Wrongful death by drowning; Motion to amend the complaint; Notice-pleading; Personal representative (PR)

The court held that the trial court erred, in part, by denying plaintiff-PR’s motion to amend the complaint as to defendants-city employees. But because plaintiff did not appeal the dismissal of defendant-city and previously conceded that it “should be dismissed, the claim of gross negligence in count VI of the proposed amended complaint naming” the city was improper. The case arose “from the drowning death of plaintiff’s 32-year-old disabled son in a swimming pool at” a facility operated by the city. The court noted that defendants “did not claim or identify any undue delay or undue prejudice arising from the proposed amended complaint. Therefore, leave should have been freely granted unless it could be shown that amendment would be futile.” As to futility, the court held that “the trial court erred in denying amendment by only relying on” a prior opinion issued by the court “and failing to consider the subsequent Supreme Court order.” It concluded that in “light of the Supreme Court order, a lifeguard’s delay, even if it constitutes gross negligence can be a cause in fact of a person’s drowning, a governmental employee’s failure to intervene can constitute the proximate cause of an injury, and the propriety of summary disposition under the circumstances is contingent upon the facts of the case.” Defendants submitted “that plaintiff failed to properly plead a duty, gross negligence, and facts in avoidance of governmental immunity.” But the court determined that under “the circumstances, plaintiff sufficiently pleaded that the decedent was a participant in defendants’ swimming program, that he had a history of seizures, that he was in the pool without a life jacket or life-saving protection, that he went under water, that [defendant-Alleman] did not immediately respond to the submersion but merely poked the decedent with a pool noodle, that ‘eventually’ the decedent was removed from the pool, and that there was a delay in providing chest compressions to” him. Plaintiff further claimed “that the conduct amounted to gross negligence because it demonstrated a substantial lack of concern for whether injury or death results. Under Michigan’s notice-pleading rules, plaintiff sufficiently alleged that defendants’ actions or omissions were the proximate cause of the death and that” the employees were “responsible because the action or inaction was the product of gross negligence, allegations in avoidance of governmental immunity.” Affirmed in part, reversed in part, and remanded.