STATE OF MICHIGAN COURT OF APPEALS

STATE OF MICHIGAN COURT OF APPEALS RHONDA RENEE GREEN, Plaintiff-Appellee, UNPUBLISHED October 1, 2009 v No. 285882 Washtenaw Circuit Court OFFICER JILL KULHANEK, OFFICER LC No. 06-001404-NZ ANNETTE M. COPPOCK, OFFICER BRENT YUCHASZ, OFFICER LEON FORYSTEK, SERGEANT AMY F. WALKER, Defendants-Appellants, OFFICER MICHAEL ARNTZ SERGEANT STACY CAIN, Defendants. RHONDA RENEE GREEN, Plaintiff-Appellee/Cross-Appellee, v No. 285918 Washtenaw Circuit Court OFFICER MICHAEL ARNTZ SERGEANT LC No. 06-1404-NZ STACY CAIN, Defendants-Appellants, SERGEANT AMY F. WALKER, Defendant-Cross-Appellant, -1-

OFFICER JILL KULHANEK, OFFICER ANNETTE M. COPPOCK, OFFICER BRENT YUCHASZ, OFFICER LEON FORYSTEK, Defendants. Before: Meter, P.J., Murray Beckering, JJ. PER CURIAM. Defendants appeal as of right from the circuit court s order denying in part their motions for summary disposition under MCR 2.116(C)(7) MCR 2.116(C)(10). We reverse rem for entry of an order granting summary disposition on all counts. Plaintiff brought the original four-count complaint alleging assault battery, intentional infliction of emotional distress, false arrest imprisonment, gross negligence against defendants, members of the Ypsilanti Police Department (YPD) Eastern Michigan University (EMU) Police, based on an incident occurring on December 29, 2004, which resulted in her arrest. The circuit court granted summary disposition of plaintiff s claims of intentional infliction of emotional distress false arrest imprisonment. The court found, the record demonstrated, that YPD EMU officers were justified in arresting plaintiff that plaintiff resisted her arrest. Defendants argue that the court should have granted summary disposition with regards to the remaining two counts. We review de novo a trial court s decision concerning a motion for summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). In determining whether summary disposition under MCR 2.116(C)(7) was appropriate, a court considers all documentary evidence submitted by the parties, accepting as true all the contents of the complaint unless affidavits or other appropriate documents specifically contradict them. See Patterson v Kleiman, 447 Mich 429, 433-435; 526 NW2d 879 (1994). Summary disposition under MCR 2.116(C)(7) may be granted when immunity granted by law bars a claim. A motion to dismiss under MCR 2.116(C)(10) tests the factual support of a claim may be granted where there is no genuine issue regarding any material fact. Nichols v Clare Comm Hosp, 190 Mich App 679, 681; 476 NW2d 493 (1991). The court must review the parties affidavits, pleadings, depositions, admissions, other evidence submitted... in the light most favorable to the party opposing the motion. Maiden, supra at 120. Under MCR 2.116(G)(4), the party opposing summary disposition must respond with evidentiary support demonstrating the existence of a factual dispute rather than merely relying on allegations or denials in the pleadings. McCart v J Walter Thompson USA, Inc, 437 Mich 109, 115; 469 NW2d 284 (1991). The circuit court erred by not granting defendants motions for summary disposition of plaintiff s gross negligence claim under MCR 2.116(C)(7), because there was no evidence identifying any action by any defendant constituting gross negligence that was the proximate cause of injury or damage. Governmental immunity from negligence claims applies to officers of a governmental agency when they are acting, or reasonably believe they are acting, within the scope of their employment, they are exercising or discharging a governmental function, their -2-

conduct does not amount to gross negligence that is the proximate cause of injury or damage. MCL 691.1407(2). MCL 691.1407(2) does not create an independent cause of action called gross negligence. Cummins v Robinson Twp, Mich App ; NW2d ; 2009 WL 1363409 (2009). However, assuming plaintiff was alleging a negligence claim in the gross negligence count of her complaint, she failed to demonstrate negligence consisting of: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, (4) damages. Cummins, supra; see also Henry v Dow Chemical Co, 473 Mich 63, 71-72; 701 NW2d 684 (2005). Plaintiff s inability to establish specific actions done by the named defendants makes it impossible to demonstrate that they breached any duty, in order to demonstrate negligence on their part. Even if plaintiff could demonstrate that defendants had a duty towards her that they breached that duty, to permit recovery their conduct would still have to amount to gross negligence that was the proximate cause of injury or damage. Gross negligence is defined under MCL 691.1407(7)(a) as conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results. Proximate cause in the context of MCL 691.1407(2) refers to the cause that is the one most immediate, efficient, direct cause preceding an injury. Robinson v City of Detroit, 462 Mich 439, 459; 613 NW2d 307 (2000). Even when taking the evidence in the light most favorable to the plaintiff, there was simply no evidence implicating the named defendants. The only actions clearly attributable to any of the defendants were those detailed in the police reports, none of which amounts to gross negligence. Defendants should have been afforded governmental immunity under MCL 691.1407(2) as to plaintiff s claim of gross negligence. The circuit court therefore erred by not granting defendants motion for summary disposition of plaintiff s gross negligence claim under MCR 2.116(C)(7). The circuit court also erred by denying defendants motion for summary disposition of plaintiff s assault battery claim under MCR 2.116(C)(7). MCL 691.1407(3) clearly states that MCL 691.1407(2) does not alter the law of intentional torts as it existed prior to July 7, 1986. Recently, the Michigan Supreme Court, in Odom v Wayne County, 482 Mich 459, 480; 760 NW2d 217 (2008), indicated the proper method for determining whether immunity should apply to intentional torts (such as assault battery). See also, generally, Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). The Court stated that employees enjoy a qualified right to immunity if (1) the employee s challenged acts were undertaken during the course of employment the employee was acting, or reasonably believed he was acting, within the scope of his authority, (2) the acts were undertaken in good faith, or not with malice, (3) the acts were discretionary, rather than ministerial, in nature. Id. Here, defendants were clearly acting during the course of their employment within the scope of their authority. The circuit court found that they had cause to arrest plaintiff, plaintiff acknowledges that all defendants were acting as officers of their respective agencies. The record also fails to reveal any evidence that their actions were not in good faith or were carried out with malice. Officers were faced with a large, unruly crowd, plaintiff resisted arrest. The only actions attributable to the officers on the record were clearly undertaken in good faith to effectuate a lawful arrest. Their actions, in deciding how to respond to the large crowd -3-

effectuate the lawful arrest of plaintiff as she resisted, were clearly discretionary. The officers reports clearly demonstrated they met the stard outlined in Odom, supra at 480. Therefore, the circuit court erred by not granting defendants motion for summary disposition under MCR 2.116(C)(7) regarding plaintiff s assault battery claim. Lastly, the circuit court erred by not granting the EMU defendants motion for summary disposition under MCR 2.116(C)(10) 1 regarding plaintiff s claim of assault battery. Under MCR 2.116(G)(4), the party opposing a summary disposition motion brought under MCR 2.116(C)(10) must respond with affidavits or other evidentiary support demonstrating the existence of a factual dispute, rather than merely relying on allegations or denials in the pleadings. For plaintiff to meet her burden of establishing a genuine issue of material fact, she must offer more than just conjecture speculation. McCune v Meijer, Inc, 156 Mich App 561, 562; 402 NW2d 6 (1986). Plaintiff failed to demonstrate that a factual dispute actually existed. Even taking the evidence in the light most favorable to plaintiff, plaintiff is still unable to identify any of the defendants or their actions. The conduct of the officers depicted in their reports did not amount to gross negligence, they acted reasonably under the circumstances to effectuate a lawful arrest. Plaintiff s claim that she was continually beaten for fifteen minutes amounts to nothing more than conjecture speculation when she cannot offer further evidence attributing specific acts to the named defendants. The affidavit produced also fails to raise a genuine issue of material fact. The circuit court therefore erred in denying the EMU defendants motion for summary disposition under MCR 2.116(C)(10). Reversed remed for entry of an order granting defendants motions for summary disposition with regard to all counts of plaintiff s complaint. We do not retain jurisdiction. /s/ Patrick M. Meter /s/ Christopher M. Murray 1 The EMU defendants specifically refer to MCR 2.116(C)(10) in their appellate brief. -4-

STATE OF MICHIGAN COURT OF APPEALS RHONDA RENEE GREEN, Plaintiff-Appellee, UNPUBLISHED October 1, 2009 v No. 285882 Washtenaw Circuit Court OFFICER JILL KULHANEK, OFFICER LC No. 06-001404-NZ ANNETTE M. COPPOCK, OFFICER BRENT YUCHASZ, OFFICER LEON FORYSTEK, SERGEANT AMY F. WALKER, Defendants-Appellants, OFFICER MICHAEL ARNTZ SERGEANT STACY CAIN, Defendants. RHONDA RENEE GREEN, Plaintiff-Appellee/Cross-Appellee, v No. 285918 Washtenaw Circuit Court OFFICER MICHAEL ARNTZ SERGEANT LC No. 06-001404-NZ STACY CAIN, Defendants-Appellants, SERGEANT AMY F. WALKER, Defendant-Cross-Appellant, -1-

OFFICER JILL KULHANEK, OFFICER ANNETTE M. COPPOCK, OFFICER BRENT YUCHASZ, OFFICER LEON FORYSTEK, Defendants. Before: Meter, P.J., Murray Beckering, JJ. BECKERING, J. (concurring). I concur in the result only in this matter. This lawsuit arises out of an incident that occurred outside of a Buffalo Wild Wings restaurant in Ypsilanti, Michigan at approximately 12:45 a.m. on December 29, 2004, resulted in plaintiff Rhonda Renee Green s arrest. Plaintiff was arrested while embroiled in a fight with her cousin over the ownership of a coat that her cousin was wearing. Due to an estimated 150 or more people in the parking lot at the time of the fight concerns regarding crowd control, police officers were dispatched to the scene from the Ypsilanti Police Department, Eastern Michigan University s police force, Ann Arbor Police Department, Pittsfield Police Department, Washtenaw County Sheriff s Department. 1 As stated by the majority, the trial court found, the record demonstrates, that police officers were justified in arresting plaintiff plaintiff resisted arrest. Two years after the incident, plaintiff filed this lawsuit against defendants, two of whom are officers in Eastern Michigan University s police force five of whom are officers in the Ypsilanti Police Department. In her complaint, plaintiff alleged four counts against defendants arising out of the events that transpired during her arrest: 1) assault battery; 2) intentional infliction of emotional distress; 3) false arrest imprisonment; 4) gross negligence. Defendants filed motions for summary disposition under MCR 2.116(C)(7) (C)(10). 2 In a May 20, 2008 order, the trial court denied summary disposition under MCR 2.116(C)(7). The court granted summary disposition under MCR 2.116(C)(10), but only with respect to plaintiff s claims of false arrest imprisonment intentional infliction of emotional distress. Defendants now appeal as of right the trial court s denial of their motions for summary disposition under both MCR 2.116(C)(7) (C)(10), with respect to plaintiff s remaining claims of gross negligence assault battery. Plaintiff has not filed a brief on appeal. 1 Although plaintiff did not file a brief on appeal, she submitted portions of the police reports generated by various responding officers to the scene asserted that the reports were admissible under MRE 803(6) (8) in opposing defendants motions for summary disposition at the trial court level. 2 The Ypsilanti police officers also moved for summary disposition under MCR 2.116(C)(8), but this issue was not raised by the parties on appeal, is therefore considered aboned. Steward v Panek, 251 Mich App 546, 558; 652 NW2d 232 (2002). -2-

We review de novo a trial court s determination regarding a motion for summary disposition. Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008). In a motion brought under MCR 2.116(C)(7), the moving party is entitled to summary disposition if the plaintiff s claims are barred because of immunity granted by law.... Id. (quotation marks citation omitted). The moving party may support its motion with affidavits, depositions, admissions, or other documentary evidence, the substance of which would be admissible at trial. Id. (citation omitted). The contents of a complaint are accepted as true unless contradicted by the evidence provided. Id. In a motion brought under MCR 2.116(C)(10), we review the pleadings, admissions, other evidence submitted by the parties in a light most favorable to the nonmoving party, summary disposition is only appropriate when there are no genuine issues of material fact the moving party is entitled to judgment as a matter of law. Id. at 466-467. I respectfully disagree with the majority s conclusion that the trial court erred by not granting summary disposition of plaintiff s gross negligence assault battery claims under MCR 2.116(C)(7). Specifically, I take issue with the assertion that it is plaintiff s burden to plead prove facts in avoidance of governmental immunity. In Odom, supra at 478-479, our Supreme Court clarified the burden of proof with regard to governmental immunity, stating: A plaintiff filing suit against a governmental agency must initially plead his claims in avoidance of governmental immunity. Placing this burden on the plaintiff relieves the government of the expense of discovery trial in many cases. Over time, governmental immunity for individuals evolved into an affirmative defense under the common law thus was differentiated from the immunity given to the sovereign. In the [governmental tort liability act], the Legislature has not abrogated the common law by shifting the burden of proof with regard to governmental immunity for individuals. Accordingly, the burden continues to fall on the governmental employee to raise prove his entitlement to immunity as an affirmative defense. [Footnotes omitted emphasis added.] Defendants are individuals, not governmental agencies. Consequently, it is not plaintiff s burden to plead prove that her claims against defendants are excepted from governmental immunity. Rather, in order to be entitled to summary disposition under MCR 2.116(C)(7), defendants have the burden of proving that they are entitled to governmental immunity as a matter of law. 3 Id. at 466, 479. The Supreme Court in Odom set forth the following steps that a court must follow when a defendant raises the affirmative defense of individual governmental immunity: 3 Defendants timely raised governmental immunity as an affirmative defense in their first responsive pleadings, as well as in their motions for summary disposition under MCR 2.116(C)(7). -3-

(1) Determine whether the individual is a judge, a legislator, or the highestranking appointed executive official at any level of government who is entitled to absolute immunity under MCL 691.1407(5). (2) If the individual is a lower-ranking governmental employee or official, determine whether the plaintiff pleaded an intentional or a negligent tort. (3) If the plaintiff pleaded a negligent tort, proceed under MCL 691.1407(2) determine if the individual caused an injury or damage while acting in the course of employment or service or on behalf of his governmental employer whether: (a) the individual was acting or reasonably believed that he was acting within the scope of his authority, (b) the governmental agency was engaged in the exercise or discharge of a governmental function, (c) the individual s conduct amounted to gross negligence that was the proximate cause of the injury or damage. (4) If the plaintiff pleaded an intentional tort, determine whether the defendant established that he is entitled to individual governmental immunity under the Ross [v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984)] test by showing the following: (a) The acts were undertaken during the course of employment the employee was acting, or reasonably believed that he was acting, within the scope of his authority, (b) the acts were undertaken in good faith, or were not undertaken with malice, 480.] (c) the acts were discretionary, as opposed to ministerial. [Id. at 479- With respect to plaintiff s gross negligence claim, a negligent tort, the trial court applied the proper test set forth in MCL 691.1407(2) in assessing defendants entitlement to summary disposition on the basis of governmental immunity under MCR 2.116(C)(7). The trial court viewed the evidence in the light most favorable to plaintiff as the nonmoving party, determined that there are genuine issues of material fact in dispute such that summary disposition is not appropriate. As was clarified in Odom, however, in order to determine whether defendants are entitled to summary disposition under MCR 2.116(C)(7), the proper inquiry is whether defendants have met their burden of proof in establishing that they are entitled to governmental immunity as a matter of law. See id. at 466, 479. Although rendering a different outcome than the trial court, the majority likewise evaluates governmental immunity as if plaintiff bears the burden of proof. In accord with the Supreme Court s ruling in Odom, I would rem the case to the trial court for a determination whether defendants have met their burden of proof in -4-

establishing entitlement to governmental immunity under MCR 2.116(C)(7). However, because I agree with the majority that plaintiff has failed to establish a genuine issue of material fact with regard to her underlying gross negligence claim, the issue is moot. With respect to plaintiff s assault battery claim, an intentional tort, the trial court should have determined whether defendants established that they are entitled to governmental immunity under the Ross test. 4 To be entitled to governmental immunity, defendants must establish that they were acting in the course of their employment at least reasonably believed they were acting within the scope of their authority, that their actions were discretionary in nature, that they acted in good faith or without malice. The good-faith element of the Ross test is subjective in nature. Id. at 481-482. In evaluating defendants motion for summary disposition under MCR 2.116(C)(7), with respect to plaintiff s assault battery claim, the trial court erroneously applied the test set forth in MCL 691.1407(2). While I would otherwise rem the case for the trial court s determination whether defendants successfully established entitlement to immunity under the Ross test, a rem is unnecessary because I agree with the majority that plaintiff has failed to establish a genuine issue of material fact with regard to her underlying assault battery claim. Review of the record reveals that plaintiff has produced no admissible evidence identifying any action by any named defendant constituting gross negligence 5 that was the proximate cause of her injury or damages. Further, review of the evidence in a light most favorable to plaintiff reveals that no reasonable juror could conclude that any of the named defendants engaged in an assault battery 6 wherein the force used was not objectively 4 It is understable that the trial court did not apply the Ross test considering that the Supreme Court had not yet issued Odom. In Odom, the Supreme Court indicated that it had initially denied the defendant s application for leave to appeal, but upon reconsideration, determined that this area of the law had fallen into disarray required clarification. Odom, supra at 466. 5 While I agree with the majority that the governmental immunity statute does not itself create a cause of action called gross negligence, Cummins v Robinson Twp, 283 Mich App 677, 692; 770 NW2d 421 (2009), a defendant can nevertheless be held liable for acts of gross negligence (government employees are entitled to qualified immunity against ordinary negligence) if the plaintiff establishes that the defendant owed a duty, breached that duty, through gross negligence proximately caused the plaintiff s injury or damages, id. at 692, 694. 6 According to this Court in VanVorous v Burmeister, 262 Mich App 467, 482-483; 687 NW2d 132 (2004): To recover civil damages for assault, plaintiff must show an intentional unlawful offer of corporal injury to another person by force, or force unlawfully directed toward the person of another, under circumstances which create a well-founded apprehension of imminent contact, coupled with the apparent present ability to accomplish the contact. To recover for battery, plaintiff must demonstrate a wilful harmful or offensive touching of another person which results from an act intended to cause such a contact. -5- (continued )

reasonable to effectuate a lawful arrest under the circumstances set forth in the documents deemed admissible by plaintiff. Neither plaintiff nor any of her proposed witnesses could identify by name or adequate description any officer who allegedly assaulted her, the record indicates that plaintiff s injuries were likely caused by her own admitted efforts to thwart officers attempts to restrain her. 7 Plaintiff admitted at her deposition that she attempted to avoid being restrained by squirming on her stomach while prone on the pavement, after being involuntarily placed into the police cruiser, she kicked the cruiser s windows, continued to do so even after being maced. As such, I would hold that summary disposition should be granted under MCR 2.116(C)(10) as to plaintiff s remaining claims. /s/ Jane M. Beckering ( continued) But again, government actors may find it necessary are permitted to act in ways that would, under different circumstances, subject them to liability for an intentional tort. To find for plaintiff on these claims, our courts would have to determine that the officers actions were not justified because they were not objectively reasonable under the circumstances. [Citations omitted.] 7 Although plaintiff claims in her complaint that she was thrown to the ground, face first, then kicked, punched /or pepper-sprayed while hcuffed compliant, her allegations are contradicted by the record evidence. -6-

STATE OF MICHIGAN COURT OF APPEALS RHONDA RENEE GREEN, Plaintiff-Appellee, UNPUBLISHED October 1, 2009 v No. 285882 Washtenaw Circuit Court OFFICER JILL KULHANEK, OFFICER LC No. 06-001404-NZ ANNETTE M. COPPOCK, OFFICER BRENT YUCHASZ, OFFICER LEON FORYSTEK, SERGEANT AMY F. WALKER, Defendants-Appellants, OFFICER MICHAEL ARNTZ SERGEANT STACY CAIN, Defendants. RHONDA RENEE GREEN, Plaintiff-Appellee/Cross-Appellee, v No. 285918 Washtenaw Circuit Court OFFICER MICHAEL ARNTZ SERGEANT LC No. 06-001404-NZ STACY CAIN, Defendants-Appellants, SERGEANT AMY F. WALKER, Defendant-Cross-Appellant, -1-

OFFICER JILL KULHANEK, OFFICER ANNETTE M. COPPOCK, OFFICER BRENT YUCHASZ, OFFICER LEON FORYSTEK, Defendants. Before: Meter, P.J., Murray Beckering, JJ. MURRAY, J. (concurring). I fully concur in the lead opinion s analysis conclusion that reverses the trial court s order which denied defendants motion for summary disposition. I write separately to address Judge Beckering s concurrence. In particular, Judge Beckering takes the position that the majority opinion evaluates governmental immunity as if plaintiff bears the burden of proof which she (correctly) opines would be contrary to the mates of Odom v Wayne Co, 482 Mich 459, 479; 760 NW2d 217 (2008). However, the lead opinion does not in any manner place on plaintiff the burden of proving that defendants actions were excepted from governmental immunity. Instead, the lead opinion correctly concludes that plaintiff failed to submit any evidence to contradict defendants documented assertion that there is no evidence that these defendants engaged in conduct that could amount to statutory gross negligence. A conclusion that the plaintiff has failed to bring forward sufficient evidence to rebut or dispute defendants properly supported motion for summary disposition is a far cry from placing the burden of proof on plaintiff that an exception exists to governmental immunity. The lead opinion s resolution of these issues was procedurally substantively proper, that is why I fully join in that opinion. /s/ Christopher M. Murray -2-