Costa v. Community Emergency Medical Services, Inc.

• Decision Date: 10 November 2004
• Docket Number: Docket No. 247983,Docket No. 248104.
• Citation: 263 Mich. App. 572,689 N.W.2d 712
• Parties: Richard COSTA and Cindy Costa, Plaintiffs-Appellees/Cross-Appellees/Cross-Appellants, v. COMMUNITY EMERGENCY MEDICAL SERVICES, INC., Dave Henshaw and Scott Meister, Defendants-Appellees, and Donald Farenger, Defendant-Cross-Appellant/Cross-Appellee, and Lisa Schultz, Defendant-Appellant/Cross-Appellee, and John Doe and Jane Doe, Defendants. Richard Costa and Cindy Costa, Plaintiffs-Appellees/Cross-Appellants, v. Community Emergency Medical Services, Inc., Dave Henshaw and Scott Meister, Defendants-Appellants/Cross-Appellees, and Donald Farenger, Defendant-Cross-Appellee, and Lisa M. Schulz, Jane Doe and John Doe, Defendants.
• Court: Court of Appeal of Michigan — District of US

689 N.W.2d 712

263 Mich. App. 572

Richard COSTA and Cindy Costa, Plaintiffs-Appellees/Cross-Appellees/Cross-Appellants, v. COMMUNITY EMERGENCY MEDICAL SERVICES, INC., Dave Henshaw and Scott Meister, Defendants-Appellees, and Donald Farenger, Defendant-Cross-Appellant/Cross-Appellee, and Lisa Schultz, Defendant-Appellant/Cross-Appellee, and John Doe and Jane Doe, Defendants.

Richard Costa and Cindy Costa, Plaintiffs-Appellees/Cross-Appellants, v. Community Emergency Medical Services, Inc., Dave Henshaw and Scott Meister, Defendants-Appellants/Cross-Appellees, and Donald Farenger, Defendant-Cross-Appellee, and Lisa M. Schulz, Jane Doe and John Doe, Defendants.

Docket Nos. 247983, 248104.

Court of Appeals of Michigan.

Submitted June 1, 2004, at Detroit.

Decided September 21, 2004, at 9:00 a.m.

Released for Publication November 10, 2004.

Mark Granzotto, P.C. (by Mark Granzotto) and Gleicher & Patek, P.C. (by Barbara A. Patek), Royal Oak, for the plaintiffs.

Galbraith & Booms (by Steven B. Galbraith), Southfield, for Community Emergency Medical Services, Inc.; Dave Henshaw; and Scott Meister.

Secrest, Wardle, Lynch, Hampton, Truex and Morley, P.C. (by Janet Callahan Barnes), Farmington Hills, for Lisa Schultz and Donald Farenger.

Before: SAAD, P.J., and TALBOT and BORRELLO, JJ.

TALBOT, J.

These consolidated and expedited appeals stem from the trial court's denial of defendants' motions for summary disposition in plaintiffs Richard and Cindy Costa's¹ medical malpractice action. We affirm in part and reverse in part.

In Docket No. 247983, city of Taylor Fire Department emergency medical service (EMS) employee and defendant Lisa M. Schultz appeals as of right the April 7, 2003, order denying her motion for summary disposition premised on governmental immunity. MCR 7.202(6)(a)(v); MCR 7.203(A)(1). Pursuant to MCR 7.207(A)(2), city of Taylor Fire Department emergency medical service employee, defendant Donald Farenger filed a claim of cross-appeal from the same order, which also denied his motion for summary disposition premised on governmental immunity.

Plaintiffs also filed a cross-appeal in Docket No. 247983, challenging the circuit court's denial of their motion for summary disposition, a motion based on Farenger and Schultz's failure to file statutorily required affidavits that they possessed meritorious defenses to the complaint. Farenger and Schultz responded with a motion to dismiss plaintiffs' cross-appeal for lack of jurisdiction on the basis that the scope of the cross-appeal exceeded the limited portion of the order from which Farenger and Schultz appealed, namely, the circuit court's denial of their motion for summary disposition premised on governmental immunity. On July 14, 2003, this Court denied Farenger and Schultz's motion to dismiss, and deferred a decision of the jurisdictional question.

In Docket No. 248104, defendants Community Emergency Medical Services, Inc. (CEMS), and CEMS employees Dave Henshaw and Scott Meister appeal by leave granted the same circuit court order, which denied their motion for summary disposition on the issue of emergency medical service provider immunity. Plaintiffs filed a cross-appeal in Docket No. 248104, in which they again challenged the circuit court's denial of their motion for summary disposition based on Farenger and Schultz's failure to file affidavits of meritorious defenses. According to plaintiffs' complaint, on August 2, 1999, Richard Costa and his coworker, Joe Baker, flew from Colorado to Detroit for a business meeting. Sometime late on August 2 or early on August 3, Baker and Costa became involved in a fight and Baker struck Costa, "causing him to fall backwards and strike his head on the pavement." At 1:18 a.m. on August 3, a woman called the Taylor Police Department and reported that a man was down and not moving, and that she did not know whether he was alive. Within approximately five minutes, defendants arrived at the hotel parking lot in response to the report, but by this time "Costa had been moved from his prone position on the pavement to the front passenger seat of his vehicle, but was still unconscious." Baker advised defendants that Costa, who did not respond initially to painful or verbal stimuli, had two to four drinks earlier that evening. According to plaintiffs, Baker also informed defendants that he had punched Costa once, "and that [Costa] had been knocked unconscious either by the punch or when he struck his head on the concrete pavement as he fell." Costa regained consciousness, and recalled his name, location, and reason for going to Detroit, but could not recall the altercation and had difficulty walking unassisted. Costa signed a form refusing medical treatment and returned, assisted by Baker, to his hotel room. Baker was unable to awaken Costa the next morning, and Costa later required an emergency craniotomy and sustained allegedly permanent damage.

In Docket No. 247983, defendants Farenger and Schultz argue on appeal that the trial court improperly denied summary disposition upon their claim of governmental immunity where plaintiffs did not present any allegations or evidence tending to establish defendants' gross negligence in treating Costa. We agree. This Court reviews de novo a circuit court's summary disposition ruling. Maskery v. Univ. of Michigan Bd. of Regents, 468 Mich. 609, 613, 664 N.W.2d 165 (2003). Farenger and Schultz's claim of entitlement to governmental immunity derive from MCL 691.1407(2), which provides that governmental employees are immune from tort liability 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 ... [or] employee's ... conduct does not amount to gross negligence that is the proximate cause of the injury or damage. As used in this subdivision, "gross negligence" means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.

Here, plaintiffs do not dispute that Farenger and Schultz's treatment of Costa was an act within the scope of their authority as EMS personnel with the Taylor Fire Department, and that the Taylor Fire Department's response to the distress call involving medical treatment for Costa constituted engagement in a discharge of a governmental function. MCL 691.1407(2)(a)-(b). The remaining issue is whether, assuming the veracity of plaintiffs' allegations, they state a claim for gross negligence by Farenger and Schultz that was the proximate cause of Costa's injury. We conclude that they do not.

"[E]vidence of ordinary negligence does not create a material question of fact concerning gross negligence." Maiden v. Rozwood 461 Mich. 109, 122-123, 597 N.W.2d 817 (1999). "The plain language of the governmental immunity statute indicates that the Legislature limited employee liability to situations where the contested conduct was substantially more than negligent." Id. at 122, 597 N.W.2d 817. The Legislature also provided immunity unless the employee's conduct amounts to "`the one most immediate, efficient, and direct cause of the injury or damage, i.e., the proximate cause.'" Robinson v. Detroit, 462 Mich. 439, 462, 613 N.W.2d 307 (2000), quoting Stoll v. Laubengayer, 174 Mich. 701, 706, 140 N.W. 532 (1913).

Plaintiffs alleged that defendants Farenger and Schultz failed (1) to assess Costa's vital signs; (2) to conduct a physical examination of Costa while he remained unconscious; (3) on Costa's regaining of consciousness, to properly assess his competence to refuse treatment; (4) to explain to Costa the potential consequences of his refusal of treatment; and (5) to transport Costa to a hospital. Farenger and Schultz arrived on the scene after receiving dispatch information about a man lying unconscious in a parking lot. When they arrived, within four minutes of the dispatch, they found Costa reclined in the passenger seat of a vehicle. Costa's coworker, Baker, adamantly denied that Costa had ever lain on the ground, but admitted that Costa became unconscious after Baker punched him in the face. Baker believed that Costa had ingested four scotch and waters, but Farenger did not smell alcohol emanating from Costa. Farenger and Schultz observed a small spot of blood on one of Costa's nostrils. Although Costa did not immediately respond to Farenger's voice or to a painful stimulus, he became coherent after an ammonia inhalant was placed under his nose and correctly answered a series of questions to gauge his level of consciousness and mental capacity. Costa appeared competent to refuse treatment, signed a form refusing further treatment, and walked into the hotel where he was staying.

Despite plaintiffs' references in their complaint to "gross negligence," we find that the allegations here sound only in ordinary negligence. See Smith v. Stolberg, 231 Mich.App. 256, 258, 586 N.W.2d 103 (1998). No reasonable juror could have found that Farenger and Schultz behaved so recklessly "as to demonstrate a substantial lack of concern for whether an injury results." MCL 691.1407(2)(c); Tarlea v. Crabtree, 263 Mich.App. 80, 687 N.W.2d 333 (2004.) Further, given the undisputed evidence that Baker punched Costa in the face and knocked him down before Farenger and Schultz arrived on the scene, reasonable jurors could not have found that Farenger and Schultz's actions were the proximate cause of Costa's injuries. Robinson, supra, 462 Mich. at 463, 613 N.W.2d 307; Tarlea, supra. The trial court improperly denied Farenger and Schultz's motion for summary disposition on the issue of governmental immunity.

In Docket No. 248104, defendants CEMS and CEMS employees Dave Henshaw and Scott Meister also argue that the trial court improperly denied summary disposition because they were entitled to qualified immunity and...