(a) (stating that “in any civil action of which the
district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over

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all other claims that are so related to claims in the action within such original jurisdiction that they
form part of the same case or controversy under Article III of the United States Constitution”); see
also Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195, 209 (6th Cir. 2004). “A federal court
exercising supplemental jurisdiction over state law claims is bound to apply the law of the forum
state to the same extent as if it were exercising its diversity jurisdiction.” Super Sulky, Inc. v. U.S.
Trotting Ass’n, 174 F.3d 733, 741 (6th Cir. 1999). In such cases, the Court must apply the law of
the forum state’s highest court. Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938). If the state’s highest
court has not decided an issue, then “the federal court must ascertain the state law from ‘all relevant
data.’” Garden City Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1130 (6th Cir.1995) (quoting
Bailey v. V. & O Press Co., 770 F.2d 601, 604 (6th Cir. 1985)). “Relevant data includes the state’s
intermediate appellate court decisions, as well as the state supreme court’s relevant dicta,
restatements of the law, law review commentaries, and the majority rule among other states.”
Ososki v. St. Paul Surplus Lines, 156 F. Supp. 2d 669, 674 (E.D. Mich. 2001) (internal quotation
marks and citation omitted) (citing Angelotta v. Am. Broad. Corp., 820 F.2d 806, 807 (6th Cir.
1987)).
A.
Under Michigan law, a plaintiff asserting a negligence claim must establish that (1) the
defendants owed her a duty, “(2) the defendant breached that duty, (3) the defendant’s breach was
a proximate cause of the plaintiffs injuries, and (4) the plaintiff suffered damages.’” Black v. Shafer,
No. 149516, --- Mich. ---, 879 N.W.2d 642 (Mich.) (mem) (quoting Perry ex rel. Latham v. Nat’l
Car Rental Sys., Inc., 239 Mich. App. 330, 340, 608 N.W.2d 66, 71 (2000)). “‘A negligence action
may only be maintained if a legal duty exists which requires the defendant to conform to a particular

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standard of conduct in order to protect others against unreasonable risks of harm.’” Marcelletti v.
Bathani, 198 Mich. App. 655, 658, 500 N.W.2d 124, 127 (1993) (quoting Riddle v. McLouth Steel
Products Corp., 440 Mich. 85, 96, 485 N.W.2d 676, 681 (1992)). Michigan courts have held that
“[t]he threshold issue of the duty of care in negligence actions must be decided by the trial court as
a matter of law.” Riddle, 440 Mich. at 95, 485 N.W.2d at 681.
The defendants have identified correctly the general rule in Michigan that “there is no duty
to protect against the criminal acts of a third person absent a special relationship between the
defendant and the plaintiff or the defendant and the third person.” Babula v. Robertson, 212 Mich.
App. 45, 49, 536 N.W.2d 834, 837 (1995). They argue that there is no special relationship
recognized by Michigan law between a school bus driver and a student at the school who does not
happen to be on the driver’s bus at the time.
“‘Special relationships’ recognized under Michigan law include landlord-tenant,
proprietor-patron, employer-employee, residential invitor-invitee, psychiatrist-patient, and
doctor-patient.” Marcelletti, 198 Mich. App. at 664, 500 N.W.2d at 129 (quoting Bell & Hudson,
P.C. v. Buhl Realty Co., 185 Mich. App. 714, 717-18, 462 N.W.2d 851, 853 (1990)). “The court
will impose a ‘special relationship’ duty only where a person’s actions directly influence another.”
Marcelletti, 198 Mich. App. at 665, 500 N.W.2d at 130, 1993. “Michigan courts have defined as
third parties only ‘those persons readily identifiable as foreseeably endangered.’” Ibid. “The
rationale behind imposing a duty to protect in these special relationships is based on control.”
Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 499, 418 N.W.2d 381, 383 (1988). “The
duty to protect is imposed upon the person in control because he is best able to provide a place of
safety.” Ibid.

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The analysis of whether the defendant has a duty to protect an innocent plaintiff from the
criminal act of a third party under his purview “depends on the relationship between the parties, the
nature and foreseeability of the risk, and any other considerations that may be relevant on the issue,”
and the “ultimate decision turns on whether a sufficient relationship exists between [the defendant]
and a third party to impose a duty under [the] circumstances.” Buczkowski v. McKay, 441 Mich. 96,
103, 490 N.W.2d 330, 334 (1992). “Ultimately, whether [the court] should impose a duty on the
defendant . . . despite the actual lack of foreseeability turns on whether as a matter of policy [the
defendant] should bear the burden of plaintiff’s loss.” Id. at 108, 490 N.W.2d at 336.
The plaintiff has advanced ample evidence from which the Court could conclude as a matter
of law that defendant Morning expressly was charged with a duty to keep student R. and T.M.
separated, and that he knew that a physical altercation likely would result if the students were put
together. The plaintiff testified that she heard Principal Lockhart tell Morning that T.M. would not
be riding the bus and should have no contact with R. to prevent any further attacks by R. Michigan
courts have held that a defendant may be liable for negligence where he knew that an assault was
likely to occur or in progress, assumed a duty to prevent it or at least notify authorities of the danger,
and yet stood by and did nothing while the attack proceeded. See, e.g., Tucker v. Sandlin, 126 Mich.
App. 701, 705-06, 337 N.W.2d 637, 640 (1983). In that case the court explained:
[P]laintiff presented evidence which could support findings that (1) the security
guard, Rothgeb, had actual notice of a life-threatening assault on the fifth floor of the
student parking ramp, (2) that Rothgeb promised the victim of this first assault that
he would “take care” of the task of informing police of the assailant’s presence,
thereby undertaking a duty to all users of the ramp that he would do so, and (3) that
Rothgeb failed to immediately notify police, an omission which certain expert
testimony indicated was a breach of the standard of care applicable to a security
guard in Rothgeb’s position. Plaintiff’s proofs not only precluded judgment n.o.v.
as to the issues of duty and negligence but also as to the issue of proximate cause.
A jury could reasonably find that Rothgeb’s omission directly caused plaintiff’s
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injuries, by enabling the assailant to remain on the premises and carry on his criminal
conduct without interruption.
Ibid. The parties have cited no case law precisely addressing the extent of a school bus driver’s duty
to supervise students, and the Court has found no Michigan cases on that point. But it is well
established that school personnel generally have a duty to control and oversee the students
committed to their care.
For instance, it is well established under Michigan law that “a teacher owes a duty to
exercise reasonable care over students in his or her charge.” Cook v. Bennett, 94 Mich. App. 93, 98,
288 N.W.2d 609, 611 (1979) (citing Gaincott v. Davis, 281 Mich. 515, 518, 275 N.W. 229, 231
(1937) (“At least in a limited sense the relation of a teacher to a pupil is that of one in loco
parentis.)). “However, this duty is coterminous with the teacher’s presence at school.” Ibid.
“Supervision implies oversight,” and, “[i]n order to oversee student activity, a teacher must be
present to observe and control.” Ibid. The State of Michigan recognizes the importance of this
general duty of school employees to protect students under their care, and the State encourages the
discharge of that protective duty, by all persons employed by or under contract with a school, by
extending a broad statutory shield of immunity from suit where school personnel use reasonable
force to quell a student altercation. See Mich. Comp. Laws § 380.1312(4). The statute includes the
following language:
A person employed by or engaged as a volunteer or contractor by a local or
intermediate school board or public school academy may use reasonable physical
force upon a pupil as necessary to maintain order and control in a school or
school-related setting for the purpose of providing an environment conducive to
safety and learning. In maintaining that order and control, the person may use
physical force upon a pupil as may be necessary for 1 or more of the following:
(a)
To restrain or remove a pupil whose behavior is interfering with the orderly
exercise and performance of school district or public school academy

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(b)
(c)
(d)

functions within a school or at a school-related activity, if that pupil has
refused to comply with a request to refrain from further disruptive acts.
For self-defense or the defense of another.
To prevent a pupil from inflicting harm on himself or herself.
To quell a disturbance that threatens physical injury to any person.

Ibid. (emphasis added). The statute provides that a school employee or contractor “who exercises
necessary reasonable physical force upon a pupil, or upon another person of school age in a
school-related setting, as described in subsection (4) is not liable in a civil action for damages arising
from the use of that physical force.” Mich. Comp. Laws § 380.1312(5).
The answer to the question whether defendant Morning (and through vicarious liability,
defendant First Student, a proposition that First Student does not challenge in this motion) had a
duty to protect an innocent plaintiff from the criminal act of a third party under his purview
“depends on the relationship between the parties, the nature and foreseeability of the risk, and any
other considerations that may be relevant on the issue”; the “ultimate decision turns on whether a
sufficient relationship exists between [the defendant] and a third party to impose a duty under [the]
circumstances.” Buczkowski, 441 Mich. at 103, 490 N.W.2d at 334. The decisions nearest the point
recognize that school personnel have a duty adequately to supervise and control students to stop
them from attacking each other. Cook, 94 Mich. App. at 98, 288 N.W.2d at 611; Gaincott, 281
Mich. at 518, 275 N.W. at 231. The defendants have cited no authority suggesting that such a duty
is limited only to teachers and does not extend to all school personnel who regularly have
supervisory charge of students, such as bus drivers. The State’s weighty interest in the diligent
discharge of this duty is reinforced by the express statutory grant of immunity noted above, which
extends to all school employees and contractors who may be called upon to use reasonable force
to prevent or break up a fight between students, as noted above. See Mich. Comp. Laws §§

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380.1312(4), (5) “Ultimately, whether [the court] should impose a duty on the defendant . . . despite
the actual lack of foreseeability turns on whether as a matter of policy [the defendant] should bear
the burden of plaintiff’s loss. Buczkowski , 441 Mich. 96, 108, 490 N.W.2d at 334. Here the
compelling public interest in protecting school children from violent physical attacks by their fellow
students weighs heavily in favor of fixing liability for the plaintiff’s injuries on the adult party who,
the record suggests, had the most immediate capacity to prevent the attack in the first place, or who,
being nearest the scene, was in the best position either to halt or prevent it himself, or to summon
authorities who could do so, if he could not.
The defendants’ argument that T.M. was merely a pedestrian and their reliance on the
decisions holding as a general principle that a bystander has no duty to intervene to halt an attack
against the plaintiff by a third party wholly ignore the context of the altercation, which in this case
involved two school children, one of whom was under the immediate control and supervisory
purview of defendant Morning. In that context, where the parties to the attack were not simply a
pedestrian and a passing assailant, but instead were school children subject to the control of adult
school personnel, it is well established that a duty to exercise supervisory control and actively to
prevent an attack by one student on another may, and should, be found to arise.
The Court holds that in the circumstances established so far by the discovery, defendants
Morning and First Student had a duty to exercise reasonable care to prevent the assault on T.M. by
student R. and her cohorts.
B.
Unfortunately, the incomplete record before the Court does not allow a fully informed
analysis of whether and how the defendants breached their duty to the plaintiffs. However, the facts

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available suggest that it is possible, and perhaps likely, that further evidence would support a finding
that Morning breached his duty to the plaintiff by unreasonably failing to prevent R. and T.M. from
having contact on their way home. The record is undeveloped as to what happened on the bus
immediately before the “unscheduled stop.” However, the testimony available suggests that the stop
was made at the request of R. or her friends, based on their desire to confront T.M., who was
walking nearby. That the stop was unusual is corroborated by the facts that approximately 18
students got off the bus, and that almost all of them embarked once again after the fight concluded.
Even if Morning did not know that a fight was imminent when R. and her friends got off the bus,
the plaintiff testified that the bus remained stopped throughout the attack, so it seems likely that
further testimony may show that Morning at the least was aware of the altercation once it had
started. And the facts so far adduced suggest that, instead of doing anything to halt the attack, he
apparently waited until the fight was over and students had gotten back on the bus, then drove away,
having made no effort either to report the fight or even to investigate whether T.M. might need aid
for her injuries.
C.
The defendants insist that on the record developed so far, the plaintiffs cannot establish that
their conduct was the proximate cause of the assault on T.M. by R., and that regardless of Morning’s
conduct, the assault was an intervening and superseding cause of T.M.’s injuries.
Michigan courts have explained that “‘[p]roximate cause’ is a legal term of art that
incorporates both cause in fact and legal (or ‘proximate’) cause. Craig ex rel. Craig v. Oakwood
Hosp., 471 Mich. 67, 86, 684 N.W.2d 296, 309 (2004). “The cause in fact element generally
requires showing that ‘but for’ the defendant’s actions, the plaintiff’s injury would not have

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occurred.” Skinner v. Square D Co., 445 Mich. 153, 163, 516 N.W.2d 475, 479 (1994). The
Michigan Supreme Court “has defined ‘proximate cause’ as ‘that which in a natural and continuous
sequence, unbroken by any new, independent cause, produces the injury, without which such injury
would not have occurred.’” Black, 879 N.W.2d at 642 (quoting McMillian v. Vliet, 422 Mich. 570,
576, 374 N.W.2d 679, 681 (1985)). “An ‘intervening cause’ is defined [as] ‘one which actively
operates in producing harm to another after the actor’s negligent act or omission has been
committed.’” McMillian, 422 Mich. at 576, 374 N.W.2d at 682 (quoting 2 Restatement of Torts §
441, at 465). “An intervening cause breaks the chain of causation and constitutes a superseding
cause which relieves the original actor of liability, unless it is found that the intervening act was
‘reasonably foreseeable.’” Ibid. “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.” Black, 879 N.W.2d
at 642 (citing Transp. Dep’t v. Christensen, 229 Mich. App. 417, 424, 581 N.W.2d 807, 811
(1998)). “[P]roper analysis of a proximate cause question frequently will turn on accurately
determining whether the facts in a case present a situation involving direct causality or intervening
causality,” and “[t]he fact that more than one cause operates to produce an injury is not in itself
determinative.” McMillian, 422 Mich. at 577, 374 N.W.2d at 682. “Two causes frequently operate
concurrently so that both constitute a direct proximate cause of the resulting harm,” but “[a]n
intervening cause [] is distinguishable from concurrently operating causes in that it involves an
intervening cause or act which begins operating ‘after the actor’s negligent act or omission has been
committed.’” Ibid. (quoting 2 Restatement of Torts § 441).
Contrary to the defendants’ position, the record does not compel the conclusion that there
is “no set of facts” on which a jury reasonably could find that Morning’s decision to allow R. and

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her friends to disembark the bus at an unscheduled stop where the plaintiff was walking nearby was
both the cause in fact (the “but for” cause) and the legal or proximate cause of the plaintiff’s injuries
from the resulting fight.
Morning may be able to establish, on some set of facts, that the fight would have taken place
anyway, or that R. would have had an equal opportunity to pursue and assault the plaintiff if she had
left the bus at her usual stop (e.g., if the “unscheduled” stop was only trivially removed from where
R. otherwise would have gotten off the bus anyway). See Marcelletti, 198 Mich. App. at 662, 500
N.W.2d at 128 (“An element in the link between Bathani’s alleged failure to report the prior abuse
and the child’s injuries is missing. Even if Bathani had reported the earlier alleged incident, Andrew
would not necessarily have been protected from Lux.”).

But the Court cannot make that

determination as a matter of law at this stage of the case, because the record of events remains
undiscovered and undeveloped, discovery remains open, and there just as well could be other facts
to suggest that, had Morning refused to discharge R. at the unscheduled stop, and had R. stayed on
the bus until her usual destination, she would have had no realistic opportunity to confront plaintiff
T.M.
It also seems possible that the defendants could present evidence that would support a
finding that the fight was not reasonably foreseeable. The cases relied upon by the plaintiffs, which
concern a bus driver’s responsibility not to expose young children to the serious perils of heavy
traffic by allowing them to embark or disembark from a bus at unsafe locations, are not particularly
helpful on this point. In those cases it readily could be foreseen, for example, that improperly
discharging a young child at a spot that required her to walk unattended for many blocks down a
busy street readily could lead to her wandering into traffic unaware and being hit by a passing car.

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Pac. Employers Ins. Co. v. Michigan Mut. Ins. Co., 452 Mich. 218, 226, 549 N.W.2d 872, 876
(1996) (“The injuries that followed were foreseeably identifiable with the negligent decision to
disembark the child at the wrong bus stop.”); Dedes v. Asch, 233 Mich. App. 329, 332, 590 N.W.2d
605, 607 (1998) (same), overruled on other grounds by Morales v. Auto-Owners Ins. Co., 469 Mich.
487, 672 N.W.2d 849 (2003). In this case, it is possible that the defendants could establish that it
was not foreseeable that letting students off the bus would result in some of those students beating
up the plaintiff, who was walking with her sister down the sidewalk nearby. Certainly the criminal
assault of one student by another is not the sort of danger that flows naturally from a negligent
discharge of a child at the wrong bus stop in the way that a child wandering into traffic does. C.f.
Rogalski v. Tavernier, 208 Mich. App. 302, 307, 527 N.W.2d 73, 76 (1995) (“[C]riminal or violent
acts are not foreseeable results of the serving of alcohol to minors and, therefore, cannot serve as
a basis for social host liability.”); Auto Owners, 310 Mich. App. at 155, 871 N.W.2d at 544 (“Seils
points to no evidence from which the FOPA could have reasonably foreseen Pink’s intentional
criminal acts and [] Pink’s decision to commit premeditated, deliberate murder (and other assaults)
was an intervening or superseding cause of Seils’s damages.”).
Nevertheless, there are other circumstances that appear possible or likely, based upon the
limited facts so far discovered, in which the assault reasonably could be found to be foreseeable.
“Michigan has ‘long recognized that criminal acts by third parties can be foreseeable.’” Auto
Owners Ins. Co. v. Seils, 310 Mich. App. 132, 160, 871 N.W.2d 530, 546 (2015) (quoting Dawe v.
Bar-Levav & Assoc., 289 Mich. App. 380, 394, 808 N.W.2d 240, 249 (2010)); Dawe, 289 Mich.
App. at 394, 808 N.W.2d at 249 (holding that evidence that the defendant therapist “knew or should
have known that [the assailant] would form improper emotional attachments to persons in his group

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therapy and that he might seek out [and harm] those persons long after the termination of his
participation in the group” would allow a jury reasonably to conclude that the defendant breached
his duty to the victim by allowing the assailant to participate in the group therapy).
In this case, if the evidence shows, for example, that R. and her friends asked to be let off
the bus after they sighted the plaintiff, in light of the testimony that Morning knew the dangers of
allowing these students to have contact with each other, then a jury reasonably could conclude that
Morning knew, or should have known, that R. wanted to get off the bus in order to fight with the
plaintiff, and that Morning should have foreseen that a fight would occur. It has been held that
where school personnel know that a student has a history of assaulting other students, then they may
be liable for negligence where they fail adequately to control or supervise the offending student and
thereby allow her the opportunity for a subsequent attack. See Edwards v. Oakland Livingston
Human Services Agency, No. 263738, 2006 WL 1044284, at *4 (Mich. Ct. App. Apr. 20, 2006). In
that case, the court summarized the circumstances that established causation as follows:
The evidence here established that the boy had previously engaged in violent
behavior with other students and teachers and that [the defendant teacher] had
previously made a staffing referral on the boy’s “behavioral issues in the classroom.”
In addition, after the first complaint against the boy, Frost Head Start required
additional supervision of the boy. While the boy’s specific act of sexual assault may
not have been foreseeable, the individual defendants were aware that the boy had
engaged in physical altercations with other students and teachers. A foreseeable
consequence of the failure to provide supervision to a child with violent propensities
is that the child might engage in violent or inappropriate behavior with other
children. Accordingly, although the exact mechanism of injury that plaintiff’s
daughter received may not have been foreseeable, it was foreseeable that plaintiff’s
daughter might be injured by the boy if the individual defendants failed to provide
proper supervision. Under these circumstances, whether the individual defendants
exercised reasonable care is a question for the finder of fact.
Ibid.; but c.f. Babula v. Robertson, 212 Mich. App. 45, 51-54, 536 N.W.2d 834, 838-39 (1995)
(holding that the sexual assault of a young child by the babysitter defendant’s husband while the
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babysitter was asleep was not foreseeable because the husband had no prior record of sexual assault
or abuse against children). The record here amply suggests that Morning knew about R.’s fight with
T.M. earlier the same day, and the facts adduced at the plaintiff’s deposition suggest that
development of the record may lead to evidence that Morning disregarded the danger that R. would
continue her vendetta against T.M., and that he carelessly transported R. to a favorable ambush spot,
then sat by as the attack proceeded.
The defendants essentially urge the Court to conclude, because there is no evidence yet in
the record that definitively supports the causation element, that the claims against them ought to be
dismissed before the search for such evidence proceeds any further. That, of course, is not how this
works. If the defendants wanted to challenge the adequacy of the plaintiff’s bare allegations, then
the proper vehicle for that attack would have been a motion to dismiss under Rule 12(b)(6). If their
object is to challenge the sufficiency of the evidence, then they must give the plaintiff time to
develop the record, if it appears that additional evidence may be forthcoming in the usual course of
discovery. See Fed. R. Civ. P. 56(d). In this case, the plaintiffs have “clearly explained [their] need
for more discovery on [the issues challenged by the defendants in their] motion for summary
judgment.” United States v. Rohner, 634 F. App’x 495, 504 (6th Cir. 2015) (citing Abercrombie &
Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 627-28 (6th Cir. 2002)). Where, as
here, facts essential to the opposition to the motion are unavailable due to the deficiency of the
record, the Court will “allow time to obtain affidavits or declarations or to take discovery.” Fed. R.
Civ. P. 56(d)(2). Under the circumstances, where it appears likely that further development of the
record well may justify the plaintiff’s opposition, the Court will deny the motion for summary
judgment, which the defendants chose to file at this stage of the case.

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III.
A legal duty exists upon defendants Morning and First Student to exercise reasonable care
to prevent the assault on the plaintiff, and fact questions preclude the determination of the issue of
causation as a matter of law.
Accordingly, it is ORDERED that the motion for summary judgment by defendants Andri
Morning and First Student, Inc. [dkt. #29] is DENIED.

s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: July 26, 2016

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on July 26, 2016.
s/Susan K. Pinkowski
SUSAN K. PINKOWSKI

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