The Michigan Supreme Court denied leave in a case where a divided Michigan Court of Appeals panel affirmed a lower court’s ruling that excluded statements a prior teacher allegedly made about a school piano’s dangerous condition.
In Amman v. Busch ( MiLW 08-107552 , a 2-1 appeals court panel upheld a jury’s decision that a high school choir teacher did not engage in gross negligence while moving a piano that fell off a dolly and onto a student’s foot.
“The remarks of the prior choir teacher unconnected to defendant had no bearing on what defendant knew about the piano,” Judges Brock A. Swartzle and Christopher P. Yates explained. “Plaintiffs offered speculation, but made no connection, linking notice from [the prior choir teacher] to defendant .”
In a dissent , Judge Elizabeth L. Gleicher said “the majority conflates the relevance of the excluded evidence with the persuasiveness (in the majority’s estimation) of that evidence.”
Choir room piano
Bethany Busch, a choir teacher at Chesaning High School, moved a piano on a dolly, as she normally did each day. Kennedy Amman, a student, was near the piano as Busch moved it. The piano fell off the dolly and landed on Kennedy’s foot, injuring her.
Cori Amman, Kennedy’s mother, filed suit against several defendants in June 2017. About six months later, the plaintiffs had to file a separate complaint for gross negligence and battery against Busch due to problems with personal service.
The Saginaw Circuit Court dismissed the battery claim but allowed the plaintiffs’ gross negligence claim against Busch to proceed.
Affidavits from three students were produced during discovery; two included statements Busch purportedly made about the piano before the incident. She allegedly complained to the class that the piano was not stable on the dolly and said she was going to inform the school administration.
The three affidavits also had similar statements that the prior choir teacher, Yasmin Gewirtz, allegedly made about the piano.
2020 appeal
In 2020, a Michigan Court of Appeals panel reversed a trial court order denying summary disposition to most of the defendants but affirmed the order denying summary disposition to Busch.
Busch argued at the time that the students’ affidavits should not have been considered in denying summary disposition. The affidavits, she asserted, violated a scheduling order and contained inadmissible hearsay.
The prior panel rejected both arguments, but noted “however, that if the statements in the affidavits attributed to the former choir teacher that the piano on the dolly was unstable are offered to prove the truth of the matter asserted, they are inadmissible hearsay to the extent those statements are offered against Busch.”
They held that, “viewing the evidence in the light most favorable to plaintiffs, reasonable minds could differ regarding whether Busch’s conduct constituted gross negligence.”
Remand
On the basis of relevancy, Busch moved to exclude all references to Gewirtz on remand. She claimed the Ammans failed to show any connection between Busch and Gewirtz’s alleged statements.
But the Ammans contended that Gewirtz’s comments about the piano were relevant to show that Busch had notice of the piano’s dangerous condition. They said the jury should hear the testimony and decide for itself.
In May 2022, the trial court granted Busch’s motion in limine to exclude all references to Gewirtz, saying “the question of whether or not the prior music teacher said something is entirely irrelevant to whether or not the Defendant Busch was grossly negligent in relation to this particular case.”
No connection shown
The sole issue remaining was whether Busch was grossly negligent in how she handled the piano. The appeals court majority said a key component was “what Busch said and when she said it.”
Gewirtz made her alleged remarks about the piano at some point during her tenure as the choir teacher, which ended in 2013. While the record does not show when she made the comments, the judges said it must have happened before Busch became the choir teacher during the 2015-2016 school year.
“There is no indication that the two teachers ever worked at the school at the same time,” they wrote. “The three student affidavits do not indicate that Gewirtz made the remarks to defendant or in defendant’s presence, and the affidavits do not establish any connection between Gewirtz and defendant. Consequently, the affidavits did not show that defendant received notice of the piano issue from Gewirtz.”
According to Cori Amman, Busch said she discussed the piano with “other teachers” and “told them this is an accident waiting to happen.”
But the majority said this didn’t show any connection between Gewirtz and Busch.
“Plaintiffs speculate that Gewirtz must have been one of those ‘other teachers,’ but, beyond speculation, plaintiffs offer no evidence to support that claim,” the judges wrote. “Gewirtz was the choir teacher years before defendant, and there were surely many other teachers at the school to whom defendant could have been referring when she spoke of ‘other teachers.’”
The majority said the Ammans provided plenty of proof that “Gewirtz gave notice to the school about the piano, but they never connected that notice to defendant Busch.”
As such, “the trial court’s exclusion of the evidence as irrelevant was not outside the range of principled outcomes, so plaintiffs have failed to demonstrate that the trial court abused its discretion in excluding the evidence.”
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