Discovery; Consideration of affidavits not produced earlier pursuant to a scheduling order; MCR 2.401(B)(2)(a)(iii); Kemerko Clawson, LLC v. RXIV Inc.; The trial court’s discretion whether to sanction a party for noncompliance with a scheduling order; Duray Dev., LLC v. Perrin; Hearsay; MRE 801(c); A party’s own statement offered against that party; MRE 801(d)(2)(A); The Governmental Tort Liability Act (MCL 691.1401 et seq.); MCL 691.1407(2); “Gross negligence”; MCL 691.1407(8)(a); Tarlea v. Crabtree; Briggs v. Oakland Cnty.; Effect of ordinary negligence; Wood v. Detroit; The public building exception to governmental immunity; MCL 691.1406; Renny v. Department of Transp.; Johnson v. City of Detroit; A “fixture”; Fane v. Detroit Library Comm’n; Velmer v. Baraga Area Sch.; Carmack v. Macomb Cnty. Cmty. Coll.

The court held that the trial court did not abuse its discretion in considering affidavits plaintiffs submitted despite their late production, and that they did not contain hearsay. As to the gross negligence claims, it held that defendant-Vincke was entitled to governmental immunity but defendant-Busch was not. Finally, the claims against defendants-school district and high school under the public building exception were barred because the piano and dolly at issue were not fixtures of the building. Thus, the court affirmed the denial of summary disposition to Busch, reversed it as to Vincke and the school defendants, and remanded. Plaintiff-high school student was injured while in choir class “when a piano fell off a dolly and onto her left foot.” Busch was the choir teacher. Vincke was the high school principal. Defendants argued that the trial court abused its discretion by considering three student affidavits in denying their summary disposition motion because plaintiffs violated its discovery scheduling order by not producing them earlier. But defendants failed “to show what harm befell them from the late production of the affidavits that would warrant the sanction of excluding” them. The students were on plaintiffs’ supplemental witness list as potential trial witnesses and defendants knew of them, and had the ability to contact them, long before the end of discovery. The court also rejected defendants’ hearsay argument, given that the statements from Busch that two students asserted they heard “were not offered to prove that the piano was, in fact, wobbly or unstable, but rather were offered to prove that Busch believed those assertions to be true.” Further, if offered against Busch, they were admissible under MRE 801(d)(2)(A). The court also held that reasonable minds could differ as to whether he was grossly negligent, in light of (1) the students’ statements he said before the accident “that the piano was unstable and that Busch was planning to tell, or already had told, the front office” about it and (2) deposition testimony that Busch told the injured student’s mother he had told other teachers “‘this is an accident waiting to happen’ and that the piano needed to be bolted down.” But Vincke was not grossly negligent for not calling an ambulance.