Michigan Supreme Court

Lansing, Michigan

Bridget M. McCormack,

 Chief Justice

David F. Viviano,

Chief Justice Pro Tem

Stephen J. Markman

Brian K. Zahra

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh,

Justices

Order 

May 29, 2020

159093

SAMUEL JEROME,

Plaintiff-Appellant,

v SC: 159093

COA: 335328

Oakland CC: 2015-148401-CZ

MICHAEL CRUM and CITY OF BERKLEY,

Defendants-Appellees.

_____________________________________/

On March 5, 2020, the Court heard oral argument on the application for leave to 

appeal the December 27, 2018 judgment of the Court of Appeals. On order of the Court, 

the application is again considered. MCR 7.305(H)(1). In lieu of granting leave to 

appeal, we AFFIRM the judgment of the Court of Appeals.

Plaintiff, Samuel Jerome, brought a tort action against defendants, Lieutenant 

Michael Crum and the city of Berkley. Relevant to this appeal, Mr. Jerome’s action 

advanced a claim for gross negligence. Defendants sought summary disposition based 

upon both collateral estoppel and Mr. Jerome’s having failed to advance evidence 

permitting a reasonable jury to conclude that Lieutenant Crum constituted the proximate 

cause of Mr. Jerome’s arrest and imprisonment. The trial court granted summary 

disposition based upon Lieutenant Crum’s collateral-estoppel argument and Mr. Jerome 

appealed. In the Court of Appeals, defendants renewed both arguments in support of 

summary disposition. The Court of Appeals affirmed the trial court’s grant of summary 

disposition. First, the Court of Appeals agreed with the trial court’s collateral-estoppel 

analysis. Jerome v Crum, unpublished per curiam opinion of the Court of Appeals, 

issued December 27, 2018 (Docket No. 335328), pp 7-8. Second, as an alternative 

ground for affirming the grant of summary disposition, the Court of Appeals stated:

Moreover, assuming that collateral estoppel was not applicable . . . , 

summary disposition would be appropriate under MCR 2.116(C)(10) for 

lack of a genuine issue of material fact. For the reasons already outlined 

above, there is no evidence to show that Crum’s failure to turn over the 

video recording of the August interview was a cause, let alone the 

proximate cause, of plaintiff’s continued prosecution or imprisonment. 

Any suggestion that the prosecution would have dropped the case against 

plaintiff sooner if it had been aware of the tape earlier is to engage in 

impermissible speculation. Any reliance on the prosecution’s ultimate 

decision to decline pursuing the case after the mistrial is misplaced because 

there is nothing in the record to show that the prosecution’s decision was 
2

based on the existence of the videotape. Indeed, there are a host of possible 

reasons not related to the late production of the videotape why the 

prosecution could have decided to forgo a second trial, including that the 

witnesses perhaps testified in an unexpected way at the first trial or that the 

complainant perhaps simply decided that she was not going to testify or 

cooperate any more after having already been subjected to several 

interviews and having already testified in court twice. Hence, plaintiff 

cannot maintain his claim of gross negligence, and summary disposition is 

properly entered in favor of defendant. Thus, assuming the trial court erred 

when it granted summary disposition on plaintiff’s gross negligence claim 

on the basis of collateral estoppel, we nonetheless affirm because summary 

disposition was warranted under MCR 2.116(C)(10). [Id. at 8 (emphasis 

added) (citation omitted).]

Thus, independent and alternative grounds supported the Court of Appeals’ affirmance of 

the trial court’s grant of summary judgment.

In his application for leave to appeal in this Court, Mr. Jerome challenges the 

Court of Appeals’ conclusion that collateral estoppel barred his claim. Mr. Jerome, 

however, failed to present as an issue for review whether the Court of Appeals also erred 

in reaching its alternative holding that he failed to advance evidence to support the 

causation element of his gross-negligence claim. And neither Mr. Jerome’s application 

for leave to appeal nor his supplemental brief following this Court’s order scheduling oral 

argument on his application can fairly be read as challenging that aspect of the Court of 

Appeals’ basis for affirming the grant of summary disposition. Accordingly, even if we 

were to conclude that collateral estoppel did not bar Mr. Jerome’s claim, he has failed to 

place the Court of Appeals’ alternative and independent ground for affirming the trial 

court’s grant of summary disposition before this Court. Therefore, we find it unnecessary 

to reach the merits of the collateral-estoppel issue and AFFIRM the judgment of the 

Court of Appeals.

CAVANAGH, J. (concurring).

I concur in the order affirming the judgment of the Court of Appeals but write 

separately because I believe that summary disposition of plaintiff’s gross-negligence

claim was proper on the ground that plaintiff failed to raise a genuine issue of material 

fact as to causation. 

Plaintiff filed actions in both state and federal court against the city of Berkley and 

Lieutenant Michael Crum, the police officer who had criminally investigated plaintiff for 

the alleged sexual abuse of plaintiff’s step-daughter, AK. The investigation resulted in 

criminal charges that were later dropped. Plaintiff’s complaint in state court alleged 

unlawful arrest, false imprisonment, malicious prosecution, and gross negligence. The 

state district court determined that probable cause existed to bind plaintiff over on

charges based on the testimony of the victim alone and did not consider any statements or 

testimony of Lieutenant Crum. Further, the federal district and appellate courts
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

 May 29, 2020 

t0527

3

Clerk

determined that any omissions or inconsistent statements by Lieutenant Crum, and his 

failure to disclose a videotape of an interview with AK, were not material to the existence 

of probable cause. Jerome v Crum, unpublished opinion of the United States District 

Court for the Eastern District of Michigan, issued August 25, 2016 (Case No. 15-12302); 

2016 WL 4475010, p *4 (“Any inconsistencies between [AK’s] accounts of the alleged 

abuse were known to the prosecutor and defense attorney as of the time of the 

preliminary exam, yet the judge found probable cause based upon [AK’s] testimony. If 

the August 21 video had been available at the preliminary exam, Plaintiff cannot show 

that it would have changed the judge’s finding of probable cause.”); Jerome v Crum, 695 

F Appx 935, 942 (CA 6, 2017) (“[Plaintiff] cannot show that Crum’s omission of the 

details of the August 21 interview was material to or strengthened the case against him 

because A.K. stated the same version of events in the preliminary examination that she 

did in the August 21 interview.”). Finally, the transcript of the criminal proceedings 

indicates that the mistrial was granted because the late disclosure of the videotape 

jeopardized plaintiff’s right to a fair trial, not because the disclosure of the videotape 

obviated probable cause. 

Given this factual record, there is no dispute that probable cause to continue the 

prosecution and incarceration of plaintiff existed up to and including the time that the 

mistrial was granted. While, conceivably, a claim for gross negligence could be 

sustained even where probable cause supports an arrest, prosecution, and continued 

incarceration, plaintiff failed to produce any evidence that his prosecution and 

incarceration would not have continued but for the actions of Crum. Under these facts, I 

agree with the Court of Appeals that plaintiff failed to raise a genuine issue of material 

fact as to causation and that summary disposition of plaintiff’s gross-negligence claim 

was proper under MCR 2.116(C)(10).