Order Michigan Supreme Court
Lansing, Michigan
July 22, 2020 Bridget M. McCormack,
Chief Justice
160877-8 & (39) David F. Viviano,
Chief Justice Pro Tem
DEBORAH TSCHIRHART, Personal Stephen J. Markman
Representative of the ESTATE OF SHAUN M. Brian K. Zahra
TSCHIRHART, Richard H. Bernstein
Plaintiff-Appellant/Cross-Appellee, Elizabeth T. Clement
v SC: 160877; 160878 Megan K. Cavanagh,
Justices
COA: 345411; 345715
Oakland CC: 2018-165013-NO
CITY OF TROY, ALEXANDER YARBROUGH,
NICHOLAS YARBROUGH, MARY ALLEMAN,
and ALEXIS CALHOUN,
Defendants-Appellees,
and
SUSAN O’CONNOR,
Defendant-Appellee/Cross-Appellant.
___________________________________________/
On order of the Court, the application for leave to appeal the December 17, 2019
judgment of the Court of Appeals and the application for leave to appeal as cross-
appellant are considered. We direct the Clerk to schedule oral argument on the
application. MCR 7.305(H)(1).
The appellant shall file a supplemental brief within 42 days of the date of this
order addressing whether the Court of Appeals erred in concluding that, under this
Court’s precedent, a lifeguard’s delay, even if it constitutes gross negligence, is not a
cause in fact of drowning for purposes of determining governmental immunity under
MCL 691.1407(2)(c) because of the inherent uncertainty of successful rescue. See Beals
v Michigan, 497 Mich 363 (2015); Ray v Swager, 501 Mich 52 (2017). In addition to the
brief, the appellant shall electronically file an appendix conforming to MCR 7.312(D)(2).
In the brief, citations to the record must provide the appendix page numbers as required
by MCR 7.312(B)(1). The appellees shall file a supplemental brief within 21 days of
being served with the appellant’s brief. The appellees shall also electronically file an
appendix, or in the alternative, stipulate to the use of the appendix filed by the appellant.
A reply, if any, must be filed by the appellant within 14 days of being served with the
appellees’ brief. The parties should not submit mere restatements of their application
papers. The application for leave to appeal as cross-appellant is DENIED, because we
are not persuaded that the question presented should be reviewed by this Court.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
July 22, 2020
a0707t
Clerk