*1 SMITH OLIVER v 8, 2005, at Detroit. Decided Docket No. 254654. Submitted November 31, 2006, January at 9:00 a.m. Wayne against Gary complaint police in the Circuit Court Oliver filed others, Cory asserting battery, officer Smith and claims of assault and alleged negligence, rights arising violations out of Smith’s and civil arresting plaintiff. of excessive force when the Smith moved for use 2.116(C)(7) (10), summary disposition arguing under MCR and governmental immunity liability was entitled to from tort under he 691.1407(2) (7) handcuffing MCL and because his conduct in the negligence. plaintiff during gross the did not amount to arrest court, J., Murphy, prejudice, John A. denied the motion without concluding produced documentary plaintiff that while the had not establishing genuine issue of evidence injury, summary Smith’s caused him to suffer an whether conduct disposition premature discovery complete and was because was not plaintiff produce documentary the still had time to evidence of an injury. appealed. Smith Appeals The Court of held: properly The trial court denied Smith’s motion for 2.116(0(10) disposition prejudice. under MCR without Under MCL 691.1407(2)(c), governmental employee is not liable in tort for injuries long personal employee’s conduct does not amount as as gross negligence proximate cause of the Police given determining officers are wide discretion what actions are appropriate public safety, stopping matters involve unlawful conduct, apprehending wrongdoers, but arrests must be made without force. A conduct of excessive officer’s gross negligence physical injury individual too is not unless results. Because Smith moved for under MCR 2.116(0(10), however, he bore the initial burden affida- vits, admissions, depositions, documentary sup- and other evidence porting grant summary disposi- his assertion that the court should plaintiff injured by handcuffing. He tion because was not this, failed to do so the burden did not shift to the to establish regarding injury. issue of material fact Denial of prejudice proper without was also complete premature. If the would be Opinion of the Court tight handcuffing, did suffer a from uncovering documenting has a reasonable chance of it. Moreover, ruling, before the trial court’s had no reason to know that he needed establish show *2 negligence. Affirmed. J., concurring part dissenting part, agreed in and in ScHUETTE, plaintiff physical injury must evidence of a gross negligence handcuffing suspect. order to show The trial granted Smith, court should have how- ever, though discovery response even had not closed. In to Smith’s motion, plaintiff presented showing no evidence physical Summary disposi- issue of material fact appropriate discovery tion is before the close of if there is no discovery reasonable chance that further will result factual nonmoving party. plaintiff ample for the Because the had compile time to some evidence of an he before answered motion, unlikely Smith’s it is that further has a fair recovering chance of such evidence. Negligence - - - Immunity
Governmental Police Officers Gross Arrest. police A tightly officer’s an conduct individual too during gross' negligence purposes an arrest is not for exception governmental immunity unless results (MCL 691.1407). Acho, Cummings, Davis & McClorey, P.L.C. Jo- (by Nimako), seph Cory for Smith. EJ., SMOLENSK, BOERELLO,
Before: and SCHUETTEand JJ. (hereafter defendant)
BORRELLO, Cory J. Smith appeals right order denying as of an his motion for summary affirm. This being We case is decided without 7.214(E). argument oral under MCR I. FACTSAND PROCEDURALHISTORY The giving appeal events rise to this occurred on November 2001. On date, defendant, officer App 560 Heights Department, Police arrested the Dearborn with after officer interfering police for with defendant disruptive uncooperative and while tiff was field to administer sobri- attempted another officer and which ety to the driver of vehicle tests arrest, plaintiff filed a passenger. As a result of against city, police department, and complaint officers, The including complaint defendant. two battery, negligence, of assault and contained claims In rights complaint, plaintiff alleged civil violations. defendant used force he arrested excessive when intentionally plaintiffs him handcuffed too with the intent inflict harm. wrists that defendant’s use of exces- complaint alleged further and mental sive force caused suffer injuries.
Defendant moved under 2.116(C)(7) (10), arguing that he was entitled MCR *3 immunity governmental to under governmental act, immunity seq., MCL 691.1401 et because his con- negligence not to gross duct did amount under MCL 691.1407(2)(c) (7)(a). motion, In support and of his of the copy police report defendant attached and plaintiffs deposition testimony. In the excerpts depo- sition, testified that defendant threw him to ground when defendant arrested him. Plaintiff also him, testified that defendant handcuffed he im- when mediately told defendant handcuffs were too them, him to tight and asked loosen but defendant laughed him in the merely put back an Plaintiff filed answer to defendant’s motion for car. opposition as as a brief in well motion, arguing defendant’s that defendant’s conduct and that grossly negligent defendant therefore was However, immunity. entitled governmental any his documentary tiff did attach 563 Opinion of the Court brief, presented and therefore no evidence regarding whether he suffered as a result being handcuffed.
The trial court denied on defendant’s motion based 2.116(0(10). In opinion motion, MCR its the trial court that plaintiff produce observed failed to documentary evidence to a genuine establish issue of fact regarding whether defendant’s conduct Nevertheless, caused injury. to suffer trial court denied summary defendant’s motion for disposition, essentially concluding summary dispo- premature sition was because discovery was not com- plete and still had time to documen- tary evidence of The stayed trial court the trial pending proceedings disposition appeal. of this
II. STANDARD OF REVIEW de We review novo the trial denial of court’s a defen dant’s motion for under MCR 2.116(C)(7) 2.116(C)(10). Ameribank, v Dressel MCR 557, 561; Mich Maiden v (2003); 468 (1999). Rozwood, 461 109, 118-119; Mich 597 817 NW2d a governmental determination whether employee’s conduct constituted negligence under MCL but, generally fact, 691.1407 is if question of reasonable differ, minds could not may grant a court Crabtree, Tarlea 88; App 80, 687 (2004). In Quinto Co, v Cross & Peters NW2d 333 358, 362-363; (1996), Supreme our NW2d explained evidentiary Court requirements party each must meet survive a motion 2.116(C)(10): pursuant to MCR *4 In presenting disposition, a motion for moving party supporting has the initial of burden its of admissions, affidavits, other by depositions, or
position documentary then shifts to the The burden evidence. genuine that a opposing party to establish proof at trial on a the burden fact exists. Where nonmoving party, the nonmov- on a dispositive issue rests may rely allegations on mere or denials ing party beyond to forth go pleadings set pleadings, but must showing genuine issue of material fact specific facts that a documentary party present to opposing If the fails exists. establishing the of a material factual evidence existence properly granted. [Citations omit- dispute, the motion is ted.]
III. ANALYSIS on is whether presented appeal The sole issue for erred in defendant’s motion trial court hold that the trial court summary disposition. We summary dispo- denied defendant’s motion for properly 2.116(0(10). sition under MCR the trial should have argues Defendant court his favor because granted claim that evidentiary support tiff no for his produced as a result defendant’s he suffered Therefore, plaintiff. defen- alleged tight contends, immunity to from tort dant he is entitled act governmental immunity under the liability failed to evidence that defendant’s negligence. agree We with conduct amounted deny decision to defendant’s motion trial court’s the fact ruling Our is based on defendant, had the moving party, as the burden affidavits, depositions, motion with admis- support his evidence, and he failed to sions, documentary or other necessary documentary evidence warrant present in his favor. While granting did not establish *5 565 Opinion of the Court of whether defendant’s (i.e., grossly negligent conduct was evidence that a injured grossly tiff was as result of defendant’s negligent conduct), yet was complete, not so favor defendant’s would have premature. been governmental immunity act, govern-
Under the mental employee personal is liable tort for injuries long as as the employee’s “conduct does not amount to negligence proximate cause of the or injury damage.” 691.1407(2)(c); MCL see Tarlea, at supra negligence” 89. “Gross is defined as “conduct so as to reckless demonstrate a substantial lack of concern an injury for whether results.” MCL “ 691.1407(7)(a). given ‘Police officers ... must be degree wide in determining discretion what type of safety action will best ensure the of the individuals general involved and the public, the cessation of unlaw- ” conduct, ful apprehension wrongdoers.’ Shavers, 272, 276; Brown 210 Mich App 532 NW2d (On (1995), quoting Ross v Consumers Power Co (1984). 659; Rehearing), the police take, Once determine type what action to “the execution thereof must be performed in proper manner, e.g., must arrest be made without excessive Ross, force ....” at supra 660.
The issue is whether required provide evidence that suffered physical injury resulting from tight handcuffs to establish that defendant’s con- grossly negligent duct was and that defendant was protection govern- therefore removed from the defendant, immunity According mental act. provide
must evidence that he suffered resulting tight from the handcuffs to establish that in grossly negligent defendant acted manner. trial 269 summary- motion for court, defendant’s necessary it was disposition, concluded that injury in order to estab- evidence of present and therefore grossly negligent defendant was lish that by governmental claim plaintiffs from shielded immunity. Michigan found case law address-
This Court has no that a ing plaintiff alleging police officer’s whether handcuffs too in the course placing conduct of of a physical must arrest *6 police order that officer’s conduct to establish However, the gross negligence. Sixth Cir- constituted has Appeals cuit the United States Court of held allegation of physical injury, “when there no is handcuffing of an individual incident to a lawful arrest is a matter of law to a claim of insufficient as state Neague force under Fourth Amendment.” excessive (CA 2001). Furthermore, 6, Cynkar, F3d Circuit, Tenth reasoning City of the Hannula v (CA Lakewood, 10, 1990), why 907 F2d 129 reinforces establishing injury requirement logical. is physical not handcuffing pain Evidence that caused some but is insufficient to establish excessive force injury handcuffs; or applying injury if is minimal nonex- it istent, creating then the force must also be minimal and, therefore, Hannula, supra not excessive. at 132. adopt the of the Sixth Circuit and the reasoning
We hold Tenth Circuit and officer’s conduct not an individual too does consti- injury tute gross negligence physical unless results. Nevertheless, end the case. inquiry this does not this moved for summary pur- Because defendant 2.116(0(10), initial to MCR he bore the burden suant affidavits, admissions, and depositions, to produce documentary evidence to his support other assertion v Smith Oliver op summary disposition that his motion for should be granted physical did result from injury because too handcuffing plaintiffs tightly. defendant wrists Quinto, supra at 362. Defendant did not affidavit, an by plaintiff, doctor’s admission or other to support evidence his contention that gross negligence tight did not occur as a hand- result no cuffing because resulted. Conse- quently, failed to meet his to provide initial burden supporting his contention his motion be granted. should Because defen- burden, dant did meet his initial the burden did not shift establish a issue material fact regarding whether from resulted the excessively tight handcuffing. Therefore, Id. it was proper for the trial to deny court defendant’s motion when defendant had not satisfied his initial burden to provide evidence argument his that sum- mary disposition was appropriate. trial court’s denial of defendant’s motion for
summary disposition was also proper complete was not and summary disposition at that time premature. therefore “Generally, a motion for premature is if granted before discovery on However, complete. *7 summary disposition may appropriate nevertheless be if further discovery a does stand reasonable chance of uncovering factual support for opposing party’s Novelties, position.” Peterson City Inc v Berkley, (2003) (citations App 1, 24-25; omitted). plaintiff Whether a physical suffered injury a If plaintiff did, fact, issue. in a physical suffer injury resulting tight from the then handcuffing, tiff uncovering has reasonable chance of documenting Moreover, such before trial plaintiff court ruled that was required to establish a by Schuette, J. that defendant’s in order to establish had no reason grossly negligent, conduct was requirement existed. Now to know that such injury requirement, the physical is aware of period the entire entitled to have plaintiff is records, affidavits, opinions, medical compile the trial his claim. Because other evidence to summary disposi- defendant’s motion for court denied will have sufficient prejudice, parties tion without both evidence, and, if he additional so compile opportunity another motion for sum- desires, bring defendant can the discovery period. at the end of mary disposition Affirmed. EJ., concurred.
SMOLENSK!, in (concurring part dissenting J. SCHUETTE, majority opinion I dissent from part). respectfully of summary the trial court’s denial and would reverse majority opinion I Although agree with evidence of a physical must gross negligence suspect, order to show I I dissent because believe granted, though have even dis-
defendant should
been
Flaintiff
no evidence
covery
yet
presented
had
to close.
summary dispo-
to defendant’s motion for
response
sition that would show there was
injury from the
only
allegation
Flaintiff
restated his
from his
handcuffs.
that he
from “an ulnar deviation of
complaint
suffered
hands.
his wrist” and numbness and weakness
both
proof
dispositive
at trial on
“Where
burden
nonmoving
nonmoving party
party,
issue rests on a
in plead-
mere
or denials
may
rely
allegations
on
*8
Opinion by Schuette,
J.
ings,
go beyond
but must
pleadings
to set forth
specific facts showing that a
issue of
fact
v
Quinto
Co,
358,
exists.”
Cross & Peters
(1996).
362;
Furthermore,
Although discovery period yet had not ended when defendant filed the motion disposi tion, “a ruling on a motion for summary disposition is appropriate ‘if there is no reasonable chance fur ther discovery will result factual for the ” nonmoving party.’ Mable Cleary Trust v Edward- Marlah Trust, 262 Mich Muzyl 485, 506-507; App (2004), NW2d 770 Colista quoting Thomas, (2000). 529, 538; This case was filed 2003, in April and defendant did not move for summary 15, until December 2003. Plaintiff did not file his answer to the motion until March giving him ample time compile some evidence of an injury. Therefore, I do not believe that further discovery is likely to lead to a fair chance of recovering evidence of I conclude that the trial court erred in defendant’s motion for disposition, and I would remand entry this case for of summary disposition in defendant’s favor.