Ann Arbor News | MLive Michigan
CHELSEA, MI – The Michigan Supreme Court and Court of Appeals have ruled a lawsuit filed by a former Chelsea High School student against his cross country track coach can go to trial.
In September 2011, Kersch Ray – then a 13-year-old freshman at Chelsea High School – was struck by a vehicle while running across the intersection of Freer Road and Old U.S. 12 during cross country practice one morning.
Cross country coach Eric Swager was running with the team at the time, and as they approached the intersection, a pedestrian signal indicated they should not cross the road, according to court documents.
“Although the eyewitness accounts vary, there is evidence that Swager said something to effect of ‘let’s go,’ and the team crossed the street. Ray, who was in the back of the group, ran into the road and he was hit by (driver Scott) Platt,” the court documents state.
Ray spent 10 days in a coma and suffered a traumatic brain injury and partial paralyzation as a result of the injuries he sustained in the accident.
Ray’s parents, Michael and Jacqueline Ray, filed a lawsuit in 2012 saying Swager and Platt were responsible for their son’s injuries. Heather Platt and Liberty Mutual Insurance also are named as defendants in the lawsuit.
Swager initially argued he could not personally be held responsible for Ray’s injuries because he was acting in his capacity as a public employee and had not been “grossly negligent,” so he should be granted government immunity.
Judge Carol Kuhnke, of Washtenaw County Trial Court, denied Swager’s request for government immunity, and he appealed the decision to the Michigan Court of Appeals, which sided with Swager. The Court of Appeals said Swager’s words could not be considered the “proximate cause” of Kersch’s injuries, when Kersch’s actions and Platt’s driving were more direct contributors to the accident, in the court’s opinion.
Kersch Ray had to re-learn how to speak, walk, read, write and complete all the basic tasks needed to get through the day. He experiences short-term memory loss, but there’s one thing he knows for sure: he’s not a quitter.
The Ray family appealed that decision to the Michigan Supreme Court, which vacated the Court of Appeals decision, saying the Court of Appeals should use a different framework when considering “proximate cause.”
The case was returned to the Court of Appeals to reconsider the decision, and the court issued its new ruling on Oct. 24, saying Swager would not be granted government immunity in the case.
Because facts about the situation are in dispute, the court cannot definitively say Swager was not grossly negligent and a factor in causing Kersch’s injuries, the ruling said.
“In particular, from the record before us, it appears there are three persons whose conduct could potentially be considered a proximate cause — Swager, Ray, and Platt,” the most recent decision from the Court of Appeals states. “However, the record before us is not uncontested with regard to the facts and circumstances surrounding the actions taken by these individuals. Instead, there are numerous accounts of the accident in the record before us, and these accounts differ widely in terms of the configuration of the group of runners, precisely what Swager said, and to whom he said it.”
The case now is headed for a jury trial in Washtenaw County Trial Court to sort out the inconsistencies in accounts of what happened and determine who was responsible for Kirsch’s injuries. The trial has not yet been scheduled.
“Not only does this decision help our client, but others who have been injured and told they can’t sue because the defendant has governmental immunity,” said the Ray family’s attorney Ven Johnson, in a press release. “No one should be above the law. If a government employee causes harm to another individual they should be held responsible, just as you or I would.”
Swager’s attorney could not immediately be reached for comment. Swager is currently listed in the Chelsea High School staff directory and as the boys cross country coach.
Kersch earned a certificate of high school competition in 2016 after five years of high school, since he spent the majority of his freshman year recovering from his injuries. He took a combination of special education and general education classes and required the assistance of a one-on-one aide to help him with his schoolwork.
Kersch previously told The Ann Arbor News and MLive that knowing he inspires others gave him the motivation to re-learn the basic routines of everyday life and being a student.