Governmental immunity; MCL 691.1407(2); “Gross negligence”; MCL 691.1407(8)(a); Tarlea v Crabtree

Holding that there was a question of fact whether defendant-Choroba, a 911 operator, was grossly negligent, the court affirmed the denial of his summary disposition motion. Plaintiff-estate’s decedent was a patient at a healthcare facility (Heartland) when he was discovered suffering a heart attack. 911 calls were placed to get him help, but many went unanswered. Choroba “was the only person in the dispatch room where” Heartland’s 911 calls were directed. He argued that the trial court erred in denying his summary disposition motion on the issue of whether he was grossly negligent and ruling a question of fact existed as to whether he was protected by governmental immunity. The court disagreed. While he cited Tarlea, in that case, “perhaps, the defendants could have done a little more to prevent injury.” In contrast, plaintiff here “presented evidence that Choroba was simply not performing his most basic job function as a 911 operator—answering 911 calls.” The department had notified all 911 operators a month before the night in question “to not turn down the volume on the 911 lines to an inaudible level and to check the volume at the beginning of each shift. Choroba did not check the volume of the speaker at the station where he was working, as required by departmental policy.” He also was previously disciplined for not properly logging “into his work station and allowing a text to 911 to go unanswered for hours. According to” defendant-Rowell, she found him with his feet on his desk “watching videos on Facebook while calls from Heartland were coming in. Choroba admitted he was on his phone while he was missing Heartland’s calls. There is a visual prompt on the 911 work station computer screens when there is an incoming 911 call, but Choroba did not see the visual prompts because he was looking at his phone.” While there was no evidence he turned off the volume on the speakers that night, from the record evidence “a reasonable jury could find Choroba, based on his actions that night, simply did not care about the safety or welfare of those who might be calling 911 and was thus liable for gross negligence. A reasonable jury could also find that his actions constituted nothing more than ordinary negligence.”