Dispute over discipline issued by a medical board; Absolute judicial immunity; Diehl v. Danuloff; Forrester v. White; Bradley v. Fisher; Butz v. Economou; Quasi-judicial immunity; Maiden v. Rozwood; Denhof v. Challa; “Quasi-judicial body”; Midland Cogeneration Venture, LP v. Nafalty; A “contested case”; MCL 24.203(3); Principle that an administrative law judge (ALJ) must act in an impartial manner & is not the final arbiter; MCL 24.279 & 24.281(1); Principle that the disciplinary subcommittee issues the final order & may adopt, modify, or reject the ALJ’s opinion or proposal for decision; MI Admin Code, R 338.1630(5); Principle that this final decision must be made “within a reasonable time” & supported by “competent, material and substantial evidence”; MCL 24.285; Extension of quasi-judicial immunity to a medical licensing board; Watts v. Burkhardt (6th Cir.); Buckwalter v. Nevada Bd. of Med. Exam’rs (9th Cir.); Ostrzenski v. Seigel (4th Cir.); Principle that adjudication within a federal administrative agency shares enough of the characteristics of the judicial process to warrant immunity; Public policy impact; Bettencourt v. Board of Registration in Medicine (1st Cir.); Vosburg v. Department of Soc. Servs. (4th Cir.); Judicial review; Const. 1963, art. 6, § 28; MCL 24.301; Right to an unbiased arbiter; R 338.1604; Replacement of board members; R 338.1605(3); R 338.1604; Disclosure requirements; MCL 333.16216a; Denial of immunity based on a conflict of interest; North Carolina State Bd. of Dental Exam’rs v. Federal Trade Comm’n; Immunity for anticompetitive conduct by states acting in their sovereign capacity; Parker v. Brown; Admonishment of board members; “Public officers”; MCL 15.341(c); MCL 15.342(3); Complaint alleging unethical conduct; State Board of Ethics Rules of Practice & Procedure, R 15.5(1)

Holding that the Disciplinary Subcommittee of the Michigan Board of Chiropractic (MBC) was cloaked with absolute quasi-judicial immunity, the court reversed the trial court’s denial of the defendants-board members’ motion for summary disposition in the plaintiff-chiropractor’s action alleging self-interest and improper discipline. Plaintiff was disciplined by the subcommittee after he conducted an independent chiropractic exam of a patient and advised an insurer that defendant-Health Quest’s chiropractic services were no longer necessary. Defendant-Cogan, who chaired the MBC, was also part owner of Health Quest. In that case, the court reversed the subcommittee, finding its order lacked legal and factual merit. Plaintiff then sued defendants for malicious prosecution, tortious interference with his advantageous business relationships, abuse of process, and violations of his due process and equal protection rights. The trial court granted defendants’ motion as to the constitutional and malicious prosecution claims, but denied it as to the claims for abuse of process and tortious interference. On appeal, the court agreed with defendants that they were entitled to quasi-judicial immunity because in their board positions, they acted as quasi-judicial adjudicators. “That the disciplinary subcommittee acts as a judge is supported by ‘the job-related duties, roles, or functions’ of the subcommittee’s members.” In addition, “quasi-judicial immunity is frequently extended to a medical licensing board charged with hearing license suspension and revocation matters.” Further, “[c]loaking the disciplinary subcommittee with absolute quasi-judicial immunity also serves” public policy, and the process “bears ‘adequate procedural safeguards’ to merit absolute immunity.” Although “the safeguards against biased individuals deciding a disciplinary matter did not work” here, immunity “does not fall away even when the judicial or quasi-judicial official acts ‘maliciously or corruptly.’” However, the court noted that plaintiff is not without recourse as he could have filed a complaint with the State Board of Ethics.

Promissory estoppel; Crown Tech. Park v. D & N Bank, FSB; Principle that courts will only impose contracts in equity if there is no express contract governing the matter; Martin v. East Lansing Sch. Dist.; Effect of integration clauses; UAW-GM Human Res. Ctr. v. KSL Recreation Group; Doctrine of partial performance; Guzorek v. Williams; Fraud in the inducement; Samuel D Begola Servs., Inc. v. Wild Bros.; Belle Isle Grill Corp. v. Detroit; Unjust enrichment; Barber v. SMH (US) Inc.; Principle that a contract cannot be implied in law while an express contract covering the same subject matter is in force between the parties; HJ Tucker & Assoc., Inc. v. Allied Chucker & Eng’g Co.; Sua sponte removal of an attorney of record for purposes of the trial because he was also a witness; MRPC 3.7(a); Smith v. Arc-Mation, Inc.; Kubiak v. Hurr; A citizen’s constitutional right to appear pro per; Const. 1963, art. 1, § 13; Whether any distinction is made between lawyers & other citizens in this regard; Motion to file a second amended complaint; MCR 2.118(A)(2); Boylan v. Fifty Eight LLC; Abandoning an issue due to inadequate briefing; Thompson v. Thompson

The court held that the trial court did not err in refusing to grant equitable relief based on promissory estoppel given that there was an express contract governing the matter. Further, the plaintiff was properly granted summary disposition on defendants’ fraud in the inducement and unjust enrichment claims. Assuming that the trial court abused its discretion in refusing to allow the individual defendant (an attorney) to try the case, the court concluded that any error was harmless. Finally, defendants failed to show that the trial court abused its discretion in denying their motion to file a second amended counter-complaint. Thus, it affirmed the judgment in plaintiff’s favor in the amount of $173,496.90, plus attorney fees and costs. As to defendants’ argument that the trial court abused its discretion in granting plaintiff a directed verdict on their promissory estoppel claim, the court found that a 2006 option to purchase “was a valid written contract governing the subject matter of the controversy and expressly provided that the option” could be exercised at any point during the lease period, with a right to extend. The parties entered into written addendums extending the time for exercise of the option and “retained all of the other terms of the original option to purchase except as modified in the addendums, including the provision that the option to purchase could not be extended except by written agreement” of the parties. “The options also contained integration clauses, which are conclusive evidence that a contract is complete.” As to their fraud in the inducement claim, defendants failed to identify “any representation by plaintiff that was false and that resulted in damages.” As to their unjust enrichment claim, the lease “expressly required a monthly rent of $8,600 for possession of the entire property, and clearly provided that defendants were responsible for all of the operating costs.” While the Michigan Constitution guarantees citizens the right to appear pro per, and makes no distinction between attorneys and other citizens in this regard, defendants did not identify any prejudice resulting from the exclusion of the individual defendant from representing himself.

Admissibility of investigative subpoena testimony; MRE 801(d)(1)(A)

In an order in lieu of granting leave to appeal, the court vacated the part of the Court of Appeals order (see attached to the court’s order) that ruled the investigative subpoena testimony of two witnesses was properly admitted under MRE 801, and remanded the case to the Court of Appeals for reconsideration of this issue. The court held that the “Court of Appeals erred in its analysis of MRE 801(d)(1)(A) by considering whether the witnesses were unavailable, rather than whether their prior statements were inconsistent. The unavailability of a witness is relevant for admission under MRE 804, not MRE 801.” The court denied leave to appeal in all other respects.

Sentencing; The statutory maximum sentence for CSC II; MCL 750.520c(2)(a); The two-thirds rule; MCL 769.34(2)(b)

In an order in lieu of granting leave to appeal the Court of Appeals judgment (see e-Journal # 61774 in the 2/10/16 edition), the court vacated the sentences imposed on the defendant by the trial court for his CSC II convictions and remanded for resentencing on those crimes. The court held that he was “improperly sentenced to 20-year maximum terms.” The statutory maximum sentence for CSC II is 15 years. The 12-year minimum sentences imposed on defendant for his CSC II convictions “exceed two-thirds of the statutory maximum sentence of 15 years.” The court directed that on remand, the trial court shall resentence him to valid sentences for his CSC II convictions. It denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.

Sentencing; Enhancement for two prior violent felonies under USSG § 4B1.2(a) (the elements clause); § 2K2.1(a)(2); United States v. Rede-Mendez; Johnson v. United States; Mathis v. United States; Descamps v. United States; Taylor v. United States; Whether Michigan’s felonious assault statute constitutes a “crime of violence”; MCL 750.82; People v. Jackson (MI); People v. Micsak (Unpub. MI App.); People v. Datema (MI); People v. Chandler (MI App.); People v. Davis (Unpub. MI App.); United States v. Mosley (Unpub. 6th Cir.); United States v. O’Valle; United States v. Ramon Silva (10th Cir.); United States v. Taylor (7th Cir.)

[This appeal was from the ED-MI.] The court affirmed the district court and held that Michigan’s felonious assault statute is a “crime of violence” under the sentencing guidelines. Defendant-Harris argued that his felon in possession of a firearm base offense level should not be enhanced two levels for prior felonies for crimes of violence under §§ 4B1.2(a) and 2K2.1(a)(2). The court reviewed the statute and relevant case law and concluded that “Michigan’s felonious assault statute obliges a jury to find at least attempted or threatened offensive touching and use of a dangerous weapon.” Together, these two elements constitute “violent force,” and a crime of violence. “When a felony must be committed with a deadly weapon and involves some degree or threat of physical force, it is a crime of violence under the elements clause.” Felonious assault under Michigan law “meets that threshold because there is no way to commit it without intentionally attempting or threatening physical force against another with a dangerous weapon.” Thus, Harris’s two Michigan convictions for felonious assault were “crimes of violence under the Guidelines" and the district court "properly calculated his offense level and Guidelines range.”

Proceeding under the Revocation of Paternity Act (RPA) (MCL 722.1431 et seq.); Presumption that a child conceived & born during a marriage is legally presumed the legitimate child of that marriage & the mother’s husband is the child’s father as a matter of law; Pecoraro v. Rostagno-Wallat; Allegation of paternity despite the existence of a presumptive father; MCL 722.1441(3); Judicial determination that a child was born out of wedlock & order of filiation; MCL 722.1443(2)(d) & (e); The alternative one-year limitations period under the RPA; MCL 722.1437(1); “Necessary party” under MCR 2.205(A); The “necessary party” exception; Amer v. Clarence A Durbin Assoc.; O’Keefe v. Clark Equip. Co.; Forest v. Parmalee (On Rehearing); Principle that the relation-back doctrine does not apply to the addition of new parties; Miller v. Chapman Contracting; Principle that a statute of limitations defense is personal to the party raising it; Casserly v. Wayne Circuit Judge; Cochren v. Louisiana Power & Light Co. (4th Cir.); Railey v. State Farm Mut. Auto. Ins. Co. (GA App.); Beery v. Hurd (IL App.); Utah Assets Corp. v. Dooley Bros. Ass’n (UT); Neill v. Burke (NE); Dawson v. Callaway (GA); Clark v. Los Angeles (CA App.); Adjudication of rights of non-parties; Yedinak v. Yedinak; Stringer v. American Bankers Ins. Co. of FL (MS App.); Mrozek v. Mrozek (NC App.); Whipple v. Edelstein (NY Sup. Ct.)

Holding that the Court of Appeals erred by prematurely adjudicating the presumptive father’s (a non-party) anticipated defense, the court vacated that portion of its opinion and remanded, but affirmed as to the determination that the presumptive father was a necessary party to the plaintiff’s action seeking to establish his alleged paternity and legal fatherhood of the defendant-mother’s son. Because the child was born during her marriage, her husband was the presumptive father. Defendant moved to dismiss, arguing that her husband was a necessary party, and because he had not been joined within either the three-year or the alternative one-year limitations period, the action was time-barred. The trial court denied her motion, finding her husband was not a necessary party. On interlocutory appeal, the Court of Appeals affirmed, holding that although the trial court erred in finding her husband was not a necessary party, the action was not time-barred under “a ‘necessary party’ exception, which allows ‘an additional defendant [to] be brought in after the expiration of the limitations period if the new party is a necessary party.’” In this appeal, the court found that although defendant’s husband was a necessary party, she was not entitled to assert a statute of limitations defense only available to her husband, and the Court of Appeals could not adjudicate his rights when he remained a non-party. Until he “is properly designated as a defendant and exercises his right to raise the statute of limitations in his own defense, the availability of the defense to him cannot be resolved.”

Child custody; Motion for change of domicile; MCL 722.31(4); Rains v. Rains; Rittershaus v. Rittershaus; The statutory best interest factors; MCL 722.23; Whether a decision is contrary to public policy; Terrien v. Zwit

The court held that the trial court did not err by denying the defendant-mother’s motion to change domicile. The parties, who were never married, had twin girls. When they separated, the trial court granted them joint legal custody of the children, required the plaintiff-father to receive reasonable and liberal parenting time, and ordered plaintiff to pay child support. It also ordered plaintiff to supervise any contact between the children and his father, and ordered that the paternal aunt was not permitted to physically punish the children. Defendant later moved to change her and the children’s domicile because she was marrying another man and could provide the children with a better life. The trial court disagreed and denied her motion. On appeal, the court found that defendant “failed to demonstrate by a preponderance of the evidence that a change of domicile was warranted under the factors in MCL 722.31(4) because the support she received from” her new husband was not dependent on moving, “the benefit of the schools and extracurricular activities available to the children . . . would be offset by plaintiff’s decreased involvement in their day-to-day lives, plaintiff exercised his parenting time whenever he could, and there was no evidence that the children were exposed to domestic violence or that plaintiff’s opposition to the move resulted from improper financial motives.” As such, “the trial court did not abuse its discretion by denying defendant’s motion to change the children’s” domicile. The court also found that because the “trial court’s decision was appropriate under MCL 722.31” and case law, defendant did not show “that the decision was contrary to public policy, nor has she established any plain error arising from the trial court’s actions.” Affirmed.

Separate maintenance; MCL 552.6(1) & 7; Whether a legally incapacitated person’s guardian & conservator had authority to file the action; Smith v. Smith; Houghton v. Keller; In re Burnett Estate; Waiver; Quality Prod. & Concepts Co. v. Nagel Precision, Inc.; The Cadle Co. v. City of Kentwood; Whether a genuine issue of material fact existed as to the statutory grounds for separate maintenance; Grotelueschen v. Grotelueschen; Winkelman v. Winkelman; Photos depicting injuries consistent with the alleged abuse as independent evidence the abusive acts occurred; People v. Hendrickson; Admissibility of hearsay (MRE 801(c)); MRE 804(a)(4) & (b)(7); Property division; Hodge v. Parks; Woodington v. Shokoohi; Cunningham v. Cunningham; Equitable distribution; Gates v. Gates; Richards v. Richards; Fault; McDougal v. McDougal; Spousal support; Loutts v. Loutts; Berger v. Berger; Olson v. Olson; A trial court’s factual findings; Korth v. Korth; MCR 2.517(A)(2); Pension benefits as income for spousal support purposes; MCL 552.602(n)(ii); Ackerman v. Ackerman; Attorney fees; Smith v. Khouri; MRPC 1.5(a); Wood v. Detroit Auto. Inter-Ins. Exch.; MCR 3.206(C)(2); Riemer v. Johnson; Reed v. Reed; Reasonableness of the requested fees; Evidentiary hearing on remand; Ewald v. Ewald; Request for reasonable appellate attorney fees; MCR 3.206(C)(1); Wiley v. Wiley

The court held that the defendant-husband waived his argument that the plaintiff- wife’s guardian and conservator (K) lacked authority to file this separate maintenance action on his wife’s behalf, and in any event, his argument lacked merit. It also held that his summary disposition motion was properly denied because plaintiff presented admissible evidence showing a genuine issue of material fact as to the statutory grounds for separate maintenance. Further, her hearsay statements were admissible under MRE 804(b)(7), the property division and spousal support award were equitable, and the trial court did not err in requiring defendant to pay the spousal support from his pension benefit income. However, the court vacated the attorney fee award and remanded for further consideration of this issue. It noted that “it is clear that a conservator may file a separate maintenance action on behalf of an incompetent person.” Plaintiff showed a genuine issue of disputed material fact through K’s affidavit “averring ‘that there has been a breakdown in the marital relationship to the extent that the objectives of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.’” While K was “not personally a party to the marriage, she was acting on plaintiff’s behalf as her guardian and conservator,” and defendant cited no authority “establishing that an incompetent spouse’s guardian and conservator is unable to testify in support of the statutory grounds for separate maintenance.” Plaintiff also presented photos depicting her “bruised face and body following the alleged abuse by defendant, police reports, and a guardian ad litem’s report containing plaintiff’s statements that she had been abused and no longer wished to have contact with defendant or to be married to him.” Given the substantively admissible evidence that he “physically and mentally abused plaintiff” and that she feared him “and did not wish to remain married to him, there was evidence to support a finding that the objects of matrimony had been destroyed.” The court vacated the attorney fee award due to the trial court’s failure to make the required findings on reasonableness. It affirmed in all other respects.

The Freedom of Information Act (FOIA) (MCL 15.231 et seq.); Federated Publ’ns, Inc. v. Lansing; Mootness

In an order in lieu of granting leave to appeal, the court vacated as moot Part III of the Court of Appeals published opinion (see e-Journal # 63021 in the 6/27/16 edition) and remanded the case to the trial court for dismissal of the plaintiff’s FOIA claims. It denied leave to appeal in all other respects because it was not persuaded that it should review the remaining question presented. “Thus, the award of attorney fees, costs, and disbursements remains vacated.”

Dispute over discipline issued by a medical board; Absolute judicial immunity; Diehl v. Danuloff; Forrester v. White; Bradley v. Fisher; Butz v. Economou; Quasi-judicial immunity; Maiden v. Rozwood; Denhof v. Challa; “Quasi-judicial body”; Midland Cogeneration Venture, LP v. Nafalty; A “contested case”; MCL 24.203(3); Principle that an administrative law judge (ALJ) must act in an impartial manner & is not the final arbiter; MCL 24.279 & 24.281(1); Principle that the disciplinary subcommittee issues the final order & may adopt, modify, or reject the ALJ’s opinion or proposal for decision; MI Admin Code, R 338.1630(5); Principle that this final decision must be made “within a reasonable time” & supported by “competent, material and substantial evidence”; MCL 24.285; Extension of quasi-judicial immunity to a medical licensing board; Watts v. Burkhardt (6th Cir.); Buckwalter v. Nevada Bd. of Med. Exam’rs (9th Cir.); Ostrzenski v. Seigel (4th Cir.); Principle that adjudication within a federal administrative agency shares enough of the characteristics of the judicial process to warrant immunity; Public policy impact; Bettencourt v. Board of Registration in Medicine (1st Cir.); Vosburg v. Department of Soc. Servs. (4th Cir.); Judicial review; Const. 1963, art. 6, § 28; MCL 24.301; Right to an unbiased arbiter; R 338.1604; Replacement of board members; R 338.1605(3); R 338.1604; Disclosure requirements; MCL 333.16216a; Denial of immunity based on a conflict of interest; North Carolina State Bd. of Dental Exam’rs v. Federal Trade Comm’n; Immunity for anticompetitive conduct by states acting in their sovereign capacity; Parker v. Brown; Admonishment of board members; “Public officers”; MCL 15.341(c); MCL 15.342(3); Complaint alleging unethical conduct; State Board of Ethics Rules of Practice & Procedure, R 15.5(1)

Holding that the Disciplinary Subcommittee of the Michigan Board of Chiropractic (MBC) was cloaked with absolute quasi-judicial immunity, the court reversed the trial court’s denial of the defendants-board members’ motion for summary disposition in the plaintiff-chiropractor’s action alleging self-interest and improper discipline. Plaintiff was disciplined by the subcommittee after he conducted an independent chiropractic exam of a patient and advised an insurer that defendant-Health Quest’s chiropractic services were no longer necessary. Defendant-Cogan, who chaired the MBC, was also part owner of Health Quest. In that case, the court reversed the subcommittee, finding its order lacked legal and factual merit. Plaintiff then sued defendants for malicious prosecution, tortious interference with his advantageous business relationships, abuse of process, and violations of his due process and equal protection rights. The trial court granted defendants’ motion as to the constitutional and malicious prosecution claims, but denied it as to the claims for abuse of process and tortious interference. On appeal, the court agreed with defendants that they were entitled to quasi-judicial immunity because in their board positions, they acted as quasi-judicial adjudicators. “That the disciplinary subcommittee acts as a judge is supported by ‘the job-related duties, roles, or functions’ of the subcommittee’s members.” In addition, “quasi-judicial immunity is frequently extended to a medical licensing board charged with hearing license suspension and revocation matters.” Further, “[c]loaking the disciplinary subcommittee with absolute quasi-judicial immunity also serves” public policy, and the process “bears ‘adequate procedural safeguards’ to merit absolute immunity.” Although “the safeguards against biased individuals deciding a disciplinary matter did not work” here, immunity “does not fall away even when the judicial or quasi-judicial official acts ‘maliciously or corruptly.’” However, the court noted that plaintiff is not without recourse as he could have filed a complaint with the State Board of Ethics.

Promissory estoppel; Crown Tech. Park v. D & N Bank, FSB; Principle that courts will only impose contracts in equity if there is no express contract governing the matter; Martin v. East Lansing Sch. Dist.; Effect of integration clauses; UAW-GM Human Res. Ctr. v. KSL Recreation Group; Doctrine of partial performance; Guzorek v. Williams; Fraud in the inducement; Samuel D Begola Servs., Inc. v. Wild Bros.; Belle Isle Grill Corp. v. Detroit; Unjust enrichment; Barber v. SMH (US) Inc.; Principle that a contract cannot be implied in law while an express contract covering the same subject matter is in force between the parties; HJ Tucker & Assoc., Inc. v. Allied Chucker & Eng’g Co.; Sua sponte removal of an attorney of record for purposes of the trial because he was also a witness; MRPC 3.7(a); Smith v. Arc-Mation, Inc.; Kubiak v. Hurr; A citizen’s constitutional right to appear pro per; Const. 1963, art. 1, § 13; Whether any distinction is made between lawyers & other citizens in this regard; Motion to file a second amended complaint; MCR 2.118(A)(2); Boylan v. Fifty Eight LLC; Abandoning an issue due to inadequate briefing; Thompson v. Thompson

The court held that the trial court did not err in refusing to grant equitable relief based on promissory estoppel given that there was an express contract governing the matter. Further, the plaintiff was properly granted summary disposition on defendants’ fraud in the inducement and unjust enrichment claims. Assuming that the trial court abused its discretion in refusing to allow the individual defendant (an attorney) to try the case, the court concluded that any error was harmless. Finally, defendants failed to show that the trial court abused its discretion in denying their motion to file a second amended counter-complaint. Thus, it affirmed the judgment in plaintiff’s favor in the amount of $173,496.90, plus attorney fees and costs. As to defendants’ argument that the trial court abused its discretion in granting plaintiff a directed verdict on their promissory estoppel claim, the court found that a 2006 option to purchase “was a valid written contract governing the subject matter of the controversy and expressly provided that the option” could be exercised at any point during the lease period, with a right to extend. The parties entered into written addendums extending the time for exercise of the option and “retained all of the other terms of the original option to purchase except as modified in the addendums, including the provision that the option to purchase could not be extended except by written agreement” of the parties. “The options also contained integration clauses, which are conclusive evidence that a contract is complete.” As to their fraud in the inducement claim, defendants failed to identify “any representation by plaintiff that was false and that resulted in damages.” As to their unjust enrichment claim, the lease “expressly required a monthly rent of $8,600 for possession of the entire property, and clearly provided that defendants were responsible for all of the operating costs.” While the Michigan Constitution guarantees citizens the right to appear pro per, and makes no distinction between attorneys and other citizens in this regard, defendants did not identify any prejudice resulting from the exclusion of the individual defendant from representing himself.

The Freedom of Information Act (FOIA) (MCL 15.231 et seq.); Federated Publ’ns, Inc. v. Lansing; Mootness

In an order in lieu of granting leave to appeal, the court vacated as moot Part III of the Court of Appeals published opinion (see e-Journal # 63021 in the 6/27/16 edition) and remanded the case to the trial court for dismissal of the plaintiff’s FOIA claims. It denied leave to appeal in all other respects because it was not persuaded that it should review the remaining question presented. “Thus, the award of attorney fees, costs, and disbursements remains vacated.”

Action alleging injuries caused by a police dog bite; Whether defendants were protected by governmental immunity pursuant to the Governmental Tort Liability Act (GTLA) (MCL 691.1401 et seq.); MCL 691.1407(1); “Governmental agency”; MCL 691.1401(a), (d), & (e); Hannay v. Department of Transp.; Mack v. Detroit; Nawrocki v. Macomb Cnty. Rd. Comm'n; Exceptions; Wesche v. Mecosta Cnty. Rd. Comm'n; The dog-bite statute; MCL 287.351(1); Tate v. Grand Rapids; Principle that tort claims for negligence & gross negligence against a governmental agency are barred by the GTLA when the governmental agency & employees were engaged in the exercise or discharge of a governmental function; Ross v. Consumers Power Co.; Hobrla v. Glass; Governmental immunity for individual employees engaged in the exercise or discharge of a governmental function; MCL 691.1407(2); Beals v. Michigan; Tarlea v. Crabtree; Gross negligence; MCL 691.1407(8); Kendricks v. Rehfield; Radu v. Herndon & Herndon Investigations, Inc.; Maiden v. Rozwood; Costa v. Community Emergency Med. Servs., Inc.; Xu v. Gay; Proximate cause; Robinson v. Detroit; Absolute liability; Hill v. Sacka

Holding that the defendants-governmental agencies and employees were protected by governmental immunity, the court reversed the trial court’s decision denying their motion for summary disposition and remanded for entry of summary disposition in their favor as to all of the plaintiff’s claims. Plaintiff sued defendants for an injury she sustained when a police dog bit her as officers chased some men during a fireworks show. The trial court denied defendants’ motion for summary disposition. On appeal, the court agreed with defendants’ argument that the trial court erred by denying their motion for summary disposition because they were entitled to governmental immunity, noting they were “engaged in the management and control of the police department,” which constituted the exercise or discharge of a governmental function, and plaintiff failed to identify an exception to governmental immunity. On the contrary, defendants “were entitled to summary disposition . . . because all of plaintiff’s proposed claims—i.e., negligence, gross negligence, and her claim under the dog-bite statute—were barred by governmental immunity.” The court also found that because plaintiff’s claims under the dog-bite statute did not involve allegations that the officers acted with gross negligence, the officers were entitled to immunity. Finally, it held that plaintiff failed to present “evidence from which it could be concluded that the officers acted with gross negligence.” It found that, “short of barring all police dogs from public events, it is challenging to discern precisely what plaintiff believes the officers should have done differently that might suggest they were negligent, let alone grossly negligent on the night in question.” In short, “plaintiff’s conclusory assumptions [we]re not evidence that the officers acted with ‘conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.’”

Action alleging injuries caused by a police dog bite; Whether defendants were protected by governmental immunity pursuant to the Governmental Tort Liability Act (GTLA) (MCL 691.1401 et seq.); MCL 691.1407(1); “Governmental agency”; MCL 691.1401(a), (d), & (e); Hannay v. Department of Transp.; Mack v. Detroit; Nawrocki v. Macomb Cnty. Rd. Comm'n; Exceptions; Wesche v. Mecosta Cnty. Rd. Comm'n; The dog-bite statute; MCL 287.351(1); Tate v. Grand Rapids; Principle that tort claims for negligence & gross negligence against a governmental agency are barred by the GTLA when the governmental agency & employees were engaged in the exercise or discharge of a governmental function; Ross v. Consumers Power Co.; Hobrla v. Glass; Governmental immunity for individual employees engaged in the exercise or discharge of a governmental function; MCL 691.1407(2); Beals v. Michigan; Tarlea v. Crabtree; Gross negligence; MCL 691.1407(8); Kendricks v. Rehfield; Radu v. Herndon & Herndon Investigations, Inc.; Maiden v. Rozwood; Costa v. Community Emergency Med. Servs., Inc.; Xu v. Gay; Proximate cause; Robinson v. Detroit; Absolute liability; Hill v. Sacka

Holding that the defendants-governmental agencies and employees were protected by governmental immunity, the court reversed the trial court’s decision denying their motion for summary disposition and remanded for entry of summary disposition in their favor as to all of the plaintiff’s claims. Plaintiff sued defendants for an injury she sustained when a police dog bit her as officers chased some men during a fireworks show. The trial court denied defendants’ motion for summary disposition. On appeal, the court agreed with defendants’ argument that the trial court erred by denying their motion for summary disposition because they were entitled to governmental immunity, noting they were “engaged in the management and control of the police department,” which constituted the exercise or discharge of a governmental function, and plaintiff failed to identify an exception to governmental immunity. On the contrary, defendants “were entitled to summary disposition . . . because all of plaintiff’s proposed claims—i.e., negligence, gross negligence, and her claim under the dog-bite statute—were barred by governmental immunity.” The court also found that because plaintiff’s claims under the dog-bite statute did not involve allegations that the officers acted with gross negligence, the officers were entitled to immunity. Finally, it held that plaintiff failed to present “evidence from which it could be concluded that the officers acted with gross negligence.” It found that, “short of barring all police dogs from public events, it is challenging to discern precisely what plaintiff believes the officers should have done differently that might suggest they were negligent, let alone grossly negligent on the night in question.” In short, “plaintiff’s conclusory assumptions [we]re not evidence that the officers acted with ‘conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.’”