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STATE OF MICHIGAN 

COURT OF APPEALS 

DANIELLE JOE, Personal Representative of the 

Estate of XAVIER RAY JOE, 

 Plaintiff-Appellant/Cross-Appellee, 

UNPUBLISHED 

May 26, 2016 

v No. 323276 

Oakland Circuit Court 

COMMUNITY EMERGENCY MEDICAL 

SERVICE, 

LC No. 2014-140495-NO 

 Defendant-Appellee/CrossAppellant, 

and 

J. FISHER, J. MERSER, and K. CANNON 

 Defendants-Appellees 

Before: STEPHENS, P.J., and CAVANAGH and MURRAY, JJ. 

PER CURIAM. 

 Plaintiff1

 appeals as of right an order granting summary disposition to defendants, J. 

Fisher, J. Merser, K. Cannon, and Community Emergency Medical Service (“Community”). 

Community cross-appeals that same order. We affirm. 

I. FACTS AND PROCEDURAL HISTORY 

A. BACKGROUND FACTS 

 This appeal arises out of the death of Xavier Ray Joe (“Xavier”). On September 23, 

2012, Community was under contract with the city of Southfield to provide back-up advanced 

life support (ALS) ambulance services. Defendants J. Fisher, J. Merser, and K. Cannon 

 

1

 Plaintiff refers to Danielle Joe, the personal representative of the estate of Xavier Joe. 
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(collectively referred to as “the Southfield Dispatchers”) were 911 dispatchers for Southfield. 

On September 23, 2012 at 8:14 p.m., the Southfield Dispatchers requested a Community 

ambulance to be on standby in the city of Southfield as the Southfield ambulance units were all 

responding to a house fire. Also at 8:14 p.m., plaintiff called Southfield Dispatch and informed 

Fisher that Xavier was suffering from a severe asthma attack, which required immediate medical 

attention. At 8:18 p.m., Fisher called Community and requested that Community send an 

ambulance to 16204 Oxley Road, Southfield, to respond to Xavier’s asthma attack. At 8:21 

p.m., Community dispatched Unit 721 to the Oxley location to respond to plaintiff’s request. 

 At 8:27 p.m., one of the Southfield Dispatchers asked Community regarding Unit 721’s 

estimated time of arrival to the Oxley location. Unit 721 told Community that their estimated 

time of arrival was 10 minutes. Community subsequently told one of the Southfield Dispatchers 

that Unit 721’s estimated time of arrival was less than 10 minutes. At 8:27 p.m., Unit 723 was 

also dispatched by Community to the Oxley Location. 

 At 8:29 p.m., one of the Southfield Dispatchers called Community and cancelled the 

request to Oxley because Southfield “was going to handle it.” Community subsequently told 

Units 721 and 723 that the response call to the Oxley location was cancelled. As a result, Units 

721 and 723 never arrived at the Oxley location because their response had been cancelled. 

According to plaintiff, a Southfield unit responded 45 minutes after her request for an 

ambulance. According to Southfield Fire Chief Keith Rowley, a unit responded “closer to 15 

minutes” after plaintiff called 911. Xavier passed away from the asthma attack. 

B. PROCEDURAL HISTORY 

 Plaintiff subsequently filed a complaint against defendants, asserting that Community 

was negligent for failing to provide an ambulance response and was grossly negligent for (1) 

failing to provide an ambulance response, (2) making false representations to Southfield that 

Community was responding to the request for ambulance service when it was not responding, 

and (3) failing to inform Southfield that it was not responding to Xavier’s medical emergency. 

Plaintiff also alleged that the Southfield Dispatchers were grossly negligent for (1) failing to 

dispatch an ambulance to Xavier in a timely manner, (2) failing to confirm that Community was 

actually responding to the request for an ambulance, (3) failing to ensure that an ambulance was 

available to respond to emergencies in Southfield, and (4) providing false information to plaintiff 

regarding the status of the ALS ambulance response time. 

 Prior to the start of discovery, the Southfield Dispatchers filed a motion for summary 

disposition pursuant to MCR 2.116(C)(7), arguing that plaintiff’s claims were barred by 

governmental immunity. In response, plaintiff argued that her claims were not barred by 

governmental immunity because she pleaded facts that show the Southfield Dispatchers were 

grossly negligent and the proximate cause of Xavier’s death. 

 Soon thereafter, Community filed a motion for summary disposition pursuant to MCR 

2.116(C)(7), (C)(8), and (C)(10), asserting that plaintiff’s claims sound in medical malpractice, 

not ordinary negligence. Community asserted that because plaintiff’s claim was in essence a 

medical malpractice claim, it was barred because (1) plaintiff failed to file a notice of intent and 

affidavit of merit as required by statute and (2) no genuine issues of material fact existed 
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regarding the facts alleged in plaintiff’s complaint. Plaintiff responded by arguing that her claim 

did not sound in medical malpractice. 

 The trial court issued a written opinion granting summary disposition to defendants. 

First, the court stated that summary disposition was appropriate for the Southfield Dispatchers 

because plaintiff’s complaint did not contain facts to support a finding of gross negligence that 

was the most immediate, proximate cause of injury. Second, the trial court granted summary 

disposition to Community because Community “presented factual evidence that specifically 

refutes the allegations in the Complaint” and because plaintiff’s claims sound in medical 

malpractice, not ordinary negligence. The trial court entered a final order of dismissal of all of 

plaintiff’s claims against all of the defendants, which plaintiff now appeals as of right. 

II. ANALYSIS 

A. ALLEGATIONS AGAINST THE SOUTHFIELD DISPATCHERS 

 Plaintiff first argues that the trial court erred when it granted the Southfield Dispatchers 

motion for summary disposition on the basis of governmental immunity. This Court reviews de 

novo a trial court’s grant of summary disposition. McLean v Dearborn, 302 Mich App 68, 72; 

836 NW2d 916 (2013). Pursuant to MCR 2.116(C)(7), a motion for summary disposition may 

be brought when a claim is barred because of immunity granted by law. Plunkett v Dep’t of 

Transp, 286 Mich App 168, 180; 779 NW2d 263 (2009). To survive a motion brought on this 

basis, a plaintiff must allege facts warranting the application of an exception to governmental 

immunity. Id. In reviewing a motion for summary disposition under MCR 2.116(C)(7), this 

Court considers the affidavits, pleadings, and other documentary evidence presented by the 

parties and accepts the plaintiff’s well-pleaded allegations as true, except those contradicted by 

documentary evidence. Oliver v Smith, 290 Mich App 678, 683; 810 NW2d 57 (2010). “If there 

is no factual dispute, whether a plaintiff’s claim is barred under a principle set forth in MCR 

2.116(C)(7) is a question of law for the court to decide.” Moraccini v Sterling Heights, 296 

Mich App 387, 391; 822 NW2d 799 (2012). 

 MCL 691.1407(2) provides: 

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 . . . 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 . . . 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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It is not disputed that the Southfield Dispatchers were acting within the scope of their authority 

and the governmental agency was engaged in the exercise or discharge of a governmental 

function. Therefore, for plaintiff to avoid dismissal of her tort action, she must prove both that 

“(1) the governmental employee[s’] conduct [amounted to gross negligence], and (2) the alleged 

misconduct was the proximate cause of the plaintiff’s injury.” Tarlea v Crabtree, 263 Mich App 

80, 83; 687 NW2d 333 (2004). 

1. GROSS NEGLIGENCE 

 Gross negligence is “conduct so reckless as to demonstrate a substantial lack of concern 

for whether an injury results.” MCL 691.1407(8)(a). To come within that standard, an actor 

must exhibit a “willful disregard of precautions or measures to attend to safety and a singular 

disregard for substantial risks. . . . [I]f an objective observer watched the actor, he could 

conclude, reasonably, the actor simply did not care about the safety or welfare of those in his 

charge.” Tarlea, 263 Mich App at 90. 

 First, plaintiff alleged that the Southfield Dispatchers were grossly negligent for “[f]ailing 

to dispatch ALS ambulance service to Plaintiff’s decedent in a timely manner.” The undisputed 

evidence establishes that the Southfield Dispatchers received a call from plaintiff indicating that 

Xavier was suffering from an asthma attack. Four minutes after receiving the call from plaintiff, 

the Southfield Dispatchers called Community to dispatch an ambulance. Assuming the four 

minute delay in dispatching an ambulance could be considered negligent conduct, it cannot be 

said that the Southfield Dispatchers had a substantial lack of concern for whether an injury 

would result. There is no evidence of a “willful disregard of precautions or measures to attend to 

safety,” or that the dispatchers otherwise ignored the need for an ambulance. Therefore, plaintiff 

has not created a genuine issue of material fact that the Southfield Dispatchers engaged in 

conduct that amounts to gross negligence. 

 Second, defendant alleged that the Southfield Dispatchers were grossly negligent for 

“failing to confirm that Community was in fact responding to their request for ALS ambulance 

service to Plaintiff’s decedent.” The evidence presented directly refutes this allegation as the 

evidence establishes that at 8:27 p.m., one of the Southfield Dispatchers asked Community 

regarding Unit 721’s estimated time of arrival to the Oxley location, thus confirming that 

Community was in fact responding to the request for ALS ambulance service. Because 

reasonable minds could not differ regarding whether the Southfield Dispatchers were grossly 

negligent for “failing to confirm that Community was in fact responding to their request for ALS 

ambulance service to Plaintiff’s decedent,” the trial court properly granted summary disposition 

to defendants on this allegation. 

 Plaintiff next alleged that the Southfield Dispatchers were liable for “failing to ensure 

that a mutual aid ALS ambulance was available to respond to emergency calls within the City of 

Southfield when they had actual knowledge that all City of Southfield Fire Department 

ambulances were unavailable at the time that Danielle Joe contacted the Southfield 911 

emergency center.” Again, the evidence presented directly contradicts this allegation. Prior to 

plaintiff contacting the Southfield Dispatchers, the Southfield Dispatchers requested a 

Community ambulance to standby in the city of Southfield as Southfield dispatch had other 

ambulance units responding to a house fire. As such, summary disposition was proper as 
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reasonable minds could not differ regarding whether the Southfield Dispatchers were grossly 

negligent in this regard. 

Lastly, plaintiff alleged that the Southfield Dispatchers were grossly negligent for 

“providing false information to [plaintiff] . . . regarding the status of the ALS ambulance 

response” by stating to plaintiff “that an ALS ambulance was responding when in fact it was 

not.” Contrary to plaintiff’s allegation, the undisputed facts show that an ALS ambulance was 

responding to the scene of the emergency. In fact, two Community ambulances were responding 

to the scene as a result of the Southfield Dispatchers request for Community to dispatch an 

ambulance unit in response to plaintiff’s call for assistance. Furthermore, plaintiff has failed to 

identify any other false statements regarding the status of an ambulance response. Accordingly, 

the trial court properly granted the Southfield Dispatchers’ motion for summary disposition. 

2. PROXIMATE CAUSE 

 We also hold that, even if the Southfield Dispatchers were grossly negligent, plaintiff 

failed to establish that the Southfield Dispatcher’s conduct was the proximate cause of Xavier’s 

injuries. In order for a governmental employee’s grossly negligent conduct to be considered the 

proximate cause of an injury, that conduct must be “the one most immediate, efficient, and direct 

cause of the injury or damage.” Robinson v City of Detroit, 462 Mich 439, 462; 613 NW2d 307 

(2000). The determination of whether a governmental employee’s conduct “proximately caused 

the complained-of injury under MCL 691.1407 is generally a question of fact, but, if reasonable 

minds could not differ, a court may grant summary disposition.” Briggs v Oakland Co, 276 

Mich App 369, 374; 742 NW2d 136 (2007). Here, the most immediate, efficient, and direct 

cause of Xavier’s death was Xavier’s asthma attack, not an allegedly delayed ambulance 

response. It was the asthma, not an untimely arrival of an ambulance, that was the most 

immediate and direct cause of Xavier’s death. Hence, the Southfield Dispatchers were not the

proximate cause of plaintiff’s injuries. See Costa v Community Medical Services, 263 Mich App 

572, 579; 689 NW2d 712 (2004), aff’d 475 Mich 403 (2004). Accordingly, plaintiff cannot 

establish liability in avoidance of governmental immunity because reasonable minds could not 

differ regarding whether the alleged misconduct was the proximate cause of the plaintiff’s injury. 

MCL 691.1407(2); Tarlea, 263 Mich App at 83. 

3. PREMATURE GRANT OF SUMMARY DISPOSITION 

 Plaintiff also argues that summary disposition was premature because discovery had not 

yet been completed. When discovery is not complete, a trial court may nonetheless grant 

summary disposition “ ‘if there is no fair likelihood that further discovery will yield support for 

the nonmoving party’s position.’ ” Anzaldua v Neogen Corp, 292 Mich App 626, 636; 808 

NW2d 804 (2011), quoting Liparoto Constr, Inc v Gen Shale Brick, Inc, 284 Mich App 25, 33-

34; 772 NW2d 801 (2009). A party opposing summary disposition cannot simply state that 

summary disposition is premature without identifying a disputed material issue and supporting 

that issue with independent evidence. Marilyn Froling Revocable Living Trust v Bloomfield 

Hills Country Club, 283 Mich App 264, 292; 769 NW2d 234 (2009). The party opposing 

summary disposition must offer the required affidavits, MCR 2.116(H), with the probable 

testimony to support its contentions. Id. at 292-293. Plaintiff has failed to submit any 

supporting independent evidence to support her position. As a result, she cannot prove that there 
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is a fair likelihood that further discovery would have yielded support for her position. Summary 

disposition was not premature. 

B. ALLEGATIONS AGAINST COMMUNITY 

 Plaintiff also contends that the trial court erred when it granted summary disposition to 

Community on the basis that her complaint sounds in medical malpractice. Community filed its 

motion for summary disposition pursuant to MCR 2.116(C)(7), (C)(8), and (C)(10), and the trial 

court granted the motion pursuant to MCR 2.116(C)(7) and (C)(10). It is unclear from the record 

which claims were disposed of pursuant to MCR 2.116(C)(7) and which claims were disposed of 

pursuant to MCR 2.116(C)(10). When it is unclear under which subrule the trial court granted 

summary disposition, and it appears that court looked beyond the pleadings in making its 

determination, this Court will consider the motion granted pursuant to MCR 2.116(C)(10). 

DeHart v Joe Lunghammer Chevrolet, Inc, 239 Mich App 181, 184; 607 NW2d 417 (1999). 

 A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency 

of the complaint. Joseph v Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012). 

When deciding a motion for summary disposition, a court must consider the pleadings, 

affidavits, depositions, admissions and other documentary evidence submitted in the light most 

favorable to the nonmoving party. Id. “Summary disposition is appropriate under MCR 

2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is 

entitled to judgment as a matter of law.” West v Gen Motors Corp, 469 Mich 177, 183; 665 

NW2d 468 (2003). Where the burden of proof at trial on a dispositive issue rests on a 

nonmoving party, the nonmoving party may not rely on mere allegations or denials in pleadings, 

but must go beyond the pleadings to set forth specific facts showing that a genuine issue of 

material fact exists. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). If 

the opposing party fails to present documentary evidence establishing the existence of a material 

factual dispute, the motion is properly granted. Id. at 363. 

 Resolution of this case hinges on the proper characterization of plaintiff’s claim; whether 

plaintiff’s claims sound in ordinary negligence or medical malpractice. “It is well established 

that [t]he gravamen of an action is determined by reading the claim as a whole and looking 

beyond the procedural labels to determine the exact nature of the claim.” David v Sternberg, 272 

Mich App 377, 381; 726 NW2d 89 (2006) (internal quotation marks and citations omitted). A 

plaintiff “ ‘cannot avoid the application of the procedural requirements of a malpractice action by 

couching [her] cause of action in terms of ordinary negligence.’ ” Id. quoting Dorris v Detroit 

Osteopathic Hosp Corp, 460 Mich 26, 43; 594 NW2d 455 (1999). 

 There are two inquiries involved in determining whether a case involves medical 

malpractice or ordinary negligence claims. Bryant v Oakpointe Villa Nursing Home, 471 Mich 

411, 420-422; 684 NW2d 864 (2004). The first inquiry is whether the action “is being brought 

against someone who, or an entity that, is capable of malpractice.” Id. at 420. The second 

inquiry is “whether the alleged claim sounds in medical malpractice.” Id. at 422. If both prongs 

of the test are met, then “the action is subject to the procedural and substantive requirements that 

govern medical malpractice actions.” Id. at 423-424. 
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 The Michigan Supreme Court has established a two-prong test for determining whether 

an allegation sounds in medical malpractice: “(1) whether the claim pertains to an action that 

occurred within the course of a professional relationship; and (2) whether the claim raises 

questions of medical judgment beyond the realm of common knowledge and experience.” Id. at 

422. With regard to the second prong, the Michigan Supreme Court has explained: 

If the reasonableness of the health care professionals’ action can be evaluated by 

lay jurors, on the basis of their common knowledge and experience, it is ordinary 

negligence. If, on the other hand, the reasonableness of the action can be 

evaluated by a jury only after having been presented the standards of care 

pertaining to the medical issue before the jury explained by experts, a medical 

malpractice claim is involved. [Id. at 423.] 

Failure to comply with the procedural requirements of a medical malpractice claim is dismissal 

of plaintiff’s claim. Lockwood v Mobile Medical Response, Inc, 293 Mich App 17, 26-27; 809 

NW2d 403 (2011). One such procedural requirement is that a medical malpractice claimant 

must provide to proposed defendants notice of his or her intent to sue at least 182 days before 

commencing an action. MCL 600.2912(b)(1); Lockwood, 293 Mich App at 26. In addition to 

the notice of intent, a plaintiff alleging medical malpractice must also file an affidavit of merit. 

MCL 600.2912(d)(1). 

 It is not disputed that the action is being brought against a person or entity that is capable 

of malpractice. Further, neither party disputes whether the claims pertain to an action that 

occurred within the course of a professional relationship. Therefore, the issue on appeal 

concerns whether plaintiff’s claims raise questions of medical judgment beyond the realm of 

common knowledge and experience. Lockwood, 293 Mich App at 422. 

 When applying the Bryant test to the allegations in plaintiff’s complaint, some of 

plaintiff’s allegations sound in medical malpractice, while others sound in ordinary negligence. 

We will address each of plaintiff’s allegations in turn. 

 Plaintiff’s first allegation is that Community was negligent and grossly negligent for 

failing to provide an ambulance response to Xavier’s medical emergency. Community asserts 

that this Court’s decision in Lockwood, 293 Mich App at 26, is controlling. In Lockwood, the 

decedent began having difficulty breathing while playing softball. Id. at 19-20. A call was made 

to a 911 operator and the defendant’s ambulance was dispatched to the scene at 1:48 p.m. Id. at 

20. When the ambulance arrived at the scene, the decedent was “pulseless and apneic.” Id. 

Ultimately, the decedent was never revived. Id. The plaintiff subsequently filed a complaint 

alleging that the defendant was negligent for failing to timely respond to the 911 call and for 

failing to timely provide transportation to the decedent. Id. The Lockwood Court held that the 

plaintiff’s claims sounded in medical malpractice because “[t]imeliness within the context of a 

medical emergency would not be easily understood and evaluated by lay jurors without expert 

testimony regarding the medical issue.” Id. at 26. 

 Unlike Lockwood, plaintiff’s allegations are not that Community failed to respond timely, 

but rather, that Community was negligent and grossly negligent for failing to provide any
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ambulance service. Thus, plaintiff’s allegations are distinguishable from those asserted in 

Lockwood. 

 Nonetheless, there are situations in which an ambulance operator will need to exercise 

medical judgment. Id. at 31 n 4 (KRAUSE, J., dissenting). This is such a situation. The 

Community ambulance operators of Units 721 and 723 exercised medical judgment when 

deciding whether to continue to the Oxley location, knowing that the dispatch was “priority one,” 

or to discontinue their respective routes as directed by the Community dispatcher. This decision 

required medical judgment as the ordinary laymen does not know (1) the standard of care that is 

appropriate for responding to a “priority one” dispatch and (2) if the ambulance operators acted 

reasonably when discontinuing their route to the location when told that the response had been 

cancelled. Medical expert testimony would be required to explain the medical judgment of the 

Community ambulance drivers in light of the situation to which they were responding. 

Accordingly, this claim raises questions of medical judgment beyond the realm of common 

knowledge and experience. Bryant, 471 Mich at 422. Therefore, plaintiff’s claims that 

Community was negligent and grossly negligent for failing to provide an ambulance response 

sound in medical malpractice, not ordinary negligence. Because plaintiff failed to provide 

defendants a notice of intent and affidavit of merit with her complaint, the trial court properly 

granted Community’s motion for summary disposition. 

 Plaintiff also alleged that Community was grossly negligent2

 by “making false 

representations to the City of Southfield 911 dispatchers that it was responding to the request for 

ALS ambulance service, when it fact it was not responding to the emergency and had not 

dispatched an ambulance unit to the medical emergency.” No medical expert testimony is 

necessary to establish that it is unreasonable to make false representations regarding an 

ambulance service response. Laypersons are capable of understanding these simple facts and 

they can be evaluated by jurors on the basis of their common knowledge and experience. Thus, 

this allegation sounds in ordinary negligence, as opposed to medical malpractice. 

 Although this allegation sounds in ordinary negligence, the trial court properly granted 

summary disposition to Community as no genuine issue of fact exists regarding this allegation. 

The evidence established that when Community told the Southfield 911 dispatchers that it was 

responding to the emergency, Community had dispatched an ambulance unit. Accordingly, no 

genuine issue of material fact exists regarding whether Community was grossly negligent by 

“making false representations to the City of Southfield 911 dispatchers that it was responding to 

the request for ALS ambulance service, when it fact it was not responding to the emergency and 

had not dispatched an ambulance unit to the medical emergency.” There is no factual support for 

this allegation. 

 Plaintiff also alleged that Community was grossly negligent for “failing to advise the City 

of Southfield 911 dispatchers that it was not in fact responding to the scene [of the emergency.]” 

 

2

 In order to seek liability against emergency medical providers, plaintiff must allege that the 

providers engaged in grossly negligent or willful misconduct. MCL 333.20965(1). See Costa 

263 Mich App at 580. 
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We hold that this allegation does not involve medical judgment beyond the realm of common 

knowledge and experience. A medical expert would not be needed to testify to the applicable 

standard of care as no medical judgment is invoked in this allegation. Thus, this allegation 

sounds in ordinary negligence. Despite the claim sounding in ordinary negligence, the trial court 

properly granted summary disposition to Community as there is no genuine issue of material fact 

regarding whether Community failed “to advise the City of Southfield 911 dispatchers that it was 

not in fact responding to the scene [of the emergency.]” This allegation is premised on the 

allegation that Community did not dispatch an ambulance to the emergency. As discussed 

previously, the evidence demonstrates that Community did in fact dispatch two ambulance units 

to the scene of the emergency. Further, it was Southfield that subsequently told Community to 

discontinue their run to the scene of the emergency, thus, Southfield was already aware that 

Community discontinued the run. Accordingly, no genuine issue of material facts exist 

regarding whether Community was grossly negligent for failing “to advise the City of Southfield 

911 dispatchers that it was not in fact responding to the scene.”3

III. CONCLUSION 

 For the reasons stated herein, we affirm the trial court’s order granting summary 

disposition to defendants. 

/s/ Mark J. Cavanagh 

/s/ Christopher M. Murray 

 

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 The resolution of this issue also resolves Community’s cross-appeal.