-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

KATRINA CARTER,

Plaintiff-Appellant, UNPUBLISHED January 12, 2016

v No. 323531 Wayne Circuit Court ARGIRIS XENOS, LC No. 13-015213-NO

Defendant-Appellee.

Before: T ALBOT , C.J., and C AVANAGH and K. F. K ELLY , JJ.

P ER C URIAM

.

Plaintiff appeals as of right a n order granting summary dispos ition in favor of defendant on the ground that plaintiff’s action was barred by governmenta l immunity. We affirm.

This action arises out of injuri es sustained by plaintiff when she was allegedly knocked over by defendant, a courthouse deputy, as he was attempting to stop Robert Tippins from punching plaintiff repeatedly in the face. Plaintiff testified that Tippins was “attacking” her by striking her several times in the face and on her body outside a courtroom during a custody proceeding regarding plaintiff’s sister’s and Tippins’ children . Plaintiff’s mother tried to get Tippins off of plaintiff without success. While plaintiff was trying to get Tippins off of her, she suddenly fell to the floor. Pla intiff testified that defendant “might have knocked us down.” Plaintiff also testified that, w hile he struggled on the floor against defendant, Tippins bit defendant. Plaintiff’s mother came up and kicked Tippins durin g the struggle. Eventually defendant got Tippins under contro l. Thereafter plaintiff dete rmined that she could not get up off the floor because her ankle was injured. Subsequently she had to undergo surgery to repair her ankle injury. Plaintiff filed this action against defendant al leging, in relevant part, that he was grossly negligent and committed a battery against her.

Defendant eventually filed a motion for summary disposition, a rguing that plaintiff’s action was barred by governmental immunity. Defendant testifie d that he was assigned to the probate floors of the court and w as coming out of a courtroom w hen he heard yelling and saw a large group of people fighting. Defendant called for help and then proceeded toward the fight where he saw a man, Tippins, usi ng plaintiff “like a punching b ag.” Plaintiff was getting punched in the face repeatedly. When he got to Tippins, defend ant “grabbed him using the straight arm bar takedown and t ook him straight from where he w as standing straight to the ground.” Tippins continued to strug gle while he was on the gro und and people were trying to-2- grab at Tippins and kick him while he was on the ground. As de fendant was trying to shield Tippins and himself from the crowd assault, he loosened his gri p on Tippins and Tippins bit him

on his left forearm. Then other officers arrived, Tippins was handcuffed, and the crowd was controlled. Defendant saw plaintiff sitting on the floor and i t appeared that her ankle was broken. Defendant testified that he did not know how plaintiff ’s ankle was injured; she was not involved in his takedown of Tippins.

Defendant argued that, under the facts of this case, he was cl early entitled to governmental immunity. With regard to plaintiff’s negligence c laim, and as set forth in MCL 691.1407(2), defendant was acting within the scope of his autho rity during the course of his employment as a courthouse deput y and no reasonable fact finder could conclude that he acted in a grossly negligent manner, i.e ., engaged in conduct so reckles s that it demonstrated a substantial

lack of concern for whether an injury will result, MCL 691.1407 (8)(a). With regard to plaintiff’s intentional tort claim, i.e., her battery claim, and as set for th in Odom v Wayne Co , 482 Mich 459, 480; 760 NW2d 217 (2008), defendant was acting within the scope of his authority during the course of his employment as a courthouse deputy, and was pe rforming a discretionary act in good faith and without malice. Accordingly, defendant argued, he was entitled to summary disposition.

Plaintiff responded to defendant’s motion for summary disposit ion, arguing that defendant was grossly negligent because he did not use a straig ht arm take-down procedure against Tippins; rather, he did a “flying tackle” which took do wn plaintiff and Tippins and proximately caused her ankle injury. Plaintiff further argued that defendant acted with a wanton or reckless disregard for her r ights; thus, he was not entitled to immunity.

Following oral arguments, the tr ial court granted defendant’s motion for summary disposition. The trial court held that, even if defendant perf ormed a “flying tackle,” he was attempting to break up the fight and his conduct did not amount to gross negligence or an actionable battery. The court quoted the standard set forth fo r intentional torts in Odom 1 —that

“willful and wanton misconduct is m ade out only if the conduct alleged shows an intent to harm”

or “such indifference as to whether harm will result as to be t he equivalent of a willingness that it does,” and concluded that there wa s “no evidence of that here.” And the court held: This does not amount to gross negligence. He was attempting to break up this fight. She got injured as an unfortunate side effect of him tr ying to break up this fight. He wasn’t trying to arrest her. He didn’t have any mal ice towards her. He was trying to break up this fight and she got knocked down and her ankle was injured. This is not gross negligence. This is a discretionar y act. He did what he thought he had to do under the circumstances. This as a matter of law I am finding that this does not ar ise to gross negligence.

Accordingly, the case was dism issed and this appeal followed.

1 Odom , 482 Mich at 475 (cit ation omitted).-3- Plaintiff argues that the trial court erred in granting defend ant’s motion for summary disposition because her gross negligence claim was not preclude d by governmental immunity. We disagree.

“A trial court’s ruling on a motion for summary disposition is a question of law, which

this Court reviews de novo.” Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp , 486 Mich 311, 317; 783 NW2d 695 (2010). The proper interpretation of a statute is also a legal question that is reviewed de novo. McCormick v Carrier , 487 Mich 180, 188; 795 NW2d 517 (2010). A motion brought under MCR 2.116(C)(7) is properly gra nted if a claim is barred because of immunity granted by law. Maskery v Bd of Regents of Univ of Mich , 468 Mich 609, 613; 664 NW2d 165 (2003). A motion brought under MCR 2.116(C)( 10) tests the factual sufficiency of a complaint and is properly granted if the evide nce submitted by the parties does not establish that a genuine issue of material fact exists. Corley v Detroit Bd of Ed , 470 Mich 274, 278; 681 NW2d 342 (2004).

A governmental employee is generally entitled to immunity from tort liability for an injury to a person caused by the employee during the course of employment while acting on behalf of the governmental employer if the employee acted withi n the scope of his authority, in the discharge of a governmental function, and the employee’s co nduct did not amount to gross negligence. MCL 691.1407(2); see also Odom , 482 Mich at 468-469. “Gross negligence” is

defined as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a). To establish gross negli gence, “the plaintiff must present

evidence that the contested conduc t was substantially more than negligent.” Radu v Herndon & Herndon Investigations, Inc , 302 Mich App 363, 383; 838 NW2d 720 (2013) (citation and quotation marks omitted).

In this case, defendant, a courthouse deputy, was clearly acti ng within the scope of his authority and discharging a gove rnmental function when he attem pted to protect plaintiff from an

assault at the courthouse. See Oliver v Smith

, 290 Mich App 678, 685; 810 NW2d 57 (2010) (noting that “there is no doubt that [the] defendant was acting within the scope of his authority and was discharging a governmental function during the time he was arresting plaintiff and taking him into police custody”). Plaintiff argues, however, t hat defendant was grossly negligent when he attempted to stop Tippins from punching her in the face by separating them through a “flying tackle” which caused her ankle injury. We cannot agree . Even if defendant did use a “flying tackle” to separate Ti ppins from plaintiff, such conduc t was not “so reckless as to

demonstrate a substantial lac k of concern for whe ther an injury results.” MCL 691.1407(8)(a).

By both plaintiff’s and defendant’s account, Tippins was repea tedly striking plaintiff. Plaintiff testified that Tippins was “attacking” her and struck her several times in the face and body, and that things were “happen ing so fast.” Defendant test ified that Tippins was “using [plaintiff] like a punching bag.” In this context, attempting to end the assault by tackling the parties involved does not rise t o the level of gross negligence . See Odom , 482 Mich at 480. Indeed, far from a “lack of concern for whether an injury resul ts,” the facts of this case indicate that defendant was acting in order to prevent further injury to plaintiff. See MCL 691.1407(8)(a). Although, with the benefit of hindsight, it is almost always possible to envision a better possible response to a given situation, the nature of law enforcement work is “unusual and extraordinary,” situations a re “fraught with uncertainty,” and it is generally “unfair” to-4- question a law enforcement officer’s exercise of his “discretio nary professional duty.” White v Beasley , 453 Mich 308, 320-321; 552 NW 2d 1 (1996) (citations and quotation marks omitted). Therefore, even viewing the evidence in the light most favorabl e to plaintiff, no reasonable jury could conclude that defendant’s actions amounted to gross negli gence; thus, he is immune from liability on this claim. See MCL 691.1407(2); Odom , 482 Mich at 479-480.

Plaintiff next argues that the t rial court erred in granting d efendant’s motion for summary disposition with regard to her battery claim because it was not precluded by governmental immunity. We disagree.

When a plaintiff pleads an intentional tort against a governme ntal employee, the defendant may establish that he is entitled to individual gover nmental immunity by showing that (a) his acts were taken during th e course of employment and he was acting within the scope of his authority, (b) his acts wer e undertaken in good faith and n ot with malice, and (c) the acts were discretionary, as opposed t o ministerial. See MCL 691.140 7(3); Odom , 482 Mich at 461, 480, citing Ross v Consumers Power Co (On Rehearing) , 420 Mich 567; 363 NW2d 641 (1984).

In this case, plaintiff asserted that defendant committed a ba ttery against her which is “the wilful and harmful or offensive touching of another person which results from an act

intended to cause such contact.” Smith v Stolberg , 231 Mich App 256, 260; 586 NW2d 103 (1998) (citation omitted). Plaintiff claims that defendant’s “ flying tackle” resulted in the battery, the intentional tort. However, it is clear from the record evi dence that defendant was acting in the course of his employment, within the scope of his authority as a governmental employee, and

that the actions he took to st op the fight and to protect plain tiff from further attack by Tippins were discretionary in nature. See Oliver

, 290 Mich App at 685.

It appears that plaintiff is claiming, however, that defendant did not act in good faith. “[A] governmental employee does not act in ‘good faith’ if the employee acts ‘maliciously or with a wanton or reckless disreg ard of the rights of another.’” Radu , 302 Mich App at 386, quoting Odom , 482 Mich at 474. Furthermore, “willful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it do es.” Odom , 482 Mich at 475. But here there is no testimony indica ting that defendant had any ma lice toward plaintiff or intended to do anything other than protect plaintiff against Tippins’s a ssault. Plaintiff admitted in her deposition that she did not think defendant had any personal an imosity toward her and did not think defendant specifically i ntended to hurt her, although pla intiff later indicated in her affidavit that she “had no way of knowing [defendant’s] intent.” Defenda nt stated at his deposition that he was trying to protect plaintiff and that his intention was t o “protect her from being harmed” and to “stop the assault.” We agree with the trial court’s con clusion that no reasonable jury could conclude that defendant’s alleged conduct of tackling pla intiff to protect her from further

assault showed an intent to harm plaintiff or such indifference to whether harm will result as to be the equivalent of a willingn ess that it does result. See id . Accordingly, the t rial court also-5- properly dismissed plaintiff’s in tentional tort claim. In summ ary, plaintiff’s action against defendant was barred by government al immunity and was properly dismissed.

Affirmed.

/s/ Michael J. Talbot /s/ Mark J. Cavanagh /s/ Kirsten Frank Kelly