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Gallup v. Sergeant Olivia Moss-Fort

Court of Appeals of Michigan
Jan 27, 2025
No. 363306 (Mich. Ct. App. Jan. 27, 2025)

Opinion

363306

01-27-2025

JERRY GALLUP, Plaintiff-Appellant, v. SERGEANT OLIVIA MOSS-FORT, Defendant-Appellee, and BEAUMONT HOSPITAL-WAYNE, Defendant.


UNPUBLISHED

Wayne Circuit Court LC No. 19-009274-NO.

Before: RIORDAN, P.J., and RICK and N. P. HOOD, JJ.

PER CURIAM.

Plaintiff Jerry Gallup appeals as of right the trial court's judgment of no cause for action against defendant Sergeant Olivia Moss-Fort, Judge John H. Gillis, Jr., presiding. On appeal, plaintiff raises seven claims of error regarding procedural and evidentiary issues in the jury trial. We affirm.

Beaumont Hospital-Wayne also was identified as a defendant, but it was dismissed before trial. We will hereinafter refer to Sergeant Olivia Moss-Fort as the singular "defendant."

I. FACTS

On July 8, 2019, plaintiff filed his complaint against defendant, alleging that on or about June 23, 2018, he was admitted to Beaumont in Wayne, Michigan, for a thumb infection. Plaintiff alleged that defendant, a security officer employed by Beaumont, entered his bedroom and accused his girlfriend of smoking in the hospital. According to plaintiff, the verbal confrontation escalated, so he began recording the event with his cellular phone. Plaintiff contended that defendant then violently removed his phone, which was connected to his finger with a "locking mechanism," from his hand, and deleted the video. In relevant part, plaintiff sought damages for "physical pain and suffering including severe pain to his shoulder and thumb," as well as "severe and permanent feelings of fear, anger, embarrassment and guilt." Specifically, plaintiff maintained claims against defendant for (1) assault, (2) battery, and (3) intentional infliction of emotional distress. Plaintiff alleged counts for negligent hiring, training, and supervision; and negligence against Beaumont.

Plaintiff and his then-girlfriend at the time of the incident at issue married before trial.

On July 20, 2021, defendant and Beaumont moved for summary disposition of the fourth and fifth counts of the complaint under MCR 2.116(C)(8) and (C)(10). In the accompanying brief, defendant and Beaumont summarized the altercation as follows:

When Sergeant Moss-Fort and Sergeant Crawford entered the room, Plaintiff was initially in the restroom. Sergeant Moss-Fort told Ms. Gallup she could not smoke in the hospital. Initially, Ms. Gallup denied the allegations and confirmed that she always leaves the premises to smoke. When Plaintiff returned from the restroom, he and Ms. Gallup became aggressive and confrontational, at which time they wanted to know which other patients were being asked about smoking.
During the entire conversation, Sergeant Moss-Fort remained calm, never raised her voice, and never used profane language. Sergeant Moss-Fort and Sergeant Crawford believed the matter resolved and turned to leave the room. Believing the matter was over, Sergeant Moss-Fort shut off her body camera. Luckily, Officer Crawford kept his on. At that point, Plaintiff vocalized that he recorded the incident, which violates the privacy rights of other patients at the hospital. Due to those privacy rights, like HIPAA, patients are barred from recording on hospital premises, except for extremely limited circumstances; circumstances in which privacy rights can be protected. As such, Sergeant MossFort told him he needed to delete the recording. When he would not, she took his phone to ensure its deletion. At this point, Plaintiff became irate and demanded to leave the hospital. Sergeant Crawford's body camera footage shows that Sergeant Moss-Fort did not do anything wrong during the confrontation. She calmly addressed Ms. Gallup regarding the smoking. She remained calm when Plaintiff became agitated. She never raised her voice or changed her demeanor. She acted appropriately to protect the rights of the other patients at the hospital.

Defendant and Beaumont argued that summary disposition was warranted as to the fourth count because there was nothing in her employment history to suggest that she would engage in assaultive conduct, and summary disposition was warranted as to the fifth count because her conduct was unforeseeable from the perspective of Beaumont. Defendant and Beaumont stated that "she has never exhibited any conduct other than that associated with a successful 27 years on the City of Detroit Police Department."

On September 23, 2021, the trial court granted the motion and dismissed the fourth and fifth counts of the complaint, which resulted in dismissal of Beaumont from the case itself.

The register of actions indicates that the matter was discussed at a September 20, 2021 motion hearing. However, the transcript of that hearing was not provided to this Court.

Numerous matters were litigated before trial. For the purposes of this appeal, the following issues are relevant. First, on July 28, 2021, defendant filed a motion in limine to exclude plaintiff from referencing civil litigation filed by Scott Bowman against her in 2015. In that case, defendant, while employed as a sergeant at Wayne County Community College, was involved in a July 2013 altercation with Bowman on campus. When defendant tried to escort Bowman off campus, Bowman resisted and was taken into custody. Bowman ultimately received a trespass conviction. He sued defendant, other individuals, and Wayne County Community College in 2015, claiming excessive force and other related allegations. The Wayne Circuit Court dismissed the case on the basis of governmental immunity and the fact that there was probable cause for his arrest.

Additional facts will be provided when analyzing the issues.

Defendant also worked for the Detroit Police Department at the time.

Defendant, in the brief accompanying her motion in limine, asserted that "Mr. Boman's [sic] baseless allegations against Sergeant Moss-Fort have no bearing on the determination of whether she assaulted and battered [plaintiff] in 2018. As such, any reference to the previous civil litigation and Mr. Boman's [sic] testimony at trial are completely irrelevant."

Plaintiff responded that defendant, in her deposition in this case, stated that she did not have any knowledge of the 2015 Bowman lawsuit. According to plaintiff, because defendant was named in her individual capacity in the 2015 Bowman lawsuit, it necessarily follows that "Defendant lied under oath [during her deposition] and this testimony should at the very least come in so the jury can assess her credibility." On February 8, 2022, the trial court entered an order granting the motion "for the reasons stated on the record."

The register of actions indicates that the matter was discussed at an October 4, 2021 motion hearing. However, the transcript of that hearing was not provided to this Court.

Second, on April 22, 2022, plaintiff filed a motion for leave to file an amended complaint under MCR 2.118. In the motion, plaintiff observed that he recently received Beaumont's written policy regarding video recordings. That policy stated, in relevant part:

iii. Patients and visitors may not record Beaumont Health's Workforce Members, equipment, facilities or treatment encounters.
* * *
vii. Workforce Members are authorized to question, stop and determine the status of any recording. Workforce Members have the authority to ask the patient
or visitor to stop recording and dispose/delete the recording if deemed inappropriate.
viii. Workforce Members should notify Security if any patient or visitor refuses to stop recording or disposes of/deletes a recording.

According to plaintiff, the policy "establishes Defendant Olivia Fort's conduct was for the purpose of serving the employer (Beaumont) and that the conduct was foreseeable." (Emphasis in original.) Plaintiff thus asked the trial court to allow him "to Amend the Complaint against Beaumont to include negligence."

In response, defendant observed that she was deposed on December 5, 2019, during which she acknowledged that Beaumont had a written policy essentially providing that "there is no recording on the premises or photographs on the premises." Defendant argued that "[t]he information relied on by Plaintiff's counsel has been within their knowledge since then and has already been considered by the Court. As such, Plaintiff has established undue delay precluding their request to amend." Defendant also observed that the fourth and fifth counts of the original complaint against Beaumont had been dismissed with prejudice, so the instant motion should be treated as a motion for reconsideration of the earlier order granting Beaumont summary disposition, not as a motion to amend.

On June 3, 2022, the trial court denied the motion without oral argument and without explanation.

Third, on August 26, 2022, plaintiff filed a motion in limine asking, in relevant part, that the trial court preclude defendant from arguing that she was authorized by the Health Insurance Portability and Accountability Act (HIPAA), 42 USC 1320d et seq., to engage in the contested conduct. According to plaintiff, "the incident at bar occurred within the confines of Plaintiff's private patient room, where there were no other patients present whatsoever. Ergo, any evidence or speculation concerning HIPAA is irrelevant to the action and should not be argued to the Jury." Plaintiff alternatively asked the trial court to "allow a special requested jury instruction informing the Jury that HIPAA does not apply to this action ...." On September 2, 2022, the trial court entered an order providing that "Plaintiff's Motion to Exclude Reference to HIPAA shall be addressed by the parties by way of [a] mutually drafted jury instruction ...."

Trial occurred over six days between August 30 and September 8, 2022. Plaintiff testified that the incident in question terrified him to the point where "I don't want to go out of the house no more," and "I have constant dreams about this incident." Plaintiff said that he did not give defendant consent to take his cellular phone, and that when she removed the phone from his hand, "[i]t felt like a rip and a tear" that injured his shoulder, arm, and hand.

On cross examination, plaintiff acknowledged that the complaint and his deposition contained factually incorrect statements. For example, the complaint essentially alleged that defendant "ran across the room and leapt into [his] bed," but the body camera of Sergeant Crawford, who accompanied defendant, did not show any conduct by defendant remotely resembling this allegation. As another example, plaintiff essentially testified in his deposition that defendant removed his cellular phone from his hand with "a military style twist with three yanks," but again, the body camera video did not show such conduct by defendant. As yet another example, plaintiff essentially testified in his deposition that defendant "became a raging killing machine, on a scale of 1 to 10, she was like a 20." When defense counsel asked plaintiff whether the video supported his statement, plaintiff replied that "the way that the video showed it, that's, it didn't happen to me like that, okay."

The body camera video was admitted as Trial Exhibit 16 and was repeatedly referenced throughout trial, particularly by defendant. According to defendant on appeal, "the video demonstrates that Appellant's entire claim was fabricated." We have reviewed the 3:25 video and agree that it does not show defendant acting in a violent or unreasonably aggressive manner, or in any way remotely consistent with plaintiff's allegations.

Also on cross examination, plaintiff acknowledged that he did not stop recording the incident with his cellular phone despite the fact that defendant and Sergeant Crawford told him that recording was not allowed, but he did not have an explanation for his conduct in this regard. Plaintiff acknowledged that defendant asked to "see" his phone before she removed it from his hand, but he did not surrender his phone to defendant because he assumed that she intended to search his personal information. Further, plaintiff acknowledged, over objection from his counsel to the question, that no criminal charges resulted from the incident despite the fact that he made a police report. Finally, plaintiff agreed that he used medical marijuana for depression since about 2010, in addition to other medications such as Norco.

According to plaintiff's counsel during the objection, "[w]e had a motion hearing where we had a conversation with this, the lack of criminal charges or criminal charges in this case or convictions in this case are completely different standards, as a result of that you indicated that unless I opened the door to it we weren't gonna get into it." We cannot identify a transcript in the record verifying this statement, but it was unopposed by the trial court and defense counsel at the time, so we reasonably may assume that it is accurate.

Defendant, on direct testimony, stated that she entered the hospital room occupied by plaintiff and his wife to inform his wife that "[i]f she's caught smoking in the hospital she would be asked to leave." Defendant testified that she "thought" she had the right to remove plaintiff's cellular phone from his hand to delete his video recording because "there's no recording inside the hospital anywhere." When asked by plaintiff's counsel whether she was "relying on any particular policy at Beaumont to take that phone," defendant replied that "they have signs posted that there's no videotaping or photography in the hospital." Defendant added that "I was to protect the rights of the patients and safety of the staff." Defendant acknowledged that her own body camera was turned off when she removed the phone from plaintiff's hand, as she mistakenly did not turn it on beforehand.

Defendant explained that "[a]s I walked into the room there was a strong smell of smoke in the room, and the information that I had prior to going inside the room was that the visitor for that room was the one possibly smoking."

Limited recording is allowed in the maternity ward.

Defendant testified that the police appeared at the hospital to investigate the incident, that she was unaware whether the police knew that she was a former Detroit police officer during that investigation, and that the police viewed the body camera video of Sergeant Crawford. During this line of questioning, plaintiff's counsel complained that he did not receive that video sufficiently early in the litigation:

Q: Okay, so let me see if I understand this. The video that my clients weren't able to see prior to their deposition a year later, the police officers were able to look at right then, is that fair? A: I can answer yes, the police seen the video. I don't know

On examination by defense counsel, defendant testified that patients and visitors are not allowed to record inside the hospital because "they would videotape or take pictures of people that are there in the hospital to be treated. Also we [sic] threats and things to the medical staff, so all that for the safety of the staff as well as patients is our concerned [sic]." When defense counsel reviewed the body camera video with defendant, defendant testified that she was able to remove the cellular phone "straight out" because it was not attached to a ring socket on plaintiff's finger, that she did not believe that she applied sufficient force to injure plaintiff, and that she deleted the video recording by plaintiff without looking at any other material on his phone.

The following day of trial, plaintiff briefly presented testimony from his son, as well as the de bene esse depositions of Dr. Saad and Dr. Cerrone. Then, plaintiff's counsel informed the trial court that it was not going to present the de bene esse deposition of Dr. Grias because "it's cumulative, her records are already in evidence." Plaintiff's counsel added that defendant could not rely on the de bene esse deposition of a witness identified as testifying on behalf of an opposing party, at least where defendant "did not file a notice of reliance on that de bene esse dep." Defense counsel replied that Dr. Grias was on the respective witness lists of both plaintiff and defendant, so he had a right to present her deposition. The trial court ruled that defendant could present Dr. Grias's deposition.

The transcript refers to "Dr. Rice," but that appears to be a spoken or typographical error, as the context indicates that plaintiff's counsel intended to refer to Dr. Grias.

Plaintiff's wife testified that defendant seriously injured his hand and that he suffered ongoing emotional distress from the incident. On cross examination, defense counsel elicited testimony indicating that she stated at her deposition that defendant jumped on plaintiff and that plaintiff started screaming, "help me." Plaintiff's wife acknowledged that the body camera video did not show the occurrence of such events. Additionally, she acknowledged that plaintiff used about "five doobies" or "an eighth" of marijuana on a daily basis to assist with sleeping.

After the jury was excused for the day, plaintiff's counsel noted for the record that he objected to admission of testimony that plaintiff used medical marijuana, but the trial court stated that "it's a fact that people use marijuana and they're [sic] derivatives for pain, medical agents, et cetera." Also, the trial court stated that it would give the jury the HIPAA instruction prepared by defendant, not plaintiff.

At the close of proofs the following day, plaintiff moved for a directed verdict on the battery claim, the fact that he sustained an injury, and the intentional inflectional of emotional distress claim. The trial court denied the motion. Ultimately, the jury returned a verdict in favor of defendant on all three counts after about 30 minutes of deliberation.

This appeal followed.

II. AMENDED COMPLAINT

Plaintiff argues that the trial court erred by denying his motion to amend his complaint to add an allegation supporting his dismissed claim for negligent hiring, training, and supervision against Beaumont. Specifically, plaintiff argues that he should have been allowed to amend his complaint to include a factual allegation that Beaumont had a written policy generally prohibiting video recording by patients and visitors. Plaintiff states, without elaboration, that "the amendments would have explicitly added additional factual allegations not made out in the original complaint to correct any potential defects in the original pleadings." We disagree.

"This Court reviews a trial court's decision to permit a party to amend its pleadings for an abuse of discretion." In re Kostin Estate, 278 Mich.App. 47, 51; 748 N.W.2d 583 (2008). "[A]n abuse of discretion occurs only when the trial court's decision is outside the range of reasonable and principled outcomes." Id.

Generally, "a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be freely given when justice so requires." MCR 2.118(A)(2). "If the trial court grants a party's motion for summary disposition under MCR 2.116(C)(8), (9), or (10), the trial court shall give the parties an opportunity to amend the pleadings 'unless the evidence then before the court shows that amendment would not be justified.'" Zwiker v Lake Superior State Univ, 340 Mich.App. 448, 484; 986 N.W.2d 427 (2022), quoting MCR 2.116(I)(5). "The trial court need not give a party an opportunity to amend a pleading if the amendment would be futile." Zwiker, 340 Mich.App. at 484. "An amendment is futile where, ignoring the substantive merits of the claim, it is legally insufficient on its face." Id. (quotation marks and citation omitted). "A proposed amendment is also futile if summary disposition would be appropriately granted regarding the new claims, either when a party has not established a genuine issue of material fact regarding an element, or when the undisputed facts establish that summary disposition would be appropriate." Id. (citations omitted).

"[T]he gravamen of negligent hiring or retention is that the employer bears some responsibility for bringing an employee into contact with a member of the public despite knowledge that doing so was likely to end poorly." Mueller v Brannigan Brothers Restaurants &Taverns LLC, 323 Mich.App. 566, 574; 918 N.W.2d 545 (2018). "[A] claim of negligent hiring or retention requires actual or constructive knowledge by the employer that would make the specific wrongful conduct perpetrated by an employee predictable." Id. at 575. In other words, claims of negligent retention, negligent training, and negligent supervision "depend on the particular misconduct complained of being foreseeable." Id. at 577.

Initially, we note that it is difficult to address this issue as framed by plaintiff. Early in the proceedings, the trial court dismissed the fourth and fifth counts of the original complaint against Beaumont, and thus dismissed Beaumont from the case. Thereafter, plaintiff brought allegedly new information to the trial court-in particular, the written policy regarding video recordings. According to plaintiff, this written policy sustains his fourth count. Under these circumstances, plaintiff should have filed a motion for reconsideration, which applies when new information is discovered after summary disposition has been granted. See Churchman v Rickerson, 240 Mich.App. 223, 233; 611 N.W.2d 333 (2000); Am Transmission, Inc v Channel 7 of Detroit, Inc, 239 Mich.App. 695, 709-710; 609 N.W.2d 607 (2000). See also MCR 2.119(F)(3).

Had plaintiff filed a motion for reconsideration, it would have been properly denied by the trial court because defendant already had testified, before the motion for summary disposition was considered and granted, that Beaumont had a written policy against video recordings. Thus, the purportedly new information could have been brought to the attention of the trial court in a timely manner. See Churchman, 240 Mich.App. at 233.

In any event, we conclude that the trial court did not abuse its discretion by denying plaintiff's motion to amend his complaint. The trial court had already granted summary disposition in favor of Beaumont with regard to the fourth and fifth counts of the complaint, and plaintiff does not challenge the merits of that ruling. Moreover, it was undisputed at the summary-disposition stage that video recording by patients and visitors was not allowed in the hospital, and that defendant allegedly relied upon this prohibition when taking plaintiff's cellular phone. Indeed, both the brief accompanying the motion for summary disposition and plaintiff's brief in response referenced "policy" and "HIPAA law" prohibiting such recordings. Thus, the fact that plaintiff apparently did not receive a copy of Beaumont's written policy regarding video recordings until after the partial grant of summary disposition is not relevant, and it did not affect the outcome of the proceedings because the trial court and the parties already were aware that such a policy existed, regardless of whether that policy was legal or administrative in nature. Amending the original complaint to expressly reference the written policy would have been futile, so the trial court correctly denied the motion to amend. See Zwiker, 340 Mich.App. at 484.

We note that the written policy applies to "Workforce Members" in general, as distinguished from "Security." Presumably, security officers such as defendant have greater leeway to enforce hospital policy than the typical "Workforce Member."

III. HIPAA INSTRUCTION

Plaintiff argues that the trial court erred by giving the jury the HIPAA instruction requested by defendant, rather than his requested instruction. We disagree.

"This Court reviews claims of instructional error de novo." Lewis v LeGrow, 258 Mich.App. 175, 211; 670 N.W.2d 675 (2003). "The trial court's jury instructions must include all the elements of the plaintiffs' claims and should not omit any material issues, defenses, or theories of the parties that the evidence supports." Id. "If, on balance, the theories of the parties and the applicable law are adequately and fairly presented to the jury, no error requiring reversal occurs." Id.

"The trial court has discretion to give additional instructions not covered by the standard jury instructions as long as they are applicable and accurately state the law and are concise, understandable, conversational, unslanted, and nonargumentative." Mull v Equitable Life Assurance Soc of United States, 196 Mich.App. 411, 422; 493 N.W.2d 447 (1992). "A supplemental instruction need not be given if it would add nothing to an otherwise balanced and fair jury charge and would not enhance the ability of the jury to decide the case intelligently, fairly, and impartially." Id. at 422-423. That is, "[w]hen the standard jury instructions do not adequately cover an area, the trial court is obligated to give additional instructions when requested, if the supplemental instructions properly inform the jury of the applicable law and are supported by the evidence." Bouverette v Westinghouse Electric Corp, 245 Mich.App. 391, 401-402; 628 N.W.2d 86 (2001). "A trial court's decision regarding supplemental instructions will not be reversed unless failure to vacate the verdict would be inconsistent with substantial justice." Id. at 402.

"HIPPA [sic] is the primary federal law which was passed to ensure an individual's right to privacy over medical records." United States v Elliott, 676 F.Supp.2d 431, 436 (D Maryland, 2009). "It governs the confidentiality of medical records and regulates how and under what circumstances 'covered entities' may use or disclose 'protected health information' about an individual." Id. "Generally, HIPPA [sic] prohibits the use and disclosure of an individual's protected health information unless the individual has authorized its use and disclosure." Id.

"HIPAA does not create a private right of action." Mayfield v Presbyterian Hosp Admin, 772 Fed App'x 680, 686 (CA 10, 2019). "[T]here simply is no private right of action for violations of HIPAA, at the state or federal level." Brush v Miami Beach Healthcare Grp Ltd, 238 F.Supp.3d 1359, 1367 (SD Fla, 2017) (quotation marks and citation omitted). "HIPAA provides civil and criminal penalties for improper disclosures of medical information, but it does not create a private cause of action, leaving enforcement to the Department of Health and Human Services alone." Doe v Bd of Trustees of Univ of Illinois, 429 F.Supp.2d 930, 944 (ND Ill. 2006).

In this case, plaintiff requested the following HIPAA instruction:

There is a federal law called the Health Insurance Portability and Accountability Act of 1996 which protects patient health information and is abbreviated as HIPAA. HIPAA regulates Health Providers, Health Plans and Healthcare Clearinghouses to insure the security and privacy of Patient Health Information. HIPAA does not regulate patients and/or patient conduct.

The only enforcement mechanism of HIPAA is the filing of a complaint alleging a violation by a Health Provider, Health Plan and/or Healthcare Clearinghouse in the use of Patient Health Information. The complaints are investigated by The Office for Civil Rights (OCR), an agency within the U.S. Department of Health and Human Services. It does so under its authority to enforce the HIPAA Privacy, Security, and Breach Notification Rules (collectively known as the "HIPAA Rules"), in accordance with the HIPAA Enforcement Rule.

There is no private right of action in the HIPAA law. That means that it cannot be enforced by an patient against a Health Provider, Health Plan and/or Healthcare Clearinghouse in Court. The only enforcement power for alleged HIPAA violations is the filing a complaint with The Office for Civil Rights of the U.S. Department of Health and Human Services using the complaint procedure.

In this case, you cannot use the alleged enforcement of HIPAA rights by a hospital security officer as justification or excuse for any of the actions taken by the hospital security officer towards a patient, regardless of the patient's conduct. A hospital security officer has no legal right to enforce HIPAA.

The trial court, however, provided the following HIPAA instruction to the jury as requested by defendant:

Now the HIPAA privacy rule establishes national standards to protect individual's medical records and other individually identified health information, collectively defined as protected health information and applies to health plans, healthcare, clearinghouses and those healthcare providers that conduct certain healthcare and transactions electronically.

The rule requires appropriate safe parish to protect the privacy of protected health information and sets limits and conditions on the uses and disclosures than may be made of such information without an individual's authorization. The rule also gives individuals rights over their protected health information, including rights to examine and obtain a copy of their health records, to direct a covered entity to transmit to a third party an electronic copy of their protected health information and electronic health records and to request corrections.

The trial court did not err or otherwise abuse its discretion by giving the jury the HIPAA instruction requested by defendant. While the competing HIPAA instructions both accurately summarized the federal law itself, the final paragraph in plaintiff's instruction could have misled the jury about the case. Defendant did not use HIPAA as an excuse or justification for her conduct. Indeed, she did not use the term "HIPAA" once during her trial testimony. Rather, defendant repeatedly testified that hospital "policy" is that video recording is prohibited. The reasons for this policy, both for privacy and security, are self-evident, and is evident from the record before us. Moreover, defense counsel told the jury during his closing argument that "[t]his case is not about HIPAA." To the extent that HIPAA occasionally was referenced during trial, those references simply noted that there is a federal basis for protecting privacy. In other words, while HIPAA is a complicated, detailed law, it is commonly known as a law protecting patient privacy. Beaumont, as with any other hospital, has an interest in protecting patient privacy in accordance with the requirements of HIPAA.

To summarize, the instruction prepared by defendant offers a neutral explanation of HIPAA, while the instruction prepared by plaintiff incorrectly implies that defendant was using HIPAA as her legal defense at trial. Thus, the trial court did not err by giving the jury the instruction required by defendant.

Incidentally, the legal issue here arguably was whether defendant was justified or privileged to commit a battery to maintain order in the hospital. See, e.g., Celestine v United States, 841 F.2d 851 (CA 8, 1988) (discussing whether hospital staff was justified in committing false imprisonment against an individual behaving erratically); Person v Children's Hosp Nat'l Med Ctr, 562 A.2d 648, 650-651 (DC App, 1989) (discussing whether hospital staff was privileged to use force to remove an individual from the hospital). However, justification or privilege was not litigated at trial, at least not explicitly.

IV. MOTION IN LIMINE

Plaintiff argues that the trial court erred by denying his motion in limine to preclude evidence of his marijuana use. Plaintiff asserts that evidence that he used marijuana was irrelevant, prejudicial, and violated MRE 404(b). We disagree.

While we are unable to identify a particular written motion in the record, defendant seemingly agrees that such a motion was filed. We note that at an August 29, 2022 pretrial hearing, plaintiff briefly argued that deposition testimony about his marijuana use should be excluded because it was irrelevant, and "medical marijuana use is kind of controversial." The trial court ruled that the testimony was admissible.

We question whether plaintiff's argument regarding MRE 404(b) was preserved at trial, but we will nonetheless address it for completeness.

A trial court's decision whether to admit evidence is reviewed for an abuse of discretion. See Green v Jerome-Duncan Ford, Inc, 195 Mich.App. 493, 498; 491 N.W.2d 243 (1992).

"Relevant evidence is evidence 'having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'" Hardrick v Auto Club Ins Ass'n, 294 Mich.App. 651, 667; 819 N.W.2d 28 (2011), quoting MRE 401 (emphasis omitted). Further, at the time relevant to this case, MRE 403 provided that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]" "Evidence is not inadmissible simply because it is prejudicial." Waknin v Chamberlain, 467 Mich. 329, 334; 653 N.W.2d 176 (2002). "It is only when the probative value is substantially outweighed by the danger of unfair prejudice that evidence is excluded." Id. (cleaned up). Finally, MRE 404(b) provided that "evidence of other crimes, wrongs, or acts of an individual is inadmissible to prove a propensity to commit such acts."

MRE 401, along with MRE 403 and 404, were stylistically edited effective January 1, 2024.

The trial court did not abuse its discretion by admitting evidence of plaintiff's marijuana use under MRE 401, 403, or 404(b). With regard to MRE 401, evidence that plaintiff used marijuana to treat his mental or physical health, or both, both before and after the event in question was logically relevant to show that the event did not affect his mental or physical health. In other words, because plaintiff used marijuana for medical purposes both before and after the event, it was more probable that his mental and physical health were unchanged in light of the event than it would have been without the evidence. With regard to MRE 404(b), that rule of evidence is inapplicable because defendant did not introduce evidence of plaintiff's marijuana use to establish conduct in conformity with marijuana use. See People v Lukity, 460 Mich. 484, 499; 596 N.W.2d 607 (1999) (explaining that MRE 404(b) was inapplicable because "the prosecutor did not attempt to introduce evidence that defendant smoked marijuana with his son to prove that defendant had acted in conformity with his character for marijuana use").

We note that defendant also introduced, without objection from plaintiff, evidence that he received other medical treatments for the same logical purpose.

Finally, with regard to MRE 403, we acknowledge that evidence that plaintiff used marijuana, even if exclusively for medical purposes, might have had a limited prejudicial effect. However, we agree with the trial court that "it's a fact that people use marijuana and they're [sic] derivatives for pain, medical agents, et cetera." Indeed, Michigan voters recently overwhelmingly approved both the use of medical marijuana and the use of legalized, recreational marijuana. Temporally, this suggests that the jury was unlikely to harbor substantial prejudices against an individual who uses marijuana. Moreover, defense counsel did not belabor the point during opening statement, questioning, or closing argument. He did not, for example, imply or suggest that the jury should disbelieve plaintiff because plaintiff smokes marijuana. Under these circumstances, the trial court did not abuse its discretion by admitting evidence that plaintiff used marijuana notwithstanding MRE 403.

V. DIRECTED VERDICT

Plaintiff argues that the trial court erred by denying his motion for a directed verdict on the respective assault and battery claims. We disagree.

Because plaintiff did not move for a directed verdict on his assault claim, that aspect of his argument is unpreserved for review. See Garabedian v William Beaumont Hosp, 208 Mich.App. 473, 475; 528 N.W.2d 809 (1995). Nonetheless, it is meritless for the reasons explained with regard to the battery claim.

We review de novo a trial court's decision regarding a directed verdict. Krohn v HomeOwners Ins Co, 490 Mich. 145, 155; 802 N.W.2d 281 (2011).

MCR 2.516 provides that "[a] party may move for a directed verdict at the close of the evidence offered by an opponent. The motion must state specific grounds in support of the motion." "A directed verdict is appropriate only when no factual question exists upon which reasonable minds could differ." Anaya v Betten Chevrolet, Inc, 330 Mich.App. 210, 215; 946 N.W.2d 560 (2019). "In reviewing a directed verdict, we review all the evidence presented up to the time of the motion to determine whether a question of fact existed." Id. "In deciding whether a directed verdict is appropriate, the trial court must view the testimony and all legitimate inferences from the testimony in the light most favorable to the nonmoving party; we review the evidence in the same manner." Id. at 215-216.

"A battery is an intentional, unconsented and harmful or offensive touching of the person of another, or of something closely connected with the person." Lakin v Rund, 318 Mich.App. 127, 131; 896 N.W.2d 76 (2016) (quotation marks and citation omitted). See also Clarke v K Mart Corp, 197 Mich.App. 541, 549; 495 N.W.2d 820 (1992) ("A battery occurs when there is a wilful, harmful, or offensive touching of the plaintiff or of an object that is attached to the plaintiff and practically identified with the plaintiff's body.") (cleaned up). "It is not necessary that the touching cause an injury." Lakin, 318 Mich.App. at 131. In Tinkler v Richter, 295 Mich. 396; 295 N.W. 201 (1940), our Supreme Court explained that "[a] battery . . . is the willful touching of the person of another by the aggressor or by some substance put in motion by him; or, as it is sometimes expressed, a battery is the consummation of the assault." Id. at 401 (quotation marks and citation omitted). Assault, in turn, is "defined as any intentional, unlawful offer of corporal injury to another by force, or force unlawfully directed toward the person of another, under such circumstances as create a well founded fear of imminent peril, coupled with the apparent present ability to effectuate the attempt if not prevented." Id. (quotation marks and citation omitted).

The trial court did not err by denying plaintiff's motion for a directed verdict with respect to his battery claim. Defendant testified that she removed the cellular phone from plaintiff's hand so she could delete his video recording, and there is nothing in her testimony to suggest that she intended a "harmful or offensive touching" of plaintiff, or of "something closely connected" with plaintiff, i.e., the phone itself. See Lakin, 318 Mich.App. at 131. Indeed, the body camera video shows that she removed the phone from his hand in a straightforward manner, promptly deleted his video recording, returned the phone back to him, and walked away. Moreover, defendant testified that her intent was to effectuate hospital policy not allowing video recordings by patients and visitors. Further, the body camera video was entirely consistent with that testimony. Further, putting the issue of defendant's intent aside, based on the video evidence presented at trial, a reasonable jury could find that it was not harmful or offensive for defendant to touch and temporarily remove plaintiff's phone to effectuate hospital policy, and that defendant did not otherwise possess any harmful or offensive intent. See Anaya, 330 Mich.App. at 215. As such, there was, at a minimum, a question of fact as to whether defendant intended a harmful or offensive touching, or whether such a touching actually occurred. Accordingly, the trial court correctly denied plaintiff's motion for a directed verdict with respect to his battery claim.

Similarly, there was, at a minimum, a question of fact as to whether defendant intended to injure plaintiff. See Tinkler, 295 Mich. at 401. There is nothing in her testimony to suggest that she intended to injure plaintiff, and the body camera video simply does not show any conduct that suggests such an intent.

VI. DE BENE ESSE DEPOSITION

Plaintiff argues that the trial court erred by admitting the de bene esse deposition of Dr. Grias because there was no showing that she was unavailable to testify at trial. We disagree.

A de bene esse deposition is a deposition taken "conditionally or provisionally in anticipation of being used in case the witness cannot afterwards be examined in court." Warfield v City of Wyandotte, 117 Mich.App. 83, 88 n 1; 323 N.W.2d 603 (1982).

"Appellate review of a trial court's decision on the admissibility of depositions is limited to a determination of whether the court abused its discretion." Bonelli v Volkswagen of Am, Inc, 166 Mich.App. 483, 502; 421 N.W.2d 213 (1988). "The burden of establishing admissibility rests on the party seeking admission." Id.

MCR 2.308(A) provides that "[d]epositions or parts thereof shall be admissible at trial or on the hearing of a motion or in an interlocutory proceeding only as provided in the Michigan Rules of Evidence." In this regard, MRE 804(b)(2) allows for the admission of deposition testimony in certain cases in which "the declarant is unavailable as a witness." Thus, a de bene esse deposition cannot be admitted if the witness is available, i.e., "in a condition to be sworn." Emlaw v Emlaw, 20 Mich. 11, 12 (1870). See also Childress v Jubelt, 45 Mich.App. 181, 182; 205 N.W.2d 889 (1973).

On appeal, plaintiff correctly observes that there was no showing that Dr. Grias was unavailable to testify at trial. Ordinarily, therefore, the trial court would have abused its discretion by admitting her deposition testimony. Defendant does not dispute that observation, but she contends that the parties had an off-the-record agreement to use the de bene esse depositions of Dr. Grias and other doctors. Specifically, defendant represents as follows:

The parties appeared for trial on 10/04/21. Unfortunately, the Trial Court adjourned the trial due to an older case taking priority. The Trial Court rescheduled the trial for 11/29/21. To secure Dr. Grias' trial appearance, on 11/01/21, Appellant subpoenaed Dr. Grias to appear on 11/12/21 to testify at trial. However, before the parties could appear for trial, the Trial Court again adjourned the trial, this time to 01/21/22. Knowing that the parties were not going to trial on 11/29/21, and that it would be difficult to continue to coordinate the depositions of multiple physicians given the uncertainty, the parties agreed to conduct multiple De Benne Esse depositions to avoid continued inconvenience and to streamline the trial. Unfortunately, the parties did not confirm this agreement in writing. However, the conduct of the parties shows that the parties agreed to take the De Benne Esse depositions of all physicians involved in this matter to play back to the jury and avoid issues with subpoenaing the doctors after multiple adjournments.

After a review of the record, the accuracy of defendant's representation about the parties' agreement cannot reasonably be disputed. While the parties would have been better-advised to place a stipulation on the record regarding the use of the de bene esse depositions, we agree with defendant that the record implicitly but clearly shows that the parties agreed to use the de bene esse depositions of multiple witnesses, specifically Dr. Grias and three other doctors. First, at an August 29, 2022 pretrial hearing, the parties and the trial court devoted significant time to purging the depositions of those doctors, with plaintiff's counsel himself informing the trial court at the outset that the deposition of Dr. Grias was "[t]he hardest one." It would have been completely illogical for the parties and the trial court to spend that time purging the depositions if there was no agreement between the parties to use those depositions at trial in lieu of live testimony.

Second, during his opening statement, defense counsel informed the jury that it would hear the deposition testimony of four doctors, including Dr. Grias:

I told you you're gonna hear from four doctors, and that's how I'm gonna finish my opening statement and tell you what those four doctors are gonna say. Dr. Cerone, Dr. Shingles, Dr. Grias and Dr. Saad. These are the four trained doctors who have seen him ....
I gotta tell you that because this lawsuit's been going on for so long 'cause of the pandemic, we would usually bring the doctors, some of them in here live to testify and maybe some of them on video. Because this has been going on so long we just kept taking the doctor's trial depositions by video.
So this is not my guess about what they're gonna say or my review of their medical records, my hope they're gonna say. The videos that you are going to play I was at every single one of these depositions from all of these doctors....

Then, when defense counsel began to summarize the deposition testimony of Dr. Cerone, plaintiff's counsel objected that the depositions had not yet been introduced into evidence:

Your Honor, I have to object to the cherry-picking from depositions that are not in evidence yet. The Jury will hear the entire deposition. It's patently unfair because they're not in evidence to read excerpts from them when there was robust cross-examination on all the issues therein.

Again, as with the deposition purging at the August 29, 2022 pretrial hearing, the conduct of the parties during opening statements would be completely illogical if there was no agreement to use the deposition testimony of Dr. Grias and the other doctors. Defense counsel informed the jury that it would hear the deposition testimony of four doctors, including Dr. Grias, without objection from plaintiff's counsel. Shortly thereafter, plaintiff's counsel did object on another basis, but told the trial court that "[t]he Jury will hear the entire deposition." The only explanation of these assertions by counsel is that the parties had an existing arrangement to use the deposition testimony of the four doctors.

To summarize, we agree with plaintiff that there was no showing that Dr. Grias was unavailable to testify at trial, which ordinarily is required for the admissibility of a de bene esse deposition. However, the conduct of counsel, including plaintiff's counsel, both before and during trial clearly indicates the existence of an off-the-record agreement that de bene esse depositions would be used for certain witnesses, including Dr. Grias. Thus, no error occurred by the failure to show that Dr. Grias was unavailable to testify. "Reversible error cannot be error to which the aggrieved party contributed by plan or negligence." Byrne v Schneider's Iron &Metal, Inc, 190 Mich.App. 176, 184; 475 N.W.2d 854 (1991).

VII. PROSECUTORIAL DECISION PROCESS

Plaintiff argues that the trial court erred by allowing defendant to testify "about the decision-making process behind the prosecutor's decision not to bring criminal charges against her," as well as allowing defense counsel to state during closing argument that a full investigation was performed and the prosecutor elected against filing any charges. Specifically, plaintiff argues that this testimony and closing argument was irrelevant and prejudicial because the jury should not have been informed that no charges were filed against defendant, and there was no foundation for defense counsel's assertion during closing argument that a "full investigation" was performed. In other words, the fundamental issue here is whether the trial court erred by allowing the jury to hear testimony that no criminal charges were filed against defendant. We conclude that any error was harmless.

Plaintiff did not object to that aspect of defendant's closing argument, so his issue on appeal is waived to that extent. See Walters v Nadell, 481 Mich. 377, 387; 751 N.W.2d 431 (2008). In any event, it is meritless because there was testimony that the police investigated plaintiff's allegation that defendant assaulted him, and that investigation included watching the body camera video. From this testimony, defense counsel reasonably could infer and argue to the jury that a "full investigation" was performed.

A trial court's decision whether to admit evidence is reviewed for an abuse of discretion. See Green, 195 Mich.App. at 498. Moreover, "[w]hen reviewing asserted improper conduct by a party's lawyer, we must first determine whether the lawyer's action was error, and, if so, whether the error requires reversal." Wilson v Gen Motors Corp, 183 Mich.App. 21, 26; 454 N.W.2d 405 (1990). "A lawyer's comments usually will not be cause for reversal unless they indicate a deliberate course of conduct aimed at preventing a fair and impartial trial." Id. "Reversal may also be required where counsel's remarks were such as to deflect the jury's attention from the issues involved and had a controlling influence upon the verdict." Id.

In this case, on the third day of trial, defense counsel elicited the following testimony from plaintiff on cross examination:

Q: When you left Beaumont Wayne that day you went to Taylor Urgent Care, right?
A: No, we went to Wayne Police.
Q: And you asked the police to investigate?
A: We made a police report.
Q: And nothing came of that, right?
A: I never got anything.
Q: Right, that's 'cause no charges were brought against anybody and the police said nobody did anything wrong, right?
[Plaintiff's Counsel]: Your Honor, I didn't open the door to this, he did. We had a motion hearing where we had a conversation with this, the lack of criminal charges or criminal charges in this case or convictions in this case are completely different standards, as a result of that you indicated that unless I opened the door to it we weren't gonna get into it.
Now he's opened the door to it and I'm not exactly sure how we're gonna -
THE COURT: The witness can answer if any criminal charges resulted from this incident at Beaumont Wayne.
[Defense Counsel]: Thank you, Your Honor....
Q: No criminal charges resulted from this incident at Beaumont Wayne, right?
A: I didn't know how to follow up with it, no.
Q: The answer to my question is correct.
A: Correct.

This testimony subsequently was corroborated by defendant and plaintiff's wife, both of whom acknowledged upon questioning by the parties' counsel that charges were not filed against defendant as a result of the event in question. Later, during closing argument, defense counsel referenced the lack of charges:

And then when we get to the incident itself we have immediately after he's allegedly got this ripping and tearing in his shoulder and he is having so much problems. He doesn't go to the hospital or stay in the hospital, he goes to the police station. They tried to trick you on that one too and say no investigation was done, but actually a full investigation was done and the prosecutor decided not to bring any charges.

We are inclined to agree with plaintiff that evidence that charges were not filed against defendant presumptively was inadmissible. See Cook v Auto Club Ins Ass'n (On Remand), 217 Mich.App. 414, 417-418; 552 N.W.2d 661 (1996) (holding that "evidence of acquittal or lack of prosecution is not admissible in an insured's suit against the insurer" because such evidence "goes to the principal issue before the jury," and criminal and civil cases have different burdens of proof). Applying Cook to the facts before us, the trial court should have precluded defendant from presenting evidence that no charges were filed against her.

Arguably, plaintiff opened the door to this evidence because he testified unprovoked, in response to a leading question about his activity after he left the hospital, that he and his wife went to the police. Because plaintiff mentioned the police, it may have been appropriate for defense counsel to clarify that no charges were filed against defendant, so the jury would not be left with a false impression.

Defendant states on appeal that she "required the testimony after Appellant attempted to mislead the jury regarding Sergeant Olivia Moss-Fort's alleged friendship potentially clouding prosecution." In other words, defendant argues that plaintiff opened the door during his examination of her. This is incorrect. The first reference to the lack of charges was during the cross examination of plaintiff, as block-quoted herein. Plaintiff testified before defendant.

In any event, even if plaintiff did not open the door to presentation of this evidence, we conclude that any error was harmless. See MCR 2.613(A) ("An error in the admission or the exclusion of evidence . . . is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice."). The jury was able to extensively and repeatedly view the body camera video of the event in question, and it clearly shows that defendant did not act in a violent or threatening manner. The video does not corroborate plaintiff's allegations that defendant aggressively removed the cellular phone from his hand in a manner that would cause any physical injury, and the expert medical testimony confirmed the lack of physical injury. In other words, because of the body camera video, this case was not a credibility contest or one in which the fundamental facts could reasonably be disputed. Rather, this case simply was one in which the undisputed facts, as shown on the video, either did or did not constitute the respective torts of assault, battery, and intentional infliction of emotional distress. The jury viewed the video and concluded that these torts did not occur. Under these circumstances, where the disputed conduct was closely videotaped and presented to the jury, any error with regard to evidence that no charges were filed against defendant was harmless.

VIII. CIVIL-RIGHTS LITIGATION

Finally, plaintiff argues that the trial court erred by granting defendant's motion in limine to preclude testimony about the civil-rights lawsuit that previously was filed against her. Specifically, plaintiff argues that defendant lied under oath when she testified at her deposition that she had no knowledge of the fact that she was sued by Bowman in 2015, so he should have been able to examine her about that lie to undermine her credibility under MRE 607 and 608(b). We disagree.

Plaintiff does not argue that evidence of the 2015 Bowman lawsuit was admissible for any other purpose.

"We review a trial court's decision on a motion in limine for an abuse of discretion." Bellevue Ventures, Inc v Morang-Kelly Inv, Inc, 302 Mich.App. 59, 63; 836 N.W.2d 898 (2013).

In this case, defendant testified during her deposition about her lack of recollection regarding the 2015 Bowman lawsuit as follows:

Q: Well, according to the Wayne County register of actions you were sued in 2015; do you have any recollection of that?
A: I don't.
Q: You were never sued by a man named Scott Bowman; does that name sound familiar?
A: It sounds familiar.
Q: You don't understand that you were sued in 2015 by somebody named Scott Bowman?
A: No.
Q: And it was in your capacity as a security guard at Wayne County Community College?
A: I was a security officer at Wayne County Community College, and I didn't know of any suit. We did go to court. He was fighting a ticket that he had gotten.
Q: Well, right, but then they filed a civil lawsuit against you; do you remember that?
A: No.
Q: Can you describe the nature of why - so you don't know - you don't have any knowledge of them suing you or Wayne County Community College at all?
A: No.

At the time relevant to this case, MRE 607 provided that "[t]he credibility of a witness may be attacked by any party, including the party calling the witness." MRE 608(b) provided that, in the discretion of the trial court, specific instances of a witness's conduct may, "if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being crossexamined has testified."

Initially, we note that extrinsic evidence of the 2015 Bowman lawsuit would not have been admissible under MRE 608(b). See Wischmeyer v Schanz, 449 Mich. 469, 478; 536 N.W.2d 760 (1995). More importantly, while MRE 608(b) presumably would allow plaintiff to inquire about an instance of lying by defendant during her deposition, the deposition transcript does not reveal an instance of lying. Rather, defendant denied "remember[ing]" or "understand[ing]" that she was sued by Bowman. In other words, defendant denied having any recollection of the 2015 Bowman lawsuit. This testimony is different from an outright denial.

Moreover, defendant's denial is easily plausible. The Wayne Circuit Court decision dismissing the 2015 Bowman lawsuit noted that "[o]n December 4, 2015, Defendant Olivia MossFort and Defendant WCCC filed a notice of removal of this action to the United States District Court for the Eastern District of Michigan," and "[o]n April 19, 2016, Defendants WCCC and Moss-Fort filed the instant motion for summary disposition." Because the two defendants filed these documents jointly, it may be inferred that they were represented by the same counsel. Indeed, judicial experience indicates that when an individual governmental employee is sued along with a governmental entity, they often are represented by the same counsel. Thus, it is certainly possible, if not highly likely, that defendant was unaware that she was named in the 2015 Bowman lawsuit because counsel for Wayne County Community College exclusively handled the matter. Further, the case was dismissed at a preliminary stage before trial, reinforcing the likelihood that defendant truthfully testified that she lacked recollection of the 2015 Bowman lawsuit. Therefore, defendant's deposition testimony was not an instance of "untruthfulness" subject to MRE 608(b).

Accordingly, the trial court did not abuse its discretion by precluding evidence of the 2015 Bowman lawsuit or by precluding plaintiff's counsel from questioning defendant about it.

IX. CONCLUSION

There were no errors warranting relief. We affirm.

RICK, J. (concurring).

Because I believe the jury's verdict should be respected in this matter, I concur in the result only.

N. P. HOOD, J. (dissenting).

I respectfully dissent. This appeal, and my disagreement with the majority, ultimately hinges on different understandings of the elements of civil battery. Plaintiff, Jerry Gallup, appeals as of right the trial court's judgment of no cause of action against defendant, Olivia Moss-Fort, following a civil jury trial for assault, battery, and intentional infliction of emotional distress. I would conclude that the trial court erred by denying Gallup's motion for a directed verdict when the undisputed evidence demonstrated that Moss-Fort committed a civil battery, which is to say an unconsented, offensive touching. See Lakin v Rund, 318 Mich.App. 127, 131; 896 N.W.2d 76 (2016) ("A battery is an intentional, unconsented and harmful or offensive touching of the person of another, or of something closely connected with the person."). I would also conclude that the trial court erred by denying Gallup's motion to amend the complaint to revive a claim against defendant, Beaumont Hospital-Wayne (Beaumont), for vicarious liability for that battery because there were sufficient allegations and evidence that the battery was committed within the scope of Moss-Fort's employment.

Gallup refers to her as Sergeant Olivia Moss-Fort, a reference to a prior police rank. This suit, however, relates to her capacity as a private security guard.

I agree with the majority's conclusion in Part VI that the trial court did not err in admitting the de bene esse deposition of Dr. Sophia Grias. Relatedly, I agree with the majority's decision to affirm the trial court's order denying the motion to amend the complaint to revive a claim of negligent hiring, retention, and training. But I agree only because at this point, i.e., after a trial, Gallup cannot establish damages. I would affirm in part, reverse in part, and remand for further proceedings.

I. BACKGROUND

The majority opinion accurately states the background of this case. But some facts warrant amplification, particularly those related to the content of the video depicting the touching at issue.

This case started with Moss-Fort touching Gallup without his consent in June 2018. The unconsented touching did not result in injury. Gallup was a patient at Beaumont. He was there for a thumb infection. Moss-Fort, a former police officer, was employed as a security guard at Beaumont. It was in her capacity as a security guard for Beaumont, and during her shift, that Moss-Fort interacted with Gallup. The touching was apparently Moss-Fort executing one of Beaumont's policies.

In the days leading up to the incident, Gallup went to this or other hospitals several times. On June 17, 2018, he came to Beaumont Hospital, Wayne complaining of an injury to his right hand. He was discharged the same day with a diagnosis of a skin infection and an unspecified injury of his wrist, hand, and fingers. On June 20, 2018, he went to Beaumont Hospital, Dearborn with a similar complaint. He demanded pain medication and complained about the delay in treatment, ultimately leaving against medical advice. Later on June 20, 2018, he returned to Beaumont Hospital, Wayne, where he was admitted until he left following this incident.

Shortly before the contact, Moss-Fort and her partner went to Gallup's room, responding to complaints about someone smoking inside of the hospital. Shortly before entering Gallup's room, Moss-Fort's partner activated a body-worn camera, which recorded the critical events.

Gallup was not present when Moss-Fort and her partner entered his hospital room, so they began by speaking with Shurrie Gallup, Gallup's then-girlfriend, now-wife, who was present. They asked if someone had been smoking in the room. Shurrie denied smoking in the hospital, explaining that she went outside to smoke. Moss-Fort explained that smoking in the hospital was not allowed.

Approximately 47 seconds into the video, Gallup walked into the room. Until that point, the interaction between Moss-Fort and Shurrie was civil, and Moss-Fort's conduct was professional. When Gallup entered, he walked by Moss-Fort and onto the bed, where he briefly stood over Moss-Fort before sitting cross-legged in the middle of the bed.

The interaction quickly escalated. Gallup loudly interjected that there was another woman on his floor smoking. He asked if Moss-Fort was going to every other room or just his. Although Gallup appeared agitated, Moss-Fort remained composed in her responses. Approximately one minute and 14 seconds into the video, Gallup picked up his phone, which had been sitting on the bed. He positioned his phone so that it was poised to be able to record. After arguing about whether Shurrie was smoking and where Moss-Fort was checking, Gallup waived Moss-Fort away, telling her to leave and that he did not like her accusation. Gallup then asked for his "department papers," and said that he was "getting out of here."

One minute and 56 seconds into the video, Moss-Fort and her partner began to leave the room, but remained due to Gallup's recording. As they were leaving, Gallup asked for MossFort's name. She identified herself as "Sergeant Moss-Fort" and said, "there's no taping on here." Moss-Fort and her partner then reentered the hospital room. She told Gallup, "I need your phone because you're not allowed to tape in here." Her partner explained that recording was prohibited in patient areas. To be clear, at this point, Moss-Fort and her partner were in Gallup's hospital room by his bed, with no other patient in the room. Two minutes and 11 seconds into the video, Moss-Fort demanded Gallup's phone. At this point, there was a discernable shift in Moss-Fort's tone. She was still professional, but she was no longer deescalating. She was commanding Gallup to give her his phone.

The unconsented touching occurred two minutes and 17 seconds into the video, when Moss-Fort reached for Gallup's phone. He refused and tried to resist. The contact between MossFort and Gallup lasted between one and two seconds. Moss-Fort leaned over Gallup's bed, where he was seated, and quickly removed the phone from his left hand. Gallup and Shurrie began to swear at Moss-Fort. They became increasingly agitated before getting up and insisting on leaving.

Moss-Fort had Gallup's phone this entire time. Two minutes and 57 seconds into the video, Gallup demanded that she return his phone. Moss-Fort indicated that she would do so once she made sure the content was deleted. The body-camera footage shows Moss-Fort scrolling through Gallup's phone. Gallup then touched Moss-Fort to take his phone away from her. As he was taking it, she asked him where his recently-deleted files were. Moss-Fort and her partner then left.

On July 8, 2019, Gallup filed his complaint against defendants, alleging that in June 2018, he was admitted to Beaumont for a thumb infection. He alleged that Moss-Fort, a security officer employed by Beaumont, entered his room and accused his then-girlfriend of smoking in the hospital. According to Gallup, the verbal confrontation escalated, so he began recording the event with his cellular phone. He contended that Moss-Fort then violently removed his phone, which was connected to his finger with a "locking mechanism," from his hand and deleted the video. Gallup sought damages for "physical pain and suffering including severe pain to his shoulder and thumb," as well as "severe and permanent feelings of fear, anger, embarrassment and guilt." He raised three claims against Moss-Fort: assault (Count 1), battery (Count 2), and intentional infliction of emotional distress (Count 3). He raised two additional claims against Beaumont: negligent hiring, training, and supervision (Count 4), and ordinary negligence with reference to Beaumont's vicarious liability for Moss-Fort's conduct (Count 5). As originally pleaded, Count 5 was labeled as negligence, though it sounded in vicarious liability. Gallup clarified this claim as the case proceeded.

"Courts are not bound by the labels that parties attach to their claims because this would exalt form over substance. Rather, courts must consider the gravamen of the complaint or motion based on a reading of the document as a whole." Brendel v Morris, 345 Mich.App. 138, 149; 4 N.W.3d 776 (2023) (quotation marks and citations omitted).

Moss-Fort and Beaumont jointly moved for summary disposition of the fourth and fifth counts of the complaint under MCR 2.116(C)(8) and (C)(10). In the accompanying brief, defendants summarized the altercation as largely consistent with the body-camera footage. The brief emphasized Moss-Fort's professional demeanor. Defendants did not state whether MossFort was acting pursuant to Beaumont's policy, or whether her conduct (i.e., seizing the phone without Gallup's consent) was within the scope of her employment, but in describing the interaction, defendants stated:

Plaintiff vocalized that he recorded the incident, which violates the privacy rights of other patients at the hospital. Due to those privacy rights, like HIPAA, patients are barred from recording on hospital premises, except for extremely limited circumstances; circumstances in which privacy rights can be protected.

Defendants argued that summary disposition was warranted as to the fourth count because there was nothing in Moss-Fort's employment history to suggest that she would engage in assaultive conduct, and summary disposition was warranted as to the fifth count because her conduct was unforeseeable from the perspective of Beaumont. Defendants stated that "she has never exhibited any conduct other than that associated with a successful 27 years on the City of Detroit Police Department." The response to the motion did not reference whether Beaumont had a policy directing Moss-Fort to seize a patient's phone in the manner she did in this case. It also did not reference the scope of her employment or whether her conduct the day of the interaction was within or outside the scope of her employment. Rather, the entirety of the argument focused on the foreseeability of her conduct.

Gallup responded, arguing that there was evidence that Moss-Fort acted within the scope of her employment during the confrontation. Regarding Count 5 specifically, Gallup argued that Moss-Fort was acting within the scope of her employment. He cited authorities addressing vicarious liability for employers rather than some other negligence theory.

In September 2021, the trial court granted the motion, dismissing the fourth and fifth counts of the complaint, which resulted in dismissal of Beaumont from the case itself. The order granting the motion did not specify whether the court was granting the motion under MCR 2.116(C)(8) or (C)(10). The order also did not state the basis for granting the motion.

The register of actions indicates that the matter was discussed at a September 20, 2021 motion hearing. However, the transcript of that hearing was not provided to this Court.

There were numerous other pretrial motions. Relevant here, in April 2022, Gallup unsuccessfully moved to amend the complaint. The proposed amendment would reintroduce the previously-dismissed claims of negligent hiring, retention, and training, and vicarious liability for the alleged assault and battery. In his motion, Gallup argued that the trial court should grant the motion to amend because he recently received Beaumont's written policy regarding video recordings.

Gallup challenges the trial court's decision on several other pretrial motions on appeal. Specifically, he also challenges the trial court's granting of Moss-Fort's motion to exclude references to a civil suit involving her arrest of an induvial in 2015 and its handling of Gallup's motion in limine to preclude Moss-Fort from arguing that she was authorized by the Health Insurance Portability and Accountability Act (HIPAA), 42 USC 1320d et seq., to engage in the contested conduct. As later stated, because of my proposed handling of other issues on appeal, I would not address these arguments.

Gallup obtained the policy through a trial subpoena. In anticipation of the original trial date, which was set in January 2022, Gallup served a subpoena on Beaumont for its corporate representative to testify regarding the policies from which Moss-Fort believed her authority to seize Gallup's phone derived. Moss-Fort moved to quash the subpoena. On January 31, 2022, the trial court held a hearing, after which it denied the motion to quash and ordered Moss-Fort to produce all "written policies concerning security personnel's authority to seize a phone in protecting a patient's HIPAA rights." On April 4, 2022, Beaumont produced a heavily-redacted version of the policy. The reasons for the delayed production are unclear. That policy stated, in relevant part:

Gallup argues that he requested the policy in interrogatories and accompanying production requests in 2019. He notes that defendants refused to produce "documents related to [Beaumont's] security guard training and protocols." None of Gallup's identified interrogatories solicited policies involving cell phone seizures. Three interrogatories solicited policies regarding handling or removing patients (i.e., "Please state whether there are specific policies for handling or extricating patrons that are on Defendant's premises;" "Please describe the policy for security guards generally when an altercation takes place on Defendant's premises and the patron/patient needs to be escorted off the premises;" "Please state whether there are specific policies for handling or extricating patrons that are injured and currently on the premises."). Yet Gallup has not identified any earlier discovery request that would have yielded the production of this policy.

iii. Patients and visitors may not record Beaumont Health's Workforce Members, equipment, facilities or treatment encounters.
* * *
vii. Workforce Members are authorized to question, stop and determine the status of any recording. Workforce Members have the authority to ask the patient or visitor to stop recording and dispose/delete the recording if deemed inappropriate.
viii. Workforce Members should notify Security if any patient or visitor refuses to stop recording or disposes of/deletes a recording.

According to Gallup, the policy "establishes Defendant Olivia Fort's conduct was for the purpose of serving the employer (Beaumont) and that the conduct was foreseeable." (Emphasis in original.) Gallup thus asked the trial court to allow him "to Amend the Complaint against Beaumont to include negligence." Though the proposed amendment continued to refer to Gallup's claim as "negligence" against Beaumont, it further clarified that the claim sounded in vicarious liability for Moss-Fort's conduct.

In response, Moss-Fort argued that recent production of the policy did not provide a basis for the late amendment, which would reintroduce a previously-dismissed party. She observed that, during her December 5, 2019 deposition, she testified that Beaumont had a written policy essentially providing that "there is no recording on the premises or photographs on the premises." Moss-Fort argued that "[t]he information relied on by Plaintiff's counsel has been within their knowledge since then and has already been considered by the Court. As such, Plaintiff has established undue delay precluding their request to amend." She also observed that the fourth and fifth counts of the original complaint against Beaumont had been dismissed with prejudice, so the trial court should treat the instant motion as a motion for reconsideration of the earlier order granting Beaumont summary disposition, not as a motion to amend.

On June 3, 2022, the trial court denied the motion without oral argument and without explanation. Because of the lack of explanation, it is unclear whether the trial court considered Moss-Fort's argument that the trial court should treat the motion as a motion to reconsider rather than a motion to amend.

As the majority notes, there were several last-minute adjournments of previously set trial dates. In October 2021, November 2021, January 2022, and February 2022, the parties appeared for trial, but the trial court adjourned the trial date on its own motion. In April 2022, the trial court granted Gallup's motion to adjourn the trial date due his illness.

Because of the numerous adjournments, the parties agreed to conduct several de bene esse depositions. These included depositions of Dr. Michael Shingles (independent medical examiner), Dr. Sophia Grias (pain management and rehabilitation physician), Dr. Hussein Saad (orthopedic surgeon), and Dr. Thomas Cerrone (psychiatrist). Though there was no stipulation to their admission, the parties appeared to agree to conduct the depositions to avoid continued inconvenience and streamline the trial. On August 29, 2022, the day before trial, the parties spent a substantial amount of time purging the de bene esse deposition transcripts in order to present them to the jury. This included the deposition of Dr. Grias. The testimony of these physicians did not support Gallup's position that the interaction with Moss-Fort caused or exacerbated an injury.

A de bene esse deposition is a deposition taken "conditionally or provisionally in anticipation of being used in case the witness cannot afterwards be examined in court." Warfield v City of Wyandotte, 117 Mich.App. 83, 88 n 1; 323 N.W.2d 603 (1982).

Ultimately, the trial occurred over six days between August 30, 2022 and September 8, 2022. Gallup testified that the incident in question terrified him to the point where "I don't want to go out of the house no more," and "I have constant dreams about this incident." He said that he did not give Moss-Fort consent to take his cellular phone, and that when she removed the phone from his hand, "[i]t felt like a rip and a tear" that injured his shoulder, arm, and hand.

On cross-examination, Gallup acknowledged that the complaint and his deposition testimony contained factually incorrect statements. For example, the complaint alleged that MossFort "ran across the room and leapt into [his] bed," but the body-camera footage did not show any conduct by Moss-Fort remotely resembling this allegation. As another example, Gallup essentially testified in his deposition that Moss-Fort removed his cellular phone from his hand with "a military style twist with three yanks," but again, the body-camera footage did not show such conduct by Moss-Fort. As yet another example, Gallup testified in his deposition that Moss-Fort "became a raging killing machine, on a scale of 1 to 10, she was like a 20." When defense counsel asked him whether the video supported his statement, Gallup replied that "the way that the video showed it, that's, it didn't happen to me like that, okay."

The body-camera video was admitted as Trial Exhibit 16. The parties, particularly Moss-Fort, repeatedly referenced the footage during trial. On appeal, Moss-Fort argues that, "the video demonstrates that Appellant's entire claim was fabricated." As described, I have reviewed the video and agree that it does not show Moss-Fort acting in a violent or unreasonably aggressive manner, or in any way remotely consistent with Gallup's allegations or deposition testimony. It does, however, document an unconsented touching.

Also on cross-examination, Gallup acknowledged that he did not stop recording the incident with his cellular phone despite the fact that Moss-Fort and her partner told him that recording was not allowed. Further, Gallup acknowledged, over objection from his counsel to the question, that no criminal charges resulted from the incident despite the fact that he made a police report.

According to Gallup's counsel during the objection, "[w]e had a motion hearing where we had a conversation with this, the lack of criminal charges or criminal charges in this case or convictions in this case are completely different standards, as a result of that you indicated that unless I opened the door to it we weren't gonna get into it." I cannot identify a transcript in the record verifying this statement, but it was unopposed by the trial court and defense counsel at the time, so I reasonably may assume that it is accurate.

Moss-Fort also testified. On direct examination, she stated that she entered the hospital room occupied by Gallup and his wife to inform his wife that "[i]f she's caught smoking in the hospital she would be asked to leave." Moss-Fort testified that she "thought" she had the right to remove Gallup's cellular phone from his hand to delete his video recording because "there's no recording inside the hospital anywhere." When asked by Gallup's counsel whether she was "relying on any particular policy at Beaumont to take that phone," Moss-Fort replied that "they have signs posted that there's no videotaping or photography in the hospital." Moss-Fort added that "I was to protect the rights of the patients and safety of the staff." She acknowledged that her own body camera was turned off when she removed the phone from Gallup's hand, as she mistakenly did not turn it on beforehand.

Moss-Fort explained that "[a]s I walked into the room there was a strong smell of smoke in the room, and the information that I had prior to going inside the room was that the visitor for that room was the one possibly smoking."

Limited recording is allowed in the maternity ward.

On examination by defense counsel, Moss-Fort testified that patients and visitors are not allowed to record inside the hospital because "they would videotape or take pictures of people that are there in the hospital to be treated. Also we [sic] threats and things to the medical staff, so all that for the safety of the staff as well as patients is our concerned [sic]." When defense counsel reviewed the body-camera video with Moss-Fort, she testified that she was able to remove the cellular phone "straight out" because it was not attached to a ring socket on Gallup's finger, that she did not believe that she applied sufficient force to injure Gallup, and that she deleted the video recorded by Gallup without looking at any other material on his phone.

The following day of trial, Gallup briefly presented testimony from his son, as well as the de bene esse depositions of Dr. Saad and Dr. Cerrone. The parties made no specific showing that Dr. Cerrone or Dr. Saad were unavailable at trial. Rather, Gallup played Dr. Saad and Dr. Cerrone's testimony apparently based on the parties' agreement. Gallup's counsel then informed the trial court that he was not going to present the de bene esse deposition of Dr. Grias because "it's cumulative, her records are already in evidence." Gallup's counsel added that Moss-Fort could not rely on the de bene esse deposition of a witness identified as testifying on behalf of an opposing party, at least where Moss-Fort "did not file a notice of reliance on that de bene esse dep." Defense counsel replied that Dr. Grias was on the respective witness lists of both Gallup and Moss-Fort, so he had a right to present her deposition. The trial court ruled that Moss-Fort could present Dr. Grias's deposition.

The transcript refers to "Dr. Rice," but that appears to be a spoken or typographical error, as the context indicates that Gallup's counsel intended to refer to Dr. Grias.

Notably, the testimony of these physicians did not support Gallup's position that MossFort's conduct caused an injury or otherwise exacerbated an existing condition. Grias's testimony indicated that years before the June 2018 incident, Gallup was in a serious motor vehicle collision. As a result, he suffered serious injuries to his neck, back, and shoulder. Dr. Grias, his treating physician, addressed his complaints of back pain, neck pain radiating into his arms, and shoulder pain. She ultimately recommended that Gallup undergo an MRI of his shoulder. In 2015, Gallup had an MRI, which revealed a cystic structure with an associated labral tear. Dr. Grias referred Gallup to an orthopedic surgeon to address the labral tear.

Notably, Dr. Grias testified that the interaction with Moss-Fort likely did not cause his shoulder injury. Regarding his shoulder injury she testified:

I don't have a specific thing. I mean -- I mean, he was working for a while, and who know, it could have happened there. We had to stop him off of work because he couldn't tolerate it. I mean, I have no idea what actually caused it.
Just in my honest opinion, I -- I mean, I love Mr. Gallup and -- but it just didn't look like it to me that that caused it.

At trial, they also played the deposition testimony of Dr. Hussain Saad. In 2015, Gallup began seeing Dr. Hussain Saad, who treated his right shoulder pain. Dr. Saad reviewed Gallup's prior MRIs and found numerous complex issues. He advised Gallup about performing an arthroscopic superior-labrum-anterior-to-posterior repair due to the labral tear. Gallup opted not to have surgery at the time. Dr. Saad did not attribute Gallup's continuous physical issues with the incident. He testified:

So there are no findings in his MRI that were caused by the security guard incident. And like I said, we don't operate on an image, we operate on a patient. So the patient's pain level is what - - what make someone choose surgical or nonsurgical treatment. But the findings seen on the MRI were not caused by the incident at Beaumont Hospital.

Gallup's wife testified that Moss-Fort seriously injured his hand and that he suffered ongoing emotional distress from the incident. On cross-examination, defense counsel elicited testimony indicating that she stated at her deposition that Moss-Fort jumped on Gallup and that Gallup started screaming, "help me." Gallup's wife acknowledged that the body-camera video did not show the occurrence of such events.

At the close of proofs the following day, Gallup moved for a directed verdict on the battery claim, the fact that he sustained an injury, and the intentional inflectional of emotional distress claim. He did not move for a directed verdict on the assault claim. The trial court denied the motion. Ultimately, the jury returned a verdict in favor of Moss-Fort on all three counts after about 30 minutes of deliberation.

This appeal followed.

II. DIRECTED VERDICT ON ASSAULT AND BATTERY CLAIMS

Our most critical point of disagreement relates to how to handle the verdict on battery. Gallup argues that the trial court erred by denying his motion for a directed verdict on the respective assault and battery claims. I would agree as it relates to battery because there is undisputed evidence that civil battery occurred. Civil battery requires intent to commit an offensive touching, but it does not require intent to harm. See Tinkler v Richter, 295 Mich. 396, 401; 295 N.W. 201 (1940) ("A battery, or assault and battery, is the willful touching of the person of another by the aggressor or by some substance put in motion by him . . ."). See also Mitchell v Daly, 133 Mich.App. 414, 425; 350 N.W.2d 772 (1984) ("We do not interpret Tinkler to require that an intent to do harm on the part of a defendant in an assault and battery case is a prerequisite of liability. With respect to the questions certified by the trial court and parties to this Court, we hold that, under the facts of this case, the plaintiff was not obligated to establish that the defendant intended to harm the plaintiff in order to succeed with his suit for assault and battery."); M Civ JI 115.02 ("A battery is the willful or intentional touching of a person against that person's will by another."). There does not appear to be any dispute about whether Moss-Fort willfully (or intentionally) touched Gallup against his will. Even if Gallup misremembered, exaggerated, or outright lied about her conduct, the video documents the intentional, offensive (i.e., nonconsensual) touching. Because civil battery does not require an intent to harm, there is no dispute that the elements were satisfied.

Because Gallup did not move for a directed verdict on his assault claim, that aspect of his argument is waived. See Napier v Jacobs, 429 Mich. 222, 227-228; 414 N.W.2d 862 (1987). See also Molitor v Burns, 318 Mich. 261, 263-265; 28 N.W.2d 106 (1947) (failure to renew motion for directed verdict close of defendant's case waived any error); Garabedian v William Beaumont Hosp, 208 Mich.App. 473, 475; 528 N.W.2d 809 (1995).

Although Mitchell is not strictly binding pursuant to MCR 7.215(J)(1) because it was issued before November 1, 1990, as a published opinion, it nevertheless "has precedential effect under the rule of stare decisis" pursuant to MCR 7.215(C)(2). See Wells Fargo Rail Corp v Dep't of Treasury, 344 Mich.App. 351, 372 n 3; 1 N.W.3d 373 (2022).

By contrast, criminal battery requires intent to injure or harm. See Lakin, 318 Mich.App. at 129, 130-132 ("Michigan requires proving the 'intent to injure in order to establish an assault and battery,'" in the context of a claim of per se defamation, where the claim of defamation was a statement regarding "the criminal offense of battery"). See also People v Datema, 448 Mich. 585, 599; 533 N.W.2d 272 (1995). See also People v Gardner, 402 Mich. 460, 477; 265 N.W.2d 1 (1978) (quotation marks omitted) ("Traditionally, the word assault represented an entirely different concept in criminal law than it did in the law of torts.").

This Court reviews de novo a trial court's decision regarding a directed verdict. Krohn v Home-Owners Ins Co, 490 Mich. 145, 155; 802 N.W.2d 281 (2011). MCR 2.516 provides that "[a] party may move for a directed verdict at the close of the evidence offered by an opponent. The motion must state specific grounds in support of the motion." "A directed verdict is appropriate only when no factual question exists upon which reasonable minds could differ." Anaya v Betten Chevrolet, Inc, 330 Mich.App. 210, 215; 946 N.W.2d 560 (2019). "In reviewing a directed verdict, we review all the evidence presented up to the time of the motion to determine whether a question of fact existed." Id. "In deciding whether a directed verdict is appropriate, the trial court must view the testimony and all legitimate inferences from the testimony in the light most favorable to the nonmoving party; we review the evidence in the same manner." Id. at 215-216.

The trial court erred by denying the motion for a directed verdict because there was no factual dispute about the willful offensive touching. See Mitchell, 133 Mich.App. at 425.

A claim for battery vindicates an individual's right to be "free from nonconsensual physical invasions" of their person. See In re Rosebush, 195 Mich.App. 675, 680; 491 N.W.2d 633 (1992). This is reflected in our pattern jury instruction, which provides that a "battery is the willful or intentional touching of a person against that person's will by another." M Civ JI 115.02, citing Tinkler, 295 Mich. 396 (bracket omitted). Functionally, this breaks down into three elements. First, the defendant touched the plaintiff. See Tinkler, 295 Mich. at 401. The touch may be against the plaintiff's person or, as alleged in this case, something they are holding. See Espinoza v Thomas, 189 Mich.App. 110, 119; 472 N.W.2d 16 (1991) ("[p]rotection of the interest in freedom from unintentional and unpermitted contacts with the plaintiff's person extends to any part of his body or to anything which is attached to it and practically identified with it."). Second, the touch was offensive. See id. ("[a] battery is the wilful and harmful or offensive touching of another person . . ."). In extreme situations, this may include a harmful or violent touch, see id., but it can be as simple as an unconsented touch. See id. Third, the defendant must have intended to cause the offensive touch. The intent required to establish a battery was intent to cause the offensive or unconsented touching, not intent to harm. See Mitchell, 133 Mich.App. at 424 (interpreting Tinkler's assault and battery definitions to hold "When the trial judge says, as he did, that the jury should have been told that there must have been an intent on the part of the defendant to do harm, the trial judge was in error. This is not a requisite in every civil assault and battery case."). But see Lakin, 318 Mich.App. at 131 ("Michigan requires proving the 'intent to injure in order to establish an assault and battery,'" quoting Datema, 448 Mich. at 599, a case involving criminal assault and battery resulting in manslaughter).

There is no real dispute that Gallup satisfied the first and second elements: (1) that MossFort touched him; and (2) that the touch was unconsented. Acknowledging Gallup's serious credibility issues, the body-camera footage conclusively demonstrates that Moss-Fort touched him or his phone without his consent. Whether a juror believed that Gallup misremembered the interaction, intentionally exaggerated the nature of their interaction, or outright lied, the video illustrates that Moss-Fort intentionally and physically took Gallup's phone out of his hand without his consent. This is sufficient to establish the first two elements of a battery. And depending on which of our authorities one relies upon, it is sufficient to establish the third element: intent. See Mitchell, 133 Mich.App. at 424-426.

Intent is the only dispute. And that dispute arises out of an inconsistency in (or misapplication of) our precedent. As stated, originally, Michigan did not require intent to injure or intent to harm as an element of civil battery. See Mitchell, 133 Mich.App. at 424-426. See also Tinkler, 295 Mich. at 402. This is reflected in our jury instructions. See M Civ JI 115.02.

Regarding civil battery, this court has unequivocally stated that "[w]e do not interpret Tinkler to require that an intent to do harm on the part of a defendant in an assault and battery case is a prerequisite of liability." Mitchell, 133 Mich.App. at 425. In Mitchell, this Court reversed the trial court's order granting the defendant a new trial after a jury verdict for the plaintiff on a civil assault and battery allegation. Id. at 415. There, the plaintiff claimed that while under the defendant-doctor's care, the defendant struck him on the left side of his head, hitting his face and ear during an argument. Id. at 415-416. After jury instruction, but before trial, the trial court instructed the jury on assault and battery as follows:

An assault is an intentional, unlawful offer or attempt to cause bodily jury [sic] to another by force.
A battery is the willful touching of the person by another-pardon me-the person of another by the agressor [sic] and is the consummation of an assault." [Id. at 416.]

Following trial, the court further instructed the jury stating, "The offense charged by the plaintiff against the defendant is assault and battery. An assault is an intentional, unlawful offer or attempt to cause bodily injury to another by force. A battery is the willful touching of the person of another by the agressor [sic] and is the consummation of an assault." Id. at 416. On appeal, this Court considered whether "the use of the words 'beat', 'wound' and 'bruise' placed an incorrect burden upon the plaintiff." Id. at 422. This Court concluded that it did. Id. at 423-425. Relying on Tinkler, this Court concluded that the reasonable meaning attributed to these words placed additional burden on the plaintiff. Id. This Court concluded, "When the trial judge says, as he did, that the jury should have been told that there must have been an intent on the part of the defendant to do harm, the trial judge was in error. This is not a requisite in every civil assault and battery case." Id. at 424. This Court went on to parse out the portions of our precedent that rely on criminal assault and battery principles and those that rely on civil principles. Id. at 425-427 ("This recognition by the Supreme Court that definitions of assault, battery, and assault and battery, for purposes of criminal responsibility, are not precedents in civil cases is gratifying, because failure to recognize this distinction has caused much mischief in blurring definitions in both civil and criminal assault and battery cases. The definitions in the civil area and in the criminal area are not interchangeable.").

Thus, relying on Mitchell and Lakin, I would reiterate our well-settled principle that intent to harm is not required. Rather, intent to touch without consent is required. If that was the only issue in dispute at trial, the video seems to demonstrate that Moss-Fort intentionally touched Gallup without his consent, thus satisfying the requirements for a civil battery.

The majority incorrectly relies on Lakin for the position that battery requires intent to harm. The reliance on Lakin is misplaced for at least two reasons. First, Lakin did not directly deal with battery; it dealt with defamation. Lakin, 318 Mich.App. at 129. There, the plaintiff, a church member, alleged that the defendant, a nun, defamed him by telling the monsignor that he put a finger in her chest during a confrontation about church assignments. Id. at 129-130. He contended that her statement "imputed the criminal offense of battery; therefore, it was defamatory per se." Id. at 130 (emphasis added).

This leads to the second problem with relying on Lakin: to the extent Lakin analyzed the elements of battery, it analyzed the elements of criminal battery, not civil battery. See Lakin, 318 Mich.App. at 131-132. See also Mitchell, 133 Mich.App. at 426-427 (holding that the definitions of civil battery and criminal battery are not interchangeable). In Lakin, relying almost exclusively on criminal precedents, this Court defined a battery as follows: "A battery is an intentional, unconsented and harmful or offensive touching of the person of another, or of something closely connected with the person." Lakin, 318 Mich.App. at 131, quoting People v Reeves, 458 Mich. 236, 240 n 4; 580 N.W.2d 433 (1998). Relevant here, it clarified, "While the common law did not require proof of intent, Michigan requires proving the 'intent to injure in order to establish an assault and battery.'" Lakin, 318 Mich.App. at 131, quoting Datema, 448 Mich. at 599 (upholding a manslaughter conviction for a battery resulting in death, in part, because criminal assault and battery, though a misdemeanor, "requires proof of an intent to injure in order to establish an assault and battery;" noting that under the common law, assault and battery "did not require an intent to injure."). In short, Lakin's statement that battery requires an intent to harm or intent to injure is a recitation of the requirements for criminal battery, not civil. Compare Lakin, 318 Mich.App. at 131 with Mitchell, 133 Mich.App. at 426-427.

Notably, in Lakin, although the court stated the criminal battery standard, Lakin, 318 Mich.App. at 131, it appeared to apply the standard for civil battery, in other words, not involving an intent to injure, see id. at 131-132. The plaintiff alleged that the defendant-nun claimed that the plaintiff "put a finger in her chest." Id. at 131. This Court observed, "Placing one's finger in the chest of another, especially a nun, during an argument, can reasonably be seen as an offensive touching." Id. at 132. The Court continued to analyze whether the alleged touching was "offensive," not whether it was intended to harm. Id. Although the quotation from Lakin would require intent to injure, the analysis from Lakin does not. See id.

The majority's reliance on this portion of Lakin to hold that there was a question regarding intent to injure is incorrect. Instead, relying on Mitchell and Tinkler, the trial court likely should have found that the evidence unequivocally demonstrated that Moss-Fort intended to cause a touching against Gallup's consent. This is enough. And this is true even if Gallup's description of the interaction varies wildly from the video-recorded encounter.

This brings me to the issue of damages. Although the evidence conclusively established a civil battery, Gallup at best can only establish nominal damages. As the majority correctly concludes, the de bene esse deposition testimony and medical record evidence conclusively established that Moss-Fort's conduct did not cause or contribute to Gallup's years-long issues with his hand and shoulder. This Court has previously observed that that proof of damages is not an essential element of assault and battery. Lewis v Ypsilanti Police Dep't, unpublished per curiam opinion of the Court of Appeals, issued November 16, 2001 (Docket No. 223352), p 1. And damages are also not included in the definition of battery addressed in Tinkler and Lakin. It is possible for Gallup to have obtained a directed verdict on battery and obtain only nominal damages. See Lewis, unpub op at 1. Therefore, while Gallup was entitled to a directed verdict on battery, he would have only been entitled to nominal damages. I would vacate the judgment related to battery, remand for the trial court to enter judgment in his favor, and address the question of what, if any, damages Gallup is entitled to for the technical battery in this case.

"Although MCR 7.215(C)(1) provides that unpublished opinions are not binding under the rule of stare decisis, a court may nonetheless consider such opinions for their instructive or persuasive value." Cox v Hartman, 322 Mich.App. 292, 307; 911 N.W.2d 219 (2017).

III. MOTION TO AMEND THE COMPLAINT

Gallup also argues that the trial court erred by denying his motion to amend his complaint to add an allegation supporting his dismissed claims sounding in vicarious liability (Count 5) and negligent hiring, training, and supervision (Count 4) against Beaumont. Specifically, he argues that he should have been allowed to amend his complaint to include a factual allegation that Beaumont had a written policy generally prohibiting video recording by patients and visitors. I agree as it relates to Count 5, but disagree as it relates to Count 4. Regarding Count 4, I agree with the majority opinion's outcome, but for different reasons.

"This Court reviews a trial court's decision to permit a party to amend its pleadings for an abuse of discretion." In re Kostin Estate, 278 Mich.App. 47, 51; 748 N.W.2d 583 (2008). "[A]n abuse of discretion occurs only when the trial court's decision is outside the range of reasonable and principled outcomes." Id.

Generally, "a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be freely given when justice so requires." MCR 2.118(A)(2). "If the trial court grants a party's motion for summary disposition under MCR 2.116(C)(8), (9), or (10), the trial court shall give the parties an opportunity to amend the pleadings 'unless the evidence then before the court shows that amendment would not be justified.'" Zwiker v Lake Superior State Univ, 340 Mich.App. 448, 484; 986 N.W.2d 427 (2022), quoting MCR 2.116(I)(5). "The trial court need not give a party an opportunity to amend a pleading if the amendment would be futile." Zwiker, 340 Mich.App. at 484. "An amendment is futile where, ignoring the substantive merits of the claim, it is legally insufficient on its face." Id. (quotation marks and citation omitted). "A proposed amendment is also futile if summary disposition would be appropriately granted regarding the new claims, either when a party has not established a genuine issue of material fact regarding an element, or when the undisputed facts establish that summary disposition would be appropriate." Id. (citations omitted).

Here, at the time of the request, the amendment was not futile. Rather, with previously-requested, but newly-obtained, evidence in hand, Gallup attempted to revive two counts that the trial court should not have dismissed in the first place: negligent hiring, retention, and training (Count 4), and vicarious liability for the battery (Count 5). The crux of Gallup's allegation in the amended complaint (as in the original complaint) was that Beaumont was liable because Moss-

At the threshold, I must acknowledge the awkwardness of addressing this issue as Gallup frames it. Earlier in the proceedings, the trial court dismissed the fourth and fifth counts of the original complaint against Beaumont, and thus dismissed Beaumont from the case. Gallup did not move to reconsider. Gallup then brought allegedly new information to the trial court-in particular, the written policy regarding video recordings. According to Gallup, this written policy sustains his fourth and fifth counts. Although the question of the denied motion to amend is not waived, under these circumstances, he should have moved for reconsideration, which applies when new information is discovered after summary disposition has been granted. See, e.g., Churchman v Rickerson, 240 Mich.App. 223, 233; 611 N.W.2d 333 (2000); Am Transmission, Inc v Channel 7 of Detroit, Inc, 239 Mich.App. 695, 709-710; 609 N.W.2d 607 (2000). See also MCR 2.119(F)(3). Had he moved for reconsideration, the trial court would have been required to grant relief because it clearly erred by dismissing the claims in the first place. As later discussed, aside from the timing of this decision-i.e., posttrial and after, the question of damages is largely resolved-the outcome should be the same. Count 5 (vicarious liability for battery) is revived. And but for the issue of damages, Count 4 (direct negligence for hiring, retention, and training) would be too. I address each count in turn.

Fort's allegedly tortious conduct was within the scope of her employment, and alternatively, that it was otherwise foreseeable.

A. VICARIOUS LIABILITY

First, the trial court incorrectly granted summary disposition on Gallup's vicarious-liability claim against Beaumont (Count 5) and later, as Gallup claims on appeal, incorrectly refused to allow Gallup to amend the complaint. Acknowledging that Gallup's proposed amendment was in the late stages of the case, it was not dilatory. Rather, it appears to be the cumulative result of the trial court's initial erroneous grant of summary disposition, defendants' delay in responding to discovery requests that arguably encompassed Beaumont's policy, and ultimately defendants' delay in producing Beaumont's policy. In short, as originally pleaded, Moss-Fort's conduct was within the scope of her employment. Moss-Fort's deposition testimony, that she was acting pursuant to Beaumont's policy, later supported this claim. Later still, Beaumont's compelled disclosure of its policy further supported the claim. The trial court initially incorrectly focused only on foreseeability rather than scope of employment. It should have corrected this error by granting Gallup's request to amend. I would therefore reverse to allow Gallup to amend to include Beaumont as alleged in Count 5.

Again, I acknowledge that Gallup continued to refer to this claim as "negligence" despite the apparent allegation sounding in vicarious liability.

This Court recently outlined the standards for holding an employer vicariously liable for a battery committed by an employee-security guard in an unpublished opinion. See Harris v Gates, unpublished per curiam opinion of the Court of Appeals, issued May 30, 2024 (Docket No. 359672), pp 4-8. That case synthesized the standards for vicarious liability for an intentional tort in similar, albeit more egregious, circumstances to this case. See id. at 5-10.

There, a private security officer for an apartment complex shot and killed a suspected trespasser while trying to remove him from the complex. Id. at 1-2. The defendant security guard stated that he responded to the trespasser as part of his job duties and that his employer encouraged him to carry a gun. Id. at 2-3. This Court affirmed the trial court's denial of summary disposition, concluding that the trial court correctly determined that there was a question of fact as to whether the battery (i.e., the shooting) was within the scope of his employment, and that the trial court did not need to address the issue of foreseeability. Id. at 5-9.

In doing so, this Court observed that there are two ways in which an employer may be held vicariously liable for the torts of its employee: "(1) when the conduct falls with the scope of the employment, [Hamed v Wayne Co, 490 Mich. 1, 11; 803 N.W.2d 237 (2011)]; or (2) when the conduct falls outside of the scope of the employment, but is nonetheless foreseeable, [id. at 12]." Harris, unpub at 5-6. Here, the trial court and Moss-Fort appear to focus on the second of these two bases, and ignore the issue of whether Moss-Fort's conduct was within the scope of her employment.

Regarding scope of employment, in Harris this Court stated:

"The doctrine of respondeat superior is well established in this state: An employer is generally liable for the torts its employees commit within the scope of their employment." Hamed, 490 Mich. at 10-11 (citations omitted). Our Supreme Court has defined "within the scope of employment to mean engaged in the service of his master, or while about his master's business." Id. at 11 (quotation marks omitted). On the other hand, when an employee engages in "independent action, intended solely to further the employee's individual interests" they are not acting within the scope of employment. Id., citing 2 Restatement Agency, 3d, § 7.07, p 201. See also Bryant v Brannen, 180 Mich.App. 87, 98; 446 N.W.2d 847 (1989). But when an employee acts contrary to an employer's instruction, liability will still attach "if the employee accomplished the act in furtherance, or [in] the interest, of the employer's business." Hamed, 490 Mich. at 11. See also Barnes v Mitchell, 341 Mich. 7, 15-16; 67 N.W.2d 208 (1954) ("The servant is within the scope of his employment when he is engaged in the master's service and furthering the master's business though the particular act is contrary to instructions."). The question, therefore, is whether at the time of the conduct, the employee had the employer's business in mind. See Cook v Michigan Central R, 189 Mich. 456, 459-460; 155 N.W. 541 (1915) (holding that there was a jury question on scope of employment, where a night watchman shot and killed the plaintiff's decedent while attempting to remove decedent from the defendant-employer's railyard). Regarding the inquiry into scope of employment, our Supreme Court has stated:
The purpose of the service rendered by the employee, and not the method of performance, is the test of whether or not the servant is within the scope of his employment. If the purpose is to further the master's business and not that of the servant, the latter is within the scope of his employment though he be negligent or disobeys orders as to the method of its execution." [Barnes, 341 Mich. at 16 (quotation marks omitted).]
The Court also recognized the rationale for this test: "If it were true that a servant is outside the scope of his employment whenever he disobeys the orders of his master, the doctrine of respondeat superior would have but scant application, for the master could always instruct his servant to use ordinary care under all circumstances." Id. at 15 (quotation marks omitted). [Harris, unpub op at 6.]

Relying on those principles in the context of security guards, "[i]t is also the rule that if the servant uses more force than he was authorized to use in evicting a party from his master's premises, the master is liable." Stewart v Napuche, 334 Mich. 76, 79; 53 N.W.2d 676 (1952). See also Cook, 189 Mich. at 462. "An act may be within the scope of employment although consciously criminal or tortious." Bryant, 180 Mich.App. at 100, quoting 1 Restatement Agency, 2d, § 231, p 512.

In fact, a consciously criminal or tortious act may still be within the scope of employment (even before the court needs to address foreseeability of the act). See Bryant, 180 Mich.App. at 100. Historically, this Court has observed that an employer can reasonably anticipate that an employee may commit minor crimes or torts in the prosecution of the business. Id. at 101, quoting 1 Restatement Agency, 2d, § 231, p 512. See also id. at 102; Restatement Third of Agency, § 7.07. For this reason, "Michigan cases have imposed liability on employers whose servants committed simple batteries while repossessing property, collecting money from a patron, or ejecting a patron from a bar." Bryant, 180 Mich.App. at 102 (citations omitted). See also Stewart, 334 Mich. at 78-81; Dobos v Wu, unpublished per curiam opinion of the Court of Appeals, issued November 23, 2021 (Docket No. 353926) (reversing trial court decision granting summary disposition to employer, a Meijer grocery store, where its cashier, whose duties did not include breaking up fights, injured patrons while breaking up a fight; concluding that a question of fact existed as to whether he was acting within the scope of employment). "Our Supreme Court has also held that where a night watchman, who carried a revolver, killed someone he believed was going to do damage to his employer's property, it was for the jury to determine whether he was acting in the scope of his employment." Bryant, 180 Mich.App. at 103, citing Cook, 189 Mich. at 458. Thus, while the extremity of a tort or crime is one aspect of the inquiry, the central question remains whether the conduct fell within the scope of employment. And that question turns on whether the employee was acting on their own behalf, or rightly or wrongly believed they were acting on behalf of their employer as part of their job. Harris, unpub op at 4-5.

I observe that several of the examples on which I have relied as involving "minor" crimes, i.e., a chauffeur driving on the left side of the road, or a gardener assaulting a trespassing child with a stick, may be outdated and no longer considered minor. Cf. Bryant, 180 Mich.App. at 99-101.

The court (and the jury) are supposed to engage in this inquiry before reaching the issue of whether tortious conduct was outside of the scope of employment but nonetheless foreseeable. Id. at 8. Moss-Fort testified at her deposition that her conduct, which is to say taking Gallup's phone out of his hands without his consent (i.e., the battery), was pursuant to policy. Thus, the initial dismissal of Beaumont, at least as it relates to Count 5, seems to have been an error. Part of the delay in moving to amend stemmed from Gallup attempting to gather enough documentary evidence of the existence of the policy; not just Moss-Fort's belief that she was acting according to the policy. Because the trial court never should have dismissed Beaumont, and because aspects of the delay are attributable to Beaumont's own delay in producing the requested policy that further demonstrated that Moss-Fort acted within the scope of her employment, I would reverse and remand for the trial court to allow Gallup to amend Count 5.

That again, brings us to the issue of damages. As the majority concludes in Part VI of the majority opinion, the medical testimony and documentary evidence in this case established irrefutable evidence that Moss-Fort's conduct did not cause harm or injury. At best, Gallup is entitled to nominal damages for the battery. That is true for any vicarious liability imparted to Beaumont for Moss-Fort's conduct. In sum, I would conclude that Gallup may amend the complaint to reintroduce his claim of vicarious liability. The amendment is not moot. But he would only be entitled to nominal damages at best.

B. NEGLIGENT HIRING, RETENTION, AND TRAINING

Regarding Gallup's motion to amend the claim of negligent hiring, retention, and training, I agree with the outcome stated in the majority opinion, but for different reasons. Unlike Gallup's claim for vicarious liability, Gallup is no longer entitled to amend the complaint to revive his claim for negligent hiring, retention, and training, because the evidence at trial established that he cannot show damages. Count 4 of Gallup's complaint alleged that Beaumont was directly liable for Gallup's injuries because it was negligent in hiring, retaining, and training Moss-Fort. Essentially, he claimed that Beaumont did not adequately vet Moss-Fort before hiring her and improperly training her. Like the proposed amendment related to Count 5, Gallup relied on the newly-disclosed policy, produced in response to a trial subpoena and order to compel.

Like ordinary negligence, to prove a prima facie claim for negligent hiring, training, and retention, a plaintiff must prove four elements: (1) a duty owed, (2) breach of that duty, (3) causation, and (4) damages. Brown v Brown, 478 Mich. 545, 552; 739 N.W.2d 313 (2007). When Gallup moved to amend his complaint, and when he filed his appeal, the case turned on whether Beaumont owed Gallup a duty as it related to hiring, training, and continuing to employ MossFort. Duty is a question of whether the relationship between the actor (Beaumont) and the injured person (Gallup) gives rise to a legal obligation on the actor's part for the benefit of the injured person. See id. at 552. "When analyzing whether a duty existed, we consider the foreseeability of harm to the plaintiff. Foreseeability alone does not impose a duty on the defendant, but it is a threshold question of duty." Harris, unpub op at 13, citing Brown, 478 Mich. at 553, 556-557. The crux of negligent hiring, training, and retention is that "the employer bears some responsibility for bringing an employee into contract with a member of the public despite knowledge that doing so was likely to end poorly." Id. at 574, citing Hersh v Kentfield Builders, Inc, 385 Mich. 410, 412-413; 189 N.W.2d 286 (1971).

This issue is distinct from, but closely related to, the issue of foreseeability that may expose an employer to vicarious liability. See Mueller v Brannigan Bros Restaurants & Taverns LLC, 323 Mich.App. 556, 574-576; 918 N.W.2d 545 (2018).

Here, the proposed amendment, including details of Beaumont's policy, was directly tied to Beaumont's duty to patients or visitors, like Gallup, in that it made Moss-Fort's conduct (i.e., the unconsented seizure of Gallup's phone from his hand) foreseeable, the issue that led to the prior improper grant of summary disposition. At the time of the proposed amendment, this amendment would not have been futile.

But now, the proposed amendment would be futile, albeit for a different reason: damages. As stated, negligent hiring, training, and retention, like ordinary negligence, requires proof of damages. Brown, 478 Mich. at 552. The unrebutted medical testimony and documentary evidence presented at trial established that Moss-Fort's interaction with Gallup did not cause demonstrable harm. This is true for his preexisting shoulder, back, and hand issues. It is also true for his mental and emotional issues. Without harm or injury, Gallup no longer has a viable negligence claim. Unlike Count 5, where he may be entitled to nominal damages, his inability to demonstrate actual damages extinguishes this claim. I, therefore, would conclude that the trial court may have erred by denying the motion to amend, but at this point, Gallup is not entitled to relief as it relates to the proposed amendments to Count 4.

IV. CONCLUSION

For the reasons stated above, I respectfully dissent. I would affirm in part, reverse in part, and remand for further proceedings consistent with this dissenting opinion.

I would affirm the trial court's decision to admit the de bene esse deposition of Dr. Grias over Gallup's objection. Her testimony along with the other physicians' testimony established that Moss-Fort's conduct did not result in harm or injury to Gallup.

I would reverse the trial court's decision denying Gallup's motion for a directed verdict on Count 2 (civil battery). Drawing all reasonable inferences in favor of Moss-Fort, the testimony and body-camera footage establish that a civil battery occurred. I would remand for the trial court to enter judgment in Gallup's favor and consider whether he is entitled to nominal damages.

I would reverse the trial court's decision denying Gallup's motion to amend the complaint related to Count 5 (vicarious liability for battery), and remand for the trial court to allow Gallup to pursue such an amendment if he so chooses, with the understanding that he is entitled only to nominal damages.

Finally, I would affirm the trial court's decision denying Gallup's motion to amend the complaint related to Count 4 (negligent hiring, retention, and training) because such an amendment would be futile. The proposed amendment would be futile because the trial conclusively established that Gallup did not suffer actual harm or damages.


Summaries of

Gallup v. Sergeant Olivia Moss-Fort

Court of Appeals of Michigan
Jan 27, 2025
No. 363306 (Mich. Ct. App. Jan. 27, 2025)
Case details for

Gallup v. Sergeant Olivia Moss-Fort

Case Details

Full title:JERRY GALLUP, Plaintiff-Appellant, v. SERGEANT OLIVIA MOSS-FORT…

Court:Court of Appeals of Michigan

Date published: Jan 27, 2025

Citations

No. 363306 (Mich. Ct. App. Jan. 27, 2025)