Maiden v. Rozwood

• Decision Date: 30 July 1999
• Docket Number: Docket No. 107936,Docket No. 110035,Docket No. 14,Docket No. Calendar,Docket No. 15.
• Citation: 461 Mich. 109,597 N.W.2d 817
• Parties: Sadie MAIDEN, as Personal Representative of the Estate of Leith Maiden, Deceased, Plaintiff-Appellee, v. Henry James ROZWOOD, Betty Jo Szabo, Paul Leonard Troy, and Karl Douglas Myles, Defendants-Appellants, and Southgate Regional Center and the Michigan Department of Health, Defendants. Kenneth Reno, Plaintiff-Appellant, v. Yung A. Chung, M.D., Defendant-Appellee, and Donald Portice, Mark Tonge, Larry Rushing and David Johnson, Defendants.
• Court: Michigan Supreme Court

597 N.W.2d 817

461 Mich. 109

Sadie MAIDEN, as Personal Representative of the Estate of Leith Maiden, Deceased, Plaintiff-Appellee, v. Henry James ROZWOOD, Betty Jo Szabo, Paul Leonard Troy, and Karl Douglas Myles, Defendants-Appellants, and Southgate Regional Center and the Michigan Department of Health, Defendants.

Kenneth Reno, Plaintiff-Appellant, v. Yung A. Chung, M.D., Defendant-Appellee, and Donald Portice, Mark Tonge, Larry Rushing and David Johnson, Defendants.

Docket Nos. 107936, 110035, Calendar Nos. 14, 15.

Supreme Court of Michigan.

Argued January 22, 1999.

Decided July 30, 1999.

Donald M. Fulkerson, Westland, for plaintiff-appellant Reno.

Law Offices of David J. Cooper, P.C. (by David J. Cooper), West Bloomfield, and Bendure & Thomas (by Mark R. Bendure), Detroit, for plaintiff-appellee Maiden.

Plunkett & Cooney, P.C. (by Christine D. Oldani and Mary Massaron Ross), Detroit, for defendant-appellee in Reno.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Santiago Rios, Jessica E. LePine and Michael C. McDaniel, Assistant Attorneys General, Lansing, for defendants-appellants in Maiden.

Opinion

CORRIGAN, J.

In these consolidated cases, we granted leave to decide the quantum of proof required to survive a motion for summary disposition in gross negligence actions involving government employees under M.C.L. § 691.1407(2)(c); MSA 3.996(107)(2)(c). In Maiden v. Radwood,¹ unpublished order of the Court of Appeals, entered June 26, 1997 (Docket No. 200635), we hold that plaintiff has failed to present evidence of gross negligence sufficient to overcome the immunity conferred by statute. Therefore, we reverse the decision of the Court of Appeals and reinstate the trial court's order. In Reno v. Chung, although plaintiff presented a material question of fact regarding defendant Chung's gross negligence, we hold that plaintiff's claim fails as a matter of law because defendant owed no duty to plaintiff. We therefore affirm the decision of the Court of Appeals, 220 Mich.App. 102, 559 N.W.2d 308 (1996).

I. Underlying Facts and Procedural History

A. Maiden v. Rozwood

Plaintiff's decedent, Leith Maiden, was a resident at the Southgate Regional Center, a state mental health facility. He had been diagnosed as a paranoid schizophrenic with adjustment disorder and disturbances of conduct and mood. On June 9, 1994, Maiden, who was 5'6" tall and weighed 240 pounds, became physically and verbally abusive toward another resident, striking the other resident twice. Paul Troy, a resident care aide, then escorted Maiden back to his assigned residence in another building.

En route to the residence, Maiden announced that he was not returning to the residence and began "wandering off." Troy enlisted the help of defendants Betty Jo Szabo, a licensed practical nurse, and Henry Rozwood, another resident care aide, to escort Maiden to his room. When Maiden entered the building, he ran to the dining room where he immediately caused another disturbance. He yelled, swore, and knocked over furniture in the proximity of other residents. Other staff and residents present in the dining room scurried away from the flying tables and chairs. Defendants Troy, Szabo, and Rozwood attempted to calm Maiden verbally without success.

Maiden struck defendant Troy in the head, knocking him to the floor. Troy lost his glasses and was momentarily dazed. Maiden also attempted to strike Rozwood, and during the struggle they both fell to the floor. Rozwood then sat on Maiden's buttocks in an effort to restrain him, but he was bucked off to Maiden's left side. Rozwood then leaned on Maiden's left shoulder and held his left arm as he lay face down on the floor. After Maiden thrashed about and attempted to bite defendant Szabo, Rozwood held the back of Maiden's head to prevent him from biting anyone. Troy held Maiden's left arm. Defendant Karl Myles, a fire and safety officer who also had been called to assist, straddled Maiden's legs and told him to calm down.

Maiden was asked if he was all right, to which he replied "yeah." Maiden was then asked if he had settled down, to which he replied "uh-huh." Myles told Maiden to place his hands behind his back and calm down. Maiden placed his arms against his body after the staff released him. Maiden suddenly went limp and stopped breathing. Szabo and Rozwood immediately initiated resuscitation efforts. An ambulance was called, and resuscitation efforts continued until Maiden reached the hospital, where he was pronounced dead.

Defendants Rozwood and Szabo estimated that the entire incident lasted two to three minutes, while another staff member estimated that Maiden was held down five to ten minutes. The medical examiner opined that Maiden's death was caused by "positional and/or compression asphyxia" and the "manner of death was an accident."

Plaintiff filed a wrongful death suit, naming as defendants the regional mental health facility, the Michigan Department of Community Health, and the four employees who participated in the attempt to restrain Maiden. The circuit court dismissed the complaint against the mental heath facility and the Department of Community Health on the basis of government immunity. MCL 691.1407(1); MSA 3.996(107)(1). No issues involving these defendants were raised on appeal.

The complaint alleged that the individual defendants' conduct was grossly negligent within the meaning of the statute and thus not immune from liability. MCL 691.1407(2)(c); MSA 3.996(107)(2)(c).

Defendants moved for summary disposition under MCR 2.116(C)(10). The trial court granted the motion, concluding that nothing in the record showed that defendants' actions "rose to the level of gross negligence as defined by the law ...." The Court of Appeals thereafter granted plaintiff's motion for peremptory reversal, vacated the order granting summary disposition, and remanded for further proceedings, holding that genuine issues of material fact existed. We granted leave to appeal. 458 Mich. 874, 586 N.W.2d 85 (1998).

B. Reno v. Chung

On May 10, 1991, plaintiff arrived home and discovered that his wife, Carlynne, and daughter, Robin, had been brutally stabbed. Plaintiff's wife was already dead, but Robin was still alive. Her throat had been cut. She identified an acquaintance named Tommy Collins as their assailant just before she died. Plaintiff subsequently related his daughter's dying words to the police.

Both Collins and plaintiff were suspects in the double murder. The police investigation quickly focused on plaintiff after defendant, a Wayne County assistant medical examiner, performed autopsies on the decedents and opined that the stab wounds to Robin's neck made her unable to speak. On the basis of this information, plaintiff was arrested and charged with murder. He was bound over after a preliminary examination at which defendant testified that plaintiff's daughter could not possibly have implicated Tommy Collins, given the nature of the injuries to her throat.

In preparation for plaintiff's murder trial, the prosecutor consulted a pathologist, Dr. Laurence Simson, M.D., the Ingham County Medical Examiner, and an otolaryngologist, Dr. Robert Mathog, Chairman of Otolaryngology at Wayne State University, to corroborate defendant's opinion. Defendant thereafter refused to turn over records and specimens to the prosecutor for the experts' review, requiring that the prosecution obtain a court order to compel her compliance.

Rather than corroborate defendant's conclusions, both experts stated that defendant's findings and conclusions were completely wrong. Both experts found that defendant's conclusions regarding the victim's ability to speak had no anatomical or physiological basis. Both experts unequivocally opined that the victim's neck injuries would not have prevented her from speaking.

Because defendant's conclusions had been discredited, the prosecutor dismissed the charges against plaintiff.² Ten months later, plaintiff sued defendant and other parties, alleging that defendant had been grossly negligent. Defendant moved for summary disposition under MCR 2.116(C)(7), (8) and (10), claiming that she owed no duty to plaintiff, that her conduct was not grossly negligent and that she was entitled to witness immunity. The trial court granted the motion under both MCR 2.116(C)(8) and (10), finding for defendant on all issues.

Plaintiff appealed. In a divided opinion, the Court of Appeals affirmed the order granting summary disposition. The majority found that defendant owed no duty to plaintiff under the public duty doctrine and that no special relationship existed between plaintiff and defendant. The dissenting judge found that defendant owed a duty to plaintiff and that plaintiff had presented a material question of fact regarding defendant's gross negligence. We granted leave to appeal, limited to (1) whether the Court of Appeals erred in holding that the defendant had no special relationship and owed no duty to the plaintiff, and (2) whether the trial court clearly erred in holding that the plaintiff had failed to present a material fact question regarding defendant's gross negligence under M.C.L. § 691.1407(2)(c); MSA 3.996(107) (2)(c). 457 Mich. 864, 577 N.W.2d 695 (1998).

II. Governing Legal Standards

This Court reviews the grant or denial of summary disposition de novo to determine if the moving party is entitled to judgment as a matter of law. In making this determination, the Court reviews the entire record to determine whether defendant was entitled to summary disposition. Groncki v. Detroit Edison, 453 Mich. 644, 649, 557 N.W.2d 289 (1996) (opinion of Brickley, C.J.).

In Maiden, the trial court granted summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact). In Reno, the trial court granted summary disposition on the basis of both MCR 2.116(C)(8) (failure to state a claim upon which relief can be granted) and MCR 2.116(C...