JAMIE A BRADLEY V DETROIT PUBLIC SCHOOLS
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STATE OF MICHIGAN
COURT OF APPEALS
JAMIE A. BRADLEY,
UNPUBLISHED
January 27, 2011
Plaintiff-Appellant,
v
DETROIT PUBLIC SCHOOLS, NOLAN
MIDDLE SCHOOL, DARYL MCDUFFIE,
SHAWN GRANT, JANE DOE and JOHN DOE,
No. 292749
Wayne Circuit Court
LC No. 07-722472-NO
Defendants-Appellees.
Before: M.J. KELLY, P.J., and K.F. KELLY and BORRELLO, JJ.
PER CURIAM.
Plaintiff appeals as of right from an order granting defendants’ motion for summary
disposition and dismissing plaintiff’s claims of malicious prosecution, defamation, libel, slander,
intentional infliction of emotional distress, and negligence. For the reasons set forth in this
opinion, we affirm.
On March 30, 2006, plaintiff was involved in an incident at defendant Nolan Middle
School during a disciplinary hearing with a teacher, defendant Shawn Grant, and plaintiff’s son,
a student at the school. According to defendant Grant, plaintiff became upset during the meeting
and hit her in the stomach before leaving with his son. Defendant Grant was pregnant at the
time. She reported the allegation to the police and plaintiff was prosecuted for assault with intent
to do great bodily harm less than murder.1 A jury found plaintiff not guilty, and plaintiff
thereafter filed a civil complaint against defendants. As noted above, the trial court granted
defendants’ motion for summary disposition as to all defendants and dismissed plaintiff’s entire
case against them.
We review de novo a trial court’s ruling on a motion for summary disposition. Ormsby v
Capital Welding, Inc, 471 Mich 45, 52; 684 NW2d 320 (2004). When reviewing a motion
1
MCL 750.84.
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brought under MCR 2.116(C)(10),2 the court considers the affidavits, depositions, pleadings,
admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. Rose v Nat’l Auction Group, 466 Mich 453, 461; 646 NW2d 455 (2002).
Summary disposition is appropriate if there is no genuine issue regarding any material fact and
the moving party is entitled to judgment as a matter of law. Id.
Plaintiff first argues that the trial court erred in granting summary disposition to
defendant Grant because there are genuine issues of material fact regarding his malicious
prosecution claim. To substantiate this claim, plaintiff had the burden of proving (1) that
defendant Grant initiated or maintained a criminal prosecution against him, (2) that the criminal
proceedings terminated in his favor, (3) that defendant Grant lacked probable cause for her
actions, and (4) that her actions were undertaken with malice or a purpose in instituting the
criminal claim other than bringing plaintiff to justice. Matthews v Blue Cross & Blue Shield of
Michigan, 456 Mich 365, 378; 572 NW2d 603 (1998); Rivers v Ex-Cell-O Corp, 100 Mich App
824, 832; 300 NW2d 420 (1980). The malicious prosecution statute, MCL 600.2907, is a
general statute that gives broad authority for many persons and entities to be sued. Payton v
Detroit, 211 Mich App 375, 393; 536 NW2d 233 (1995). Because of the balancing of the
interests involved, actions for malicious prosecution have been limited by restrictions that make
them difficult to maintain. Matthews, 456 Mich at 377.
We first address the trial court’s comments regarding the fact that it was the prosecutor’s
decision, not Grant’s, to bring a criminal charge against plaintiff. These comments relate to
plaintiff’s burden of establishing an issue of material fact regarding whether Grant or any of the
other defendants initiated or maintained a criminal prosecution against him. Matthews, 456
Mich at 378. Regarding this element of malicious prosecution, this Court has stated:
Due to the important state policy of encouraging citizens to report possible
criminal violations within their knowledge, a defendant cannot be held liable for
malicious prosecution unless he took some active role in instigating the
prosecution. If the defendant, as complainant, has made full and fair disclosure of
all of the material facts within his knowledge to the prosecutor, and the
prosecuting attorney recommends a warrant, no recovery may be had against said
defendant, for under such circumstances the complaint has not ‘instituted’ the
charge. [Rivers, 100 Mich App at 832-833.]
Plaintiff has failed to bring to our attention any facts which could lead us to conclude that
Grant did not make a full and fair disclosure or all material facts known to her at the time the
warrant was issued. Rather, plaintiff asserts that Grant’s statements seemingly vary in their
specificity as to the assault. Plaintiff does not allege, and there exists no factual support to
2
Defendants moved for summary disposition pursuant to MCR 2.116(C)(7), (C)(8), and (C)(10).
Because the trial court relied on matters outside the pleadings, MCR 2.116(C)(10) is the
appropriate basis for review. Silberstein v Pro-Golf of America, Inc, 278 Mich App 446, 457;
750 NW2d 615 (2008).
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conclude, that Grant lied to the authorities. Absent a showing that Grant failed to make a full
and fair disclosure of all the material facts known to her, we must find, as a matter of law, that
Grant did not “institute” the charge against plaintiff. See id.
Even if we were to conclude that defendant Grant made less than a full and fair disclosure
of all material facts to the prosecutor, our review of the record leads us to conclude that the
decision to prosecute this matter constituted an action independent of any of the defendants’
actions. Defendant Grant made a police report which was followed by an investigation by the
Wayne County Prosecutor’s Office. An investigator from the Wayne County Prosecutor’s office
took a statement from defendant Grant and the student who was present at the time the alleged
assault occurred.3 Following review of the information, the Wayne County Prosecutor’s office
authorized the warrant. Therefore, we conclude that the decision to issue the warrant was based
on an independent review by the Wayne County Prosecutor’s Office. In Matthews, 465 Mich at
386, our Supreme Court stated: “The independent exercise of prosecutorial discretion
establishes that the private defendant did not initiate the prosecution. The prosecutor’s
independent investigation is not in law attributable to the private defendants.” Accordingly,
plaintiff cannot maintain an action against Grant for malicious prosecution because she did not
initiate or maintain the prosecution as a matter of law based on the Wayne County Prosecutor’s
independent investigation and decision to prosecute plaintiff.
We next address plaintiff’s contention that a question of fact exists regarding whether
defendant Grant lacked probable cause to undertake her actions. Lack of probable cause is a
question of law to be determined by the court, unless “the facts on which the issue turns are in
dispute,” in which case “the question is for the jury.” Matthews, 465 Mich at 381-382. Plaintiff
incorrectly asserts that the “precise issue” in determining the existence of probable cause is
found in Rivers, namely, that there must have been a full and fair disclosure of all material facts
within the defendant’s knowledge. The actual standard to be employed is stated in Matthews:
“A person may have probable cause for making a criminal complaint from
information received from others merely; but in such case, he must honestly
believe the information there obtained to be true, and the information must be of
that character, and obtained from such sources, that business men generally, of
ordinary care, prudence, and discretion, would act upon it under such
circumstances, believing it to be reliable. But a man’s mere belief that another is
guilty is not probable cause, unless that belief is founded upon reasonable grounds
of suspicion, or upon information of such a reliable kind, and from such reliable
sources . . . such as would induce an impartial and reasonable mind to believe in
the guilt of the accused.” [Matthews, 465 Mich at 388, quoting Wilson v Bowen,
64 Mich 133, 138; 31 NW 81 (1887).]
3
The relevant portion of the student’s statement read: “Then the man hit Ms. Grant in the
stomach and pushed her back.”
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In this case, the Wayne County Prosecutor’s independent investigation was based on
information provided by defendant Grant and a student. The student’s statement corroborated
defendant Grant’s allegation that plaintiff had assaulted her. The information available to the
Wayne County Prosecutor at the time that the charges were instituted would cause a reasonable
mind to believe in the guilt of the accused. As correctly observed by the trial court, there was
never an assertion from defendant Grant, or any person deposed in this case, that Grant had
provided false testimony to the police. Thus, even if we were to assume that there was sufficient
legal evidence that Grant or any of the named defendants initiated or maintained the prosecution,
taken in the light most favorable to the plaintiff, there is simply no basis to conclude that a
reasonable person would not have believed that plaintiff committed an assault. There also was
no evidence that the prosecution was initiated other than at the sole discretion of the Wayne
County Prosecutor following an independent investigation. Accordingly, the trial court’s finding
that there was no genuine issue of material fact regarding the malicious prosecution claim as to
all defendants was not in error.
We also reject plaintiff’s argument that the trial court incorrectly found that plaintiff
touched Grant in some way and based its decision to grant summary disposition of his malicious
prosecution claim based on this erroneous finding. The trial court clearly indicated that the issue
of the touching did not determine the outcome of the motion. “That’s not the gravamen of this
case,” the court stated. The issue on which summary disposition was based was whether Grant’s
disclosure to the police was fair and full, not whether plaintiff assaulted Grant. The trial court
noted that Grant never stated that she was not touched, and noted the importance of the
testimony of the witness in determining whether Grant’s disclosure to the police was full and
fair. The trial court’s finding that there was no genuine issue of material fact regarding the
malicious prosecution claim was not in error.
We next address plaintiff’s argument that defendant Detroit Public Schools was not
immune from tort liability. The applicability of governmental immunity is a question of law that
is reviewed de novo. Herman v Detroit, 261 Mich App 141, 143; 680 NW2d 71 (2004).
Governmental immunity from tort liability is governed by the operation of MCL 691.1407.
Immunity is broadly interpreted and exceptions to it are narrowly construed. Frohriep v
Flanagan, 275 Mich App 456, 468; 739 NW2d 645 (2007), rev’d in part on other grounds 480
Mich 962 (2007). The governmental tort liability act (GTLA), MCL 691.1401 et seq., grants
immunity from tort liability to the state, as well its agencies when they are engaged in the
exercise of a governmental function, except where the Legislature has expressly granted an
exception. MCL 691.1407(1).4 A school district is a “level of government . . . .” Nalepa v
4
“The statutory exceptions to the governmental immunity provided to the state and its agencies
are the highway exception, MCL 691.1402; the motor-vehicle exception, MCL 691.1405; the
public-building exception, MCL 691.1406; the proprietary-function exception, MCL 691.1413;
the governmental-hospital exception, MCL 691.1407(4); and the sewage-disposal-system-event
exception, MCL 691.1417(2) and (3).” Odom v Wayne Co, 482 Mich 459, 478; 760 NW2d 217
(2008).
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Plymouth-Canton Comm Sch Dist, 207 Mich App 580, 587; 525 NW2d 897 (1994). This Court
has observed that “‘[t]o determine whether a governmental agency is engaged in a governmental
function, the focus must be on the general activity, not the specific conduct involved at the time
of the tort.’” Tate v Grand Rapids, 256 Mich App 656, 661; 671 NW2d 84 (2003), quoting
Pardon v Finkel, 213 Mich App 643, 649; 540 NW2d 774 (1995) (alteration in Tate). Here,
Detroit Public Schools was engaged in administering the school district, or, alternatively,
facilitating a meeting where plaintiff and his son conferenced with school officials regarding his
education. The operation of a public school is a governmental function. Stringwell v Ann Arbor
Pub Sch Dist, 262 Mich App 709, 712; 686 NW2d 825 (2004).
According to plaintiff, the Detroit Public Schools is not immune from vicarious liability
for the intentional torts of its employees because intentional torts are not in the exercise of a
governmental function. The commission of an intentional tort is not in the exercise or discharge
of a governmental function. Moore v Detroit, 128 Mich App 491, 497; 340 NW2d 640 (1983);
Graves v Wayne Co, 124 Mich App 36, 41; 333 NW2d 740 (1983). Under the clear language of
MCL 691.1407(1), however, governmental entities are immune from liability for the torts of its
employees when they are engaged in the exercise of a governmental function, except where the
Legislature has expressly granted an exception to immunity. There is no exception in the
governmental immunity statute for intentional torts. Payton, 211 Mich App at 392, citing Smith
v Dep’t of Pub Health, 428 Mich 540, 609; 410 NW2d 749 (1987), aff’d sub nom Will v
Michigan Dep’t of State Police, 491 US 58; 109 S Ct 2304; 105 L Ed 2d 45 (1989). As
discussed above, the Detroit Public Schools was engaged in a governmental function at the time
of the alleged intentional torts. Because there is no exception in the governmental immunity
statute for intentional torts, the school system was immune from liability from any intentional
torts committed by its employees. See Payton, 211 Mich App at 393 (concluding that a
governmental unit was entitled to immunity “because it cannot be held liable for the intentional
torts of its employees”).
Plaintiff additionally argues that the Detroit Public Schools should be held vicariously
liable for the actions of the individual defendants based on an agency relationship between the
school system and its employees. However, as discussed, MCL 691.1407(1) provides that
governmental entities are immune from liability for the torts of its employees when they are
engaged in the exercise of a governmental function, as is the case here. To allow liability to be
imposed under an agency theory would subvert the purpose of the statutory grant of immunity.
We need not address plaintiff’s argument that the trial court erred in concluding that
Nolan Middle School was not a legal entity with the capacity to be sued and in granting
summary disposition on that basis. Even assuming that Nolan Middle School is a legal entity
that can be sued, it is a governmental agency engaged in the exercise of a governmental function
and, for the reasons outlined above, it is immune from plaintiff’s intentional tort claims.
We next address plaintiff’s argument that the trial court erred in ruling that defendant
Grant was entitled to individual governmental immunity. Here, defendant Grant was alleged to
have committed the intentional torts of malicious prosecution, defamation, and intentional
infliction of emotional distress. For an intentional tort, Grant must establish that she is entitled to
individual governmental immunity by showing the following:
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(a) The acts were undertaken during the course of employment and the
employee was acting, or reasonably believed that he was acting, within the scope
of his authority,
(b) the acts were undertaken in good faith, or were not undertaken with
malice, and
(c) the acts were discretionary, as opposed to ministerial. [Odom, 482
Mich at 480, citing Ross, 420 Mich at 633-634.]
Plaintiff alleges that defendant Grant falsely filed a police report and yelled to members
of the school staff that plaintiff struck her. Plaintiff argues that these acts were not in the scope
of Grant’s employment and were made for the purpose of making sure plaintiff would go to jail.
However, the parties agree that the incident occurred at the conclusion of a meeting regarding the
education of plaintiff’s son, thus during the course of employment. There was support that the
alleged acts were undertaken in good faith, or at least not with malice, as both Grant and a
student witness testified that there was significant physical contact from plaintiff to Grant, and
that Grant screamed from the pain of the contact. There was no argument that the acts of Grant
were ministerial. Moreover, it would be reasonable for Grant to believe that her conduct of
reporting an alleged assault made upon her during the course of employment was within the
scope of her authority. The trial court did not err in ruling that Grant had individual immunity.
We finally address plaintiff’s argument that the trial court erred in granting summary
disposition because it found that defendant McDuffie did not have a duty to investigate Grant’s
allegations. Because all of the allegations raised against McDuffie involve assertions of
negligent, not grossly negligent, conduct, plaintiff’s claim could not survive the qualified
individual governmental immunity afforded to McDuffie. Governmental immunity for lowerranking public officials accused of negligent torts is determined by operation of MCL
691.1407(2), which provides as follows:
Except as otherwise provided in this section, and without regard to the
discretionary or ministerial nature of the conduct in question, each officer and
employee of a governmental agency, each volunteer acting on behalf of a
governmental agency, and each member of a board, council, commission, or
statutorily created task force of a governmental agency is immune from tort
liability for an injury to a person or damage to property caused by the officer,
employee, or member while in the course of employment or service or caused by
the volunteer while acting on behalf of a governmental agency if all of the
following are met:
(a) The officer, employee, member, or volunteer is acting or reasonably
believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a
governmental function.
(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not
amount to gross negligence that is the proximate cause of the injury or damage.
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According to the clear language of the statute, McDuffie must have engaged in grossly negligent
conduct that was the proximate cause of any injury to plaintiff. Here, there was no such
allegation or evidence and the claim must fail. The trial court’s grant of summary disposition to
McDuffie was not in error.
Affirmed.
/s/ Michael J. Kelly
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
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