Negligence & Intentional Tort

Issues: Governmental immunity on the gross negligence claim; Odom v. Wayne Cnty.; Ross v. Consumers Power Co. (On Rehearing); Johnson v. Recca; MCR 2.116(G)(5); MCL 691.1407(2) & (3); The Ross test; MCL 691.1407(2)(a) - (c); The proximate cause of a plaintiff's injuries; Oliver v. Smith; Governmental immunity on the intentional tort claim

Court: Michigan Court of Appeals (Unpublished)

Case Name: Garlick v. Harless

e-Journal Number: 58653

Judge(s): Per Curiam – Borrello, Wilder, and Stephens


The court affirmed the trial court's denial of summary disposition on the intentional tort claim on the basis of governmental immunity, but reversed its denial of summary disposition on the gross negligence claim, and remanded. Plaintiff sued defendant alleging intentional assault and battery and gross negligence in the performance of his duties as a police officer. The court held that the trial court erred by using the Ross test to determine whether he should have governmental immunity for the gross negligence claim. Further, under the test in MCL 691.1407(2), he was entitled to governmental immunity for that claim. "Defendant is a police officer who was 'operating in the time and spatial boundaries of his job when the incident in question occurred.'" MCL 691.1407(2)(a) and (b) were satisfied because there was no question of fact that he "believed removing plaintiff from the vehicle was within the scope of his authority as a police officer ensuring that the seized vehicle was properly transported to impound." As to MCL 691.1407(2)(c), plaintiff alleged that "defendant's actions caused her serious bodily injury and that these actions were made with substantial disregard of whether they would cause injury. But the gross negligence alleged must also be the proximate cause of plaintiff's injuries." There was "no evidence establishing that defendant's acts alone were the one most immediate, efficient, and direct cause of her alleged injury." Her refusal to comply with his "direct orders to leave the vehicle resulted in the physical contact aimed at getting her to exit the vehicle." Thus, her conduct was a contributing cause and "defendant's conduct could not be the proximate cause of injury." However, the trial court correctly used the Ross test and concluded questions of fact existed as to whether defendant should have governmental immunity for the intentional tort claim. Although the first and third prongs were established, it was not established as a matter of law that his actions were undertaken in good faith - the second prong. The court concluded that "a rational trier of fact could find that when plaintiff and defendant first stepped to the side of the road," she provided him with her identification and received permission to sit in the vehicle, and that he used excessive force in restraining her after being told of her health problems. A rational trier of fact "could also find that defendant subsequently pulled plaintiff from the vehicle and that his act was malicious and made with reckless disregard of plaintiff's rights. This analysis requires a credibility decision for the trier of fact" and thus, summary disposition was inappropriate for the intentional tort claim.


Full Text Opinion

This summary also appears under Municipal


Issues: Governmental immunity; MCL 691.1407(1) & (2); Allen v. Bloomfield Hills; Radu v. Herndon & Herndon Investigations, Inc.; The motor vehicle exception (MCL 691.1405); "Gross negligence" (MCL 691.1407(8)(a)); Tarlea v. Crabtree; Duty owed to pedestrians; White v. Beasley; Bartlett v. Melzo; "The proximate cause"; MCL 691.1407(2)(c); Robinson v. City of Detroit

Court: Michigan Court of Appeals (Unpublished)

Case Name: McKenzie v. City of Detroit

e-Journal Number: 58627

Judge(s): Per Curiam – O’Connell, Cavanagh, and Fort Hood


The court held that the testimony elicited at the bench trial adequately supported the trial court's findings of fact that the defendant-bus driver (Motley) exercised due care in the operation of his bus, and thus, was not negligent, let alone grossly negligent. The trial court also correctly found that plaintiff's injuries were not proximately caused by the collision with the bus. Thus, the court affirmed the trial court's amended judgment of no cause of action and order dismissing all claims against the defendants. Plaintiff was injured when he was struck by a bus operated by the defendant-City and driven by Motley. The facts adduced at trial established that plaintiff had parallel parked his vehicle, and he tried to merge his vehicle into traffic. "Plaintiff testified that Motley eased the bus forward until he could no longer drive his vehicle forward or backward. However, Motley testified that plaintiff pulled out in front of the bus, so he hit the brakes and the bus slid forward several feet. Plaintiff then rolled his window down and began yelling" at Motley, with plaintiff's vehicle blocking one lane of traffic. "Plaintiff exited his vehicle and stood directly in front of the bus, continuing to swear at Motley. The driver's side door to plaintiff's vehicle remained open. Plaintiff testified that Motley began to drive away and, in the process, struck him and pushed him into his car door. However, Motley testified that he was attempting to maneuver around plaintiff's vehicle in order to diffuse the situation and get away from plaintiff." The court noted that while individuals operating motor vehicles on Michigan roads "owe a duty to all pedestrians to operate their vehicles with due care," there was "no credible testimony that Motley ever breached his duty to conduct himself as 'a reasonably prudent person under the same or similar circumstances . . . .'" While the bus struck plaintiff and his car door, "the collision only occurred because Motley was attempting to go around plaintiff, who had pulled out of his parking spot into moving traffic, and then exited his vehicle to confront Motley when he was unable to successfully merge with the traffic. The trial court found plaintiff's testimony not credible because he had lied to cover up a prior accident" with his fiancée, and because "he had lied about his residence in order to try and claim first-party no-fault benefits under his sister's insurance policy."


Full Text Opinion

Issues: Premises liability; Lugo v. Ameritech Corp.; Fall into an oil change pit; "Open and obvious" doctrine; Novotney v. Burger King Corp. (On Remand); Whether "special aspects" were involved

Court: Michigan Court of Appeals (Unpublished)

Case Name: Thomas v. Pat's Pit Stop, LLC

e-Journal Number: 58642

Judge(s): Per Curiam – Owens, Markey, and Servitto


Holding that the oil change pit into which the plaintiff fell was an open and obvious condition and that no special aspects existed, the court affirmed the trial court's order granting the defendant summary disposition. Plaintiff took his car to defendant for an oil change and pulled into the service bay, over an oil change pit. Because he had a friendly relationship with the owner-manager and wished to say hello, he left his car and walked around the back of it toward the owner-manager. "As plaintiff walked along the side of his vehicle, he turned directly behind it while waving to the owner-manager, and fell into an open service pit." The court noted that "there was no dispute that plaintiff had been to the shop previously and was aware of" the pit, or that "there was a yellow three-inch metal barrier surrounding the pit. In light of these facts," the court agreed with the trial court that there was "no genuine issue of material fact whether an ordinary person could have discovered the existence of the hazard upon casual inspection." Plaintiff placed much emphasis "on the fact that he had seen the rear portion of the pit covered by a grate on prior occasions. However, simply because the pit had been covered on prior occasions does not mean that its uncovered state was unnoticeable on the date in question. Plaintiff testified at deposition that there was nothing that prevented him from looking to see that the grate was missing." Further, the test is "not how noticeable the open pit was to plaintiff but whether it was noticeable to the ordinary user upon casual inspection." As to plaintiff's special aspects argument, while he compared the pit here "with the hypothetical example in Lugo of an unguarded pit in the middle of a parking lot that is 30 feet deep," the court found that comparison failed "because, as stated in Lugo, a large pit in a parking lot would be unreasonably dangerous because it would be unexpected, 'at least absent reasonable warnings or other remedial measures being taken.'" Here, "plaintiff expected to find the pits at defendant's oil change facility," and he conceded that the depth of the pit was approximately 10 feet. Thus, the "length of the fall was not inherently dangerous," and the court concluded that "no special aspects made the risk of the fall unreasonably dangerous."


Full Text Opinion
Back to e-Journal Mobile
News/Moves | Classifieds | Contacts | Full Version

© 2014 State Bar of Michigan