Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
Full Text Opinion
Employee trust fund dispute; The Labor Management Relations Act (the LMRA); Whether the trustees’ “deadlock” required arbitration; Whether the claim was “premature” under the Employee Retirement Income Security Act (ERISA)
[This appeal was from the ED-MI.] The court affirmed the district court, holding that the employee benefit fund’s trust agreement required that the disagreement between the trustees could not be settled in federal court but instead must be submitted to arbitration. A dispute arose between the trustees selected by the participating employers and those selected by the union over features of the plan and the need to amend a tax return. The employer trustees went to court seeking the authority to amend the tax return. The union trustees argued that the dispute belonged in arbitration. The district court agreed with the union trustees and dismissed the case. The “deadlock provision” of the LMRA provides that when a deadlock occurs (e.g., three trustees against three trustees), the dispute must be arbitrated. Additionally, the claim was premature under ERISA where plaintiffs were required “to exhaust remedies under the plan.” The court noted that the “Second Circuit and the Third Circuit have handled similar cases in similar fashion. Each has held that disappointed trustees may not bring ERISA claims without first availing themselves of deadlock arbitration provisions.” The court rejected plaintiffs’ claim that no deadlock occurred because the matter never came to an actual vote, holding that a “the trust agreement does not require a merits vote for a deadlock to exist. It requires only that a proposal ‘is not adopted by a majority vote.’” Lastly, the court held that the district court should have dismissed the case under Rule 12(b)(6) for failure to state a claim, and not under Rule 12(b)(1) for lack of jurisdiction.
Attorney’s request for fees for defendant’s appeal of his plea-based conviction; Whether the requested fees were excessive or unreasonable; In re Ujlaky Attorney Fees; In re Attorney Fees of Jamnik; The trial court’s reliance on the Smith v Khouri factors; Pirgu v United Servs Auto Ass’n; Michigan Appellate Assigned Counsel System (MAACS)
Holding that the trial court abused its discretion in ruling that the $1,725 requested attorney fees for defendant’s plea-based appeal were excessive or unreasonable, the court reversed the order denying appellant-attorney’s request for fees, and remanded. Appellant successfully moved to withdraw “defendant’s plea on the basis that defendant was ‘misled into believing that he would receive jail credit.’” The trial court also granted “appellant’s request to give defendant a 21-day” period to reconsider his motion. It later entered an order leaving the plea intact based on defendant’s letter to the trial court stating he no longer wished to withdraw his plea. Appellant “submitted a MAACS voucher detailing an itemized bill of services, totaling 23 hours.” The trial court approved payment of $1,125 in attorney fees. While the trial court provided “some justification for the attorney fee award, it did not consider ‘the reasonableness of the fee’ in relation to the ‘actual services rendered, as itemized by the appellant’” as called for in Ujlaky. Instead, it appeared to simply conclude “that the case could have been handled in 15 hours. Although the court indicated that 15 hours was the ‘standard maximum fee’ for a plea-based appeal as established by MAACS, that reasoning alone is insufficient to establish that the requested fees for services rendered beyond 15 hours were unreasonable.” The court noted that, pursuant to Jamnik, the “trial court could not ‘simply deny’ eight of the claimed hours.” In addition, it could not simply “characterize the claimed amount as ‘unreasonable’ with no explanation as to why the services performed by appellant were unreasonable.” The court found that, in light of “the lack of justification” provided, it was left to wonder what services he performed “and specifically delineated on his bill were unwarranted.” The court noted that it did “not mean to suggest that the trial court must accept appellant’s claimed hours at face value. If” it determines on remand “that the amount of time spent on services was unreasonable, it must state, with specificity, those services which it finds unreasonable and articulate a basis for that conclusion.” Absent this analysis, the court could not say that its “attorney-fee award was a principled outcome.” Extensive analysis is not required but the trial court “must indicate how the claimed hours are being adjusted.”
42 USC § 1983; Whether plaintiff-building owner’s due process rights were violated by defendant-City’s alleged failure to provide it with notice of the building demolition; Mullane v. Central Hanover Bank & Trust Co.; Jones v. Flowers; Warrantless seizure claim; Embassy Realty Invs, Inc. v. City of Cleveland (Unpub 6th Cir)
The court affirmed the district court’s dismissal of plaintiff-The Keene Group’s claim that its due process rights were violated by defendant-City of Cincinnati’s failure to provide it with notice of the demolition of a building it had purchased at a sheriff’s sale where plaintiff knew of the condemnation proceedings at the time of purchase and made no effort to resolve the building’s nuisance issues. Plaintiff claimed that it had no knowledge that the City had decided to raze the building before it was demolished, and sued the City under § 1983. The City had sent plaintiff letters regarding the demolition by certified mail, but plaintiff never received them. After the demolition, the City billed plaintiff for more than $10,000. The district court dismissed the complaint under Rule 12(b)(6). The court first considered plaintiff’s claim that its due process rights were violated by the City’s failure to provide it with notice of the demolition. It upheld the district court’s dismissal, concluding that Jones did “not require reversal here because, as the Supreme Court reiterated in that case, what constitutes adequate notice under the Due Process Clause depends on the circumstances of each case.” Plaintiff argued that after the letters were not delivered, the City was required to use all public databases to contact it before the demolition. But the court noted that the Supreme Court rejected this argument in Jones. Plaintiff had notice of the condemnation proceedings, and was aware that it was required to abate the public nuisance but failed to do so. Thus, the court held that it received the notice to which it was entitled—“‘notice reasonably calculated, under all the circumstances,’ of the pendency of the condemnation proceedings[.]” It also held that the City was not required to obtain a warrant to demolish a condemned, vacant building because plaintiff did not establish a “reasonable expectation of privacy” in the building, and the seizure “‘to remediate the established nuisance was reasonable under the Fourth Amendment.’”
Dispute over a land contract; Designation as a “facility” under the Natural Resources & Environmental Protection Act; Fraudulent inducement; Bank of Am, NA v Fidelity Nat’l Title Ins Co; Samuel D Begola Servs, Inc v Wild Bros
Holding that two material factual disputes remained in the parties’ dispute over a land contract, the court reversed the trial court’s order granting defendants-buyers summary disposition and remanded. The parties negotiated a purchase agreement for the sale of plaintiffs-sellers’ property, a former auto shop, through a land contract. Defendants reserved the right to revoke their offer if plaintiffs could not provide proof that the property’s soil was free from contaminants. Two years later, defendants attempted to sell the property. However, an assessment done by the prospective buyer revealed the presence of contaminants in the soil and groundwater. As a result, defendants ceased making installment payments and paying taxes on the property. Plaintiffs then sued for breach of contract and possession of the property. Defendants counterclaimed for fraudulent inducement and negligent misrepresentation. The trial court granted summary disposition for defendants. On appeal, the court agreed with plaintiffs that the trial court erred by granting defendants summary disposition because they failed to produce evidence conclusively establishing a claim for fraudulent misrepresentation. It found there was “no issue of material fact that plaintiffs made a false representation to defendants.” However, until “this question of fact—whether defendants received a copy of the Phase II Report—is resolved, it will be unclear whether defendants relied on plaintiffs’ representation.” There also remained “a question of fact concerning the Phase II Report that impacts the intent element of the defendants’ claims.”
Motion for relief from judgment; Analysis of whether a motion is successive under MCR 6.502(G); People v Swain; People v Cress
In an order in lieu of granting leave to appeal the Court of Appeals order denying defendant’s delayed application for leave to appeal, the court vacated that order and remanded the case to the trial court for reconsideration of his motion for relief from judgment. It held that the trial court erred in applying Cress in analyzing whether the motion was successive under MCR 6.502(G). “Cress does not apply to the procedural threshold of MCR 6.502(G)(2), as the plain text of the court rule does not require that a defendant satisfy all elements of the test.”
Speedy trial; MCL 768.1; MCR 6.004(A); People v Williams; Principle that when a case is more complex, more delay is tolerated; People v Cooper; Prejudice; People v Collins; Motion for a mistrial; Motion for a new trial on the basis of newly discovered evidence; People v Cress; A “material, exculpatory connection”; People v Grissom; Actual innocence; Herrera v Collins
The court held that defendant’s right to a speedy trial was not violated, that the trial court did not abuse its discretion by denying his motions for a mistrial or a new trial, and that his claim of actual innocence was meritless. He was convicted of second-degree murder, armed robbery, second-degree arson, fourth-degree arson, FIP, and four counts of felony-firearm. The trial court sentenced him as a fourth-offense habitual offender to concurrent prison terms of 60 to 90 years for the second-degree murder conviction and 40 to 60 years each for the armed robbery, arson, and FIP convictions, to be served consecutively to 4 concurrent prison terms of 2 years each for the felony-firearm convictions. On appeal, the court rejected his argument that the trial court erred by denying his motion to dismiss on the ground that his right to a speedy trial was violated. “On balance, despite defendant’s timely assertion of his right to a speedy trial, considering the length of the delay in the context of the complexities of the case, the fact that the delay was mostly attributable to a need to have a large number of evidentiary items forensically examined, and defendant’s failure to establish any prejudice to his defense because of the delay, the trial court did not err by ruling that defendant’s right to a speedy trial was not violated.” In addition, the trial court “did not abuse its discretion by denying defendant’s motion for a mistrial and instead allowing a brief adjournment so that defendant would have time to review and respond to the new evidence.” Further, ample evidence supported that no reasonable juror could find his codefendant’s recanting testimony credible on retrial. Finally, defendant was not entitled to relief on the basis of actual innocence. Affirmed.
Sufficiency of the evidence for an AWIGBH conviction; Sufficiency of the evidence for an assault & battery conviction; Self-defense; MCL 780.972(1)(a) & (2)
Holding that the evidence was sufficient to support defendant’s AWIGBH and assault and battery convictions, and to disprove her self-defense claim, the court affirmed. The assault and battery victim was her daughter, J, and the AWIGBH victim was her mother, P. The trial court in her bench trial resolved the credibility issues against her, and the court could not say this was error. There was sufficient evidence for it “to find beyond a reasonable doubt that defendant attempted with force or violence to do harm to [P].” She admitted, and J and P both testified, that she hit P “in the head with a hammer.” While this is not a dangerous weapon per se, defendant used it as one when she hit P in the head with it. Further, there was sufficient evidence that she did not act in self-defense when she did so. Contrary to her testimony, P and J testified that P “just approached defendant’s door to continue a discussion and defendant then hit her with the hammer.” J stated that she saw defendant strike P once, and P stated defendant hit “her a second time on the back, center of her head. The trial court found that defendant’s version of events lacked credibility” and the court will not interfere with the trier of fact’s determinations of the weight of the evidence or the witnesses’ credibility. The court also rejected defendant’s challenge to the assault and battery conviction. “Again, the only evidence showing that the altercation between defendant and [J] was a mutual combat came from defendant’s testimony. Again, the trial court resolved the credibility issues against the defendant based upon evidence in the record.” It explained that J’s testimony described “many blows” landed on her by defendant, and photos showed “a number of scrapes and bruises and slightly open wounds[.]” According to J, these occurred in the scuffle during the assault. Further, after the scuffle ended, J indicated that she went to her room. Defendant “was no longer acting in self-defense; rather, defendant was the aggressor when she followed [J] to her room and then slapped” her face. While she denied doing so, the trial court found J’s testimony more credible, and there was no reason to disturb this finding.
Joinder of cases; Parts of a common plan or scheme; MCR 6.120(B)(1)(c); Other acts evidence; MRE 404(b); MRE 403; Due process; Constitutional challenge to MCL 750.81d(1) (resisting arrest); Schad v Arizona; United States v Mosley (6th Cir); People v Morris; Absence of a specific unanimity jury instruction; Alternate acts establishing the actus reus
The court concluded that even if the trial court erred in joining defendant’s resisting arrest cases under MCR 6.120(B)(1)(c), there was no outcome determinative error because the other incidents would have been admissible under MRE 404(b) in separate trials. It also rejected his argument that MCL 750.81d is facially unconstitutional under Schad, and determined that he did not show that the trial court’s failure to give a specific unanimity jury instruction constituted plain error affecting his substantial rights. Thus, the court affirmed his four resisting arrest convictions. It found that any misjoinder was harmless because the evidence of the other incidents would have been admissible in separate trials “to establish the absence of mistake.” Most clearly showing the relevance of the other incidents was defendant’s “repeated acts of spitting at” officers. While inadvertent spittle “is certainly possible, the idea that defendant’s conduct was inadvertent becomes significantly less probable when considering that on three separate occasions defendant spat directly in the faces of three police officers, hitting two of them in the eye with spit.” As to MRE 403 and defendant’s risk of jury confusion argument, the court found that the evidence “was not complex, and there was little risk of confusion.” In addition, it noted that “the high degree of similarity between the incidents actually increases the evidence’s probative value. And the evidence had much more than ‘negligible’ probative value, particularly given the difficulty in proving defendant’s state of mind and the fact that” his mens rea was at issue. Further, its probative value “was not outweighed by the risk of unfair prejudice.” As to his constitutional claim, the court concluded that all the relevant considerations identified in Schad showed “that MCL 750.81d(1) sets forth alternative means of committing a single offense rather than separate and distinct offenses. Because the Legislature did not exceed the constitutionally ‘permissible limits in defining criminal conduct,’ there was no constitutional violation in submitting the alternatives in MCL 750.81d to the jury as alternate means for committing a single offense.”
Whether defendant should be permitted to withdraw his guilty plea; Whether the trial court complied with MCR 6.301(B)(1); Whether the trial court followed MCR 6.302(E); Sentencing; Whether the trial court properly advised him on the issue of concurrent sentencing
The court held that defendant had not shown plain error affecting his substantial rights in any of the claimed defects to his plea-taking process and he was not entitled to withdraw his plea. Thus, it affirmed his guilty plea convictions of larceny from a person and domestic violence (third offense). Defendant raised three defects in his plea-taking process. First he asserted that the trial court “did not comply with MCR 6.301(B)(1)’s requirement of naming the offense defendant was pleading guilty to because it did not state that defendant was pleading guilty as a fourth-offense habitual offender.” That was incorrect. “While the court may have been more specific by using the word ‘fourth’ when explaining to defendant his maximum possible sentence, the trial court substantially complied with MCR 6.302(B)(1) and the record does not reflect that defendant’s substantial rights were violated, i.e., that the error affected the outcome of the proceeding.” Next, he asserted that the trial court’s “failure to ask whether either counsel was aware of any promises, threats, or inducements for defendant to accept the plea that have not yet been disclosed on the record violated MCR 6.302(E) and therefore constituted a defect in the plea-taking process.” Taking all facts into consideration, defendant had “not shown how the defect in the proceedings on this point prejudiced him or otherwise violated his substantial rights.” Lastly, he claimed “there was a defect in the plea process because the trial court failed to properly advise defendant on the issue of concurrent sentencing. At most, any inaccuracy in the explanation of concurrent sentencing led defendant to believe he was agreeing to be sentenced to a longer term than he actually was.”
Motion to enforce a consent divorce judgment; Provision requiring a party to either refinance or sell the marital home within a specified time; Whether a provision as to the division of the home equity was ambiguous & incomplete
Agreeing with plaintiff-ex-husband that the real property provision of the parties’ consent divorce judgment required defendant-ex-wife to either refinance the marital home within 90 days of the date specified in the judgment or sell it, the court vacated the trial court’s order denying his motions to enforce the judgment in this regard, and remanded. It also agreed with him that the judgment provision as to the division of the home equity was ambiguous and incomplete, requiring remand. The court concluded that the plain language of the real property provision clearly and unambiguously required defendant “to refinance the home within 90 days of” the specified date, 9/11/19, or sell it. The record showed that she did not refinance it by 12/11/19 and did not sell it. “Without explanation, the trial court did not order defendant to sell the home despite not refinancing” it by 12/11/19, and denied plaintiff’s motions. It did not make any “finding of fraud, mutual mistake, or duress.” Thus, the court held that the trial court erred in “failing to enforce the unambiguous terms of the consent judgment of divorce and require defendant to sell the home because she failed to refinance within 90 days of” 9/11/19. On remand, the trial court is to enforce the judgment’s unambiguous terms. Plaintiff further argued that the provision stating that he was to “receive $50,500 ‘if there are no additional liens’ on the property” was ambiguous and incomplete, and that the trial court erred in not addressing “what constitutes an additional lien or how” one would be applied to his share of the equity “and by failing to conduct an evidentiary hearing to determine if the second mortgage constituted an additional lien.” The court again agreed. In the absence of factual findings or record evidence as to “the liens contemplated by the judgment of divorce or the second mortgage, the accuracy of the trial court’s decision to deny plaintiff’s motion” was not apparent. The court vacated “in part and remanded for the trial court to enforce the unambiguous terms of the judgment of divorce, address what constitutes an additional lien and the effect of any additional lien on the amount of equity owed to plaintiff, and, if necessary, conduct an evidentiary hearing on the second mortgage.”
Whether medical & Social Security records were unauthenticated & comprised hearsay; MRE 803(4), (6), & (8); “Fraudulent insurance act”; MCL 500.3173a(2); Materiality; Whether the injured person’s medical & medication history had bearing on his eligibility for no-fault benefits; Social Security Administration (SSA); Ferndale Rehabilitation Center (FRC); Michigan Assigned Claims Plan (MACP); Examination under oath (EUO)
The court held that the trial court properly considered the challenged medical and Social Security records when deciding defendant-Allstate’s summary disposition motion, and did not err in finding plaintiff-Thomas made false statements on his application for no-fault benefits. It also did not err in holding that Thomas’s statements as to his medical and medication history were material to his claim. Finally, because plaintiff-FRC’s claim for no-fault benefits was derivative of his claim, a misrepresentation that barred his claim also barred FRC’s claim. FRC argued the trial court could not properly consider the medical and Social Security records provided by Allstate in support of its summary disposition motion “because they were unauthenticated and comprised hearsay.” But Thomas’s medical records largely included “statements made for purposes of medical treatment before the accident occurred, which were made at or near the time” he sought medical attention. There was “no question that a patient’s medical records are routinely made in the course of a medical provider’s business.” As a result, his medical records qualified for admission under MRE 803(4) and 803(6). His Social Security records, which were recorded by the SSA “for purposes of providing federal benefits to Thomas, also qualify for admission under a hearsay exception, MRE 803(8).” FRC also argued the trial court erred in holding that Thomas knowingly made materially false statements “in his application for no-fault benefits and request for replacement services.” But a review left “no question that Thomas was dishonest in his application for no-fault benefits, at his EUO, and in documents claiming replacement services.” Despite these false statements, FRC asserted “the statements were not material to bar FRC’s claim because defendant had the means to discover the truth, which it did obtain through Thomas’s deposition testimony and medical records, nor did defendant rely on Thomas’s false statements.” However, because the fraudulent acts occurred when he “submitted his application to MACP, the fact that defendant uncovered the truth during its investigation of Thomas’s medical and medication history is irrelevant. FRC’s distinction that the false statements were submitted to MACP, and not defendant, is similarly without merit because the false statements in Thomas’s application were submitted to obtain no-fault benefits.” Affirmed.
Priority for the payment of PIP benefits; MCL 500.3114(3); Employee-employer relationship; Totality of the circumstances test; Interpretation of an insurance policy; Effect of an endorsement; Distinguishing Besic v Citizens Ins Co of the Midwest; Whether there was an express conflict between the endorsement & the Coverage Form; Michigan Automobile Insurance Placement Facility (MAIPF)
The court held that the trial court properly ruled that plaintiff was an employee of defendant-Pergjoni Transport at the time of the accident, and thus, properly granted defendant-Farm Bureau’s motion for summary disposition. “With plaintiff being an employee of Pergjoni Transport and him being injured in a company vehicle, Pergjoni Transport’s insurer,” nonparty-Hudson, “was the insurer with the highest priority.” Also, because there was no coverage available under defendant-Great American’s policy, the trial court did not err by granting its motion for summary disposition. Plaintiff contended that the trial court erred when it granted defendant-MAIPF’s motion for summary disposition. However, the court held that he was “not entitled to any relief because he took the position in the trial court that once the priority dispute was resolved, the MAIPF could be dismissed.” The court found that his “position on appeal—that regardless of the eventual priority determination, summary disposition was not warranted—is contrary to his position in the trial court.” Also, because he “took the position that summary disposition could be granted in favor of the MAIPF once the priority dispute was resolved, he cannot now complain after the trial court dismissed the MAIPF after resolving the priority dispute.” Thus, the court declined to address the underlying merits of his claim on appeal, and instead held that he “waived the issue because he expressly agreed that once the priority dispute was resolved, it would then be proper to dismiss the MAIPF from the case.” This was “exactly what the trial court did after it determined that Hudson was the highest priority insurer.” Plaintiff also asked the court to remand the “case to the trial court with instructions to impose sanctions against the MAIPF for the purported frivolous defenses and legal arguments it raised in the trial court.” It declined because he never moved for sanctions in the trial court, and the court noted that it “is an error-correcting court.” As to the trial court’s finding that he was Pergjoni Transport’s employee, “every factor, except for the fact that plaintiff received 1099 forms instead of W-2 forms,” supported the existence of an employee-employer relationship. The court found that “no reasonable minds could come to a different conclusion after considering the entirety of the circumstances.” Affirmed.
Medical malpractice; Failure to file an affidavit of merit (AOM) within the period set forth in MCL 600.2912d(1) & (2); MCL 600.5856(a); Scarsella v Pollak; The two-year statutory period of limitations for filing a medical malpractice action; MCL 600.5805(8); Preservation requirements for claims of error; Smith v Foerster-Bolser Constr, Inc; 91-day extension for filing of an AOM based on lack of access to medical records; MCL 600.2912d(3); MCL 600.2912b(5); Other exceptions; Bryant v Oakpointe Villa Nursing Ctr, Inc; VandenBerg v VandenBerg (VandenBerg I); The trial court’s discretion to amend a pleading; MCL 600.2301; Dismissal with prejudice; Ligons v Crittenton Hosp
The court held that the trial court should have dismissed plaintiffs’ (husband and wife) medical malpractice complaint with prejudice as to the wife’s first surgery, but dismissal with prejudice as to her second surgery would not be appropriate. They sued defendants-surgeon and medical facility for medical malpractice. Defendants moved for summary disposition based on plaintiffs’ failure to file the required AOM. The trial court denied their motion, finding that there was an inadvertent error in not attaching the AOM, that this case differed from Scarsella, and that plaintiffs could file their late AOM to save their claims. It reasoned that “the interest of justice should allow for the late filing of the [AOM] and that there was no undue delay, bad faith, or dilatory motive on the part of plaintiffs.” On appeal, defendants argued that it erred by distinguishing this case from Scarsella, that summary disposition in their favor was appropriate, and that plaintiffs’ claims should be dismissed with prejudice. The court agreed in part and disagreed in part. “The Scarsella Court’s mandate is clear: when a complaint is filed without an [AOM], the lawsuit is not commenced and the statute of limitations is not tolled. We do not find that an exception to this mandate exists, such as a plaintiff being in possession of an [AOM] but erroneously does not file the [AOM] with the original complaint.” In addition, plaintiffs could not rely on their emergency motion as their “attempt to cure the procedural defect of not filing the” AOM with the complaint “was untimely, and, therefore, improper.” And their additional challenges failed. As such, “dismissal with prejudice with regard to the” first surgery was appropriate. But as to the second surgery, the court found “the statutory period of limitations was tolled by the filing of the amended complaint with the accompanying” AOM. It concluded that the “amended complaint standing alone met the requirements of MCL 600.2912d(1). This allows plaintiffs’ claims concerning the [second] surgery to move forward because the amended complaint and [AOM] were filed before expiration of the two-year period of limitations . . . .” The purpose of MCL 600.2912d “is ‘to deter frivolous medical malpractice claims.’ Such purpose is served by concluding that defendants received a timely complaint and” AOM as to the second surgery. As related to that surgery, “the amended complaint was timely filed” with the required AOM. Affirmed in part and reversed in part.
Governmental immunity; MCL 691.1407(2); “Gross negligence”; MCL 691.1407(8)(a); Tarlea v Crabtree
Holding that there was a question of fact whether defendant-Choroba, a 911 operator, was grossly negligent, the court affirmed the denial of his summary disposition motion. Plaintiff-estate’s decedent was a patient at a healthcare facility (Heartland) when he was discovered suffering a heart attack. 911 calls were placed to get him help, but many went unanswered. Choroba “was the only person in the dispatch room where” Heartland’s 911 calls were directed. He argued that the trial court erred in denying his summary disposition motion on the issue of whether he was grossly negligent and ruling a question of fact existed as to whether he was protected by governmental immunity. The court disagreed. While he cited Tarlea, in that case, “perhaps, the defendants could have done a little more to prevent injury.” In contrast, plaintiff here “presented evidence that Choroba was simply not performing his most basic job function as a 911 operator—answering 911 calls.” The department had notified all 911 operators a month before the night in question “to not turn down the volume on the 911 lines to an inaudible level and to check the volume at the beginning of each shift. Choroba did not check the volume of the speaker at the station where he was working, as required by departmental policy.” He also was previously disciplined for not properly logging “into his work station and allowing a text to 911 to go unanswered for hours. According to” defendant-Rowell, she found him with his feet on his desk “watching videos on Facebook while calls from Heartland were coming in. Choroba admitted he was on his phone while he was missing Heartland’s calls. There is a visual prompt on the 911 work station computer screens when there is an incoming 911 call, but Choroba did not see the visual prompts because he was looking at his phone.” While there was no evidence he turned off the volume on the speakers that night, from the record evidence “a reasonable jury could find Choroba, based on his actions that night, simply did not care about the safety or welfare of those who might be calling 911 and was thus liable for gross negligence. A reasonable jury could also find that his actions constituted nothing more than ordinary negligence.”