Governmental immunity for a government employee; MCL 691.1407(2); “Gross negligence”; MCL 691.1407(8)(a); Effect of the lack of discovery

Holding that the trial court erred in denying defendant-police officer’s motion for summary disposition because he was entitled to governmental immunity as a matter of law, the court reversed and remanded for entry of an order granting his motion. The case arose “out of a car accident in which defendant rear-ended plaintiff’s vehicle” while defendant was on duty. He contended that plaintiff could not “support the claim that his conduct rose to the level of gross negligence for an accident that occurred at a slow rate of speed when he briefly looked down from the roadway to reach for his radio microphone.” In response, plaintiff asserted that discovery was necessary. There was nothing in the documentation submitted by defendant to support plaintiff’s claim that the facts were “suspicious and unusual.” Accepting plaintiff’s claims “as true and considering the evidence in the light most favorable to plaintiff, defendant’s conduct, at most, constituted ordinary negligence.” The principal theme of plaintiff’s brief on appeal was that summary disposition was inappropriate because discovery had not begun. But he only offered “speculation that discovery will yield evidence supporting that defendant was grossly negligent. Again, plaintiff submitted that the circumstances of defendant driving an unmarked police vehicle with another officer and third person were suspicious, and therefore, defendant may not have been acting within the scope of his employment such that governmental immunity would not apply.” However, there was nothing in the accident report to support this speculative theory. Plaintiff also contended that discovery was “necessary to determine what exactly was occurring in defendant’s vehicle in the moments leading up to the collision.” But plaintiff offered “no theory of what evidence discovery would uncover that would support defendant committed gross negligence as opposed to ordinary negligence. Defendant admitted that he looked down, leading to the collision. The police investigation concluded that the cause of the collision was defendant’s inability to stop in an assured, clear distance.” The court held that because “plaintiff failed to allege facts sufficient to show that defendant was grossly negligent, the trial court erred when it denied his motion for summary disposition.”