Opinion
No. 337470
04-12-2018
EUSEBIO SALDANA, Individually and as Personal Representative of the ESTATE OF MICHAEL SALDANA, and JOSEPHINE SALDANA, Plaintiffs-Appellants, v. NATHAN LEE SMITH and SANILAC COUNTY SHERIFF'S OFFICE, Defendants-Appellees, and LAURA BURTON, THERESA BUFFUM, and SANILAC EMS, Defendants.
UNPUBLISHED Sanilac Circuit Court
LC No. 14-035923-CZ Before: SAWYER, P.J., and HOEKSTRA and MURRAY, JJ. PER CURIAM.
Plaintiffs appeal by right an order granting summary disposition in favor of defendant Nathan Smith pursuant to MCR 2.116(C)(10). We affirm.
I. FACTS
Michael Saldana died as the result of drug intoxication on February 14, 2012. Josephine Saldana, Michael's mother, found Michael unresponsive in the cab of a truck parked outside of the family home. After briefly attempting CPR, she called 9-1-1. Defendant, a sheriff's deputy, arrived on the scene at 2:23:17 p.m. He was unable to detect a pulse. He moved Michael to the ground to determine whether he should administer CPR, but decided not to when he noticed signs of lividity, the settling of blood in a person's body after they are deceased, on Michael's lower back and buttocks. An ambulance arrived about a minute and a half after defendant's arrival. Laura Schenk, the paramedic in charge, assessed Michael beginning at 2:25 p.m. and observed possible rigor, no breathing or pulse, cold and stiffening extremities, fixed and dilated pupils, and lividity. Within one minute of beginning the assessment, Michael was connected to a heart monitor, which showed a complete absence of electrical activity. Schenk therefore declined to attempt to resuscitate Michael. She opined that he had been "down" for at least an hour. Following an autopsy, it was determined that Michael died of pulmonary edema caused by drug intoxication. Michael had high levels of alprazolam and fentanyl in his system, as well as the presence of morphine, cyclobenzaprine, and diazepam.
Plaintiffs filed a complaint against defendant, as well as Schenk (nee Burton), emergency medical technician Theresa Buffum, Sanilac County Emergency Medical Services (EMS), and the Sanilac County Sheriff's Office. Claims against all the defendants were dismissed after the trial court found that plaintiffs did not provide the required notice under MCL 600.2912b for a medical malpractice claim. However, this Court reversed that ruling as it pertained to defendant and the Sanilac County Sheriff's Office because the notice requirements were inapplicable to them. Thereafter, the Sanilac County Sheriff's Office was granted summary disposition. Subsequently, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(7) and (10), and the trial court granted the motion under MCR 2.116(C)(10).
Saldana v Smith, unpublished per curiam opinion of the Court of Appeals, issued August 4, 2016 (Docket No. 326959).
II. STANDARD OF REVIEW—MCR 2.116(C)(10)
This Court reviews de novo a trial court's decision on a motion for summary disposition. Johnson v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). Summary disposition is appropriate under MCR 2.116(C)(10), when "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Joseph v Auto Club Ins Ass'n, 491 Mich 200, 206; 815 NW2d 412 (2012). The moving party has the initial burden of supporting his or her position by affidavits, depositions, admissions, or other documentary evidence. Coblentz v Novi, 475 Mich 558, 569; 719 NW2d 73 (2006). Then, the party opposing the motion has the burden of showing by evidentiary materials that a genuine dispute of fact exists. Id. Sheer speculation and conjecture are insufficient to meet this burden, McCune v Meijer, Inc., 156 Mich App 561, 563; 402 NW2d 6 (1986), and "[e]vidence offered in support of or in opposition to the motion can be considered only to the extent that it is substantively admissible," Veenstra v Washtenaw Country Club, 466 Mich 155, 163; 645 NW2d 643 (2002). When deciding a motion for summary disposition, the trial court must consider all evidence in the light most favorable to the nonmoving party. MCR 2.116(G)(5); Joseph, 491 Mich at 206.
III. ANALYSIS
Plaintiffs argue that genuine issues remain regarding whether defendant's failure to perform lifesaving measures and making the determination that lifesaving measures were unnecessary was grossly negligent and the proximate cause of their son's death, precluding summary disposition of their claim based on governmental immunity under MCL 691.1407(2). Although the trial court granted defendant's motion for summary disposition pursuant to MCR 2.116(C)(10), it was more properly decided under MCR 2.116(C)(7).
MCL 691.1407, a provision of the Government Tort Liability Act, MCL 691.1401 et seq., shields government actors from liability as long as they, among other requirements, have not committed a grossly negligent act or omission that is the proximate cause of an injury.
Michigan's public-duty doctrine insulates police officers from tort liability for the negligent failure to provide police protection. White v Beasley, 453 Mich 308, 316; 552 NW2d 1 (1996). In Beaudrie v Henderson, 465 Mich 124, 126-127; 631 NW2d 308 (2001), the Supreme Court declined to extend the public-duty doctrine and held that the public-duty doctrine continued to apply only "in cases involving an alleged failure to provide police protection," Id. at 141. Accordingly, the special-relationship exception is inapplicable because plaintiffs' claim is not that defendant failed to provide police protection from criminal acts of third parties, but that he failed to render medical aid to their son. --------
In Bellinger v Kram, 319 Mich App 653, 659; 904 NW2d 870 (2017), this Court observed:
MCL 691.1407(2) provides qualified governmental immunity from tort liability to a government employee acting within the scope of his or her authority and engaging in the exercise of a governmental function provided the employee's "conduct does not amount to gross negligence that is the proximate cause of the injury or damage." Therefore, in order to have survived defendant's motion for summary disposition, plaintiff was required to show that there was both an issue of material fact on the element of gross negligence and on the element of proximate cause.At the outset, the parties do not dispute that defendant was a government employee, that he was acting within the scope of his employment, and that the operation of a police force is a governmental function. As a result, there is no need to address the requirements of MCL 691.1407(2).
MCL 691.1407(8) defines "gross negligence" as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results." "Grossly negligent conduct must be conduct that is substantially more than negligent." Bellinger, 319 Mich App at 659-660 (quotation marks and citation omitted). "[A]llegations or evidence of inaction or claims that a defendant could have taken additional precautions are insufficient." Id. at 660. Gross negligence reflects "a willful disregard of safety measures and a singular disregard for substantial risks." Id. (quotation marks and citation omitted).
Through Schenk's deposition, defendant established that paramedics arrived on the scene approximately two minutes after defendant and that Michael was deceased by the time the responders had arrived on scene. Schenk opined that there was nothing that defendant could have done to save Michael's life. Plaintiffs suggest that Michael was capable of resuscitation when the first responders arrived; however, they did not support this assertion with any competent evidence. Josephine asserted that Michael was breathing and had a pulse at the time defendant arrived, but admitted in her deposition that she did not have firsthand knowledge of whether that was true. Speculation is insufficient to meet plaintiffs' burden of creating a genuine issue of material fact. McCune, 156 Mich App at 563.
The heart of plaintiffs' argument is the assertion that Michael was actually hypothermic at the time the first responders arrived and defendant wrongly concluded that Michael did not have a pulse and mistakenly identified signs of lividity. Plaintiffs rely on their expert, Dr. Randall Commissaris, who testified that there was a possibility that Michael was suffering from hypothermia, and that caused the first responders not to detect a pulse and to mistakenly assess him as showing signs of lividity. However, Commissaris's deposition testimony is grounded in hypotheticals and is speculation and conjecture. McCune, 156 Mich App at 563. Commissaris admitted that he was not at the scene and could not dispute what the first responders perceived. Schenk, on the other hand, testified that she did not see any signs of hypothermia, and that she was familiar with the signs of hypothermia. Commissaris also agreed that if lividity was observable, Michael could not have been resuscitated. Both defendant and Schenk testified that they saw lividity. Finally, despite alleging that a pulse may have been missed because of hypothermia, Commissaris agreed that a heart monitor would have picked up activity if Michael's heart was active. Schenk established that within minutes after defendant's arrival on the scene, a heart monitor showed that his heart was not producing any electrical activity. Commissaris agreed that if Michael was connected to a heart monitor within an appropriate time and it showed no activity, then he could not think of anything defendant did to contribute to Michael's death.
Commissaris suggested that the drugs in Michael's system made him more susceptible to hypothermia, leading to his death. However, the evidence proffered by both parties showed that pulmonary edema from drug intoxication caused Michael's death, not hypothermia. Commissaris did not dispute this finding; he only said that he could offer other "alternate interpretations." Despite these alternate theories, Commissaris ultimately stated that he did not see any nondrug factors that caused Michael's death.
In light of these undisputed facts, there is simply no evidence that could lead a reasonable juror to conclude that defendant's "conduct [was] so reckless as to demonstrate a substantial lack of concern for whether an injury results." To the contrary, defendant exercised his discretion based on his experience and training in identifying Michael's condition and acting according to those conclusions. Nothing in the record evinces a disregard for whether an injury resulted to Michael. At best, and looking at the evidence in a light most favorable to plaintiffs, it could be argued that defendant was negligent in missing signs of hypothermia. But negligence does not constitute gross negligence. Accordingly, summary disposition was appropriate. Given this disposition, we need not reach plaintiff's remaining arguments.
Affirmed.
/s/ David H. Sawyer
/s/ Joel P. Hoekstra
/s/ Christopher M. Murray