ELIZABETH DAWE V DR REUVAN BAR-LEVAV & ASSOC PCAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
July 10, 2008
BLUE CROSS BLUE SHIELD OF MICHIGAN,
DR. REUVAN BAR-LEVAV & ASSOCIATES,
P.C., the ESTATE of DR. REUVAN BARLEVAV, M.D., and DR. LEORA BAR-LEVAV,
Oakland Circuit Court
LC No. 2001-036687-NH
Advance Sheets Version
Before: Smolenski, P.J., Whitbeck, C.J., and Kelly, J.
In this medical malpractice action, defendants Dr. Reuvan Bar-Levav & Associates, the
estate of Dr. Reuvan Bar-Levav (Dr. Bar-Levav), and Dr. Leora Bar-Levav appeal as of right the
jury verdict in favor of Elizabeth Dawe on various grounds. On cross-appeal, Dawe appeals the
trial court’s calculation of prejudgment interest on the jury’s award. We reverse, vacate the
judgment, and remand.
I. Basic Facts
This medical malpractice action arises out of a shooting incident at defendants’
psychiatric office where Dawe received treatment. On June 11, 1999, Joseph Brooks, who was a
former patient of Dr. Bar-Levav,1 came to the office, drew a handgun, and shot and killed Dr.
Bar-Levav. Brooks then proceeded to the back of the office and fired into Dawe’s group therapy
room. Brooks killed one patient and wounded others, including Dawe. After firing dozens of
rounds into the room, Brooks committed suicide.
Dawe sued defendants, alleging that Brooks made threatening statements to defendants in
which he indicated that he “fantasized about murdering” and that he demonstrated his ability to
carry out threats by coming to at defendants’ office with a handgun. Dawe further alleged that a
“manuscript” that Brooks delivered to defendants in June 1999 “could be reasonably construed
as a threat of violence against other members who participated in his group therapy sessions,
including [Dawe].” Accordingly, Dawe alleged that defendants were liable under two theories:
statutory liability for failure to warn under MCL 330.1946, and common-law medical
malpractice. With respect to her common-law medical malpractice claim, Dawe alleged that
defendants’ breached their applicable standard of care, which included “informing the police,
warning patients or others, and taking reasonable precautions for the protection of patients when
a doctor or health care provider has information which could reasonably be construed as a threat
of violence against a patient or others,” when defendants failed to warn Dawe and the police of
Brooks’s “threats” or take reasonable steps to protect Dawe. Dawe also filed an affidavit of
Meritorious Claim in support of her complaint.2
Defendants moved for summary disposition under MCR 2.116(C)(8) and (C)(10),
arguing that there was no evidence that Brooks expressed a threat to defendants about Dawe
specifically and, therefore, defendants owed no duty to warn or protect Dawe under MCL
330.1946. Defendants also noted that Dawe was not alleging malpractice with regard to her
individual care; rather, her only allegation was a failure to fulfill the duty to warn, which was
derived solely from the statute.
In response, Dawe argued that it was significant that she was defendants’ patient rather
than merely a “third person” to whom the statute applied. Dawe argued that her special
physician-patient relationship with defendants also required them to treat her within the
applicable standard of care stated in her complaint. In other words, Dawe argued that defendants
owed both statutory and common-law duties. Dawe further argued that she had presented a
genuine issue of material fact that defendants violated that standard of care. In support of her
motion, Dawe submitted the affidavit of Dr. Mark Fettman, Dawe’s psychiatric expert, who
attested that a psychiatrist has a duty to take reasonable precautions for the protection of patients.
According to Dr. Fettman, included within this duty is the requirement that the psychiatrist
assess a patient to determine if the patient is a suitable candidate for group therapy before placing
the patient in a group. Dr. Fettman averred that once a patient has been placed in group therapy,
the psychiatrist has a further duty to continually assess the patient to ensure that the patient
Defendants discharged Brooks from their care on March 19, 1999.
See MCL 600.2912d.
remains suitable for group therapy. Dr. Fettman attested that defendants violated the applicable
standard of care by placing Brooks in a group session with Dawe and other patients.
The trial court ruled that summary disposition was not appropriate because Dawe had
stated a prima facie case and there were genuine issues of material fact regarding whether
defendants violated MCL 330.1946 or the applicable standard of care. Accordingly, the trial
court denied defendants’ motion.
At trial, Dawe argued that defendants breached their duty to warn and that defendants
breached their duty to provide Dawe with a safe clinical environment for her treatment.
Specifically, Dawe contended that defendants breached the standard of care by placing Brooks in
Dawe’s group therapy sessions when they knew or should have known that Brooks was a danger
to the other group members.
After the close of Dawe’s proofs, defendants moved for a partial directed verdict on
Dawe’s claim of failure to warn under MCL 330.1946, arguing that Dawe failed to establish that
Brooks communicated to defendants a threat of violence specifically against Dawe. Defendants
also argued that Dawe failed to present expert testimony concerning the standard of care
applicable under the statute; that is, defendants noted that Dr. Fettman’s testimony applied solely
to defendants’ alleged duties when placing Dawe in group therapy, not to defendants’ duty to
warn. In response, Dawe again argued that it was significant that she was defendants’ patient,
apparently on the basis that MCL 330.1946 did not even apply in cases where the victim was a
patient.3 Nevertheless, the trial court denied the motion on the ground that Dawe had stated a
prima facie case sufficient to survive a directed verdict.
After the six-day trial in September 2005, the jury returned a verdict in favor of Dawe.
Defendants moved for a judgment notwithstanding the verdict (JNOV) and for a new trial,
raising several of the same issues now raised on appeal; however, the trial court denied the
motions. Defendants now appeal.
II. Preemption Of A Psychiatrist’s Common-Law Duty To Protect
Defendants argue that the only duty that a psychiatrist has to protect others from a patient
is the duty imposed by MCL 330.1946, and that the Legislature abrogated all other common-law
duties to protect third persons when it enacted MCL 330.1946. We agree.
A. The Statute
MCL 330.1946(1) provides:
Dawe’s counsel specifically stated: “[T]his statute that [defendants are] referring to is talking—
it’s in establishing a duty by someone that isn’t normally a patient. That doesn’t exist here
because Elizabeth Dawe was [a patient]. . . . This other statute is talking about if Elizabeth Dawe
wasn’t a patient[.]”
If a patient communicates to a mental health professional who is treating
the patient a threat of physical violence against a reasonably identifiable third
person and the recipient has the apparent intent and ability to carry out that
threat in the foreseeable future, the mental health professional has a duty to take
action as prescribed in [MCL 330.1946(2)]. Except as provided in this section, a
mental health professional does not have a duty to warn a third person of a threat
as described in this subsection or to protect the third person.
MCL 330.1946(2) provides:
A mental health professional has discharged the duty created under
subsection (1) if the mental health professional, subsequent to the threat, does 1 or
more of the following in a timely manner:
(a) Hospitalizes the patient or initiates proceedings to hospitalize the
patient under [MCL 330.1400 et seq.] or [MCL 330.1498a et seq.].
(b) Makes a reasonable attempt to communicate the threat to the third
person and communicates the threat to the local police department or county
sheriff for the area where the third person resides or for the area where the patient
resides, or to the state police.
(c) If the mental health professional has reason to believe that the third
person who is threatened is a minor or is incompetent by other than age, takes the
steps set forth in subdivision (b) and communicates the threat to the department of
social services in the county where the minor resides and to the third person’s
custodial parent, noncustodial parent, or legal guardian, whoever is appropriate in
the best interests of the third person.
In other words, a mental-health professional does not have a duty to take the actions described
under MCL 330.1946(2) unless four criteria are met: (1) a mental-health professional is presently
treating a patient, (2) that patient communicates a threat of physical violence to the mental-health
professional, (3) that threat of physical violence is directed against a readily identifiable third
1995 PA 290 amended MCL 330.1946 to change the third use of the word “patient” in
subsection one to “recipient.” All other references to “patient” in the statute were left unaltered.
The term “recipient” is defined to mean “an individual who receives mental health services from
the department, a community mental health services program, or a facility or from a provider that
is under contract with the department or a community mental health services program.” MCL
330.1100c(12). Although not all patients of mental-health professionals will qualify as
recipients, see Saur v Probes, 190 Mich App 636, 641; 476 NW2d 496 (1991) (construing
former MCL 330.1700, which defined “recipient” in a substantially similar way to present MCL
330.1100c), for this issue, it is not necessary to examine how the use of the term “recipient”
might affect the duty imposed by this statute.
person, and (4) the patient has the apparent intent and ability to carry out the threat in the
B. Principles of Common-Law Preemption
“The common law, which has been adopted as part of our jurisprudence, remains in force
until amended or repealed.”5 “Whether a statutory scheme preempts, changes, or amends the
common law is a question of legislative intent.”6 But “legislative amendment of the common
law is not lightly presumed.”7 When the Legislature exercises its authority to modify the
common law, “it should speak in no uncertain terms.”8
C. Principles of Statutory Interpretation
When interpreting a statute,
[t]his Court’s primary task . . . is to discern and give effect to the intent of the
Legislature. “The words of a statute provide ‘the most reliable evidence of [the
Legislature’s] intent . . . .’” In discerning legislative intent, a court must “give
effect to every word, phrase, and clause in a statute . . . . The Court must consider
“both the plain meaning of the critical word or phrase as well as ‘its placement
and purpose in the statutory scheme.’” “The statutory language must be read and
understood in its grammatical context, unless it is clear that something different
was intended.” “If the language of a statute is unambiguous, the Legislature must
have intended the meaning clearly expressed, and the statute must be enforced as
The Legislature is presumed to have intended the meaning it plainly expressed.10
D. Relevant Caselaw Interpreting MCL 330.1946
To establish a prima facie case of negligence, the plaintiff must prove as a matter of law
that the defendant owed a duty to the plaintiff to avoid negligent conduct.11 Generally, under the
Wold Architects & Engineers v Strat, 474 Mich 223, 233; 713 NW2d 750 (2006), citing Const
1963, art 3, § 7.
Hoerstman Gen Contracting, Inc v Hahn, 474 Mich 66, 74; 711 NW2d 340 (2006).
Shinholster v Annapolis Hosp, 471 Mich 540, 548-549; 685 NW2d 275 (2004) (internal
Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 219; 731 NW2d 41 (2007).
Swan v Wedgwood Christian Youth & Family Services, Inc, 230 Mich App 190,195; 583
NW2d 719 (1998).
common law, “there is no duty that obligates one person to aid or protect another.”12 However,
under the common law, “[w]here there is a duty to protect an individual from a harm by a third
person, that duty to exercise reasonable care arises from a ‘special relationship’ either between
the defendant and the victim, or the defendant and the third party who caused the injury.”13
In Davis v Lhim,14 the Court adopted the reasoning of Tarasoff v Regents of Univ of
California15 and held that the special relationship between a psychiatrist and his or her patient
gives rise to “a duty of reasonable care to a person who is foreseeably endangered by [the
psychiatrist’s] patient.” The Michigan Supreme Court later reversed Lhim on the ground that the
psychiatrist in Lhim was protected by governmental immunity, and, in light of that holding, the
Court found it unnecessary to address “whether a duty to warn should be imposed upon mentalhealth professionals to protect third persons from dangers posed by patients.”16
Shortly thereafter, the Michigan Legislature enacted MCL 330.1946, thereby codifying
the duty of mental-health professionals to warn third parties of danger from their patients.17 As
recognized by this Court, the legislative history of the statute indicates that the Legislature
enacted the statute to “limit the liability of mental health practitioners.”18
Since its enactment, only two published cases have interpreted the statute. However, the
issue now before this Court—whether a common-law duty to warn or protect has survived the
statute’s limitation on a psychiatrist’s liability to protect others—has not been resolved.
In 1996, this Court released its first opinion addressing the statute. In Jenks v Brown, the
plaintiff’s ex-wife told her psychiatrist that she intended to kidnap her, and the plaintiff’s, son.19
The plaintiff then sued the psychiatrist, alleging that he breached MCL 330.1946 by failing to
warn the plaintiff of his ex-wife’s threat. This Court affirmed the trial court’s grant of summary
disposition in the psychiatrist’s favor, holding that the psychiatrist had no duty to the plaintiff
because the threat was directed at the child, not the plaintiff. This Court explained:
In prior years, the common-law duty to warn had been extended in some
cases to unnamed third parties and even to property. In response to these
Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 498-499; 418 NW2d 381 (1988).
Murdock v Higgins, 454 Mich 46, 54; 559 NW2d 639 (1997).
Davis v Lhim, 124 Mich App 291, 301; 335 NW2d 481 (1983), rev’d on other grounds sub
nom Canon v Thumudo, 430 Mich 326 (1988).
Tarasoff v Regents of Univ of California, 17 Cal 3d 425; 131 Cal Rptr 14; 551 P2d 334 (1976).
Canon, supra at 355.
See 1989 PA 123.
Jenks v Brown, 219 Mich App 415, 418; 557 NW2d 114 (1996), citing House Legislative
Analysis, HB 4237, July 11, 1989.
Id. at 417.
developments, the duty to warn statute limited a mental health practitioner’s duty
to that as provided in the statute. Furthermore, in order for any duty to arise, a
patient must communicate “a threat of physical violence against a reasonably
identifiable third person.” It is apparent from the language of the statute and its
legislative history that it is intended to protect only those readily identifiable
individuals against whom a threat of physical violence is made.
The plaintiff also sought to amend his complaint to add a common-law theory of negligence.21
This Court ruled any such amendment futile on the ground that there was no special relationship
between the plaintiff and the psychiatrist that would give rise to a duty to protect the plaintiff.22
In so ruling, this Court acknowledged but declined to address the issue “whether a claim brought
against a mental-health practitioner under a common-law theory of failure to warn is superseded
by MCL 330.1946[.]”23
Two years later, this Court again published an opinion interpreting the statute. In Swan v
Wedgwood Christian Youth and Family Services, Inc, a teenage boy (LaPalm) killed his
mother’s boyfriend after being released from the defendant’s residential facility where LaPalm
had received psychiatric treatment.24 The plaintiff, as personal representative of the decedent’s
estate, sued the defendant, alleging that it negligently treated LaPalm, thereby proximately
causing the decedent’s death.25 Relying on Jenks, this Court affirmed the trial court’s grant of
summary disposition in the defendant’s favor on the ground that MCL 330.1946 served “as a bar
to the plaintiff’s suit because, pursuant to the statute, it owed no duty to the decedent.”26 More
specifically, this Court explained that the defendant owed no duty to warn or protect the decedent
under the terms of the statute because LaPalm never communicated a threat against the
decedent.27 This Court stated, “Under the statute, the only duty owed is a duty to warn in those
situations where a patient communicates a threat and the object of the threat is reasonably
The Swan Court also rejected the plaintiff’s argument that the statute did not apply
because his claim against the defendant alleged negligence rather than a failure to warn. This
Id. at 418-419 (citations omitted).
Id. at 420.
Id. at 421.
Id. at 421 n 1.
Swan, supra at 191-193.
Id. at 193-194.
Id. at 197-199.
Id. at 198-199.
Id. at 198 (emphasis added).
Plaintiff notes correctly that the type of claims it asserts are often brought
together with a failure to warn claim, but they are separate questions. However,
plaintiff’s argument fails because to the extent that he alleges a breach of duties
on the part of defendant, those duties were owed to LaPalm and not to the
decedent, as the circuit court correctly noted. Moreover, plaintiff’s argument
ignores the last sentence of MCL 330.1946(1) . . . , which provides, “Except as
provided in this section, a mental health professional does not have a duty to warn
a third person of a threat as described in this subsection or to protect the third
person.” (Emphasis added.) We believe that this language is unambiguous and
clearly limits the duty a mental health professional owes to third persons to the
duty to warn identifiable third persons “as provided in this section . . . .” Plaintiff
cannot claim the benefit of any alleged breach of duty to LaPalm, and the statute
plainly provides that defendant did not owe a duty to the decedent.
This Court also acknowledged but rejected the plaintiff’s position to the extent that it could be
interpreted as arguing that defendant owed a common-law, rather than a statutory, duty to the
decedent.30 More specifically, this Court concluded that even under the common law the
defendant had no duty to warn or protect the decedent because no foreseeable danger to
decedent, or any other third person, was made known during LaPalm’s treatment.31 In so ruling,
this Court again declined to “decide whether a common-law duty survived the enactment of the
Thus, this case presents this Court with an opportunity to resolve a recurring issue of
contention regarding a plaintiff’s ability to sue a psychiatrist (or other mental-health
professional) outside the limitation imposed by the statute.
E. The Psychiatrist’s Common-Law Duty to Protect “Third Persons” From Patients
We conclude that a plain reading of MCL 330.1946 indicates that the statute was
intended to modify the common-law duty to warn or protect third persons from a patient that
arises out of the special relationship between a psychiatrist and that patient. The second sentence
of subsection 1 clearly states that a mental-health professional has no duty to “warn” or “protect”
a “third person,” except as provided under MCL 330.1946. Thus, the Legislature has clearly
stated its intent to preempt a mental-health professional’s common-law duty to warn or protect
third persons. Indeed, Dawe concedes this interpretation. However, because Dawe alleges
ambiguity in the phrase “third person,” this conclusion does not end our inquiry.
Id. at 199 (citations omitted).
Id. at 199-200.
Id. at 200-201.
Id. at 200.
F. The Psychiatrist’s Common-Law Duty to Protect Patients From Other Patients
Dawe argues that MCL 330.1946 addresses only the duty that arises from the relationship
between a psychiatrist and a dangerous patient while specifically preserving other duties and,
therefore, does not abrogate or modify the common-law duty to treat other patients within the
applicable professional standard of care, which includes a duty to provide a safe clinical
environment for patients. We disagree.
As mentioned, Dawe concedes that “MCL 330.1946 explicitly governs the issue of” a
mental-health professional’s duty when a patient communicates a threat of violence against a
reasonably identifiable third person, and therefore concedes that it is clear that the Legislature
intended to modify a mental-health professional’s common-law duty to warn or protect those
third persons. But she contends that it is not at all clear that the Legislature intended to modify
or abrogate every common-law duty that a mental-health professional may have to protect the
mental-health professional’s other patients.
In support of her position, Dawe finds it significant that under subsection 5, the
Legislature expressly stated, “This section [MCL 330.1946] does not affect a duty a mentalhealth professional may have under any other section of law.” Dawe interprets this to mean that
the Legislature clearly contemplated that some duties would remain despite the language of
MCL 330.1946(1), which purports to eliminate all duties to “warn” or “protect” “third persons.”
In other words, Dawe would have us conclude that MCL 330.1946(1) only addresses a mentalhealth professional’s duty to warn or protect third persons from a patient arising from the
mental-health professional’s relationship with that patient who may pose a danger to the third
person, but that the statute does not modify any common-law duties that the mental-health
professional may have to protect another patient based on the mental-health professional’s
relationship with that patient (e.g., a psychiatrist’s duty to render professional care).
Thus, the issue essentially boils down to whether the term “third person” in MCL
330.1946(1) includes the psychiatrist’s other patients.
The second sentence of MCL 330.1946(1) expressly states: “Except as provided in this
section, a mental-health professional does not have a duty to warn a third person of a threat as
described in this subsection or to protect the third person.” (Emphasis added.) The phrase “third
person” is defined as “the grammatical person used in an utterance in referring to anyone or
anything other than the speaker or the one or ones being addressed.”33 Reading the phrase in
context and employing a common usage of the phrase “third persons” leads to the inevitable
conclusion that the phrase encompasses all other persons who are neither the dangerous patient
nor the mental-health professional. Accordingly we can only conclude that the Legislature
intended the term “third persons” to include those third persons who might also happen to be the
Random House Webster’s College Dictionary (2000) (emphasis added).
psychiatrist’s patient. Therefore, we conclude that the statute applies both to “third persons”
who are members of the public at large and to “third persons” who are also the psychiatrist’s
patient. To read “third persons” as not including other patients employs a strained reading of the
language and contravenes the dictate that we may not speculate regarding the intent of the
Legislature beyond the language expressed in the statute.34
Thus, we believe that the statute was specifically intended to expressly limit a mentalhealth practitioner’s duty to that “as provided in this section,” thereby limiting a mental-health
practitioner’s only duty to protect to only those readily identifiable persons against whom a threat
of physical violence is made.35 In other words, we believe that it is clear that the Legislature
intended to modify or abrogate any other conceivable duty that a mental-health professional may
have to protect others, which would include a duty to take reasonable steps to ensure that the
patient is treated in a safe clinical environment. The duty a mental-health professional owes to
protect third persons does not vary depending on the cause of action, nor -on the identity or
category of the “third person.”
Further, we disagree that subsection 5 of the statute, in which the Legislature stated,
“This section does not affect a duty a mental health professional may have under any other
section of law,” supports a conclusion that the Legislature contemplated that some common-law
duties would remain despite the language of MCL 330.1946(1). To the contrary, reading the
plain language of the statute indicates that the Legislature merely contemplated that a
psychiatrist’s other statutory duties remain viable—for example, the duty to report suspected
abuse under the Child Protection Law.36 More specifically, subsection 5 begins with the words
“[t]his section,” clearly referring to the statute, MCL 330.1946, as “[t]his section.” Subsection 5
then concludes with the words “under any other section of law[.]” The Legislature’s decision to
use the word “section” again here clearly indicates that it was again referring to statutory law,
rather than common law.
In sum, we conclude that no common-law duty to protect survived the Legislature’s
enactment of MCL 330.1946. We conclude that MCL 330.1946 preempts the field on the issue
of a medical health professional’s duty to warn or protect others, including the psychiatrist’s
other patients. We therefore conclude that Dawe’s claim that defendants breached their duty to
provide Dawe with a safe clinical environment for her treatment is without merit. Consequently,
we conclude that the trial court erred when it refused to grant defendants’ requests for relief
Lash v Traverse City, 479 Mich 180, 194; 735 NW2d 628 (2007).
See Swan, supra at 198 (“Under the statute, the only duty owed is a duty to warn in those
situations where a patient communicates a threat and the object of the threat is reasonably
identifiable.”); Jenks, supra at 419 (“It is apparent from the language of the statute and its
legislative history that it is intended to protect only those readily identifiable individuals against
whom a threat of physical violence is made.”).
premised on the theory that they had no common-law duty to protect Dawe beyond that imposed
by MCL 330.1946.
H. Unfair Result
We acknowledge that the evidence presented at trial was compelling proof that
defendants knew or should have known that Brooks posed a danger to the other patients in his
therapy group and, therefore, should not have been placed in group therapy. Therefore, it is an
unfair result to shield defendants from liability in this case. Common sense and the general
tenets of the common-law duty to protect arising out a special relationship would seem to justify
holding defendants accountable here. However, we are bound to interpret plain statutory
language as written. The plain language of the statute dictates the result we reach today, and any
arguments that the statute is unwise or results in bad policy must be addressed to the
III. Statutory Duty to Warn or Protect Under MCL 330.1946
Applying the language of the statute, defendants argue that Dawe failed to present
evidence that Brooks communicated to defendants a threat of physical violence against Dawe.
Therefore, defendants argue that the trial court erred when it declined to grant defendants’
motions for summary disposition,38 directed verdict, and JNOV on Dawe’s claim under MCL
In interpreting MCL 330.1946, this Court has clarified that “[i]t is apparent from the
language of the statute and its legislative history that it is intended to protect only those readily
identifiable individuals against whom a threat of physical violence is made.”39 Accordingly,
communication of a threat of physical violence directed against the victim is essential to liability
under the statute.40
Applying the statutory criteria to this case, we conclude that Dawe failed to present
evidence from which a reasonable jury could conclude that Brooks communicated a threat of
physical violence against Dawe to defendants. The only relevant testimony was that of James
Stanislaw, a certified social worker employed by defendants, who served as the therapist for the
group that included Brooks and Dawe. And although Stanislaw’s testimony, even taken in the
See Oakland Co Bd of Rd Comm’rs v Michigan Prop & Cas Guaranty Ass’n, 456 Mich 590,
613; 575 NW2d 751 (1998); Richter v Turlow, unpublished opinion per curiam of the Court of
Appeals, issued October 1, 1999 (Docket No. 210922), p2.
Because defendants do not substantively address their motion for summary disposition, we
limit our analysis to whether the trial court should have granted defendants’ motion for a directed
Swan, supra at 198, citing Jenks, supra at 419.
See Lagow ex rel Welch v Segue, Inc, unpublished opinion per curiam of the Court of Appeals,
issued August 17, 2001 (Docket No. 219624).
light most favorable to Dawe,41 established that Brooks probably indicated that he wanted to hurt
someone at the practice, his testimony did not establish that Brooks made a threat of physical
violence against Dawe, either individually or as a member of the therapy group. Therefore, we
conclude that Dawe failed to present evidence from which a reasonable jury could conclude that
Brooks communicated to defendants a threat of physical violence against Dawe, as a readily
identifiable third person. Thus, Dawe failed to establish a claim as a matter of law under MCL
330.1946. Consequently, the trial court should have granted defendants’ motion for directed
verdict on this claim.
Given the resolution of this issue, we decline to address defendants’ argument that the
statutory claim should have been dismissed because Dawe failed to present expert testimony
concerning the standard of care applicable under MCL 330.1946. Further, we find it
unnecessary to address whether the trial court erred in failing to grant defendants’ motion for
The trial court erred by failing to grant defendants a directed verdict. Therefore, we
vacate the lower court judgment against defendants, reverse the trial court’s denial of defendants’
motion for a directed verdict, and remand for entry of an order dismissing Dawe’s claims against
defendants. Given our disposition, we decline to address the parties’ remaining arguments
regarding errors related to the trial and judgment.
Reversed, judgment vacated, and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
Kelly, J., concurred.
/s/ William C. Whitbeck
/s/ Kirsten Frank Kelly
See Reed v Yackell, 473 Mich 520, 528; 703 NW2d 1 (2005).