LORRAINE HAYES V KIMBERLY LANGFORD

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STATE OF MICHIGAN COURT OF APPEALS LORRAINE HAYES, UNPUBLISHED December 9, 2008 Plaintiff-Appellant, v No. 280049 Wayne Circuit Court LC No. 06-610484-NO KIMBERLY LANGFORD, Defendant-Appellee. Before: Jansen, P.J., and O’Connell and Owens, JJ. PER CURIAM. Plaintiff appeals by right the circuit court’s order granting defendant’s second motion for summary disposition and dismissing plaintiff’s remaining claim of intentional infliction of emotional distress. Plaintiff also appeals the circuit court’s earlier order granting summary disposition for defendant on plaintiff’s claim of gross negligence. We affirm in part, reverse in part, and remand for further proceedings on plaintiff’s claim of intentional infliction of emotional distress. I Plaintiff was present in her home at 4554 Field Street, Detroit, at approximately 9:00 p.m. on January 12, 2005, when her “acquaintance”1 Adrian King became verbally and physically abusive. Shortly after 9:00 p.m., King “pulled out a gun and shot [plaintiff] multiple times.” Plaintiff used her cellular phone to call 911 at approximately 9:28 p.m. Plaintiff spoke with 911 operator Kimberly Langford (hereinafter “defendant”). Plaintiff told defendant that she had been shot and that she needed emergency medical attention. Defendant repeatedly insulted plaintiff, berated plaintiff, asked whether plaintiff was a “mental patient,” and threatened plaintiff with legal repercussions for making a false 911 call. When no emergency responders arrived at her home, plaintiff again called 911 at approximately 9:53 p.m. Plaintiff again spoke to defendant, and defendant again insulted plaintiff, berated plaintiff, and asked whether plaintiff was a “mental patient.” Emergency responders did not finally arrive at plaintiff’s home until sometime 1 King was either plaintiff’s boyfriend or ex-boyfriend. It is not entirely clear from the record. -1- after 10:10 p.m. Plaintiff suffered neurological injuries and paralysis, as well as alleged psychiatric injuries and posttraumatic stress syndrome. After further discovery, it was learned that despite having doubts about the genuineness and authenticity of plaintiff’s calls, defendant had input the proper information into the 911 computer system and the police had been timely dispatched to the area of plaintiff’s home. However, the police left the area before locating plaintiff’s residence because they were reportedly unable to locate plaintiff’s address. It was also learned through discovery that the police and emergency responders had subsequently returned to the area of plaintiff’s residence only after plaintiff’s son, who lived in Minnesota, independently contacted the Detroit police on his mother’s behalf. Plaintiff sued, setting forth a claim of gross negligence based on both her physical and alleged emotional injuries. She also set forth a claim of intentional infliction of emotional distress. In lieu of answering, defendant filed her first motion for summary disposition, challenging plaintiff’s gross negligence claim. The circuit court granted summary disposition for defendant, ruling that the gross negligence claim was barred by the doctrine of governmental immunity. Defendant then filed a second motion for summary disposition, challenging the remaining intentional infliction of emotional distress claim. The circuit court granted summary disposition for defendant on this remaining claim, ruling that defendant’s conduct during the two 911 calls, albeit inappropriate, had not been sufficiently extreme and outrageous to justify recovery. II Plaintiff argues that the circuit court erred by granting summary disposition in favor of defendant on that portion of her gross negligence claim that related to her physical injuries. We disagree. A Defendant’s first motion for summary disposition was brought pursuant to MCR 2.116(C)(7) and (C)(8). We review de novo a circuit court’s ruling on a motion for summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Summary disposition is properly granted under MCR 2.116(C)(7) when a claim is barred by governmental immunity. Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001). “To survive such a motion, the plaintiff must allege facts justifying the application of an exception to governmental immunity.” Id. In reviewing a (C)(7) motion, we consider the affidavits, depositions, admissions, and other documentary evidence to determine whether the defendant was in fact entitled to immunity as a matter of law. Tarlea v Crabtree, 263 Mich App 80, 87; 687 NW2d 333 (2004). We view the evidence in a light most favorable to the nonmoving party, and make all legitimate inferences in favor of the nonmoving party as well. Jackson v Saginaw Co, 458 Mich 141, 142; 580 NW2d 870 (1998). The issue of proximate cause generally presents a question of fact for the jury. Helmus v Dep’t of Transportation, 238 Mich App 250, 256; 604 NW2d 793 (1999). However, when the facts bearing on proximate cause are not disputed and reasonable minds could not differ, the -2- issue presents a question of law for the court. See Robinson v Detroit, 462 Mich 439, 463; 613 NW2d 307 (2000). B Governmental employees acting within the scope of their employment are immune from tort liability unless their conduct amounted to gross negligence. MCL 691.1407(2); Poppen v Tovey, 256 Mich App 351, 356; 664 NW2d 269 (2003). Gross negligence is statutorily defined as “conduct so reckless as to demonstrate a substantial lack of concern of whether an injury results.” MCL 691.1407(7)(a); Oliver v Smith, 269 Mich App 560, 565; 715 NW2d 314 (2006). For the purposes of her first motion for summary disposition, defendant conceded that her conduct during plaintiff’s two 911 calls amounted to gross negligence. However, even when a government employee has been grossly negligent, that employee remains immune from tort liability unless his or her gross negligence was “the proximate cause of the injury or damage.” MCL 691.1407(2)(c). As used in MCL 691.1407, “the phrase ‘the proximate cause’ contemplates one cause.” Robinson, supra at 462 (emphasis in original). Thus, the proximate cause for purposes of governmental immunity is “[t]he one most immediate, efficient, and direct cause” preceding the injury or damage. Id. The circuit court properly determined that defendant’s grossly negligent conduct was not “[t]he one most immediate, efficient, and direct cause” preceding plaintiff’s physical injuries. The unrefuted evidence in this case ultimately established that defendant properly input plaintiff’s complaint and address into the 911 computer system, that police and emergency responders were timely dispatched to plaintiff’s residence, but that the police failed to locate 4554 Field Street and left the area before finding plaintiff’s home. This unrefuted evidence showed that the police—and not defendant—were responsible for the significant delay in reaching plaintiff’s home and in providing medical attention to plaintiff. Indeed, a Detroit Police Department Activity Log for January 12, 2005, showed that police officers were dispatched to plaintiff’s address at about 9:40 p.m., but that the officers failed to locate plaintiff’s address after searching the area. The Activity Log showed that the officers did not again attempt to locate 4554 Field Street until 10:15 p.m., only after plaintiff’s son had directly called the Detroit Police Department from Minnesota to report his mother’s condition. This evidence established that defendant input the proper information into the 911 system and properly dispatched the police to plaintiff’s address in Detroit. It was the police—and not defendant—who failed to find the proper address and who then left the area when they could not locate plaintiff’s home. The unrebutted documentary evidence established that defendant had relayed all necessary information to the police. The delay in responding to plaintiff’s residence was not attributable to defendant but was instead attributable to the police. “The one most immediate, efficient, and direct cause” preceding plaintiff’s physical injuries was either the shooting, itself, or the police officers’ failure to timely locate plaintiff’s residence. Robinson, supra at 462. There was quite simply no jury-submissible question of fact concerning whether defendant’s actions were “the proximate cause” of plaintiff’s physical injuries. MCL 691.1407(2)(c). Because defendant’s actions were not the proximate cause of plaintiff’s physical injuries, the circuit court properly granted summary disposition in favor of defendant on plaintiff’s gross negligence claim as it related to plaintiff’s physical injuries. MCR 2.116(C)(7). -3- III Plaintiff also argues that the circuit court erred by granting summary disposition in favor of defendant on that portion of her gross negligence claim that related to her alleged emotional and mental injuries. Again, we disagree. A As noted previously, defendant’s first motion for summary disposition was brought pursuant to MCR 2.116(C)(7) and (C)(8). We review de novo a circuit court’s ruling on a motion for summary disposition. Spiek, supra at 337. A motion under MCR 2.116(C)(8) tests the legal sufficiency of the claim based on the pleadings alone, and should be granted only if no factual development could possibly justify recovery. Beaudrie v Henderson, 465 Mich 124, 129130; 631 NW2d 308 (2001). The pleadings alone are considered and all well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmoving party. Farmers Ins Exch v Kurzmann, 257 Mich App 412, 417; 668 NW2d 199 (2003). B Michigan recognizes a cause of action of negligent infliction of emotional distress. See Taylor v Kurapati, 236 Mich App 315, 360; 600 NW2d 670 (1999). To prevail on a claim of negligent infliction of emotional distress, a plaintiff must allege and prove, inter alia, that the mental disturbance or shock negligently inflicted by the defendant has “result[ed] in actual physical harm.” Id.; Wargelin v Sisters of Mercy Health Corp, 149 Mich App 75, 81; 385 NW2d 732 (1986). In the instant case, plaintiff has neither alleged nor offered any documentary evidence to establish that the emotional disturbance and shock inflicted by defendant resulted in “actual physical harm.” Thus, if the portion of plaintiff’s gross negligence claim at issue here had sounded in negligent infliction of emotional distress, it would have been insufficient as a matter of law to state a claim on which relief could be granted. But the portion of plaintiff’s gross negligence claim at issue here did not sound in negligent infliction of emotional distress. Indeed, this Court has never “appl[ied] the tort of negligent infliction of emotional distress beyond the situation where a plaintiff witnesses negligent injury to a third person and suffers mental disturbance as a result.” Duran v Detroit News, Inc, 200 Mich App 622, 629; 504 NW2d 715 (1993). The tort of negligent infliction of emotional distress has been uniquely limited to “bystander recovery” actions. See Nugent v Bauermeister, 195 Mich App 158, 159; 489 NW2d 148 (1992); see also Wargelin, supra at 81. The portion of plaintiff’s gross negligence claim based on plaintiff’s alleged emotional and mental injuries simply does not fall within the category of “bystander recovery” actions. Instead, the portion of plaintiff’s gross negligence claim at issue here can more accurately be described as a claim for negligently inflicted mental anguish. A claim for emotional damages is not necessarily limited to emotional distress, but may also encompass mental anguish. McClain v Univ of Michigan Bd of Regents, 256 Mich App 492, 500; 665 NW2d 484 (2003). “[M]ental anguish differs from emotional distress and is properly compensated for in damages in a tort claim upon sufficient proof.” Id. “Mental anguish” encompasses such damages as emotional pain and suffering, fright and shock, anxiety, denial of social pleasures and enjoyment, embarrassment, humiliation or mortification, and other appropriate damages. Id. at 498; -4- Ledbetter v Brown City Sav Bank, 141 Mich App 692, 703; 368 NW2d 257 (1985); see also M Civ JI 50.02. It remains true that a party in Michigan may not recover for negligently inflicted mental anguish unless that mental anguish was parasitic to, was caused by, or was the cause of a separate and independent injury. Recovery for a negligently inflicted mental disturbance generally requires an “‘accompanying physical injury, illness or other physical consequences,’” or “‘some other independent basis for tort liability . . . .’” Henry v Dow Chemical Co, 473 Mich 63, 79 n 9; 701 NW2d 684 (2005), quoting Prosser & Keeton, Torts (5th ed), § 54, p 361. Stated another way, in order for a plaintiff to recover damages for mental anguish, there must generally be some separate, discrete injury that either caused or resulted from the mental disturbance. See Ledbetter, supra at 703 (observing that “[m]ental anguish damages” consist of “damages for mental pain and anxiety which naturally flow from the injury”) (emphasis added); see also Daley v LaCroix, 384 Mich 4, 8; 179 NW2d 390 (1970) (observing that “[r]ecovery for mental disturbance caused by [a] defendant’s negligence, but without accompanying physical injury or physical consequences or any independent basis for tort liability, has been generally denied”). We acknowledge that recovery for mental anguish is permitted when a “plaintiff’s mental or emotional reactions were a necessary element in the chain of causation” of a separate injury, or when the resultant mental anguish is “parasitic” to a “negligently inflict[ed] . . . immediate physical injury.’” Id. at 8; see also McClain, supra at 498. However, in the case at bar, plaintiff has presented no evidence of a non-mental, independent injury caused by or resulting from defendant’s allegedly negligent conduct. Because plaintiff’s alleged mental anguish was not parasitic to, was not caused by, and was not the cause of a separate and independent injury, plaintiff’s claim for negligently inflicted mental anguish was insufficient as a matter of law to justify recovery. See Henry, supra at 79 n 9. The circuit court properly granted summary disposition in favor of defendant on plaintiff’s claim of gross negligence as it related to plaintiff’s alleged emotional and mental injuries. MCR 2.116(C)(8). IV Plaintiff argues that the circuit court erred by granting summary disposition in favor of defendant on her claim of intentional infliction of emotional distress. We agree. A Defendant’s second motion for summary disposition was brought pursuant to MCR 2.116(C)(7) and (C)(10). We review de novo a circuit court’s ruling on a motion for summary disposition. Spiek, supra at 337. Summary disposition is properly granted under MCR 2.116(C)(7) when a claim is barred by governmental immunity. Fane, supra at 74. In contrast, a motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of the claim. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). In reviewing a motion for summary disposition brought pursuant to subrule (C)(10), the pleadings, affidavits, depositions, admissions, and other admissible evidence must be considered in a light most favorable to the nonmoving party. Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710, 712; 737 NW2d 179 (2007). Summary disposition is properly granted under (C)(10) when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id. -5- B “As is often noted, our Supreme Court has not officially recognized the tort of intentional infliction of emotional distress.” VanVorous v Burmeister, 262 Mich App 467, 481; 687 NW2d 132 (2004). However, this does not mean that the tort is not recognized in Michigan. This Court has accepted intentional infliction of emotional distress as a viable tort for more than twenty years. See Rosenberg v Rosenberg Bros Special Account, 134 Mich App 342, 350; 351 NW2d 563 (1984). Indeed, “this Court has adopted the definition of intentional infliction of emotional distress found in 1 Restatement Torts, 2d, § 46, p 71, which provides that ‘[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.’” Early Detection Center, PC v New York Life Ins Co, 157 Mich App 618, 625; 403 NW2d 830 (1986). “To establish a prima facie claim of intentional infliction of emotional distress, the plaintiff must present evidence of (1) the defendant’s extreme and outrageous conduct, (2) the defendant’s intent or recklessness, (3) causation, and (4) the severe emotional distress of the plaintiff.” Walsh v Taylor, 263 Mich App 618, 634; 689 NW2d 506 (2004). The threshold for showing extreme and outrageous conduct is high. Roberts v Automobile-Owners Ins Co, 422 Mich 594, 603; 374 NW2d 905 (1985). The initial determination of whether the defendant’s conduct could be reasonably deemed extreme and outrageous is for the trial court. Sawabini v Desenberg, 143 Mich App 373, 383; 372 NW2d 559 (1985). But “[w]here reasonable minds may differ, whether a defendant’s conduct is so extreme and outrageous as to impose liability is a question for the jury.” Lewis v LeGrow, 258 Mich App 175, 197; 670 NW2d 675 (2003); see also Linebaugh v Sheraton Michigan Corp, 198 Mich App 335, 343; 497 NW2d 585 (1993). Liability for intentional infliction of emotional distress attaches only when a plaintiff can demonstrate that the defendant’s conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Id. at 342. A defendant is not liable for “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Doe v Mills, 212 Mich App 73, 91; 536 NW2d 824 (1995). Recovery is generally limited to instances “in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Id. As an initial matter, we note that intentional infliction of emotional distress is an intentional tort. Graham v Ford, 237 Mich App 670, 674; 604 NW2d 713 (1999). In general, governmental immunity does not protect government employees against liability for intentional torts.2 Lavey v Mills, 248 Mich App 244, 257; 639 NW2d 261 (2001); Sudul v Hamtramck, 221 Mich App 455, 458; 562 NW2d 478 (1997). Accordingly, plaintiff’s claim of intentional 2 There is an exception to this general rule. See VanVorous, supra at 480 (observing that governmental immunity does apply “if the acts that are purportedly intentional torts were justified”). However, there was quite simply no justification for the conduct of defendant at issue in this case, and this exception is therefore inapplicable. -6- infliction of emotional distress was not subject to dismissal pursuant to MCR 2.116(C)(7) on the ground of governmental immunity. In addition, it is not dispositive that defendant may not have actually intended to cause plaintiff’s alleged emotional distress in this case. For purposes of the tort of intentional infliction of emotional distress, recklessness is equally as actionable as truly intentional conduct. Walsh, supra at 634; Graham, supra at 674; Haverbush v Powelson, 217 Mich App 228, 234; 551 NW2d 206 (1996). Even accepting as true defendant’s sworn statement that she did not actually intend to cause plaintiff’s emotional trauma, there still remained a jury-submissible question of fact concerning whether defendant acted recklessly in her treatment of plaintiff during the 911 calls. We also find that there were jury-submissible questions of fact concerning whether defendant’s statements and conduct during the two 911 calls were extreme and outrageous. Lewis, supra at 197. The circuit court granted summary disposition in favor of defendant because it believed that “no matter how outrageous, no matter how insulting, no matter how offensive, mere words are insufficient to support a claim of intentional infliction of emotional distress . . . .” But the circuit court’s statement in this regard was not entirely accurate. It is true that “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities” are insufficient to create liability for intentional infliction of emotional distress. Doe, supra at 91. However, the extreme and outrageous character of a defendant’s conduct may arise from the defendant’s abuse of his or her position, which gives the defendant power to affect the plaintiff’s interests. 1 Restatement Torts, 2d, § 46, comment e, p 74. Moreover, the extreme and outrageous character of a defendant’s conduct may arise from the defendant’s knowledge that the plaintiff “is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity.” 1 Restatement Torts, 2d, § 46, comment f, p 75. At a minimum, there remained genuine issues of material fact in this case concerning whether defendant abused her position as a 911 operator to insult and berate plaintiff and to threaten plaintiff with possible legal repercussions for making a false 911 call. We conclude that there also remained a genuine issue of material fact concerning whether defendant disregarded any peculiar susceptibility to emotional distress which may have been created by plaintiff’s despair and immediately lifethreatening medical condition at the time the 911 calls were placed. In light of defendant’s position of authority as a 911 operator, and considering defendant’s actual knowledge of plaintiff’s life-threatening medical condition, we must conclude that defendant’s comments, remarks, and indignations likely would have aroused an average person’s resentment against defendant, and would have led at least some reasonable individuals to exclaim, “Outrageous!” Doe, supra at 91. Lastly, we conclude that there remained a genuine issue of material fact concerning whether defendant’s reckless or intentional conduct actually caused plaintiff to suffer severe emotional distress. The affidavit of plaintiff’s expert, Dr. Shiener, stated that defendant had suffered posttraumatic stress syndrome, cognitive disorders, and psychiatric illness. Shiener went on to aver that plaintiff “is suffering from and will continue to suffer from a serious psychiatric illness directly caused by the Defendant, Kimberly Langford who interrogated, threatened, and rebuffed [plaintiff] during the 911 phone calls,” and that “[t]he conduct of the Defendant, Kimberly Langford, was the cause of [plaintiff’s] psychiatric illness.” Defendant -7- presented no contradictory evidence whatsoever to challenge or rebut the expert opinions offered in Dr. Shiener’s affidavit. In short, there remained several genuine factual disputes related to plaintiff’s claim of intentional infliction of emotional distress that could not properly be decided in the context of defendant’s motion for summary disposition. The circuit court erred by granting summary disposition in favor of defendant on this claim. V In light of our analysis above, we decline to address the remaining arguments raised by plaintiff on appeal. Affirmed in part, reversed in part, and remanded for further proceedings on plaintiff’s claim of intentional infliction of emotional distress. We do not retain jurisdiction. /s/ Kathleen Jansen /s/ Donald S. Owens -8-

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