Opinion
Docket No. 124665.
Decided July 6, 1992, at 9:05 A.M.
Archer, Kenney Wilson (by Robert J. Wilson), for the plaintiff.
Brenda M. Miller, Assistant Corporation Counsel, for the defendants.
Plaintiff appeals as of right a Wayne Circuit Court order granting summary disposition in favor of defendants Hinton, McDonald, and Morgan pursuant to its finding that plaintiff had failed to establish a factual issue regarding gross negligence on the part of those defendants, emergency telephone operators for the defendant City of Detroit. See MCR 2.116(C)(10). We affirm.
Plaintiff alleged that ten calls were made to the City of Detroit's 911 number between 8:43 P.M. and 10:22 P.M. on July 16, 1986, seeking assistance for decedent. EMS technicians arrived at decedent's residence at 10:29 P.M. to find that decedent had no vital signs. Decedent was pronounced dead at 11:05 P.M. at Oakwood Hospital in Dearborn, Michigan. Plaintiff asserts that defendants' failure to respond quickly to the emergency constituted negligence, gross negligence, and wanton or wilful conduct, conduct for which governmental immunity is not available. See MCL 691.1407(2)(c); MSA 3.996(107)(2)(c).
In support of their motion for summary disposition, defendants offered the daily log of calls received by the 911 operators. The log indicates that someone called the 911 number on behalf of decedent three times on the night of July 16, 1986, specifically at 10:13 P.M., 10:20 P.M., and 10:22 P.M. The log is devoid of any entry preceding the one listed at 10:13 P.M. The record also contains evidence that EMS technicians received the call from a 911 operator at 10:16 P.M. and arrived at decedent's residence by 10:29 P.M. The motion was supported by an affidavit of defense counsel that stated that the affidavit was based on personal knowledge, and that the affiant knew the contents of the motion and that they were true except with regard to those matters therein stated to be upon information and belief, which she believed to be true.
In defense of her position, plaintiff merely reiterated the allegations contained in the complaint, namely, that a total of ten calls were made to the 911 operators on the night in question. No challenge using documentary evidence, affidavits, or depositions was filed in support of plaintiff's opposition to the facts asserted by the defendants in the motion for summary disposition or the documents attached thereto.
A motion for summary disposition brought under MCR 2.116(C)(10) tests whether there is factual support for a claim. Once the moving party has supported its position with documentary evidence, the party opposing the motion has the burden of showing that a genuine issue of disputed fact exists. Pantely v Garris, Garris Garris, PC, 180 Mich. App. 768, 773; 447 N.W.2d 864 (1989). The nonmovant may not rest upon mere allegations in the pleadings but must, by the use of documentary evidence, set forth specific facts showing that there is a genuine issue for trial. MCR 2.116(G)(4); McCart v J Walter Thompson USA, Inc, 437 Mich. 109, 114-115; 469 N.W.2d 284 (1991). All inferences are to be drawn in favor of the nonmovant. Dagen v Hastings Mutual Ins Co, 166 Mich. App. 225, 229; 420 N.W.2d 111 (1987). Before judgment may be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by the evidence at trial. Peterfish v Frantz, 168 Mich. App. 43, 48-49; 424 N.W.2d 25 (1988).
Applying the facts of this case to the law, we conclude that the trial court properly ruled that plaintiff failed to raise a genuine issue of material fact regarding whether the defendants were guilty of gross negligence. Consequently, the trial court properly granted defendants' motion for summary disposition upon finding that the case failed to come within any exception to governmental immunity.
Affirmed.
JANSEN, J., concurred.
The City of Detroit was granted summary disposition in this case on September 22, 1989, and that order is not at issue. On October 30, 1989, a motion for summary disposition was filed on behalf of defendants Hinton, McDonald, and Morgan, the city's civilian employees who are emergency services (911) operators or supervisors. That motion sought summary disposition pursuant to MCR 2.116(C)(7), (8), and (10). In its order granting summary disposition, the trial court failed to indicate the subsection or subsections on which it relied. The order states as follows:
Because of documentary exhibits attached to [defendants'] brief, this court finds no gross negligence, nor a question of fact as to any negligence. Therefore, case dismissed on governmental immunity.
This was clearly erroneous.
The exhibits attached to defendants' brief were never authenticated, never marked as exhibits, never received in the record, never the subject of a deposition or evidentiary hearing, and were supported only by the affidavit of Brenda Miller, assistant corporation counsel and attorney for Hinton, McDonald, and Morgan, that stated as follows:
Brenda M. Miller, being first duly sworn on oath, deposes and states the following:
1. That she is the attorney representing Defendants Louella Hinton, Barbara McDonald and Hazel Morgan in the above-captioned matter.
2. That she makes this affidavit based upon personal knowledge, and in support of Defendants', Louella Hinton, Barbara McDonald, and Hazel Morgan, Motion for Summary Disposition.
3. That she knows the contents thereof, and that the same are true, except as to those matters therein stated to be on information and belief, which same she believe [sic] to be true.
4. That if called to testify to the aforementioned facts in a court of law, she could so competently testify.
The detail of the computer printout was interpreted to indicate that the 911 operators had received three calls. The first at 10:13 P.M., the second at 10:17 P.M., and the third at 10:29 P.M.
Plaintiff responded in a similar brief, supported by a similar affidavit that stated as follows:
Robert J. Wilson, being first duly sworn, deposes and says as follows:
1. That he is attorney of record for Plaintiff, and has been since the date of filing of the initial complaint in January, 1988.
2. That he has read the attached Supplemental Brief and avers that the facts contained therein are true upon information and belief, and to the best of his knowledge.
Further affiant saith not.
I find the affidavits supporting both the motion and the response violative of MCR 2.119(B)(1) in all respects. However, if the court disregarded the rule for defendants, it should have leveled the field for plaintiff. The trial court erred in giving the benefit of unsupported, unauthenticated, unsworn documentary evidence to the defendants, while discounting the contradictory claims of the plaintiff. The plaintiff alleged that:
Between 8:43 P.M. and 10:22 P.M., no less than 10 calls were made by the various persons to the 911 operator advising of the seriousness of the plaintiff's decedent's condition, and repeatedly requesting a dispatch of an emergency vehicle. . . .
There was a failure on the part of the 911 operators to even record any except three of the calls that they received between 10:13 and 10:22 P.M.
The EMS dispatched emergency vehicle arrived after 10:22 P.M., and transported plaintiff's decedent to the hospital where he was pronounced dead at 11:05 P.M. Plaintiff's decedent was alive for almost one hour after the first emergency call was made.
Plaintiff also alleged that the 911 operation mix-up was due to, in part, a work stoppage resulting from a labor dispute and that that had an effect upon the efficiency of those operators pressed into service at the time of the emergency involving plaintiff's decedent. The trial court did not have a record on which to base any finding, express or implied, that no factual development could possibly justify plaintiff's allegations of gross negligence and wilful misconduct. The trial court erred.
I would reverse and remand.