DANYELLE BURRELL V COUNTY OF MACOMB
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STATE OF MICHIGAN
COURT OF APPEALS
DANYELLE BURRELL,
UNPUBLISHED
May 17, 2011
Plaintiff-Appellee,
v
No. 295637
Macomb Circuit Court
LC No. 2008-003621-NI
COUNTY OF MACOMB and CITY OF
WARREN,
Defendants,
and
OFFICER BOOMS, OFFICER MICHAEL
ANDERSON, and OFFICER JOHN DOE,
Defendants-Appellants.
Before: K.F. KELLY, P.J., and BORRELLO and RONAYNE KRAUSE, JJ.
PER CURIAM.
Defendants,1 Officers Jason Booms, Michael Anderson, and John Doe, appeal as of right
the trial court’s denial of their motion for summary disposition. This case arises out of plaintiff’s
alleged mistreatment at defendants’ hands following plaintiff’s arrest for operating while under
the influence. For the reasons set forth in this opinion, we reverse.
Defendants contend that plaintiff failed field sobriety tests after her vehicle was stopped
and that she refused to take a breathalyzer test; plaintiff contends that she did not refuse and had
not been drinking and that the breathalyzer repeatedly showed a “zero, zero, zero” result.
Plaintiff maintains that she was cooperative at all times, but she was assaulted, threatened,
forcibly restrained, subjected to racial slurs, injured, and denied subsequent medical attention.
Defendants contend that plaintiff was uncooperative and unruly and needed to be physically
1
Because the County of Macomb and the City of Warren are not participating in this appeal, we
refer to the individual defendants as “defendants.”
-1-
restrained. A video recording was made of the booking process, and it shows that plaintiff and
officers engaged in a struggle; but the recording has no audio, has a low frame rate, and is
otherwise of poor quality. We agree entirely with the trial judge’s evaluation of the video
recording as “inconclusive.” Plaintiff’s wrist was injured at some point. The trial court
concluded that the evidence conflicted and so whether defendants used excessive force was a
question of fact. It therefore denied defendants’ motion for summary disposition. We review a
trial court’s decision on a motion for summary disposition de novo. Maiden v Rozwood, 461
Mich 109, 118; 597 NW2d 817 (1999).
Defendants argue that they are entitled to summary disposition on the basis of
governmental immunity for plaintiff’s gross negligence claim arising out of the injury she
sustained to her wrist. We agree.
Governmental officers or agents are immune from tort liability for injuries they cause
while in the course of their employment if, in relevant part, their “conduct does not amount to
gross negligence that is the proximate cause of the injury or damage.” MCL 691.1407(2)(c).
Gross negligence requires “conduct so reckless as to demonstrate a substantial lack of concern
for whether an injury results.” MCL 691.1407(7)(a). This can also be “characterized as a willful
disregard of safety measures and a similar disregard for substantial risks.” Oliver v Smith (After
Remand), ___ Mich App ___, ___; ___ NW2d ___ (Docket No. 292585, issued November 23,
2010), slip op at 4. “[E]vidence of ordinary negligence does not create a material question of
fact concerning gross negligence.” Maiden, 461 Mich 122-123. The injury plaintiff sustained
while officers placed a wrist lock on her raises some question of fact regarding whether the
officers were as considerate of plaintiff’s safety as they could have been. But otherwise, the
evidence only indicates that the officers used the precise kind of restraint on plaintiff that is
intended to control a resistive detainee. The only contrary evidence is plaintiff’s conclusory, and
therefore inadequate, statement that “[she] was assaulted.” We find that there is insufficient
evidence of negligence to support a question of fact regarding whether defendants committed
gross negligence. Therefore, summary disposition should have been granted on this claim.
Defendants next argue that the trial court erred in denying their motion for summary
disposition of plaintiff’s intentional tort claim for assault and battery. We agree.2
The elements of assault and battery are:
An assault is “any intentional unlawful offer of corporal injury to another
person by force, or force unlawfully directed toward the person of another, under
circumstances which create a well-founded apprehension of imminent contact,
coupled with the apparent present ability to accomplish the contact.” Espinoza v
Thomas, 189 Mich App 110, 119; 472 NW2d 16 (1991). This Court defined
2
Defendants did not properly preserve this argument in the trial court, but because it is a
question of law and all of the necessary facts are presented, we nevertheless choose to address it.
Smith v Foerster-Bolser Constr, Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006).
-2-
battery as “the wilful and harmful or offensive touching of another person which
results from an act intended to cause such contact.” Id. [Smith v Stolberg, 231
Mich App 256, 260; 586 NW2d 103 (1998).]
Plaintiff asserted in her deposition that defendants made hostile, malicious and
threatening comments to her, as well as racial slurs and crude sexual comments. She also
asserted that defendant Boom push-punched her and forcibly removed her hair extensions and
that defendant Anderson pepper sprayed her. Plaintiff’s claims in this regard are conclusory. A
party may not create a genuine issue of material fact by merely asserting conclusory statements.
Rose v Nat’l Auction Group, 466 Mich 453, 470; 646 NW2d 455 (2002). Therefore, the trial
court should have granted summary disposition of plaintiff’s assault and battery claim because
plaintiff failed to establish an issue of material fact regarding whether defendants committed the
intentional tort of assault and battery.
Finally, defendants assert that they were entitled to summary disposition on plaintiff’s
claim of gross negligence for failing to provide medical care. We agree.3
We initially find meritless defendants’ claim that they were unaware of plaintiff’s need
for medical care. The Macomb County Sheriff’s report, states:
At approx. 2120 hrs Inmate [Burrell] was transported to the MJC by the
Warren PD. While being pat searched by Officer Balsama Birrelly stated she was
unable to place her hand on the glass. When asked why[,] [Burrell] stated
“Warren broke my hand when they arrested me”. When asked if she brought this
injury to the Officers[’] attention she responded “Yes, they told me to tell you
when I got to the County.”
This is evidence that plaintiff brought her injury to the attention of defendants. Plaintiff also
testified that she repeatedly asked for medical care, and to be taken to the hospital. At a
minimum, there is a genuine question of fact regarding whether plaintiff asked for medical care.
However, there is no evidence of when plaintiff brought her injury to defendants’
attention, which, in context, is significant. The evidence in the record is consistent with plaintiff
reporting her injury late, around the time when she was about to be transported to the county jail,
which explains defendants’ alleged instruction to plaintiff to inform the county of her injury.
There is no evidence from which reasonable minds could infer that plaintiff gave defendants a
realistic opportunity to provide her with medical care. Arguably, defendants should have noticed
plaintiff’s injury, but failing to be as watchful as they should have been is not, by itself, more
than ordinary negligence. Walden v Green, 346 Mich 21, 24; 77 NW2d 266 (1956). We are
unable to perceive a genuine question of fact whether defendants acted with reckless disregard.
Defendants were therefore entitled to summary disposition on this issue.
3
However, defendants’ reliance on decisions dealing with federal claims, rather than state law
claims, is inapposite and we do not consider those decisions.
-3-
Reversed.
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
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