Ethnic intimidation; MCL 750.147b(3); Vicarious liability; “Person”; Intentional infliction of emotional distress (IIED); Civil conspiracy; Michigan Penal Code (MPC)

The court held that plaintiffs failed to state an ethnic intimidation “claim upon which relief could be granted as to” defendant-United Electrical. As to their claims for IIED and civil conspiracy, it concluded that “no genuine issue of material fact exists as to whether defendant is liable, even when the evidence is viewed in the light most favorable to plaintiffs.” Thus, the court concluded “the trial court erred when it denied defendant’s motion for summary disposition of plaintiffs’ ethnic intimidation,” IIED, and civil conspiracy claims. That order was reversed and the court “remanded for entry of an order granting defendant’s motion, thereby dismissing this case against” it with prejudice. Further, it held that “plaintiffs’ claims against the purported Doe defendants must be dismissed as well; however, because the Doe defendants were never served with the summons and complaint, the dismissal as to the Doe defendants, only, shall be without prejudice.” Defendant argued, among other things, “that it was entitled to summary disposition because it cannot be held vicariously liable under MCL 750.147b(3) for the purported conduct of its employees, including the Doe defendants, even if their alleged acts did constitute violations of the ethnic intimidation statute. That is so because, according to the statute, plaintiffs may only ‘bring a civil cause of action against the person who commits the offense . . . .’” In response, plaintiffs asserted “that defendant may be held liable because it is a ‘person’ for purposes of the [MPC], which includes MCL 750.147b.” The court agreed with defendant’s argument. “Certainly, defendant may be a ‘person’ for purposes of the [MPC]. However, ‘the fact that defendant is a legal person does not automatically make it criminally liable for the acts of other persons.’” And the court noted that “as written, MCL 750.147b(3) only affords a civil cause of action against the person who commits the offense. If defendant could not be held criminally liable for committing the offense, it also cannot be subject to a civil cause of action under MCL 750.147b.” The court concluded that in “this case, through MCL 750.147b the Legislature did not intend to impose vicarious liability upon an employer whose employees committed acts that constituted ethnic intimidation during the course of their employment. Further, ethnic intimidation is a specific-intent crime, requiring that the person ‘maliciously, and with specific intent to intimidate or harass another person . . .’ commit the prohibited acts. Thus, the crime must have been committed either purposefully or knowingly.”