KYLE BAKER V JIMMY LEE STEELE
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STATE OF MICHIGAN
COURT OF APPEALS
KYLE BAKER by his Next Friend
HOWARD BAKER,
UNPUBLISHED
April 18, 1997
Plaintiff-Appellant,
v
No. 186480
Oakland Circuit Court
LC No. 93-464974-NI
JIMMY LEE STEELE and
HOLLY SCHOOL DISTRICT,
Defendants-Appellees.
Before: Jansen, P.J., and Reilly and E. Sosnick,* JJ.
PER CURIAM.
Plaintiff appeals as of right from an order granting summary disposition in favor of defendants
and denying his motion for leave to amend his complaint. We affirm in part, reverse in part, and remand
for further proceedings.
This cause of action stems from an accident in which plaintiff, then six years old, was struck by a
truck driven by defendant Jimmy Lee Steele. Plaintiff sustained serious injuries. Plaintiff filed his
complaint on October 29, 1993, alleging that Steele, a school maintenance worker, was negligent, was
acting within the course and scope of his employment, and that under agency law Holly School District
is vicariously liable for his negligence. In his complaint, plaintiff did not specifically allege that Steele’s
conduct rose to the level of gross negligence. Defendants moved for summary disposition pursuant to
MCR 2.116(C)(7), (C)(8), and (C)(10), contending that plaintiff’s claim was barred by the defense of
governmental immunity, that plaintiff had failed to state a valid claim in avoidance of governmental
immunity, and that no genuine issues of material fact existed because Steele was not acting within the
scope of his employment and his conduct did not rise to the level of gross negligence.
Plaintiff filed a motion for leave to amend his complaint to specifically allege gross negligence,
which was denied by the trial court. The trial court granted defendants’ motions for summary
* Circuit judge, sitting on the Court of Appeals by assignment.
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disposition, but the record is not clear which paragraph of MCR 2.116(C) formed the basis of the trial
court’s grant. The parties agree that it appears that the trial court relied on MCR 2.116(C)(10). When
parties rely on matters outside the pleadings in their arguments in opposition to and in support of the
claim, as these parties do, this Court will assume that the motion was granted pursuant to MCR
2.116(C)(10) or, in this case, MCR.2.116(C)(7). Butler v Ramco-Gershenson, Inc, 214 Mich App
521, 524; 542 NW2d 912 (1995).
This Court will review a trial court’s grant of summary disposition de novo to determine if the
moving party was entitled to judgment as a matter of law. Michigan Mutual Ins Co v Dowell, 204
Mich App 81, 86; 514 NW2d 185 (1994). When ruling on a grant of summary disposition pursuant to
MCR 2.116(C)(7), based on a finding that the claim is barred by governmental immunity, this Court
must consider all documentary evidence submitted by the parties and accept as true all well-pleaded
allegations, construing them in favor of the nonmoving party. Summers v Detroit, 206 Mich App 46,
48; 520 NW2d 356 (1994). A motion for summary disposition brought under MCR 2.116(C)(10)
tests the factual support for a claim. When ruling on such a motion, the court must consider the
pleadings, affidavits, depositions, admissions, and other documentary evidence available to it and grant
summary disposition only if there is no genuine issue regarding any material fact and the moving party is
entitled to judgment as a matter of law. Rice v ISI Mfg, Inc, 207 Mich App 634, 635-636; 525
NW2d 533 (1994).
The trial court granted summary disposition in favor of defendants, specifically finding that Steele
was not acting within the scope of his employment and that Steele’s actions did not rise to a level of
gross negligence. In his claim against defendants, plaintiff relies on the gross negligence exception to
governmental immunity found in MCL 691.1407(2); MSA 3.996(107)(2), which grants immunity from
tort liability to employees of governmental agencies, “while in the course of employment” as long as the
following requirements are met:
(a) The officer, employee, member, or volunteer is acting or reasonably believes he or
she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a governmental
function.
(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not amount to
gross negligence that is the proximate cause of the injury or damage. As used in this
subdivision, “gross negligence” means conduct so reckless as to demonstrate a
substantial lack of concern for whether an injury results.
Thus, a government employee enjoys governmental immunity from his tortious conduct committed while
he was acting within the course of his employment and within the scope of his authority (or what he
reasonably believes to be the scope of his authority) and is engaged in a governmental function, as long
as his negligent conduct does not amount to gross negligence. As long as the employee enjoys
immunity, his government employer can not be found vicariously liable for injury or damage caused by
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his conduct. Ross v Consumers Power (On Rehearing), 420 Mich 567, 624-625; 363 NW2d 641
(1984).
Defendant Holly School District argues that it is entitled to summary disposition under MCR
2.116(C)(7) because plaintiff has not pleaded facts that justify application of an exception to
governmental immunity. Plaintiff contends that his complaint does contain sufficient facts to allege gross
negligence on the part of Steele. We find that defendant Holly School District is immune from liability in
this case because plaintiff has not shown that it is vicariously liable for Steele’s acts. In other words,
Holly School District is not liable in this case because it, as the governmental agency, was engaged in the
exercise or discharge of a governmental function (patrolling school grounds). MCL 691.1407(2)(b);
MSA 3.996(107)(2)(b).
Vicarious liability may be imposed on a governmental agency only when its officer, employee, or
agent, acting during the course of his or her employment and within the scope of his or her authority,
commits a tort while engaged in an activity which is non-governmental or proprietary, or which falls
within a statutory exception. Ross, supra, p 591-592. In this case, the activity, patrolling school
grounds, was a governmental function because the activity relates to the operation of the school. See
Id., p 591; Payton v Detroit, 211 Mich App 375, 392-393; 536 NW2d 233 (1995). Further, the
activity was not a proprietary one because patrolling the school grounds was not done primarily for
profit. MCL 691.1413; MSA 3.996(113). Finally, plaintiff has not identified any statutory exception
under which this activity would fall. We note that the gross negligence exception cannot apply as a
statutory exception with respect to the school district because that exception relates only to the conduct
of governmental officers, employees, members, or volunteers.
Accordingly, we find that the trial court did not err in granting summary disposition in favor of
defendant Holly School District, albeit for different reasons. Holly School District cannot be vicariously
liable in this case because the activity involved here, patrolling school grounds, is a governmental
function which was non-proprietary and does not fall under a statutory exception to governmental
immunity.
However, we reverse the trial court’s grant of summary disposition in favor of defendant Steele
because we find that there are questions of fact with respect to the questions of gross negligence and
whether Steele was acting while in the course of his employment. The reasonableness of an actor’s
conduct in relation to an established standard of conduct is a question for the jury, not the court.
Tallman v Markstrom, 180 Mich App 141, 144; 446 NW2d 618 (1989). In actions involving the
gross negligence exception to governmental immunity, summary disposition may not be granted if
“reasonable jurors could honestly have reached different conclusions with regard to whether the
defendant’s conduct amounted to gross negligence. However, if on the basis of the evidence presented,
reasonable minds could not differ, then the motion for summary disposition should be granted.”
Vermilya v Dunham, 195 Mich App 79, 83; 489 NW2d 496 (1992).
In this case, Steele admitted that he had “a couple of beers” with dinner before he got into his
truck and drove to his job that involved patrolling school grounds on “Devil’s Night.” Steele also
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admitted that he saw children playing on North Holly Road about one-quarter of a mile from where the
accident occurred. Steele saw plaintiff on the left side of the road at the curb, about one-quarter of a
mile away before hitting him. Steele stated to the police officer at the scene that he was driving thirty
five miles an hour, although he testified at his deposition that he lowered his speed to thirty to thirty-five
miles an hour when he saw the children. The police officer detected a “weak odor” of alcohol on
Steele’s person and a PBT indicated a blood alcohol level of .059%.
Reasonable minds could differ regarding whether the described conduct amounted to gross
negligence or “a substantial lack of concern for whether injury results.” Because reasonable minds
could differ, granting summary disposition pursuant to MCR 2.116(C)(7) or (C)(10) on the issue of
whether Steele’s conduct amounted to gross negligence was inappropriate.
Also at issue was whether Steele was acting within the course of his employment with Holly
School District at the time of the accident. The parties presented contradictory documentary evidence
to support their positions. Plaintiff presented the deposition of his father, who testified that shortly after
the accident he heard Steele tell one of the police officers that he had been patrolling the schools. Holly
School District presented Steele’s deposition denying that he stopped at any schools and the
depositions of two police officers who were at the accident scene and denied that Steele had told them
he had been patrolling schools or that they suggested this to plaintiff’s father. Further, it is undisputed
that Steele had been assigned to patrol school yards on the night in question on an overtime basis and
that the accident occurred at 5:50 p.m. The issue whether Steele was acting within the course of his
employment is thus a credibility contest between plaintiff’s deponent and defendant’s witnesses and
presents a factual dispute. The trial court apparently weighed the credibility of the deposition testimony
of plaintiff’s father and that of defendant’s witnesses and found the latter more credible. This was
impermissible. The grant of a motion for summary disposition where the credibility of witnesses or
deponents is crucial is “especially suspect.” Vanguard Ins Co v Bolt, 204 Mich App 271, 276; 514
NW2d 525 (1994). The trial court is “not permitted to assess credibility or to determine facts” when
deciding a motion for summary disposition. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d
475 (1994).
Because reasonable minds could differ regarding whether Steele’s conduct amounted to gross
negligence and because the trial court impermissibly assessed the credibility of witnesses to determine
whether Steele was acting within the course of his employment, we reverse the grant of summary
disposition with respect to defendant Steele.
Plaintiff next contends that the trial court abused its discretion when it refused to allow him to
amend his complaint to allege gross negligence. We agree. When a party seeks leave to amend a
complaint, the trial court should freely grant leave when justice so requires. Feliciano v Dep’t of
Natural Resources, 158 Mich App 497, 500; 405 NW2d 178 (1987). “When deciding a motion for
summary judgment or summary disposition which alleges failure to state a valid claim or defense or that
no genuine issue as to any material fact exists, the court shall give the parties an opportunity to amend
their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that
amendment would not be justified. MCR 2.116(1)(5).” Feliciano, supra.
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The trial court stated no reason for denying plaintiff’s motion for leave to amend his complaint.
“Failure of a trial court to specify its reasons for denying leave to amend requires reversal, unless the
amendment would be futile.” Noyd v Claxton, Morgan, Flockhart & VanLiere, 186 Mich App 333,
340; 463 NW2d 268 (1990). “An amendment is futile where, ignoring the substantive merits of the
claim, it is legally insufficient on its face.” Early Detection Center, PC v New York Life Ins Co, 157
Mich App 618, 625; 403 NW2d 830 (1986). In this case, the issues in contention are whether
Steele’s conduct amounted to gross negligence and whether Steele was acting within the scope of his
employment at the time of the accident. Because there is a genuine issue of material fact, plaintiff’s
amendment of his complaint to add allegations of gross negligence would not be a futile act. The trial
court abused its discretion in denying plaintiff leave to so amend, and we reverse the denial of plaintiff’s
motion to amend his complaint.
The trial court’s grant of summary disposition with respect to defendant Holly School District is
affirmed. We reverse the grant of summary disposition in favor of defendant Steele and remand for
further proceedings consistent with this opinion. Jurisdiction is not retained. Defendant Holly School
District only, having prevailed in full, may tax costs pursuant to MCR 7.219.
/s/ Kathleen Jansen
/s/ Edward Sosnick
I concur in the result only.
/s/ Maureen Pulte Reilly
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