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Avery v. Roberts3/22/2005
UNPUBLISHED
In this wrongful death action, defendants Charles Roberts and Emmanuel Calzada appeal as of right from the circuit court's order denying their motion for summary disposition under MCR 2.116(C)(7) premised on governmental immunity. Plaintiff cross appeals from the portion of the circuit court's order that granted defendants Brian Nichols and Lavishia Whitfield summary disposition on the basis that governmental immunity barred plaintiff's action. We affirm in part and reverse in part.
I.
Plaintiff's decedent drowned in three or four feet of water, in the shallow end of a public swimming pool operated by defendant City of Detroit. On July 25, 2002, the day of the accident, the four individual defendants worked for the city as lifeguards at the Patton Park Recreation Center, where the drowning occurred. A fifth lifeguard, LaRhonda Tucker, also worked at the Patton Park pool on the day of the drowning, but was not named in plaintiff's action. At the time the decedent's body was discovered in the pool's shallow end, Whitfield had gone to use the bathroom, and Roberts and Calzada had left the park. Nichols was stationed at the deep end of the pool, and it is disputed whether Tucker had yet returned from the bathroom to substitute for Whitfield.
The individual defendants moved for summary disposition pursuant to MCR 2.116(C)(7), (8) and (10). The circuit court granted the motion in part, finding that as a matter of law, defendants Nichols and Whitfield were entitled to governmental immunity under MCL 691.1407(2), because as city employees their actions did not constitute gross negligence that was the proximate cause of the decedent's death. Regarding defendants Roberts and Calzada, the court opined that a reasonable jury could find from the record that their actions amounted to grossly negligent conduct that was the proximate cause of the decedent's death, and accordingly denied the motion with respect to them.
II.
We review de novo the circuit court's summary disposition ruling. Maskery v Univ of Michigan Bd of Regents, 468 Mich 609, 613; 664 NW2d 165 (2003).
Under MCR 2.116(C)(7), summary disposition is proper when a claim is barred by immunity granted by law. To survive such a motion, the plaintiff must allege facts justifying the application of an exception to governmental immunity. [The reviewing court] consider all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them. [Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001).]
We must consider the documentary evidence submitted in the light most favorable to the nonmoving party. MCR 2.116(G)(5); McDowell v Detroit, 264 Mich App 337, 346; 690 NW2d 513 (2004).
The lifeguards' claim of entitlement to governmental immunity derives from MCL 691.1407(2), which at the time of the underlying events provided, in relevant part:
Except as otherwise provided in this section, and without regard to the discretionary or ministerial nature of the conduct in question, each officer and employee of a governmental agency . . . is immune from tort liability for an injury to a person or damage to property caused by the officer. . . employee . . . while in the course of employment or service . . . if all of the following are met:
(a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a governmental function.
(c)
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