Patterson v. Kleiman
| Decision Date | 05 April 1993 |
| Docket Number | Docket No. 134858 |
| Citation | 500 N.W.2d 761,199 Mich.App. 191 |
| Parties | Ruby PATTERSON, Personal Representative of the Estate of Tyrone Patterson, deceased, Plaintiff-Appellant, v. Martin E. KLEIMAN, M.D., and Ruby Roc, M.D., Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Lakin, Worsham & Victor, P.C. by Larry A. Smith and Lori A. Young-Barker, Southfield, for plaintiff-appellant.
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and Clive D. Gemmill and Mark S. Meadows, Asst. Attys. Gen., for defendants-appellants.
Before WAHLS, P.J., and MICHAEL J. KELLY and CONNOR, JJ.
Plaintiff appeals as of right the trial court's order granting defendants' motion for summary disposition based on governmental immunity, MCR 2.116(C)(7). We reverse.
Plaintiff sued defendants for medical malpractice. Defendants moved for summary disposition without answering the complaint. They argued that, accepting plaintiff's pleadings as true, they were immune from liability. The trial court agreed, and dismissed plaintiff's complaint pursuant to MCR 2.116(C)(7).
To state a malpractice claim, plaintiff had to allege facts sufficient to establish simple negligence. As government employees, defendants are immune from tort liability if their conduct does not amount to gross negligence. M.C.L. § 691.1407(2); M.S.A. § 3.996(107)(2). However, governmental immunity is an affirmative defense; therefore it is something for which defendants, not plaintiff, were required to plead supporting facts. See MCR 2.111(F)(3). Because plaintiff is not required to anticipate an affirmative defense, she had no duty to allege gross negligence.
When considering a motion brought under MCR 2.116(C)(7), we consider all the affidavits, pleadings, and other documentary evidence filed or submitted by the parties. Haywood v. Fowler, 190 Mich.App. 253, 255-256, 475 N.W.2d 458 (1991). We must consider all well-pleaded allegations as true and construe them most favorably to the plaintiff. Id. If reasonable minds cannot differ with respect to whether a defendant's actions amounted to gross negligence, summary disposition is appropriate. Vermilya v. Dunham, 195 Mich.App. 79, 83, 489 N.W.2d 496 (1992). However, summary disposition before the completion of discovery is proper only where further discovery does not stand a fair chance of uncovering factual support for the opposing party's position. Miller v. Irwin, 190 Mich.App. 610, 614, 476 N.W.2d 632 (1991).
Given plaintiff's allegations of fact, we cannot say that a reasonable mind could not find defendants' conduct "so reckless as to demonstrate a substantial lack of concern for whether an injury results." M.C.L. § 691.1407(2)(c); M.S.A. § 3.996(107)(2)(c). We also cannot say that...
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