I respectfully dissent from the majority opinion in both Maiden v Rozwood (Docket No. 110035) and Reno v Chung (Docket No. 107936). In Maiden, I would hold that plaintiff has presented sufficient evidence of defendants’ gross negligence to survive a motion for summary disposition. In Reno, I would hold that defendant owed a duty to plaintiff that supported a cause of action for gross negligence under the governmental immunity statute. MCL 691.1407(2)(c); MSA 3.996(107)(2)(c).
I. MAIDEN v ROZWOOD
A
In finding a lack of gross negligence on the part of defendants in this case, the majority erroneously concludes that the statement by defendant Myles was inadmissible hearsay and, therefore, may not be considered by this Court. In addition, the majority needlessly engages in a discussion concerning evidence admissibility under MCR 2.116(G)(4) and whether our court rule henceforth is to be read as mirroring Federal Rule of Civil Procedure 56(e). This Court has not had the benefit of briefing and oral argument regarding whether federal law interpreting Rule 56(e) should be applied to our Rule 2.116(G)(4). Also, the discussion is unnecessary to answer the question actually presented. Hence, it is irrelevant. See Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998); *137Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
B
Reviewing the evidence in the light most favorable to plaintiff in this case, the facts support her assertion that a jury reasonably could find that defendants’ actions constituted gross negligence.
The governmental immunity statute defines gross negligence as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(2)(c); MSA 3.996(107)(2)(c). Here, the evidence supports plaintiffs assertion that defendants held down Mr. Maiden, compressing his airway in such manner that he was unable to breathe for five to ten minutes. While the majority characterizes this as a classic case of “the tail wagging the dog,” Mr. Maiden certainly did not, to paraphrase plaintiff’s counsel, simply suffocate from choking on a cherry pit. Sometimes, the result of an action provides a characterization of the action itself.
Contrary to the majority’s assertion, plaintiff has provided a significant amount of factual support in the record to establish gross negligence on the part of the defendants. In particular, defendants’ supervisor testified at his deposition:
[TJhere are no techniques that I demonstrate whereby an individual is placing their weight on a client’s head, neck, chest, back, buttocks, legs. It’s not—we do not instruct that.
[W]hat I train are the techniques which are approved for use, they know that those are the techniques that are *138approved for use, and use of any other technique may not be considered an approved technique.
He also testified that defendants were not taught any technique that would allow them to put pressure on the head or neck. None of the methods of restraint defendants were taught would result in a person not being able to breathe for an extended period.
There is clear evidence in the record that defendants disregarded their training and used “unapproved” restraining techniques. For example, in defendant Rozwood’s written statement to the Michigan State Police, he indicated that he “sprawled myself across his upper body trying to grab his [right] arm,” and “pushed myself more on to Leith’s [left] side of back hoping my weight would assist in [at] least restricting his [left] side from twisting.” He also admitted putting “both my hands on the back of his head” and holding him down for a few seconds. He gave similar testimony at his deposition:
I put my axm, I believe on his head, to stabilize his head so he couldn’t move his head anymore to lunge, and then I would sit there and continue to talk to him, and that’s what went on.
* * *
Q. You just indicated to your neck, when you were showing what area you grabbed, were you holding his neck or head?
A. The back of his head, right over here.
Q. Right at the base of his neck?
A. At the base, bottom part of his head.
Q. And were you holding it hard enough so he could not move his head?
A. For that initial moment, yeah.
*139Defendant Troy gave similar testimony in his deposition concerning defendant Rozwood’s actions:
Q. Was [Rozwood] holding on to his arms or his legs or any other part of his body?
A. More than likely—I think he was lying across his— across the side of his back trying to hold his back down onto the floor ....
As regards his own actions, defendant Troy testified that he may have lain across the decedent’s back at some time:
Q. Did you see anybody laying across Leith’s back or neck at any time?
* * *
A. I might have been laying across his back. I’m not even sure.
In addition, defendant Myles’ statement to the police implicated himself in forcefully subduing Leith Maiden along with Paul Troy and Henry Rozwood. The majority incorrectly states that Myles’ statement was not admissible under MRE 801(d)(2)(A). This rule requires that, to be admissible, the proffered statement must be offered against a party and be the party’s own statement, either in an individual or in a representative capacity. The majority concludes that Myles’ statement to the police is not probative of Myles’ own negligence and is thus inadmissable to establish defendants’ negligence. This is incorrect.
Myles is a named defendant in this joint tortfeasor action by virtue of his direct involvement in the effort to restrain defendant. The evidence in question is directly probative of Myles’ negligence and is his own *140statement to police. The trial court may be required to give a limiting instruction to the jury regarding its use concerning the negligence of the other individual defendants. However, for purposes of summary disposition, this evidence is clearly admissible under MRE 801(d)(2)(A).
Hence, as the evidence presented illustrates, defendants violated their training procedures for subduing a patient, knowing the possible consequences of restraining a patient improperly. Those facts constitute significant evidence that they were acting with “a substantial lack of concern for whether an injury results.” MCL 691.1407(2)(c); MSA 3.996(107)(2)(c).
As plaintiff noted, Harrison, Principles of Internal Medicine (12th ed), also supports her assertion that the defendants suffocated Mr. Maiden in a manner that evidenced a substantial lack of concern for whether they injured him. In discussing the subject of Anoxic-Ischemic Encephalopathy,1 the following language pertains to the instant case:
This common and often disastrous condition is caused by a lack of oxygen to the brain, resulting from . . . respiratory failure. . . . The conditions that most often lead to anoxic-ischemic encephalopathy are ... (5) suffocation (from drowning, strangulation . . . compression of the trachea . . . ).
With severe hypoxia or anoxia [loss of oxygen] . . . consciousness is lost within seconds, but recovery will be complete if breathing, oxygenation of blood and cardiac action are restored within 3 to 5 min. If anoxia persists beyond this time, there is serious and permanent injury to the brain . . . . [Id., p 2050].[2]
*141This evidence, combined with the above testimony, indicates a degree of recklessness sufficient to allow a jury to conclude that defendants were grossly negligent, and that their actions evidence a “substantial lack of concern for whether an injury [could] result[].” MCL 691.1407(2)(c); MSA 3.996(107)(2)(c).
The majority emphasizes that the events leading up to the death were relatively chaotic. While this is certainly true, defendants were professionals who were trained to deal with chaotic situations. A jury might ultimately decide that the defendants were, in fact, justified in their actions. However, the question is not for this Court to decide. Rather it is asked only to determine whether there is sufficient evidence in the record to create a question of fact. I believe that plaintiff has produced enough evidence that reasonable minds could differ as to whether these defendants were grossly negligent.
Thus, I would affirm the judgment of the Court of Appeals and hold that plaintiff has presented sufficient evidence of defendants’ gross negligence to survive a motion for summary disposition.
*142II. RENO v CHUNG
I agree with the majority that defendant’s actions in this case clearly constituted gross negligence. However, I would hold that defendant owed a duty to plaintiff that supports a cause of action for gross negligence under the governmental immunity statute.
The majority maintains that defendant Reno owes no duty to this plaintiff. It bases that conclusion on the fact that she is statutorily required to perform autopsies and to testify in court for the prosecutor and had no “special relationship” with plaintiff. Ante at 130. It concludes that “our Legislature has defined a medical examiner’s duties. Nothing in the statutory scheme has created duties to a criminal defendant; instead, the duty is owed to the state.” Id. at 132. The majority takes great pains to point out that this opinion is not to be read as extending the public duty doctrine.
However, the majority’s pronouncements are strongly reminiscent of those in the lead opinion in White v Beasley,3 which stated that “[government employees should enjoy personal protection from tort liability based on their action in conformity with, or failure to conform to, statutes or ordinances not intended to create tort liability.” Id. at 319.
Indeed, owing a duty to the state or the prosecutor is synonymous with owing a duty to the public-at-large, as the state and prosecutor are representatives of the public. I fail to see the difference between the majority’s “traditional” duty analysis and an untoward expansion of the public duty doctrine. The opinion *143essentially grants an absolute immunity to any government employee who has statutorily enumerated duties. Indeed, such a restrictive reading of duty goes beyond the public duty doctrine, which at least provides an exception for cases where a “special relationship” exists.
The opinion acknowledges that the statutory provisions outlining the duties of medical examiners do not delineate the examiner’s duties in all cases. “There may well be instances of misconduct on the part of a medical examiner that are not implicated by the statute.” Ante at 131, n 12.
However, the opinion makes no attempt to clarify this statement and explain why the unusual actions by defendant Chung in this case would not constitute such circumstances. Not only did defendant Chung negligently perform the autopsy, she took active steps to cover up her failures when the prosecutor and defense counsel tried to verify her findings. The majority provides no indication that the Legislature intended to protect medical examiners under such circumstances.
The majority opinion misconstrues the nature of plaintiff’s claim. He does not allege that the defendant failed to perform her statutory duties; rather, he argues that she performed the autopsy in a grossly negligent manner, and that she tried to hide the evidence of it, afterward. The difference is critical. Defendant owes a duty to the state to autopsy certain decedents. Plaintiff cannot hold her liable for failing to autopsy a certain body. However, once she pulls out the scalpel and makes the first incision, a duty to another may attach depending on how she performs her work.
*144The facts support the imposition of such a duty here. Determining whether a duty exists in a particular case is a question of law to be decided by the court. Moning v Alfono, 400 Mich 425, 436-437; 254 NW2d 759 (1977). In the past, we have considered various factors to decide whether the relationship between the actor and the injured party gives rise to a legal obligation on the actor’s part. “In determining whether a duty exists, courts examine a wide variety of factors, including the relationship of the parties and the foreseeability and nature of the risk.” Schultz v Consumers Power Co, 443 Mich 445, 450; 506 NW2d 175 (1993) (citation omitted). In addition, we have examined the burden on the defendant and the nature of the risk presented. Murdock v Higgins, 454 Mich 46, 53; 559 NW2d 639 (1997).
In this case, the factors weigh in favor of finding an enforceable duty. The injury to plaintiff was actually and directly foreseeable to defendant. Before seeking defendant’s professional opinion, the prosecutor specifically identified plaintiff and his account of Robin Reno’s dying declaration. Under the circumstances, defendant was well aware that her opinion would play a major part in the decision to charge and incarcerate plaintiff. The performance of defendant’s duties clearly affected plaintiff in a manner different from the general public.
In addition, the burden on defendant to perform her duties without gross negligence was minimal. Certainly it is to be expected that a medical person employed to accurately determine the medical cause of an unexpected death should be able to accomplish that task.
*145Moreover, the risk presented by defendant’s negligence was serious. This Court does not lightly regard the responsibility of ensuring that innocent persons are not wrongfully incarcerated, even for a short time.
Other states’ case law supports a finding of duty here. For example, in Lauer v New York City,4 the court held that the plaintiff had stated valid claims for negligent and intentional infliction of emotional distress. There, a medical examiner failed to properly perform an autopsy and concealed information that caused the plaintiff to be wrongfully suspected in the death of his child. The court stated:
Defendants’ claim that no duty was owed directly to plaintiff is without merit. Even if, as defendants assert, the duty to perform the original autopsy in a responsible manner was owed solely to the public at large as a governmental function, when Lilavois later discovered his error, a duty was owed directly to plaintiff to transmit truthfully the information concerning his son’s death, especially in light of his alleged knowledge that plaintiff was suspected of the homicide. [Id.][5]
In this case, defendant not only negligently failed to correctly perform the autopsies, she refused to cooperate with the prosecutor when he attempted to substantiate her findings. She forced the prosecutor to obtain a court order to examine forensic evidence, *146causing greater delay in the innocent plaintiffs release from incarceration. The circumstances in this case justify a finding that defendant owed a duty to plaintiff.
I also disagree with the majority’s assertion that a finding of liability here will infringe the adversarial process. The majority characterizes the relationship between plaintiff and defendant as adversarial, defendant having sided with the prosecution during her court testimony at plaintiff’s preliminary examination. What the majority disregards is that, while defendant ultimately became plaintiff’s adversary in court, it was as a direct result of her gross negligence in performing the autopsy.
Moreover, defendant’s actions in attempting to cover up her incompetence take this case out of the norm. But for defendant’s original incompetence, and her subsequent attempts to hinder a discovery of the facts in the case, plaintiff and defendant would likely never have become adversaries. Holding defendant liable for her gross negligence in this instance would not prevent competent medical examiners from testifying fully. Rather, it would encourage them to take greater care in performing autopsies in the future.
Thus, I would reverse the judgment of the Court of Appeals and remand to the trial court for further proceedings consistent with this opinion.
Brickley and Cavanagh, JJ., concurred with Kelly, J.A condition caused by lack of oxygen to the brain.
The majority maintains that it would be improper to consider the evidence contained in Harrison in support of plaintiff’s argument. I am not *141convinced that a rehearing motion before the trial court should be treated as an appeal when considering the evidence to be weighed in reviewing a summary disposition ruling. Nevertheless, even accepting the correctness of the minority’s position, the passages in Harrison are still properly before this Court. The trial court had the opportunity to examine the evidence before it issued the order granting defendants’ summary disposition motion. The trial court indicated its preference in entering an order granting summary disposition in favor of defendants during the November 22, 1996, proceedings. However, no order was entered until December 20, 1996. Plaintiffs motion for rehearing, along with an accompanying brief containing the quoted passages from Harrison, was filed with the court on December 10, 1996. Thus, the trial court had an opportunity to review this evidence before issuing the summary disposition order. The evidence is properly before this Court.
453 Mich 308, 357; 552 NW2d 1 (1996).
171 Misc 2d 832, 837; 656 NY2d 93 (1997).
Although the holding in Lauer v City of New York, 258 AD2d 92; 693 NYS2d 169 (1999), was later modified, it provides guidance here. Even if the duty to perform an autopsy competently should be differentiated from the duty to correct medical records concerning the cause of death, defendant Chung could still be hable. Not only did she incorrectly perform the autopsy, she deliberately withheld the evidence of her negligence, thus causing defendant to remain wrongfully incarcerated.