Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  May 29, 2020                                                                  Bridget M. McCormack,
                                                                                                 Chief Justice

  159093                                                                                David F. Viviano,
                                                                                        Chief Justice Pro Tem

                                                                                    Stephen J. Markman
                                                                                         Brian K. Zahra
  SAMUEL JEROME,                                                                   Richard H. Bernstein
           Plaintiff-Appellant,                                                    Elizabeth T. Clement
                                                                                   Megan K. Cavanagh,
                                                                                                      Justices
  v                                                      SC: 159093
                                                         COA: 335328
                                                         Oakland CC: 2015-148401-CZ
  MICHAEL CRUM and CITY OF BERKLEY,
           Defendants-Appellees.

  _____________________________________/

         On March 5, 2020, the Court heard oral argument on the application for leave to
  appeal the December 27, 2018 judgment of the Court of Appeals. On order of the Court,
  the application is again considered. MCR 7.305(H)(1). In lieu of granting leave to
  appeal, we AFFIRM the judgment of the Court of Appeals.

         Plaintiff, Samuel Jerome, brought a tort action against defendants, Lieutenant
  Michael Crum and the city of Berkley. Relevant to this appeal, Mr. Jerome’s action
  advanced a claim for gross negligence. Defendants sought summary disposition based
  upon both collateral estoppel and Mr. Jerome’s having failed to advance evidence
  permitting a reasonable jury to conclude that Lieutenant Crum constituted the proximate
  cause of Mr. Jerome’s arrest and imprisonment. The trial court granted summary
  disposition based upon Lieutenant Crum’s collateral-estoppel argument and Mr. Jerome
  appealed. In the Court of Appeals, defendants renewed both arguments in support of
  summary disposition. The Court of Appeals affirmed the trial court’s grant of summary
  disposition. First, the Court of Appeals agreed with the trial court’s collateral-estoppel
  analysis. Jerome v Crum, unpublished per curiam opinion of the Court of Appeals,
  issued December 27, 2018 (Docket No. 335328), pp 7-8. Second, as an alternative
  ground for affirming the grant of summary disposition, the Court of Appeals stated:

        Moreover, assuming that collateral estoppel was not applicable . . . ,
        summary disposition would be appropriate under MCR 2.116(C)(10) for
        lack of a genuine issue of material fact. For the reasons already outlined
        above, there is no evidence to show that Crum’s failure to turn over the
        video recording of the August interview was a cause, let alone the
        proximate cause, of plaintiff’s continued prosecution or imprisonment.
        Any suggestion that the prosecution would have dropped the case against
        plaintiff sooner if it had been aware of the tape earlier is to engage in
        impermissible speculation. Any reliance on the prosecution’s ultimate
        decision to decline pursuing the case after the mistrial is misplaced because
        there is nothing in the record to show that the prosecution’s decision was
                                                                                            2

       based on the existence of the videotape. Indeed, there are a host of possible
       reasons not related to the late production of the videotape why the
       prosecution could have decided to forgo a second trial, including that the
       witnesses perhaps testified in an unexpected way at the first trial or that the
       complainant perhaps simply decided that she was not going to testify or
       cooperate any more after having already been subjected to several
       interviews and having already testified in court twice. Hence, plaintiff
       cannot maintain his claim of gross negligence, and summary disposition is
       properly entered in favor of defendant. Thus, assuming the trial court erred
       when it granted summary disposition on plaintiff’s gross negligence claim
       on the basis of collateral estoppel, we nonetheless affirm because summary
       disposition was warranted under MCR 2.116(C)(10). [Id. at 8 (emphasis
       added) (citation omitted).]
Thus, independent and alternative grounds supported the Court of Appeals’ affirmance of
the trial court’s grant of summary judgment.

       In his application for leave to appeal in this Court, Mr. Jerome challenges the
Court of Appeals’ conclusion that collateral estoppel barred his claim. Mr. Jerome,
however, failed to present as an issue for review whether the Court of Appeals also erred
in reaching its alternative holding that he failed to advance evidence to support the
causation element of his gross-negligence claim. And neither Mr. Jerome’s application
for leave to appeal nor his supplemental brief following this Court’s order scheduling oral
argument on his application can fairly be read as challenging that aspect of the Court of
Appeals’ basis for affirming the grant of summary disposition. Accordingly, even if we
were to conclude that collateral estoppel did not bar Mr. Jerome’s claim, he has failed to
place the Court of Appeals’ alternative and independent ground for affirming the trial
court’s grant of summary disposition before this Court. Therefore, we find it unnecessary
to reach the merits of the collateral-estoppel issue and AFFIRM the judgment of the
Court of Appeals.

       CAVANAGH, J. (concurring).

        I concur in the order affirming the judgment of the Court of Appeals but write
separately because I believe that summary disposition of plaintiff’s gross-negligence
claim was proper on the ground that plaintiff failed to raise a genuine issue of material
fact as to causation.

       Plaintiff filed actions in both state and federal court against the city of Berkley and
Lieutenant Michael Crum, the police officer who had criminally investigated plaintiff for
the alleged sexual abuse of plaintiff’s step-daughter, AK. The investigation resulted in
criminal charges that were later dropped. Plaintiff’s complaint in state court alleged
unlawful arrest, false imprisonment, malicious prosecution, and gross negligence. The
state district court determined that probable cause existed to bind plaintiff over on
charges based on the testimony of the victim alone and did not consider any statements or
testimony of Lieutenant Crum. Further, the federal district and appellate courts
                                                                                                               3

determined that any omissions or inconsistent statements by Lieutenant Crum, and his
failure to disclose a videotape of an interview with AK, were not material to the existence
of probable cause. Jerome v Crum, unpublished opinion of the United States District
Court for the Eastern District of Michigan, issued August 25, 2016 (Case No. 15-12302);
2016 WL 4475010, p *4 (“Any inconsistencies between [AK’s] accounts of the alleged
abuse were known to the prosecutor and defense attorney as of the time of the
preliminary exam, yet the judge found probable cause based upon [AK’s] testimony. If
the August 21 video had been available at the preliminary exam, Plaintiff cannot show
that it would have changed the judge’s finding of probable cause.”); Jerome v Crum, 695
F Appx 935, 942 (CA 6, 2017) (“[Plaintiff] cannot show that Crum’s omission of the
details of the August 21 interview was material to or strengthened the case against him
because A.K. stated the same version of events in the preliminary examination that she
did in the August 21 interview.”). Finally, the transcript of the criminal proceedings
indicates that the mistrial was granted because the late disclosure of the videotape
jeopardized plaintiff’s right to a fair trial, not because the disclosure of the videotape
obviated probable cause.

       Given this factual record, there is no dispute that probable cause to continue the
prosecution and incarceration of plaintiff existed up to and including the time that the
mistrial was granted. While, conceivably, a claim for gross negligence could be
sustained even where probable cause supports an arrest, prosecution, and continued
incarceration, plaintiff failed to produce any evidence that his prosecution and
incarceration would not have continued but for the actions of Crum. Under these facts, I
agree with the Court of Appeals that plaintiff failed to raise a genuine issue of material
fact as to causation and that summary disposition of plaintiff’s gross-negligence claim
was proper under MCR 2.116(C)(10).




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         May 29, 2020
       t0527
                                                                             Clerk
