ESTATE OF SHERRILL TURNER V SHERRY NICHOLS

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STATE OF MICHIGAN COURT OF APPEALS Estate of SHERRILL TURNER v NICHOLS. DELAINA PATTERSON, as Personal Representative for the Estate of SHERRILL TURNER, deceased, and ROBERT TURNER, a minor, Individually, by his Next Friend, DELAINA PATTERSON, UNPUBLISHED December 7, 2010 Plaintiff-Appellee, V Nos. 288375 and 291287 Wayne Circuit Court LC No. 08-111034-NO SHERRY NICHOLS, Defendant, and TERRI SUTTON, Defendant-Appellant. DELAINA PATTERSON, as Personal Representative for the Estate of SHERRILL TURNER, deceased, and ROBERT TURNER, a minor, Individually, by his Next Friend, DELAINA PATTERSON, Plaintiff-Appellee, -1- V No. 296198 Wayne Circuit Court LC No. 08-111034-NO SHERRY NICHOLS a/k/a SHARON J. NICHOLS, Defendant-Appellant, and TERRI SUTTON, Defendant. Before: BORRELLO, C.J., and CAVANAGH and OWENS, JJ. PER CURIAM. In this consolidated appeal, defendants appeal as of right the denials of their motions for summary disposition. We affirm. I. FACTS The facts in these cases are largely undisputed. On February 20, 2006, Robert Turner was at home with his mother, decedent Sherrill Turner. Just before six o’clock that evening, Robert noticed that his mother had fallen unconscious. Robert called 911, and Nichols answered. The following conversation occurred between Robert and Nichols: Nichols. Emergency 9-1-1, where is the problem? Robert. My mom has passed out. Nichols. You over on Spruce? Robert. Huh? Nichols. You on Spruce? Robert. My mom . . . -2- Nichols. Where’s Mrs. [or Mr.]1 Turner at? Robert. Right here. Nichols. Let me speak to her [or him]. Robert. She’s not gonna . . . she not gonna talk. Nichols. Okay, well I’m gonna send the police to your house and find out what’s going on with you. [Giving the address of the Turner residence.] Nichols did not send the police, or any response. At about 9:00 p.m., Robert again dialed 911, and Sutton answered. The following conversation occurred between Robert and Sutton: Sutton. Emergency 9-1-1, where is the problem? Robert. My mom has passed out in her room. Sutton. [Giving the Turners’ address]. residence? Is that the Robert Turner Robert. Yeah. Sutton. Where the grown-up at? Robert. In her room. My mom . . . Sutton. Let me speak to her. Let me speak to her before I send the police over there. Robert. (speaking over Sutton) She passed out. Robert. (after Sutton) She’s not gonna talk. Sutton. Huh? Robert. She’s not gonna talk. Sutton. Okay. Well, you know what then? She’s gonna talk to the police. Okay. She’s gonna talk to the police because I’m sending them over there. 1 The parties disagree on certain details of the first call. The differences in the transcripts, while potentially relevant to the ultimate disposition of this case, are not relevant to the disposition of this appeal. -3- Robert. She’s still not gonna talk. Sutton. I don’t care. You shouldn’t be playing on the phone. (Pause.) Now put her on the phone before I send the police out there to knock on the door and you gonna be in trouble. Robert. Argh! Sutton dispatched a police officer, who arrived at the Turner home at about 9:30 p.m., responding to Sutton’s report of “child playing on phone.” The officer found Sherrill supine and unresponsive. The officer contacted emergency medical services, who arrived at about 9:40 p.m., and declared Sherrill dead at 9:59 p.m. Plaintiffs sued defendants for wrongful death and for intentional infliction of emotional distress. Defendants moved for summary disposition based on governmental immunity. The trial court denied both defendants’ motions on both counts. II. STANDARD OF REVIEW The circuit court’s determination of a motion for summary disposition is reviewed de novo. Ormsby v Capital Welding, Inc, 471 Mich 45, 52; 684 NW2d 320 (2004). When reviewing a motion for summary disposition under MCR 2.116(C)(7), “the court may consider all affidavits, pleadings, and other documentary evidence, construing them in the light most favorable to the nonmoving party.” Alcona Co v Wolverine Environmental Production, Inc, 233 Mich App 238, 246; 590 NW2d 586 (1998). III. WRONGFUL DEATH Plaintiffs argue that the trial court erred in denying their motions for summary disposition of the wrongful death claim. We disagree. MCL 691.1407(2) provides that governmental employees are immune from tort liability unless their conduct amounts to “gross negligence that is the proximate cause of the injury or damage.” MCL 691.1497(2)(c). “Gross negligence” is “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(7)(a). In Robinson v Detroit, 462 Mich 439, 462; 613 NW2d 307 (2000), our Supreme Court held that “the proximate cause” means the “one most immediate, efficient, and direct cause of the injury or damage.” This definition was first set forth in Stoll v Laubengayer, 174 Mich 701; 140 NW 532 (1913), and the Robinson Court relied on this case in support of its holding, stating that “the Legislature has nowhere abrogated this . . . .” Robinson, 462 Mich at 462. Thus, we turn to Stoll for guidance. In Stoll, it appears that the defendant had allegedly parked his team of horses across a particular path in a negligent manner. Stoll, 174 Mich at 701. A five-year-old child who was sledding down a hill sledded “under defendant’s wagon and against the heels of his horses” and was either run over by the wheel or the wagon or kicked by a horse. Id. She died from her injuries and the defendant was sued for negligence. After a judgment was rendered against -4- defendant, he appealed arguing, in part, that his negligence was not the proximate cause of the child’s death. Id. The Supreme Court agreed, holding that the defendant’s alleged negligent act preceded the girl’s decision to slide down the hill. The immediate cause of the injury was the child’s act of “voluntarily starting her sleigh down the incline.” Id. at 706. “But for this act of hers (subsequent to defendant’s alleged negligent act, and therefore proximate to the injury) no accident could have occurred.” Id. The Stoll Court concluded that, with regard to the girl’s action, “[w]hether willful or accidental, it was still proximate—the immediate, efficient, direct cause preceding the injury.” Id. at 706. In Robinson, 462 Mich at 439, the plaintiffs, in relevant part, sued the police officers involved in police pursuits that eventually resulted in crashes and subsequent injuries to the plaintiffs. The individual officers claimed that they were not “the proximate cause” of the plaintiffs’ injuries. The Supreme Court agreed, holding that—consistent with Stoll—the “one most immediate, efficient, and direct cause of the plaintiffs’ injuries was the reckless conduct of the drivers of the fleeing vehicles.” Id. at 462. That is, but for the fleeing, no accident could have occurred. In our cases, the claimed injury is the decedent’s death. We conclude that there is a genuine issue of material fact whether the grossly negligent conduct of defendants was the proximate cause—the one most immediate, efficient, and direct cause—of the decedent’s death. Although it is unclear at this point what caused the decedent’s initial medical emergency, it appears to be cardiac-related. However, there is no evidence which indicates that the decedent’s death was either immediate, i.e., that she was deceased at the time her son called 911, or was certain to occur. In fact, there is evidence to the contrary. According to records of the Wayne County Medical Examiner, when officers arrived—three hours after the initial call to 911—the decedent was “warm to the touch with no rigor present.” Thus, unlike in the cases of Stoll and Robinson, there is no other act or circumstance that could be the “one most immediate, efficient, and direct cause” of the decedent’s death, other than the underlying medical event. But, a question of fact clearly exists regarding whether the underlying medical event or defendants’ failure to provide the requested medical assistance was “the proximate cause,” i.e., the one most immediate, efficient, and direct cause of decedent’s death. In other words, there is no evidence that the underlying medical event would have certainly killed decedent, i.e., there was no chance of survival, or that the decedent would not have survived even with proper and timely medical assistance. Accordingly, there appears to be evidence from which a reasonable jury could conclude that defendants’ gross negligence was the one most immediate, efficient, and direct cause of death. Under the circumstances of our cases, the issue whether defendants’ gross negligence was the proximate cause of the decedent’s death cannot be determined as a matter of law according to the evidence before us. It appears that reasonable minds could differ regarding the proximate cause of decedent’s death, and, as a result, the trial court did not err in denying defendants’ motions for summary disposition on this count. -5- IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Defendants argue that they are also immune from liability for intentional infliction of emotional distress. They argue that, absent a specific intent to cause emotional distress, the GTLA shields them from liability because they were acting within the scope of their employment and performing discretionary, as opposed to ministerial, acts. They further argue that assuming they are not entitled to governmental immunity, the claims against them should nevertheless have been dismissed because plaintiffs cannot meet all of the elements of the tort. We disagree. A. GOVERNMENTAL IMMUNITY FOR INTENTIONAL TORTS Subsection 7(2) of the GTLA only governs tort liability for negligence. Subsection 7(3) specifies that “[s]ubsection (2) does not alter the law of intentional torts as it existed before July 7, 1986.” MCL 691.1407(3). Our Supreme Court has explained that the purpose of § 7(2) is to eliminate the distinction laid out in Ross v Consumers Power Co, 420 Mich 567; 363 NW2d 641 (1984) between discretionary and ministerial acts, as that distinction relates to immunity from tort liability. Odom v Wayne Co, 482 Mich 459, 470; 760 NW2d 217 (2008). The purpose of § 7(3) is to clarify that the Ross distinction was only being eliminated for negligent torts, and preserved for intentional torts. Id. at 470-471. The standard for governmental immunity from liability for intentional torts, then, remains governed by common law, specifically by Ross and Odom. Id. at 472-473. Under the Ross test, there are three requirements for a lower-level2 governmental employee to be immune from liability for intentional torts: the employee must be “1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority; 2) acting in good faith; and 3) performing discretionary, as opposed to ministerial acts.” Ross, 420 Mich at 633-634. The parties agree that the first requirement was satisfied, but dispute the second and third requirements. 1. GOOD FAITH In Odom, our Supreme Court discussed good and bad faith. And noted that bad faith includes “‘malicious, corrupt, and otherwise outrageous conduct on the part of those guilty of an intentional abuse of power.’” Odom, 482 Mich at 474, quoting Prosser, Torts (4th ed), § 132, p 989. According to Odom, “there is no immunity when the governmental employee acts maliciously or with a wanton or reckless disregard of the rights of another.” Id. (emphasis in original). The Court stated “an ‘action may lie only if the [defendant] has utilized wanton or malicious conduct or demonstrated a reckless indifference to the common dictates of humanity.’” Odom, 482 Mich at 474, quoting Dickey v Fluhart, 146 Mich App 268, 276; 380 NW2d 76 (1985). Another cited case “described a lack of good faith as ‘malicious intent, capricious action or corrupt conduct,’” id., quoting Veldman v Grand Rapids, 275 Mich 100, 113; 265 NW 790 2 Defendants are lower-level employees because they are not “judges, legislators, [or] the highest executive officials of [any level] of government.” Ross, 420 Mich at 633. -6- (1936), while another stated that “‘willful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does.’” Id. at 475, quoting Burnett v Adrian, 414 Mich 448, 455; 326 NW2d 810 (1982). Thus, contrary to defendants’ arguments, specific intent is not required to overcome immunity with respect to intentional torts. Rather, a lack of good faith may be shown by wanton or reckless conduct. Recklessness may be shown by showing that “any reasonable person would know emotional distress would result” from a defendant’s conduct. Haverbush v Powelson, 217 Mich App 228, 236-237; 551 NW2d 206 (1996). Haverbush held that such a showing is sufficient, not necessary, to show recklessness. Id. at 237. Black’s Law Dictionary defines recklessness as “[c]onduct whereby the actor does not desire harmful consequence but nonetheless foresees the possibility and consciously takes the risk.” Black’s Law Dictionary (8th ed). On the facts before this Court, a reasonable juror could find that defendants’ conduct, failing to send assistance in response to a 911 call indicating a need for medical assistance, amounted to recklessness. Certainly a 911 operator is not infallible and must have some level of discretion in gauging the legitimacy of a report, the type of emergency, and the necessity and urgency of a response. But defendants arguably did not exercise such discretion. Rather it appears they ignored the information Robert was providing, including the fact that his mother could not come to the phone because she had passed out. A reasonable juror could find that treating a 911 call as a prank entails a risk of causing severe emotional distress to the caller, that defendants ignored this risk, and that their conduct therefore amounted to recklessness. Because reckless conduct, under Odom, is sufficient to demonstrate lack of good faith, defendants are not entitled to immunity from this claim. 2. DISCRETIONARY ACTS Even if it were the case that defendants were acting in good faith, they are not entitled to immunity because their acts were ministerial, not discretionary. Defendants argue that, in fielding 911 calls, they are vested with the discretion to determine the priority of calls, and decide whether to send assistance and what kind of assistance to send. But this argument overlooks the gravamen of plaintiffs’ complaint. Plaintiffs have alleged that Robert’s emotional distress was caused by defendants’ treatment of him on the phone. In other words, the allegedly tortious conduct was not defendants’ failure to properly carry out the duties they describe as discretionary, but their interaction with Robert. As plaintiffs point out, the treatment of a 911 caller is governed by a number of policies that strictly limit the discretion an operator has. Plaintiffs cite the Detroit Police Department’s General Order 78-11 as a source of several of these policies, including subsections 8.1: “An employee shall meet the public with consideration, answering questions civilly and courteously”; 8.2: “An employee shall, when on duty or acting in an official capacity, address citizens in a businesslike and courteous manner”; 8.3: “An employee shall not use disrespectful, . . . demeaning, belittling or insulting language . . . to any citizen”; and especially 8.4: “All employees shall give all possible consideration to citizens seeking information or assistance or -7- desiring to make any report” and 8.9: “An employee shall, when questioning a citizen, do so in a polite and professional manner, taking into consideration all circumstances and remaining completely objective towards all persons.” Following an internal investigation by the Detroit Police Department, both defendants were found to be in violation of subsections 8.4 and 8.9. Even if Nichols were acting within her discretion in not sending assistance, and Sutton were acting within her discretion in sending a police officer instead of medical assistance, neither had the discretion to violate policies by interacting unprofessionally and inconsiderately with Robert. The mandatory language of the subsections quoted above governing defendants’ performance of their duties makes clear that the conduct complained of was ministerial, not discretionary. In addition to showing that they were acting within the course of their employment, defendants must, in order to claim governmental immunity, show that they were acting in good faith and that their acts were discretionary. Because a reasonable juror could find that, we affirm the trial court’s decision to deny them governmental immunity. B. THE ELEMENTS OF THE TORT The outrageous’ distress.’” Defendants elements. elements of intentional infliction of emotional distress are “(1) ‘extreme and conduct; (2) intent or recklessness; (3) causation; and (4) ‘severe emotional Roberts v Auto-Owners Ins Co, 422 Mich 594, 597; 374 NW2d 905 (1985). argue that plaintiffs cannot, as a matter of law, establish the first two of these In Roberts, this Court described “the prevailing view of what constitutes ‘extreme and outrageous’ conduct,” drawing from two paragraphs from the Second Restatement of Torts: “The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. 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!’ “The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt. There must still be freedom to express an -8- unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.” [Roberts, 422 Mich at 602603, quoting Restatement Torts, 2d, § 46, comment d, pp 72-73.] Here, the circumstances surrounding defendants’ conduct indicate that a reasonable juror could find the conduct to be extreme and outrageous. The mere words spoken, if spoken in another context or to another listener, might well be considered, “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Given, however, defendants’ positions as 911 operators, and the fact that their words were directed against a child, who they had been told was seeking emergency medical assistance for his unconscious mother (even if they did not believe it), this case may well be “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!’” Because a reasonable juror might find that defendants’ conduct was extreme and outrageous under this standard, the trial court was correct in holding that summary disposition is not appropriate on this element. Additionally, as discussed, a reasonable juror could find that defendants acted recklessly. A reasonable juror could find that defendants were aware of the risk that their conduct would cause emotional distress to Robert, and acted in disregard of that risk. The trial court therefore did not err in finding that there was a triable issue of fact with respect to recklessness. Triable issues of fact remain. A reasonable juror could find that the conduct of one or both defendants was extreme and outrageous, and that one or both defendants behaved recklessly. We find no error. Affirmed. /s/ Stephen L. Borrello /s/ Mark J. Cavanagh /s/ Donald S. Owens -9-

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