If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

ELAINE KEYMO MURRIEL,

Plaintiff-Appellee,

UNPUBLISHED

February 21, 2023

v No. 359528

Wayne Circuit Court

CITY OF DETROIT, LC No. 19-006174-NO

Defendant-Appellant,

and

GARY STEELE and DETROIT POLICE 

DEPARTMENT,

Defendants.

ELAINE KEYMO MURRIEL,

Plaintiff-Appellee,

v No. 359530

Wayne Circuit Court

CITY OF DETROIT and DETROIT POLICE 

DEPARTMENT,

LC No. 19-006174-NO

Defendants,

and

GARY STEELE,

Defendant-Appellant.

Before: K. F. KELLY, P.J., and MURRAY and SWARTZLE, JJ.

PER CURIAM.
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In these consolidated appeals,1in Docket No. 358528, defendant City of Detroit (the 

“City”) appeals by right the trial court’s order denying the City’s motion for partial summary 

disposition under MCR 2.116(C)(7) on the basis of immunity. In Docket No. 358530, defendant 

Gary Steele appeals by right the trial court’s order denying Steele’s motion for partial summary 

disposition under MCR 2.116(C)(7), which was also offered on the basis of immunity. Finding 

no errors warranting reversal, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

This case arises from the arrest of plaintiff Elaine Keymo Murriel in Detroit, Michigan on 

May 31, 2018. On the date at issue, plaintiff claimed she was dropping off her child with Andre 

Hollis, the child’s father, who lived on Faust Road and Dover Road in Detroit when she saw 

Ashante Moore driving her vehicle near the same intersection. Moore was, according to plaintiff, 

dating Hollis, and plaintiff had obtained a personal protection order (“PPO”) against Moore after 

Moore previously tried to run over plaintiff with her car.

Plaintiff claimed that when Moore saw plaintiff removing her child, Moore attempted to 

hit plaintiff with her car “by driving her vehicle at Plaintiff’s body, in an attempt to run her over.” 

Seeing that Moore was attempting to hit her, plaintiff claimed she drew her lawfully-carried 

firearm and shot at Moore. As a result of the gunfire, police were called to the scene.

When officers arrived, plaintiff informed them that she had a firearm in the trunk of her 

car and it was used to shoot at a vehicle that was trying to hit her. While other officers were 

speaking with plaintiff, Steele went to Moore’s house to speak with her, who stated that she and 

plaintiff only got into a verbal altercation. According to police, Moore stated plaintiff “had just 

fired shots at her vehicle, while she was driving on Faust and Dover, after a verbal altercation, then 

followed her home and fired additional shots at her and the occupants of her vehicle [2 children] 

as she ran inside her home.”

Steele stated that upon observation, he noticed bullet holes in the back of Moore’s car. 

According to Steele, the location of the bullet holes suggested that Moore was driving away from 

plaintiff, not toward her, at the time plaintiff fired her gun. After interviewing Moore and 

observing the vehicle, Steele decided to place plaintiff under arrest. 

When Steele advised plaintiff that she was under arrest, plaintiff “began to back away, 

refusing to give her child to the officers.” After one officer was able to take plaintiff’s child, Steele 

attempted to place handcuffs on plaintiff, causing plaintiff to make a “sudden turn.” At this point, 

plaintiff’s “left arm ended up above her head and when Corporal Steele attempted to place 

[plaintiff]’s arm behind her back, [plaintiff] sustained a fractured left ulna (elbow).”

For her part, plaintiff alleged that while she was holding her son, Steele suddenly decided 

to place her under arrest. Before plaintiff was able to pass her child to a relative, plaintiff claimed 

that an officer “grab[bed] and rip[ped]” the child from her arm. After her child was taken, plaintiff 

 

1 Murriel v Detroit, unpublished order of the Court of Appeals, entered December 14, 2021 

(Docket Nos. 358528, 358530).
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stated that Steele then pushed her up against a car and “violently” grabbed her arms. As Steele 

twisted her arms to put handcuffs on her, he pulled her left arm in such a way that her elbow bent 

in an unnatural manner and was broken. Plaintiff claimed that Steele’s use of force was 

unnecessary and unjustified, because no officers saw her commit a crime and she was not armed 

while she was being arrested. According to plaintiff, Steele would not give plaintiff aid and other 

officers had to call an ambulance.

Plaintiff filed a complaint on April 29, 2019, naming the City, Steele, and the Detroit Police 

Department (“DPD”) as defendants. In Count I, plaintiff alleged Steele was grossly negligent and 

exhibited wanton and willful conduct when arresting plaintiff with excessive force. In Count II, 

plaintiff alleged violations of the Elliot-Larsen Civil Rights Act, MCL 37.2101 et seq. (“ELCRA”), 

against all defendants.

2

Steele moved for summary disposition under MCR 2.116(C)(7), (C)(8), and (C)(10), 

claiming plaintiff failed to state a claim regarding the count for gross negligence and wanton and 

willful conduct. Steele also argued that his conduct was immune from suit under the Governmental 

Tort Liability Act MCL 691.1401 et seq. (“GTLA”), asserting that the arrest of plaintiff did not 

amount to gross negligence. Lastly, Steele argued that plaintiff could not show race discrimination 

under the ELCRA. On April 12, 2021, the trial denied the motion.

Defendants subsequently filed a second round of summary disposition motions, this time 

arguing that the ELCRA did not waive immunity over tort actions and, because plaintiff was 

seeking money damages for a tort, the defendants were immune from liability. Again, the trial 

court denied the motions, concluding that the GTLA did not bar plaintiff’s ELCRA claims because 

immunity was waived under the ELCRA. These appeals followed.

II. ANALYSIS

A. JURISDICTION

In her counterstatement on jurisdiction, plaintiff argues that this Court does not have 

jurisdiction to consider defendants’ arguments relating to gross negligence and immunity—

presented in Issue I of their brief on appeal——because defendants do not have an appeal by right 

over the issue nor can they seek leave to appeal. Plaintiff also argues the Court does not have 

jurisdiction to consider defendants’ arguments relating to whether plaintiff made a prima facie case 

for discrimination under the ELCRA—presented in Issue II of defendants’ brief—for the same 

reasons. We agree.

This Court reviews de novo the question of whether the Court has jurisdiction over 

defendants’ claim of appeal. Chen v Wayne State Univ, 284 Mich App 172, 191; 771 NW2d 820 

 

2 Shortly after plaintiff filed her complaint, the DPD moved for summary disposition under MCR 

2.116(C)(8). DPD argued that plaintiff failed to state a claim under the ELCRA and that it was 

not an entity separate from the City such that it could be sued independently. On August 26, 2019, 

the trial court granted DPD’s motion, concluding that it was not an entity distinct from the City 

for purposes of being sued. The trial court’s order granting DPD’s motion is not at issue on appeal.
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(2009). “The jurisdiction of the Court of Appeals is governed by statute and court rule.” Id. This 

Court has jurisdiction over claims of appeal by right from

A final judgment or final order of the circuit court, or court of claims, as 

defined in MCR 7.202(6), except a judgment or order of the circuit court

(a) on appeal from any other court or tribunal;

(b) in a criminal case in which the conviction is based on a plea of guilty or 

nolo contendere[.] [MCR 7.203(A)(1).]

As relevant here, a final order under MCR 7.203 includes “an order denying governmental 

immunity to a governmental party, including a governmental agency, official, or employee under 

MCR 2.116(C)(7) or an order denying a motion for summary disposition under MCR 2.116(C)(10) 

based on a claim of governmental immunity.” MCR 7.202(6)(a)(v). An appeal from an order 

denying governmental immunity “is limited to the portion of the order with respect to which there 

is an appeal of right.” MCR 7.203(A)(1). Unless a statute or rule provides otherwise, a party must 

file a claim of appeal within 21 days of entry of the final order from which the party appeals. MCR 

7.204(A)(1).

The question presented in Issue I of defendants’ appeal states “Does Michigan’s 

Governmental Tort Liability Act, MCL 691.1407, bar a claim for money damages for gross 

negligence against a police officer who is protected with governmental immunity.” In the 

subsequent argument, defendants argue the trial court erred when it denied Steele’s motion for 

summary disposition because the GTLA does not permit recovery where the plaintiff fails to show 

that the defendant’s gross negligence was the proximate cause of the plaintiff’s injury.

Defendants would, in the abstract, have an appeal by right over the trial court’s order 

denying summary disposition on the basis of immunity. See MCR 7.202(6)(a)(v). However, the 

trial court’s order addressing defendants’ argument concerning immunity, gross negligence, and 

proximate causation was entered on April 12, 2021, and defendants did not file their claim of 

appeal until December 8, 2021, almost nine months after the entry of the order. The motions for 

summary disposition from which defendants did ultimately file a timely claim of appeal did not 

raise the issue of immunity in the context of gross negligence or proximate causation. Thus, 

because defendants did not timely file a claim of appeal from the trial court’s April 12, 2021 order, 

we lack jurisdiction to consider defendants’ arguments related to immunity and gross negligence 

or proximate causation.

We also lack jurisdiction over defendants’ argument that the trial court erred because 

plaintiff failed to make a prima facie showing of discrimination. The question of whether plaintiff 

made a prima facie case for discrimination is not related to whether defendants have immunity 

from suit under the ELCRA when a plaintiff seeks money damages. In other words, while it would 

be true that the outcome of the case would be the same for defendants if the Court decided in their 

favor on immunity grounds or on the merits, this Court’s jurisdiction exists only over the portions 

of the order from which there is an appeal by right. Because defendants do not have an independent 

appeal by right regarding the underlying merits of plaintiff’s ELCRA claim, it cannot 

surreptitiously include such bases for reversal at this stage. See MCR 7.203(A)(1) (stating an 
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appeal from an order denying governmental immunity “is limited to the portion of the order with 

respect to which there is an appeal of right.”). Moreover, like Issue I, Steele raised this issue in 

his first motion for summary disposition that was denied on April 12, 2021 and from which 

defendants did not file a timely claim of appeal.

Lacking an appeal by right, the question turns to whether it is within this Court’s authority 

to nevertheless treat these issues as requests for leave to appeal from which there is not an appeal 

by right. We cannot, because they would not be timely even under such circumstances. Under 

MCR 7.205(4)(a), a litigant may submit a delayed application for leave to appeal; however, such 

appeal must be “filed within 6 months of the entry of a judgment or order . . . .” In this case, the 

subject order concerning defendants’ jurisdictionally-problematic arguments was entered on 

April 12, 2021. Defendants filed their claim of appeal approximately nine months later. 

Accordingly, this Court is without authority to consider these arguments for lack of jurisdiction, 

even as a delayed application for leave to appeal, and will only consider the single issue presented 

by defendants that is not barred by lack of jurisdiction: whether defendants have immunity from a 

suit for money damages under the ELCRA. See Chen, 284 Mich App at 193 (“The establishment 

of a firm deadline prevents stale applications for leave to appeal; it forces the parties to raise claims 

of error while the participants still have a sound grasp of the facts and events surrounding the 

litigation.”).

B. IMMUNITY

Defendants argue that the trial court erred when it denied their motions for summary 

disposition because when a litigant seeks money damages under the ELCRA, the defendant may 

raise immunity under the GTLA as a way to avoid liability. According to defendants, the myriad 

cases that hold otherwise were either stated in dicta or were wrongly decided. We disagree.

This Court reviews a trial court’s decision on a motion for summary disposition de novo. 

Genesee Co Drain Comm’r v Genesee Co, 321 Mich App 74, 76; 908 NW2d 313 (2017). A party 

is entitled to summary disposition under MCR 2.116(C)(7) “if the plaintiff’s claims are barred 

because of immunity granted by law.” Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 

(2008) (quotation marks and citations omitted). “The moving party may support its motion for 

summary disposition under MCR 2.116(C)(7) with affidavits, depositions, admissions, or other 

documentary evidence, the substance of which would be admissible at trial.” Id. (quotation marks 

and citation omitted). “The contents of the complaint are accepted as true unless contradicted by 

the evidence provided.” Id. (quotation marks and citation omitted). This Court also 

reviews de novo questions of statutory interpretation. Lear Corp v Dep’t of Treasury, 299 Mich 

App 533, 536; 831 NW2d 255 (2013). “In the absence of ambiguities, judicial construction is 

neither necessary nor permitted.” Id. (quotation marks and citation omitted).

The ELCRA prohibits, among other forms of discrimination, a “person” from denying “an 

individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or 

accommodations of a place of public accommodation or public service because of religion, race, 

color, national origin, age, sex, or marital status.” MCL 37.2302(a). A “person” is defined under 

the ELCRA as “an individual, agent, association, corporation, joint apprenticeship committee, 

joint stock company, labor organization, legal representative, mutual company, partnership, 

receiver, trust, trustee in bankruptcy, unincorporated organization, the state or a political 
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subdivision of the state or an agency of the state, or any other legal or commercial entity.” MCL 

37.2103(g) (emphasis added). A “political subdivision” is likewise defined under the ELCRA as

“a county, city, village, township, school district, or special district or authority of the state.” MCL 

37.2103(h).

A cause of action under the ELCRA is governed by MCL 37.2801, which states:

(1) A person alleging a violation of this act may bring a civil action for 

appropriate injunctive relief or damages, or both.

(2) An action commenced pursuant to subsection (1) may be brought in the

circuit court for the county where the alleged violation occurred, or for the county 

where the person against whom the civil complaint is filed resides or has his 

principal place of business.

(3) As used in subsection (1), “damages” means damages for injury or loss 

caused by each violation of this act, including reasonable attorney’s fees.

Defendants assert that immunity under the GTLA applies to suits for money damages under 

the ELCRA. In relevant part, the GTLA states:

(1) Except as otherwise provided in this act, a governmental agency is 

immune from tort liability if the governmental agency is engaged in the exercise or 

discharge of a governmental function. Except as otherwise provided in this act, this 

act does not modify or restrict the immunity of the state from tort liability as it 

existed before July 1, 1965, which immunity is affirmed.

(2) 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. 

[MCL 691.1407(1)-(2).]

Beginning with Manning v Hazel Park, 202 Mich App 685; 509 NW2d 874 (1993), this 

Court and the Michigan Supreme Court have held that the GTLA does not apply to violations of 
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the ELCRA. In Manning, the plaintiff filed suit after she was forced to retire from her position as 

city manager and, included among her claims, was a sex and age discrimination claim under the 

ELCRA. Manning, 202 Mich App at 688-689. After concluding the trial court erred when it 

dismissed the plaintiff’s discrimination claims, the Court stated: “Concerning the sex and age 

discrimination claims, defendants do not have a governmental immunity defense because the Civil 

Rights Act specifically includes state and political subdivisions and their agents as employers 

covered by the act.” Id. at 699, citing MCL 37.2103 and MCL 37.2201. The Court continued: 

“Governmental immunity is not a defense to a claim brought under the Civil Rights Act.”

The Michigan Supreme Court reaffirmed this general principle in Mack v Detroit, 467 

Mich 186; 649 NW2d 47 (2002), a case that concerned sex discrimination claims brought under 

the City of Detroit’s charter. Mack, 467 Mich at 190-191. While the Supreme Court concluded 

that the plaintiff’s claim under the charter was barred by immunity, the Court contrasted its holding 

with respect to the charter with other laws, outside of the express exceptions listed in the GTLA, 

in which immunity was waived. Id. at 195. Among the examples listed by the Court was the 

ELCRA. Id. (“[T]here are other areas outside the GTLA where the Legislature has allowed 

specific actions against the government to stand, such as the Civil Rights Act.”).

In Diamond v Witherspoon, 265 Mich App 673; 696 NW2d 770 (2005), this Court again 

held that the GTLA was not a defense to a claim brought under the ELCRA. Diamond, 265 Mich 

App at 690-691. There, the plaintiffs filed suit under the ELCRA and 42 USC 1983 regarding the 

conduct of a former DPD sergeant, whom the plaintiffs accused of criminal sexual conduct during 

traffic stops. Id. at 676. The plaintiffs ultimately obtained a jury verdict against the City of Detroit 

for over $2 million. Id. at 680. On appeal and as relevant here, the City argued it was “immune 

from any liability because no exception applies to the immunity granted to it under the GTLA.” 

Id. at 690-691. Citing Mack and Manning, we rejected the argument: “Governmental immunity is 

not a defense to a claim brought under the CRA. The Legislature has allowed specific actions 

against the government to stand, such as one under the CRA. The CRA specifically includes state 

and political subdivisions as entities covered by the act.” Id. at 691 (citations omitted).

After Diamond, the Michigan Supreme Court decided In re Bradley Estate, a case cited 

favorably by both parties. In re Bradley Estate was a case concerning a civil contempt proceeding 

involving indemnification damages brought by the sister of a deceased man who committed suicide 

after he was supposed to be taken into protective custody by order of the probate court. In re 

Bradley Estate, 494 Mich at 371-372. The petitioner brought a wrongful-death action against the 

Kent County sheriff and the Kent County Sheriff’s Department for failing to timely execute the 

probate court’s order, leading to the deceased’s death. Id. at 373-374. Similar to Mack, the Court 

concluded that the money damages sought by the petitioner were covered by the GTLA because 

the petitioner sought “responsibility arising from a noncontractual civil wrong for which a remedy 

may be obtained in the form of compensatory damages.” Id. at 385. And similar to Mack, the 

Supreme Court again highlighted the fact that the Legislature enacted laws that were not subject 

to the GTLA, such as the ELCRA. Id. at 393 n 60. Indeed, the Court noted that the Legislature 

“expressly waiv[ed] governmental immunity” under the ELCRA, which it did not do under MCL 

600.1721. Id.

Lastly, in Does 11-18 v Dep’t of Corrections, 323 Mich App 479, 490; 917 NW2d 730 

(2018), this Court addressed the defendants’ argument that inmates’ civil rights claims brought 
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under the ELCRA were barred by immunity under the GTLA. Does 11-18, 323 Mich App at 483-

484. The inmates alleged that while minors, they were housed with adults that “took advantage of 

their youth to commit sexual and physical abuse and harassment.” Id. at 484. Citing Manning, 

Diamond, Mack, and In re Bradley Estate, the Court stated that the “law is clear that governmental 

immunity does not apply to ELCRA claims.” Id. at 490.

The plain language of the ELCRA supports the reasoning in these cases that, by enacting 

the ELCRA, the Legislature intended to waive immunity over claims brought under it. Waiver of 

immunity from liability—as opposed to liability from suit—may be done through “express 

statutory enactment or by necessary inference from a statute.” Anzaldua v Band, 457 Mich 530, 

550; 578 NW2d 306 (1998) (quotation marks and citation omitted). As noted in In re Bradley 

Estate, the Legislature “expressly waiv[ed]” immunity under the ELCRA. In re Bradley Estate, 

494 Mich at 393 n 60. While it is true the ELCRA does not specifically reference the GTLA, the 

ELCRA explicitly includes the state, its political subdivisions, and individuals as “persons” 

prohibited from engaging in unlawful discrimination. See MCL 37.2103(g), (h). Thus, at a 

minimum, the necessary inference from the ELCRA is that the Legislature waived immunity when 

it included the state and its political subdivisions as entities capable of being sued for money 

damages and injunctive relief. MCL 37.2801.

We reject the suggestion by defendants that this Court should overrule Diamond, Does 11-

18, and Manning, and ignore the arguable dicta from In re Bradley Estate and Mack. Even if the 

Michigan Supreme Court’s statements in In re Bradley Estate and Mack that the Legislature 

waived immunity for suits brought under the ELCRA was dicta, this Court is nevertheless bound 

by Diamond, Does 11-18, and Manning. See MCR 7.215(J)(1) (“A panel of the Court of Appeals 

must follow the rule of law established by a prior published decision of the Court of Appeals issued 

on or after November 1, 1990, that has not been reversed or modified by the Supreme Court, or by 

a special panel of the Court of Appeals as provided in this rule.”).

Affirmed. Plaintiff, as the prevailing party, may tax costs. MCR 7.219(A).

/s/ Kirsten Frank Kelly 

/s/ Christopher M. Murray 

/s/ Brock A. Swartzle