BASIL ESSHAKI V SCOTT MILLMAN
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
BASIL ESSHAKI,
UNPUBLISHED
March 17, 2009
Plaintiff-Appellant,
v
No. 283297
Oakland Circuit Court
LC No. 2007-081516-NO
SCOTT MILLMAN,
Defendant-Appellee.
Before: Murray, P.J., and Gleicher and M. J. Kelly, JJ.
MURRAY, P.J. (concurring).
I concur in the majority’s opinion reversing the trial court’s order granting defendant’s
motion for summary disposition of plaintiff’s battery and reckless conduct claims. As the
majority opinion makes perfectly clear, this is a classic “he said, she said”1 case involving
diametrically opposed sworn testimony on what I believe to be the dispositive factual (and
therefore a material fact) issue, i.e., whether defendant turned and punched plaintiff (as plaintiff
testified), or whether an errant elbow was thrown at plaintiff (as defendant testified). Granting a
motion for summary disposition under MCR 2.116(C)(10) was therefore unwarranted. Ellis v
Kaye-Kibbey, 581 F Supp 2d 861, 876-877 (WD Mich, 2008), and cases cited therein. However,
although I also agree with the majority’s decision to affirm the dismissal of plaintiff’s intentional
infliction of emotional distress claim, I do so for a different reason. That reason is discussed
below.
Although our Court has recognized the tort of intentional infliction of emotional distress
as being viable in Michigan, the Michigan Supreme Court has not. VanVorous v Burmeister, 262
Mich App 467, 481; 687 NW2d 132 (2004). Nevertheless, the standards necessary to establish
this tort are well known and properly articulated by the majority. However, I disagree with the
majority’s assessment that plaintiff established a genuine issue of material fact on whether
defendant engaged in “extreme and outrageous conduct” by allegedly punching plaintiff during
1
Or, more precisely for this case, “He said, he said.”
-1-
the soccer match. Instead, I would hold as a matter of law2 that the conduct did not arise to that
level.
In Roberts v Auto-Owners Ins Co, 422 Mich 594, 602; 374 NW2d 905 (1985), the Court
adopted the following explanation of what constitutes extreme and outrageous conduct:
Liability has been found only where the conduct has been 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. Generally, the case is one 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. at 603, quoting Restatement Torts,
2d, § 46, comment d, pp 72-73.]
Anyone familiar with the game of soccer, whether it is a World Cup match or an over 30
league as in this case, recognizes that it is a physical sport where injuries happen because of the
inevitable physical contact between players. Courts from across the nation have repeatedly
recognized this fact, see Nydegger v Don Bosco Preparatory High School, 202 NJ Super 535,
538-539; 495 A2d 485 (1985) (“Physical contact is not prohibited by the rules of soccer. Injuries
do result. Those who participate are trained to play hard and aggressive.”); Bentley v Cuyahoga
Falls Bd of Ed, 126 Ohio App 3d 186, 193; 709 NE2d 1241 (1998) (recognizing “the physical
nature of the sport of soccer.”); Pfister v Shusta, 167 Ill 2d 417, 425; 657 NE2d 1013 (1995)
(“Both soccer and floor hockey are team sports where physical contact among participants is
inherent in the game.”). Because this is a physical sport where contact is frequent and expected,
“it is reasonable to assume that the competitive nature of the participants will result in some rule
violations and injuries. That is why there are penalty boxes, foul shots, free kicks, and yellow
cards.” Jaworski v Kiernan, 241 Conn 399, 408; 696 A2d 332 (1997).
It is true, of course, that a punch to the face during a match is not the type of injury
discussed in the foregoing cases, and that is why in light of the factual dispute a reversal and
remand has been ordered on plaintiff’s reckless conduct claim.3 However, it still holds true that
2
“In reviewing such a claim, it is initially for the court to determine whether the defendant’s
conduct reasonably may be regarded as so extreme and outrageous as to permit recovery.
Sawabini v Desenberg, 143 Mich App 373, 383; 372 NW2d 559 (1985). However, ‘where
reasonable men may differ, it is for the jury, subject to the control of the court, to determine
whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result
in liability.’” Doe v Mills, 212 Mich App 73, 92; 536 NW2d 824 (1995), quoting 1 Restatement
Torts, 2d, § 46, comment h, p 77. See also Grochowalski v Detroit Automobile Inter-Insurance
Exch, 171 Mich App 771, 778-779; 430 NW2d 822 (1988) (holding as a matter of law that
defendant employee’s conduct “did not go beyond all possible bounds of decency and should not
be regarded as atrocious and utterly intolerable in a civilized community.”).
3
Indeed, if there was no factual dispute that the injury was caused by a quick elbow immediately
after the play and as the referee blew the whistle, I would hold that plaintiff could not establish
that defendant engaged in reckless behavior.
-2-
a punch between two players amidst an adult soccer match is not anywhere close to conduct that
goes beyond all bounds of decency and is “utterly intolerable in a civilized society.” Roberts,
supra at 603. It may be conduct requiring a penalty, and in fact it was penalized, but it is not in
my humble opinion “severe and outrageous conduct.” Id. In other words, a member of the
community – such as a fan watching the game – might upon seeing the conduct declare, “Did
you see that one!”, but he would most certainly not declare “outrageous.”
/s/ Christopher M. Murray
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.