DEBRA SUE IMUS V THOMAS WORGESS
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STATE OF MICHIGAN
COURT OF APPEALS
DEBRA SUE IMUS, Individually and as Personal
Representative of the Estate of RUSSELL NILE
PACKER III, Deceased,
UNPUBLISHED
July 7, 2000
Plaintiff-Appellant,
v
No. 216598
Calhoun Circuit Court
LC No. 98-003357-NO
THOMAS WORGESS,
Defendant-Appellee.
Before: Meter, P.J., and Griffin and Talbot, JJ.
PER CURIAM.
Plaintiff, the personal representative of the estate of her husband Russell Nile Packer III
(“decedent”), appeals as of right from the trial court’s order granting defendant’s motion for summary
disposition. We affirm.
The following facts are undisputed. On the evening of February 5, 1997, plaintiff called 911
and reported that decedent was threatening to commit suicide with a twelve gauge shotgun. Defendant,
the 911 dispatcher who received the call, was employed by the City of Battle Creek in the police
department dispatch center. Although defendant’s computer screen displayed the correct number of the
call, defendant dispatched the police to the address of a previous call which had been handled by
another dispatcher. Approximately sixteen minutes into the call, the police called defendant indicating
doubt as to the incident location. At that point, defendant asked plaintiff for verification, learned that he
had sent the police to the wrong address, and re-dispatched the units to the correct address. Decedent,
who had been aware that the 911 call had been placed, committed suicide approximately two minutes
after learning that the police were on the way to his residence.
Plaintiff sued defendant under the gross negligence exception to governmental immunity, MCL
691.1407(2)(c); MSA 3.996(107)(2)(c). Plaintiff specifically alleged that defendant’s failure to: employ
the correct phone number on this computer screen; verbally ascertain the location where the intervention
was needed promptly; and, heed the verbal warning of a fellow dispatcher regarding his use of the
wrong address constituted gross negligence.
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Defendant moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10),
arguing that, pursuant to the public-duty doctrine, he owed no duty to decedent. Defendant also argued
that he was entitled to governmental immunity under MCL 691.1407(2)(c); MSA 3.996(107)(2)(c)
because his conduct did “not amount to gross negligence that [was] the proximate cause” of decedent’s
suicide. The trial court granted defendant’s motion, finding that no “special relationship” existed
between defendant and the decedent to warrant the imposition of a duty under that exception to the
public-duty doctrine; and, that defendant’s conduct was neither grossly negligent nor the proximate
cause of decedent’s suicide.1
Plaintiff argues on appeal that the trial court erred in granting defendant’s motion on grounds that
no “special relationship” existed between defendant and decedent under the public-duty doctrine, and
that defendant’s conduct was neither grossly negligent nor the proximate cause of decedent’s death.
We disagree and hold that, even assuming defendant owed decedent a duty under the public-duty
doctrine, summary disposition was nonetheless proper under the gross negligence exception to
governmental immunity set forth in MCL 691.1407(2)(c); MSA 3.996(107)(2)(c). See Smith v
Kowalski, 223 Mich App 610, 615; 567 NW2d 463 (1997) (noting that the presence of “special
relationship” for purposes of the public-duty doctrine does not preclude dismissal based on the
governmental immunity statute).
This Court reviews rulings on summary disposition motions de novo. Van v Zahorik, 460
Mich 320, 326; 597 NW2d 15 (1999). Summary disposition is proper under MCR 2.116(C)(7) for a
claim that is barred because of immunity granted by law.2 Smith, supra at 616. When reviewing a
grant of summary disposition based on governmental immunity, this Court considers all documentary
evidence submitted by the parties. Id., citing Codd v Wayne Co, 210 Mich App 133, 134; 537
NW2d 453 (1995). However, unlike a motion under subsection (C)(10), a movant under MCR
2.116(C)(7) is not required to file supportive material, and the opposing party need not reply with
supportive material. Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). The contents
of the complaint are accepted as true unless contradicted by documentation submitted by the movant.
Id. To survive a motion for summary disposition brought under MCR 2.116(C)(7), the plaintiff must
allege facts warranting the application of an exception to governmental immunity. Smith, supra at 616.
1
The trial court also granted defendant’s motion with respect to plaintiff’s individual claim of intentional
infliction of emotional distress. Plaintiff does not challenge the trial court’s ruling with respect to this
claim on appeal.
2
It is not clear under which subrule(s) the trial court granted defendant’s motion with respect to this
issue. MCR 2.116(C)(7) is the appropriate subrule for granting summary disposition based on the
gross negligence exception to governmental immunity, MCL 691.1407(2)(c); MSA 3.996(107)(2)(c).
Smith, supra at 616. In any event, an order granting summary disposition under the wrong subrule may
be reviewed under the correct subrule. Energy Reserves, Inc v Consumers Power Co, 221 Mich
App 210, 216; 561 NW2d 854 (1997).
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MCL 691.1407(2)(c); MSA 3.996(107)(2)(c) provides that a governmental employee is
immune from tort liability for injuries to persons caused by the employee while in the course of
employment if, inter alia, the conduct “does not amount to gross negligence that is the proximate cause
of the injury or damage.”3 See also Stanton v Battle Creek, 237 Mich App 366, 374; 603 NW2d
285 (1999). As used in this subdivision, “gross negligence” means “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). In addressing the quantum of proof required to survive a motion for summary
disposition in gross negligence actions involving government employees under § 7(2)(c), our Supreme
Court has recently held:
. . . . The plain language of the governmental immunity statute indicates that the
Legislature limited employee liability to situations where the contested conduct was
substantially more than negligent. Gross negligence is defined by statute 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). . . . [Maiden, supra at 121.]
***
. . . evidence of ordinary negligence does not create a material question of fact
concerning gross negligence. Rather, a plaintiff must adduce proof of conduct “so
reckless as to demonstrate a substantial lack of concern for whether an injury results.”
To hold otherwise would create a jury question premised on something less than the
statutory standard. [Maiden, supra at 122 (footnote omitted).]
Applying this standard to the present case, we hold that reasonable minds could not differ with
respect to whether defendant was grossly negligent. Stanton, supra at 375. While defendant’s alleged
failures may establish that he was negligent or neglectful, they do not constitute evidence sufficient for a
reasonable juror to conclude that his conduct was “so reckless as to demonstrate a substantial lack of
concern for whether an injury results.”4 To the contrary, the evidence submitted by both parties
established that defendant was attempting to help plaintiff by dispatching the police to what he believed
to be the correct address; remaining on the phone with plaintiff during the incident; and, correcting his
error as soon as it was discovered. Defendant also testified at deposition that he did not ask plaintiff to
verify the address at the commencement of the call because she told him that she was in the presence of
a man with a gun. Under these circumstances, we hold that plaintiff failed to meet her burden to come
forward with specific facts to support her claim. Maiden, supra at 127. In light of our conclusion on
the issue of gross negligence, we need not address the trial court’s finding that defendant’s conduct was
3
The parties do not dispute that the two other requirements for immunity are satisfied. See MCL
691.1407(2)(a)-(b); MSA 3.996(107)(2)(a)-(b).
4
Plaintiff makes much of the fact that defendant, his fellow dispatcher, and his supervisor were either
disciplined or reprimanded as a result of the incident. If anything, this evidence shows that defendant’s
employer was dissatisfied with his performance and does not conclusively establish that his conduct was
either negligent or grossly negligent.
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not the proximate cause of decedent’s suicide. Accordingly, the trial court properly granted
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summary disposition for defendant.
Affirmed.
/s/ Patrick M. Meter
/s/ Richard Allen Griffin
/s/ Michael J. Talbot
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