Opinion
No. 126901.
April 7, 2005.
SC: 126901, COA: 247584, Kent CC: 02-001260-CZ.
On order of the Court, the application for leave to appeal the July 15, 2004 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REVERSE that portion of the Court of Appeals opinion remanding this matter for trial as to defendant Dan Johnson. No reasonable juror could conclude that defendant's conduct amounted to reckless conduct showing a substantial lack of concern whether damage or injury would result. Stanton v. City of Battle Creek, 466 Mich 611, 620-621 (2002); Jackson v. Saginaw Co, 458 Mich 141, 146 (1998). Thus, plaintiff has failed to demonstrate that defendant's conduct constitutes gross negligence under MCL 691.1407(2)(c). Defendant's actions in issuing a stop work order were based on his duty as an assistant city manager to enforce a presumptively valid city ordinance and an approved variance to that ordinance. That it was later determined that the language of the approved minutes of the Zoning Board of Appeals meeting at which the variance was approved was erroneous does not strip defendant of immunity. Moreover defendant's conduct does not meet the test of being the proximate cause for plaintiff's alleged damages. See Robinson v. Detroit, 462 Mich 439 (2000). In all other respects, leave to appeal is DENIED.