Suit in child’s death dismissed by court
Family claimed negligence in 2015 accident
GWINN — The Michigan Court of Appeals has dismissed a lawsuit resulting from the death of 4-year-old Amarah Filizetti, who died in a September 2015 accident in the Gwinn High School gym.
A lawsuit had been filed by the girl’s family against Gwinn Area Community Schools as well as West Educational Leasing Inc., doing business as Professional Contract Management Inc.; Gwinn Area Cleaning and Maintenance Inc.; and GACS Athletic Director Robert Soyring and former GACS Director of Finance and Human Resources Anthony “AJ” Filizetti — no relation to Amarah — and former maintenance worker Tracy Belusar.
“School employees can only be liable if they were ‘grossly negligent,'” said attorney John Miller of Giarmarco, Mullins & Horton, P.C., in an email. The law firm is based in downstate Troy and represents GACS.
He acknowledged that is a high standard.
“In this case, the Court of Appeals held that the school employees did not behave in a grossly negligent manner,” Miller said.
As to the school district, like all public entities in Michigan, it is generally immune from negligence lawsuits unless one of “very narrow” exceptions apply, he said.
“In this case, the Court of Appeals held that none of the exceptions were implicated,” Miller said. “As such, they dismissed the entire lawsuit.”
According to court documents, on Sept. 3, 2015, two wooden panels weighing 325 pounds each were to be installed in the gym where cheerleading practice was being held. The panels were placed against the wall. Belusar tested the stability of the panels and found the panels did not fall, with Anthony Filizetti believing the panels were stable as positioned.
Belusar told him she had to retrieve tools and would ask another employee to help her reinstall the panels, while Anthony Filizetti said he would be in his office if she needed further assistance.
Soyring walked through the gym at around 9:30 a.m. and saw cheerleaders practicing, but did not see any children.
Stacey Filizetti, the cheerleading coach, brought her three 4-year-old daughters to practice with her, noting she did not see the panels being wheeled into the gym. She sent her children to play at the north end of the gym when cheerleaders began to practice stunts at around 10 a.m., with the panels still leaning against the wall.
As the children were in the north end of the gym, one of panels fell on top of Amarah Filizetti, who died from her injuries the next day. No criminal charges were filed.
The Court of Appeals determined that the 25th Circuit Court that serves Marquette County, which issued its decision in July 2018, erred by denying the defendants’ motion for summary disposition because “reasonable minds could not differ with respect to whether the individual defendants’ conduct amount to gross negligence.”
The Court of Appeals noted that “reasonable minds might differ as to whether Anthony and Soyring were negligent in leaving the unattended panels leaning against the gym wall for a period of 30 minutes or less, but they could not differ as to whether their conduct was so reckless as to demonstrate a substantial lack of concern for whether an injury resulted.”
It also noted the panels were placed in the gym only during the morning of the accident.
The Court of Appeals determined the trial court did not err by finding the stage cover constituted a fixture and therefore was part of a public building, but it did err by denying the school’s motion for summary disposition because leaning the stage cover panels against the gym wall did not constitute a failure to repair or maintain a public building.
It said the Michigan Supreme Court has held that in order for a plaintiff to avoid government immunity under the public building exemption, it must: prove that a governmental agency is involved and the building is open for use by members of the public. It also must prove a dangerous or defective condition of the public building exists, the government agency had actual or constructive knowledge of the alleged defect and the agency failed to remedy the alleged defect after a reasonable time.
The attorney representing the plaintiff, J. Paul Janes of the Grand Rapids-based firm Gruel Mills Nims & Pylman PLLC, said he has filed a leave to appeal with the Michigan Supreme Court.
Janes has asked the Supreme Court to review the matter, noting his firm believes the Court of Appeals erred as a matter of law with the building exception determination for the case. It also takes issue with the gross negligence standard.
“We believe the facts support the finding that a jury could determine these individuals to be grossly negligent,” Janes said. “We believe the Court of Appeals used an inappropriate judicially created standard of gross negligence that was not of the Supreme Court’s making or of the Legislature’s making, but another Court of Appeals matter.”
Christie Mastric can be reached at 906-228-2500, ext. 250. Her email address is email@example.com.