Order Michigan Supreme Court
Lansing, Michigan
April 1, 2009 Marilyn Kelly,
Chief Justice
136636 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
ERIC C. FROHRIEP, and all others Diane M. Hathaway,
similarly situated, Justices
Plaintiffs-Appellants,
v SC: 136636
COA: 273426
Ingham CC: 06-000430-NZ
MICHAEL P. FLANAGAN, JEREMY M.
HUGHES, and FRANK P. CILOSKI,
Defendants-Appellees.
_________________________________________/
By order of October 27, 2008, the application for leave to appeal the April 29,
2008 judgment of the Court of Appeals was held in abeyance pending the decision in
Odom v Wayne Co (Docket No. 133433). On order of the Court, the case having been
decided on December 30, 2008, 482 Mich 459 (2008), the application is again considered
and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REVERSE in
part the judgment of the Court of Appeals, and we REMAND this case to the Ingham
Circuit Court for further proceedings in light of the Odom decision. We agree with the
Court of Appeals that the plaintiffs failed to state a claim for intentional infliction of
emotional distress, but do not agree that the plaintiffs failed to state claims for the
remaining intentional torts. The Court of Appeals erred in concluding that the burden of
proof with regard to the qualified governmental immunity applicable to the defendants
Hughes and Ciloski under Ross v Consumers Power (On Rehearing), 420 Mich 567; 363
NW2d 641 (1984), lay with the plaintiffs, rather than with the defendants. See Odom,
supra.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 1, 2009 _________________________________________
p0325 Clerk