A plaintiff filed a Michigan sports accident case following injuries he sustained while playing softball at a sports complex operated by defendant Canton Township. Another defendant is an employee of Canton Township in its Parks Department who oversees maintenance at the softball fields. A third defendant is also employed by Canton Township as a laborer in the Parks Department, and his duties include daily maintenance of the softball fields. The plaintiff’s injury occurred as he attempted to slide into second base. He alleged that the cause of his injury was the failure of the base to disengage from the mound as designed when he slid into it, which he attributed to the gross negligence of the defendants. The defendants claimed that the injury was a result of his improper slide. The trial court concluded that a genuine issue of material fact existed with regard to whether the defendants engaged in gross negligence that was the proximate cause of the plaintiff’s injuries. Additionally, the trial court concluded that defendant Canton Township could be held vicariously liable for any gross negligence of its employees. The defendants appealed from the order of the trial court denying their joint motion for summary disposition under MCR 2.116(C)(7) (governmental immunity), (C)(8) (failure to state a claim), & (C)(10) (no genuine issue of material fact). The Michigan Court of Appeals reversed.
The appeals court first explained that the trial court’s conclusion that Canton Township could be vicariously liable was clearly erroneous. The Government Tort Liability Act (GTLA) states that “except as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.” The Michigan Supreme Court has defined the phrase “tort liability” in the GTLA to mean “all legal responsibility arising from a noncontractual civil wrong for which a remedy may be obtained in the form of compensatory damages.” Therefore, the broad grant of immunity provided in the GTLA to governmental agencies includes cases in which a plaintiff seeks to impose tort liability vicariously. The language of the gross negligence exception in the GTLA states that it only applies to officers, employees, volunteers, and members of a board, council, commission, or statutorily created task force. Therefore, unless there is a specifically enumerated exception allowing a lawsuit against the governmental agency, rather than merely its officers or employees, the governmental agency cannot be held vicariously liable for the acts of its employees.
The issue concerning the claim against the employees, the appeals court explained, was whether the plaintiff presented sufficient evidence to create a genuine issue of material fact that they engaged in gross negligence that was the proximate cause of the plaintiff’s injury. In his complaint, the plaintiff alleged that the reason the base did not disengage from the mount as designed when he slid into it was because the defendants failed to properly clean the underside of the base and failed to adequately maintain the ground around the base, such that excess dirt and debris built up on the underside of the base and along its outside edges. In support of his position, the plaintiff relied on the deposition testimony of his manager, who testified that, after the plaintiff’s injury, he struck the base with a bat several times, and it did not disengage. The plaintiff also relied on the affidavit of an expert, who averred that a buildup of dirt and residue on the back and lateral sides of the base can cause the base to fail to disengage. The expert concluded that since the base did not disengage when the manager hit it with a bat, there must have been a significant buildup of dirt and debris, which could only have been caused by a failure to properly maintain the base.
At their depositions, neither employee disputed that the underside of the bases was not regularly cleaned. One employee testified that the underside would rarely, if ever, have any accumulation of dirt or debris. The other employee simply testified that such cleaning was not required for the bases to function properly. The first employee did testify in detail, however, about how he would clean up along the outside of the base mounds. He described how he dragged the field with a device pulled behind a utility vehicle and how he cleaned the mounting assembly for each base. A daily maintenance check sheet also showed that he dragged each softball field and then set all of the bases at the sports complex on an almost daily basis. The supervisor of umpires at the sports complex also testified that the fields were always in excellent condition before each game.
Grossly negligent conduct, the appeals court explained, must be conduct that is “substantially more than negligent,” and “evidence of ordinary negligence does not create a genuine issue of material fact concerning gross negligence.” Michigan courts have been reluctant to find gross negligence when a plaintiff simply alleges that a defendant should have taken additional precautions above and beyond those taken.
The evidence in this case, the appeals court concluded, at most suggested that the defendants should have taken additional precautions with respect to maintaining the bases. The plaintiff did not offer any evidence to challenge the employee’s testimony that he dragged the field prior to setting all three bases on the day of the plaintiff’s injury. Although the plaintiff testified that the bases had not been removed while the infield was dragged, he had no personal knowledge on which to base this testimony and based this conclusion on the fact that the base did not disengage when he slid or when the manager hit it with a bat. Therefore, the only allegation of improper maintenance that the plaintiff was able to show was the employees’ failure to remove any embedded dirt or debris from the underside of the bases. This did not show a willful disregard for safety measures or a lack of concern for a significant risk of injury. At most, it showed that the employees could or perhaps should have been more careful in performing their duties. While such evidence could suggest negligence, it was not sufficient to raise a jury question concerning gross negligence.
While a factual dispute might exist with regard to whether the proximate cause of the plaintiff’s injury was the base’s failure to disengage or was the plaintiff’s action in not sliding properly, the appeals court explained, it need not consider the evidence of causation because the plaintiff’s failure to show gross negligence was sufficient to resolve this appeal. The appeals court therefore reversed the decision of the trial court in all respects and remanded for entry of summary disposition in favor of each defendant.
The sports accident attorneys at the Neumann Law Group represent people throughout Michigan from offices in Traverse City and Grand Rapids. Call us at (231) 463-0122 or at (616) 717-5666 for a free consultation.
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