If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JB, Minor, by and through his guardian CAMILLA UNPUBLISHED
BARNES, August 11, 2022
Plaintiff-Appellee,
v No. 359479
Wayne Circuit Court
DETROIT PUBLIC SCHOOL DISTRICT, LC No. 18-007404-CZ
Defendant,
and
TERRI SMITH,
Defendant-Appellant.
Before: RIORDAN, P.J., and BORRELLO and LETICA, JJ.
PER CURIAM.
Defendant Terri Smith appeals as of right the trial court’s order denying her motion for
summary disposition pursuant to MCR 2.116(C)(7) and (10). On appeal, defendant argues that
the trial court improperly denied her motion because plaintiff cannot establish that defendant was
grossly negligent, thus entitling defendant to governmental immunity as a matter of law. We
affirm.
I. BACKGROUND
This Court previously summarized the facts of this case in JB v Detroit Public Sch Dist,
unpublished per curiam opinion of the Court of Appeals, issued October 8, 2020 (Docket
No. 348916):
This case arises out of an incident at Henderson Academy in Detroit,
Michigan, in October 2017. At an unspecified time during the school day on that
date, defendant was teaching her first[-]grade class and her students were working
on a handwriting assignment. JB was being disruptive so defendant told him to
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leave her classroom and to go to the school’s main office. After telling JB to leave
her classroom, defendant and JB walked to the door connecting defendant’s
classroom to the hallway—defendant normally kept this door closed. Defendant
opened the door and, after it appeared to her that JB was through the doorway and
walking toward the main office, she turned back to the classroom as she closed the
door. Unknown to defendant, however, JB had attempted to reenter the
classroom—another teacher [Catherine Jones], who was a witness, described the
incident as JB “lunging” toward the door. While doing so, the tip of JB’s left middle
finger was caught between the door and the doorframe near the door’s hinges.
When the door closed, the tip of JB’s left middle finger was completely severed.
Defendant heard JB yell after she closed the door so she opened it and saw
JB bleeding. Defendant took JB to the school nurse and eventually plaintiff arrived
at the school and took JB to the hospital. The doctors were unable to reattach the
tip of JB’s left middle finger and he remains accordingly disfigured to this day.
Plaintiff filed a complaint on behalf of JB in August 2018 alleging assault
and battery and gross negligence. Defendant eventually moved for summary
disposition on [both] plaintiff’s claims, but the trial court denied defendant’s
motion . . . . [Id. at 1-2.]
In particular, defendant moved for summary disposition under MCR 2.116(C)(7) (claim
barred by governmental immunity) and (C)(10) (no genuine issue of material fact). Id. at 2. After
defendant appealed the trial court’s denial of this motion, this Court affirmed. Id. at 3-6. This
Court explained that summary disposition was inappropriate for plaintiff’s assault and battery
claim because, when the facts were viewed in the light most favorable to plaintiff, there existed a
genuine dispute of material fact regarding whether defendant intentionally closed the door on JB’s
finger and thus acted with the necessary good faith1 required for governmental immunity to apply.
Id. at 3-5. This Court also determined that summary disposition was generally premature because
discovery was incomplete and defendant failed to respond to all of plaintiff’s interrogatories. Id.
at 5. Thus, this Court did not address plaintiff’s gross negligence claim. See id. at 5 n 2.
Following this Court’s ruling and the close of discovery, defendant again moved for
summary disposition pursuant to MCR 2.116(C)(7) and (10), this time solely on plaintiff’s gross
negligence claim. The trial court dispensed with oral argument and entered an order denying
defendant’s motion based on the parties’ filings alone, though it provided no supporting analysis
for its decision. This appeal followed.
II. STANDARD OF REVIEW
This Court reviews a trial court’s decision on a motion for summary disposition de novo.
El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). “When a claim
1
This Court explained that good faith is lacking when there exists “malicious intent, capricious
action or corrupt conduct[,] or willful and corrupt misconduct.” Id. at 4 (quotation marks and
citation omitted).
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is barred by governmental immunity, summary disposition is appropriate under
MCR 2.116(C)(7).” Petipren v Jaskowski, 494 Mich 190, 201; 833 NW2d 247 (2013) (citation
omitted). “Under MCR 2.116(C)(7), the moving party has the option of supporting its motion with
affidavits, depositions, admissions, or other documentary evidence provided that the ‘substance or
content’ of the supporting proofs is admissible as evidence.” Id. (citation omitted). When
reviewing a motion under MCR 2.116(C)(7), this Court must “accept the factual contents of the
complaint as true unless contradicted by the movant’s documentation. When the material facts are
not in dispute, this Court may decide whether a plaintiff’s claim is barred by immunity as a matter
of law.” Id. (citations omitted). “But when a relevant factual dispute does exist, summary
disposition is not appropriate.” Moraccini v Sterling Hts, 296 Mich App 387, 391; 822 NW2d 799
(2012) (citation omitted).
Alternatively, a motion for summary disposition under MCR 2.116(C)(10) “tests the
factual sufficiency of a claim.” El-Khalil, 504 Mich at 160. Courts must consider all evidence in
a light most favorable to the nonmoving party. Id. The motion may only be granted when there
is no genuine issue of material fact. Id. “A genuine issue of material fact exists when the record
leaves open an issue upon which reasonable minds might differ.” Yang v Everest Nat’l Ins Co,
507 Mich 314, 320; 968 NW2d 390 (2021) (quotation marks and citation omitted). A moving
party satisfies its burden under MCR 2.116(C)(10) by either “submit[ting] affirmative evidence
that negates an essential element of the nonmoving party’s claim[] or by demonstrat[ing] to the
court that the nonmoving party’s evidence is insufficient to establish an essential element of the
nonmoving party’s claim.” Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 7; 890 NW2d 344 (2016)
(quotation marks and citation omitted). Once this initial burden is met, the nonmovant must “set
forth specific facts showing that a genuine issue of material fact exists” and “may not rely on mere
allegations or denials in the pleadings.” Id. (citation omitted). “If the opposing party fails to
present documentary evidence establishing the existence of a material factual dispute, the motion
is properly granted.” Id. (citation omitted). Issues of law are also reviewed de novo. Slaughter v
Blarney Castle Oil Co, 281 Mich App 474, 477; 760 NW2d 287 (2008).
Given the similarity of defendant’s motions for summary disposition, resolution of
defendant’s appeal ultimately turns on the single issue of whether a question of fact exists
concerning defendant’s allegedly grossly negligent conduct and, in turn, her entitlement to
governmental immunity as a matter of law.
III. ANALYSIS
Defendant argues that the trial court improperly denied her motion for summary disposition
on plaintiff’s gross negligence claim. In defendant’s view, summary disposition was warranted
because plaintiff’s failure to show gross negligence entitled defendant to governmental immunity
as a matter of law. We disagree.
“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, and their conduct does
not amount to gross negligence that is the proximate cause of the injury or damage.” Oliver v
Smith, 290 Mich App 678, 685; 810 NW2d 57 (2010) (emphasis added). See also
MCL 691.1407(2). “For the purpose of governmental immunity, ‘gross negligence’ by an
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employee involves ‘conduct so reckless as to demonstrate a substantial lack of concern for whether
an injury results.’ ” Id. (quoting MCL 691.1407(7)(a); alternate citation omitted). “It has been
characterized as a willful disregard of safety measures and a singular disregard for substantial
risks.” Id. (citation omitted). “If reasonable jurors could honestly reach different conclusions
regarding whether conduct constitutes gross negligence, the issue is a factual question for the jury.
However, if reasonable minds could not differ, the issue may be determined by a motion for
summary disposition.” Id. (citation omitted). Accordingly, the sole issue in this appeal is whether
there exists sufficient evidence to create a question of fact concerning whether defendant acted
with gross negligence, thus making the issue of governmental immunity inappropriate for
resolution via summary disposition.
Defendant contends that plaintiff cannot establish the necessary gross negligence to defeat
her claim of governmental immunity. Defendant asserts that, given both her own and Catherine
Jones’s testimony that JB was outside the classroom before defendant closed the door, defendant
could not have been so reckless as to demonstrate a substantial lack of concern for whether an
injury would result. Defendant also notes Jones’s testimony that JB turned around and lunged for
the door as it was closing.
According to defendant, she simply sent JB to the office for his disruptive behavior and
closed, but did not slam, the door; and even if she, in hindsight, could have been more careful
when shutting the door, no particular circumstances existed to indicate that any additional
precautions were necessary at that time. Given these facts, defendant claims she did not act
recklessly, was not grossly negligent, and thus was entitled to governmental immunity as a matter
of law. Notably, however, defendant does not address plaintiff’s affidavit or testimony describing
JB’s statements at the hospital that defendant was angry with him and intentionally slammed the
door to cause his injury.2
2
Plaintiff’s response argues, in part, that her affidavit (and presumably her deposition testimony,
as well) describing JB’s statements from the hospital (which was relied on by this Court in
resolving defendant’s prior appeal) are admissible under two hearsay exceptions—specifically,
MRE 803(2) (excited utterance) and (4) (statements made for purposes of medical treatment or
diagnosis). But while courts may only review “substantively admissible evidence” in deciding a
motion for summary disposition, see Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817
(1999), this point on admissibility was never explicitly raised or addressed below, nor does
defendant challenge the admissibility of plaintiff’s statements as an issue in the current appeal.
See Mich Ed Ass’n v Secretary of State, 280 Mich App 477, 488; 761 NW2d 234 (2008), aff’d 489
Mich 194 (2011) (“We are not obligated to consider issues not properly raised and preserved or
first raised on appeal, . . . and we generally do not consider any issues not set forth in the statement
of questions presented . . . .”). Accordingly, we follow this Court’s analysis from defendant’s
earlier appeal, which involved the same unchallenged hearsay statements, and merely assume their
admissibility for purposes of this appeal. See JB, unpub op at 4 n 1. As this Court previously
stated: “Should there be an objection to such statements at trial, the trial court will have to make
an independent determination as to the statements’ admissibility . . . .”
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We conclude that the trial court properly denied defendant’s motion for summary
disposition on plaintiff’s gross negligence claim because a question of fact does exist regarding
whether defendant acted with gross negligence, as defined under MCL 691.1407(7)(a). Where a
question of fact exists concerning whether defendant acted with gross negligence, her claim of
governmental immunity is inappropriate for resolution on a motion for summary disposition. See
Oliver, 290 Mich App at 685.
Defendant is at least correct that some of the available evidence supports that JB’s injury
was accidental and not the result of any sufficiently reckless conduct by her. Jones, the other
teacher who witnessed JB’s injury from the hallway, testified that JB’s injury was merely a “freak
accident.” She observed no indication that defendant was frustrated when instructing JB to go to
the office and described defendant’s voice as normal. Jones also stated that defendant did not slam
the door, but closed the door normally as she was turning away from JB and back toward the
classroom. Jones perceived that JB’s injury occurred as he “lunged” back toward the door while
it closed. And although defendant herself acknowledged that JB’s disruptive behavior was
somewhat frustrating, she confirmed not slamming the door. Defendant also testified that she
simply closed the door as she saw JB heading towards the office, but that JB’s finger was caught
when he attempted to reenter the classroom; defendant apparently did not see JB trying to reenter,
however, and thus described the incident as purely accidental.
But in plaintiff’s deposition testimony, plaintiff opined that defendant intentionally caused
JB’s injury because JB told her so when they were at the hospital.3 Plaintiff stated, “[JB] said that
[defendant] was frustrated with him for not being able to fold the paper in class. [According to
JB, defendant] walked him outside the door, he tried to get [back] in, [then] she got mad and
slammed the door on his finger.” Plaintiff made similar statements in her affidavit appended to
her response to defendant’s motion.
Viewing this evidence in a light most favorable to plaintiff, we conclude that a material
factual dispute does exist as to whether defendant’s conduct was so reckless as to demonstrate a
substantial lack of concern for whether an injury would result. See Oliver, 290 Mich App at 685,
quoting MCL 691.1407(7)(a). In particular, defendant’s own admission that she was frustrated
with JB’s disruptions and noncompliance, in conjunction with JB’s statements that she was angry
and intentionally slammed the door, could allow reasonable jurors to conclude that defendant acted
with gross negligence (and, as this Court previously ruled, even with malice). And even if
defendant did not necessarily intend JB’s injury, these facts potentially indicate that defendant, in
3
At his own deposition, JB was generally hesitant to answer questions and could not recall much
of what actually caused his injury or even the incident itself. When asked whether defendant had
anything to do with his injury, JB merely shrugged and indicated that he did not know. Yet, he
verbalized that he did not think defendant would hurt him on purpose.
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her frustration, disregarded substantial risks by immediately closing the door with such force to
sever the tip of JB’s finger when, for example, she could have waited for JB to be a sufficient
distance away before closing the door.
Affirmed.
/s/ Michael J. Riordan
/s/ Stephen L. Borrello
/s/ Anica Letica
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