                          STATE OF MICHIGAN

                           COURT OF APPEALS



SAMUEL JEROME,                                                     UNPUBLISHED
                                                                   December 27, 2018
               Plaintiff-Appellant,

v                                                                  No. 335328
                                                                   Oakland Circuit Court
MICHAEL CRUM and CITY OF BERKLEY,                                  LC No. 2015-148401-CZ

               Defendants-Appellees.


Before: GLEICHER, P.J., and BOONSTRA and TUKEL, JJ.

GLEICHER, J. (concurring in part and dissenting in part).

       The majority affirms the summary dismissal of Samuel Jerome’s gross negligence claim
on both collateral estoppel and causation grounds. The majority’s analysis conflicts with binding
precedent and reflects a profound misunderstanding of these concepts. I dissent.

                                       I. BACKGROUND

       This case arises from Jerome’s prosecution for criminal sexual conduct involving his
stepdaughter, AK. AK provided investigators with four different versions of the events
underlying Jerome’s prosecution. Jerome alleges that defendant Michael Crum, the detective in
charge of the investigation, failed to provide the prosecutor or the defense with a videotape of
AK’s fourth and final interview. His complaint asserts that this omission constituted gross
negligence resulting in his prolonged incarceration, public identification as a sex offender,
mental anguish, and other tort damages.

        In her initial interview with Crum, AK accused Jerome of having sexually assaulted her
on two occasions. A forensic interview at CARE House followed, during which AK recanted
her allegations. Crum observed AK’s disavowal of any abuse during her forensic questioning
and characterized it in his notes as “a complete reversal of her recollection of the assaults.” A
few months went by. Crum reinterviewed AK. He represented to the prosecutor that during her
third interview, AK renewed her sexual assault allegations. Crum sought an arrest warrant.

        A prosecutor advised Crum that she needed additional information “critical to a
determination being made on this warrant request” before a warrant could issue. Crum again
interviewed AK. This fourth interview was videotaped. In it, Crum asked leading questions and



                                               -1-
directed AK’s answers. AK contradicted her earlier statements in several ways.1 Crum
nevertheless advised the prosecutor that AK’s interview was “identical” to the first one. He
neglected to reveal to the prosecutor that this interview had been videotaped.

       Armed with Crum’s reassurance about the strength and consistency of AK’s testimony,
the prosecutor followed through with an arrest warrant. Jerome went to jail on September 18,
2013, and remained incarcerated for almost a full year until the criminal case mistried, his bond
was reduced, and he was able to obtain release. The videotape of Crum’s final interview with
AK emerged only on the last day of Jerome’s trial, after the prosecution had rested. According
to Crum, “Sergeant Hadfield” found the videotaped interview and presented it to Crum after
Crum testified.

         Jerome alleges that the videotape precluded any possibility of a conviction and, if viewed
before the trial, would have derailed the prosecution’s case. The prosecuting attorney who tried
the case agreed, commenting after the parties watched the newly emerged videotape, “[T]here’s
some things that they have [in the videotape] that they could have worked with quite effectively
in their defense.” A few weeks later, the prosecutor decided not to retry the case, explaining in a
dismissal motion, “After further investigation, the People cannot sustain their burden of proving
the case beyond a reasonable doubt at trial.”

        Jerome brought suit against Crum in the federal district court asserting a claim under 42
USC § 1983, alleging unlawful arrest, malicious prosecution, false imprisonment, and denial of
due process under Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963). He
premised his allegations on Crum’s failure to produce the videotaped interview during discovery
in the criminal case. The complaint also stated state law claims for unlawful arrest, malicious
prosecution, false imprisonment, and gross negligence. The federal district court declined to
exercise supplemental jurisdiction over Jerome’s state law claims and dismissed them without
prejudice in an order issued on July 27, 2015.

        The federal district court ultimately entered a summary judgment in favor of Crum
regarding Jerome’s federal claims. The federal Court of Appeals for the Sixth Circuit affirmed,
finding that probable cause existed for Jerome’s arrest and prosecution and that the nolle
prosequi decision barred Jerome’s Brady claim. I agree with the majority that collateral estoppel
bars Jerome from pursuing the claims that rest on an absence of probable cause. Jerome’s gross
negligence claim does not fall within that category.




1
  Crum’s “questioning” included suggestive statements, such as “we all know the horrible things
that [Jerome] has done to you,” “no one is questioning whether or not you’re telling the truth,”
“we’re here to try and overcome the legal crap the defense attorney is going to try to pull,” and “I
know your mom made you change your story at CARE House.” AK’s recollection of the
assaults differed from the version she first provided regarding the extent of the touching,
Jerome’s location when he assaulted her, and several other pertinent details. The combination of
Crum’s improper techniques and AK’s inconsistencies made the tape a powerful weapon—for
the defense.

                                                -2-
                                 II. COLLATERAL ESTOPPEL

         A party relying on the doctrine of “collateral estoppel must show that (1) a question of
fact essential to the judgment was actually litigated and determined by a valid and final
judgment, (2) the same parties had a full and fair opportunity to litigate the issue, and (3) there
was mutuality of estoppel.” People v Trakhtenberg, 493 Mich 38, 48; 826 NW2d 136 (2012)
(cleaned up).2 Pertinent here is the first of these factors—that the factual issue was actually
litigated and determined in the prior proceeding. To satisfy that requirement, the issue had to
have been “essential” to the first court’s judgment, People v Gates, 434 Mich 146, 158; 452
NW2d 627 (1990), and “must be identical, and not merely similar” to the issue for which the
application of collateral estoppel is sought. Keywell & Rosenfeld v Bithell, 254 Mich App 300,
340; 657 NW2d 759 (2002) (cleaned up). The rules governing collateral estoppel must be
“strictly applied.” Id.

        None of the factual or legal issues decided by the Sixth Circuit satisfy the legal standards
for collateral estoppel, and none relate even remotely to the proximate cause element of Jerome’s
gross negligence claim.

         According to the majority, the Sixth Circuit determined that Crum’s withholding of the
videotaped interview did not proximately cause Jerome any injury or damage, eliminating his
ability to prove the necessary elements of gross negligence. Three fatal errors contaminate this
conclusion. First, the Sixth Circuit never made such a finding. The majority has flatly
mischaracterized that court’s opinion. Second, the Sixth Circuit never addressed whether
proximate cause existed for Jerome’s gross negligence claim based on Crum’s withholding of the
interview videotape; none of the legal aspects of this state law cause of action were “actually
litigated” or determined in its opinion. Third, the snippets the majority cherry-picks from the
Sixth Circuit opinion do not stand for the proposition for which the majority cites them.

        The majority asserts that “the Sixth Circuit expressly ruled that Crum’s failure to disclose
the tape of the August 21 interview did not cause any harm to plaintiff.” The Sixth Circuit
“expressly” said no such thing. The portion of the Sixth Circuit’s opinion subsequently
referenced by the majority addresses Crum’s § 1983 malicious prosecution claim. “The crux of
[that] case,” the Sixth Circuit explained, “is whether there was a lack of probable cause for the
prosecution.” Jerome v Crum, 695 Fed Appx 935, 942 (CA 6, 2017). A few sentences later, still
within its discussion of the § 1983 malicious prosecution claim, the Court stated, “Jerome cannot
show that Crum’s omission of the details of the August 21 interview was material to or
strengthened the case against him because AK stated the same version of events in the
preliminary examination that she did in the August 21 interview.” Id. The Sixth Circuit
elaborated that because the prosecution was aware of inconsistencies in AK’s testimonies and
“those differences were the same differences” as would have been revealed by the August 21
interview, “any diminution of probable cause based on those discrepancies would have already


2
  This opinion uses the new parenthetical (cleaned up) to improve readability without altering the
substance of the quotation. The parenthetical indicates that nonsubstantive clutter such as
brackets, alterations, internal quotation marks, and unimportant citations have been omitted from
the quotation. See Metzler, Cleaning Up Quotations, 18 J App Pract & Process 143 (2017).

                                                -3-
been revealed and Crum’s contention of consistent testimony would have had little impact upon
the decision to continue prosecution.” Id. at 942-943.

       These comments relate solely to whether probable cause existed to initiate and continue
Jerome’s prosecution. Probable cause is a complete defense to malicious prosecution. But not
so for gross negligence. The legal standards for malicious prosecution differ from those that
govern a gross negligence claim. Probable cause figures prominently in malicious prosecution
but does not control whether a plaintiff can establish damages in a gross negligence case
predicated on withheld evidence. This is but one reason that the Sixth Circuit’s adjudication of
Jerome’s federal malicious prosecution claim has no bearing on his state law gross negligence
averments.

       A federal claim for malicious prosecution “encompasses wrongful investigation,
prosecution, conviction, and incarceration.” Sykes v Anderson, 625 F3d 294, 308 (CA 6, 2010)
(cleaned up). To succeed on such a claim, a plaintiff must prove that “a criminal prosecution
was initiated” and that “the defendant influenced or participated in the decision to prosecute,”
“there was no probable cause for the prosecution,” the plaintiff was deprived of his liberty apart
from the initial arrest, and the criminal proceeding was resolved in the plaintiff’s favor. Id. at
308-309 (emphasis added) (cleaned up).

        The Sixth Circuit held that Jerome’s federal malicious prosecution claim failed because
he could not show a lack of probable cause, and because probable cause existed for his continued
detention regardless of AK’s inconsistent statements. In upholding the dismissal of Jerome’s
malicious prosecution claim, the Court elaborated, “[T]here was an untainted finding of probable
cause that was the source of Jerome’s detention; Crum’s report had nothing to do with it.”
Jerome, 695 Fed Appx at 942. The fact essential to the Sixth Circuit’s malicious prosecution
judgment was probable cause. Probable cause was the only issue “actually litigated” for
collateral estoppel purposes.

        Lack of probable cause is also an element of malicious prosecution under Michigan law.
Walsh v Taylor, 263 Mich App 618, 632-633; 689 NW2d 506 (2004). That is why the Sixth
Circuit’s finding has preclusive effect as to Jerome’s state law malicious prosecution claim.3

         Jerome’s gross negligence claim involves different elements and different proofs.
Governmental employees engaged in a governmental function are generally immune from tort
liability under Michigan law. A governmental actor’s gross negligence is an exception to this
rule. MCL 691.1407(2)(c). Gross negligence is “conduct so reckless as to demonstrate a
substantial lack of concern for whether an injury results.” MCL 691.1407(7)(a). The elements
of a gross negligence claim are gross negligence, proximate causation, and damages.

3
  Collateral estoppel also bars Jerome’s state law claims for unlawful arrest and false
imprisonment because an element of these three torts is that the defendants lacked probable
cause for Jerome’s arrest. Whether probable cause existed was a fact essential to the Sixth
Circuit’s judgment of Jerome’s § 1983 claims based on wrongful arrest, prosecution, and
detention. Therefore, the Sixth Circuit’s finding that probable cause existed collaterally estops
Jerome from pursuing these analogous state law claims.

                                               -4-
       Under the governmental tort liability act (GTLA), a plaintiff must prove that a
defendant’s gross negligence was “the” proximate cause of his injuries and damages. MCL
691.1407(2)(c). The Supreme Court recently clarified that in the governmental immunity
context, a proper proximate cause analysis focuses on “the foreseeability of the consequences of
the conduct of human actors” rather than on weighing the factual causes of an injury. Ray v
Swager, 501 Mich 52, 67; 903 NW2d 366 (2017).

        Jerome’s state court complaint alleges that Crum’s grossly negligent failure to turn over
the videotaped interview proximately caused Jerome’s prolonged and “wrongful” incarceration,
and avers that Jerome sustained typical tort damages (legal expenses, mental and emotional
injury, etc.) as a result. Jerome’s brief on appeal asserts that even if probable cause supported his
arrest, imprisonment and prosecution, Crum “withheld evidence and information from the
prosecutor and that when that information was disclosed, the charges . . . were dropped and the
prosecution ceased.” Given that the prosecution decided to forego its case against Jerome almost
immediately after the tape emerged, a reasonable inference follows that if Crum had disclosed
the tape’s existence earlier, the case against Jerome would have ended earlier. The actions
undertaken by the prosecution once the interview came to light supply the circumstantial
evidence creating a jury question as to whether Crum’s failure to timely disclose the videotape
represented the “one most immediate, efficient, and direct cause preceding” Jerome’s alleged
injuries. See Robinson v Detroit, 462 Mich 439, 459; 613 NW2d 307 (2000). The Sixth Circuit
did not reject this proximate causation theory; the Sixth Circuit never even considered it. In a
nutshell, that is why the collateral estoppel doctrine has no relevance.

        The majority professes to agree that “the determination of probable cause in the federal
action does not equate to a finding of gross negligence,” but proceeds to conflate probable cause
and proximate cause. A finding of one is not the same thing as a finding of the other. Yes, the
police had probable cause to arrest and prosecute Jerome. But this does not answer an entirely
different question—assuming that Crum was grossly negligent, was his gross negligence the
foreseeable cause of Jerome’s prolonged incarceration? Collateral estoppel applies when the
issues are “identical, and not merely similar.” Keywell & Rosenfeld, 254 Mich App at 340. The
majority overlooks this rule, just as it overlooks the obvious distinctions between the concepts of
probable cause and proximate cause. The terms proximate cause and probable cause share a
word, but not a meaning. Assessing facts to evaluate proximate cause is not the same as
engaging in a probable cause analysis.

         The majority commits an additional legal error, and an egregious one. The majority
opines, “The application of the doctrine of collateral estoppel is not limited to the same or similar
claims because it involves issue preclusion, not claim preclusion.” (Emphasis in original).
Therefore, the majority reasons, that Jerome brought a different claim in state court makes no
difference. This pronouncement entirely misses the point. Collateral estoppel precludes the
relitigation of an issue actually and necessarily determined in the prior proceeding. Gates, 434
Mich at 158. The issues must be identical. Further, “[a]n issue is necessarily determined only if
it is ‘essential’ to the judgment.” Id.

        Different claims usually involve different facts and different legal issues. The elements
of the claims supply a critical starting point because they establish the nature of the issues
actually and necessarily involved in the case. Only by focusing on the nature of the claim and

                                                -5-
the issues subsumed within that claim can a court determine whether an issue was actually and
necessarily decided in a previous case.

        The issue presented here—whether Crum’s gross negligence proximately caused
Jerome’s damages—was not determined by the Sixth Circuit. The Sixth Circuit’s opinion never
uses the words “gross negligence,” “causation,” or “proximate cause.” It never even uses the
word “cause” apart from the modifier “probable.” And the case cited by the majority in support
of its irrelevant proposition—Ditmore v Michalik, 244 Mich App 569, 577; 625 NW2d 462
(2001)—utterly refutes the majority’s position. In Ditmore, defendants sought to invoke
collateral estoppel, claiming that a prior case brought by the plaintiffs involved the same issue as
the case then before the court. In the earlier case, the plaintiffs sought a declaration that their
neighbors had no rights in a certain parcel of land. We held that the record revealed “no
indication that the trial court ever resolved the issue whether” the neighbors “had any claim or
right” in the plaintiffs’ land. Id. at 578.

         Ditmore teaches that courts must scrutinize the prior and present claims with great care to
determine whether the issues presented are truly identical. The majority fails to do so, holding
that a ruling on an issue relevant only to Jerome’s malicious prosecution claim precludes a
different claim presenting entirely different issues. The majority is oblivious to the relevant
facts: the law governing the two claims (malicious prosecution and gross negligence) is different,
the legal and factual issues involved are different, and the probable cause question decided by the
federal court is distinct from the proximate cause issue presented here.4

         Rather, the obvious federal corollary to Jerome’s gross negligence theory is the Brady
claim. Both the federal Brady claim and the state law gross negligence claim are predicated on
Crum’s failure to turn over the videotape. The critical distinction for collateral estoppel purposes
is that the Sixth Circuit did not dispose of Jerome’s Brady claim because Jerome failed to prove
that he had suffered any injuries or damages. The Sixth Circuit applied its precedent to hold that
a favorable resolution of a plaintiff’s criminal trial nixes a federal Brady claim because a
favorable trial result means that a plaintiff has not sustained a constitutional injury. That finding
is the only finding to which collateral estoppel applies. And that finding is not relevant to


4
 As Wright & Miller, Defining the Issue Precluded, 18 Fed Prac & Proc Juris § 4417 (3d ed),
explains:
       Courts have readily perceived that for purposes of preclusion, “[i]ssues are not
       identical if the second action involves application of a different legal standard,
       even though the factual setting of both suits be the same.” In many cases the
       differences in the legal standards are apparent and easily defeat claims of
       preclusion, particularly when new statutes have been adopted, when different
       plaintiffs may enjoy different rights, or when different choice-of-law standards
       apply. In other cases, careful examination has shown that different legal
       standards are masquerading behind similar legal labels, so that preclusion is again
       inappropriate. At times it may be possible to question the results of individual
       decisions, but the method of inquiry seems to be well understood. And of course
       similar legal labels may in fact present identical issues.

                                                -6-
Jerome’s gross negligence claim because it has nothing to do with proximate causation in his
gross negligence action. 5

                                            III. CAUSATION

        The majority’s fallback position is that no evidence supports that Crum’s failure to turn
over the videotape was “a cause, let alone the proximate cause,” of his damages. According to
the majority, “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.” This
alternative holding reflects a misunderstanding of basic evidentiary and causation principles. It
also ignores the rules governing summary disposition analysis.

        When considering a motion brought under MCR 2.116(C)(10), a trial court “must review
the record evidence, make all reasonable inferences therefrom, and determine whether a genuine
issue of material fact exists, giving the nonmoving party the benefit of reasonable doubt.”
Bertrand v Alan Ford, Inc, 449 Mich 606, 617-618; 537 NW2d 185 (1995). As appellate judges,
we must engage in precisely the same process. Specifically, we “must [also] make all reasonable
inferences in the nonmoving party’s favor.” Id. And when the record leaves open an issue on
which reasonable minds might differ, a genuine issue of material fact exists that precludes
summary disposition. West v General Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).

       The majority declares that as a matter of law, Jerome’s causation proofs amount to
speculation, as “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.” (Emphases added.)

       Perhaps.

       The majority has done a commendable job at conjuring some speculative refutations of
proximate cause. No evidence of record supports any of them; they are entirely made-up.
Perhaps defense counsel might offer some evidence supporting them at trial, and perhaps a jury
would see it the majority’s way. But the majority has constructed a proximate cause defense

5
  The legal principle driving the Sixth Circuit’s dismissal of Jerome’s Brady claim is that the
only injury relevant to a § 1983 claim is a constitutional injury. Brady concerns the right to a
fair trial. “Brady’s ultimate concern [is] ensuring that criminal defendants receive a
fundamentally fair trial.” Moldowan v City of Warren, 578 F3d 351, 378 (CA 6, 2009) (cleaned
up). Therefore, “liability for a Brady violation only exists when evidence sufficient to “ ‘put the
whole case in such a different light as to undermine confidence in the verdict’ ” is improperly
withheld. Johnson v Mitchell, 585 F3d 923, 933 (CA 6, 2009), quoting Kyles v Whitley, 514 US
419, 435; 115 S Ct 1555; 131 L Ed 2d 490 (1995). That is why success on a federal Brady claim
depends on a showing of “a reasonable probability that had the evidence been timely disclosed to
the defense the outcome would have been different.” Snow v Nelson, 634 Fed Appx 151, 156
(CA 6, 2015) (cleaned up). Translated to the language of tort law, this means that the only injury
for which a Brady claim can compensate is that of an unfair trial.

                                                -7-
from thin air and more importantly, it has utterly failed to view the evidence from the plaintiff’s
perspective.

       Jerome has advanced a proximate cause argument that hinges on actual facts, not
“perhaps.” Both direct and circumstantial evidence supply the foundation for a reasonable,
nonspeculative inference that had the videotape been disclosed sooner, Jerome would have
avoided a prolonged incarceration and a trial. I turn to that evidence.

       A jury could readily decide that Crum bore a continuing obligation to locate and turn
over the videotape as the case against Jerome made its way through the system. It naturally
follows that Crum’s gross negligence foreseeably led to Jerome’s inability to mount a
compelling defense, and to the prosecution’s inability to accurately evaluate the strengths and
weaknesses of its case. Day after day, month after month passed while a key piece of
exculpatory evidence remained concealed and Jerome remained jailed. The tape’s revelation
dramatically and quickly turned the parties’ positions upside down. After the prosecuting
attorney admitted to Judge Nichols that the tape was highly relevant to the defense and a mistrial
necessary, Jerome’s bond was promptly reduced from $500,000 to $10,000, with 10% to be
posted. And 16 days later, the prosecution abandoned the case.

        A mere coincidence? I think not. A “speculative” connection between the tape and the
abrupt nolle prosequi decision? Hardly. Rather, reasonable inferences arising from the actual
case facts support that Jerome created a jury-submissible issue of causation.

        Causation in a negligence action requires proof of both cause in fact and proximate cause.
Reeves v Kmart Corp, 229 Mich App 466, 479; 582 NW2d 841 (1998). Cause in fact “generally
requires showing that ‘but for’ the defendant’s actions, the plaintiff’s injury would not have
occurred.” Skinner v Square D Co, 445 Mich 153, 163; 516 NW2d 475 (1994). Proximate cause
involves an examination of the foreseeability of consequences, and a determination whether a
defendant should be held legally responsible for those consequences. Id. at 163. Normally, the
issue of causation belongs to the jury. Reeves, 229 Mich App at 480.

       When a motion for summary disposition challenges causation under to subrule (C)(10),
“the court’s task is to review the record evidence, and all reasonable inferences therefrom, and
decide whether a genuine issue of any material fact exists to warrant a trial.” Skinner, 445 Mich
at 161. “[I]f there is evidence which points to any 1 theory of causation, indicating a logical
sequence of cause and effect, then there is a juridical basis for such a determination,
notwithstanding the existence of other plausible theories with or without support in the
evidence.” Kaminski v Grand Trunk Western R Co, 347 Mich 417, 422; 79 NW2d 899 (1956)
(cleaned up).

        These general causation principles apply in a gross negligence setting, despite that the
plaintiff must prove that a defendant’s gross negligence was “the” proximate cause of his injuries
and damages. MCL 691.1407(2)(c). The evidence substantiates that Crum’s failure to bring the
videotape to the prosecutor’s attention at some point before the trial constituted a factual cause of
Jerome’s lengthy stay in jail. Ray dictates that the next question is whether Crum’s conduct was
also the proximate cause of Jerome’s alleged damages. That determination hinges on “whether it


                                                -8-
was foreseeable that the defendant’s conduct could result in the harm to the victim.” Ray, 501
Mich at 65. The Supreme Court emphasized in Ray that

       [d]etermining whether an actor’s conduct was “the proximate cause” under the
       GTLA does not involve a weighing of factual causes. Instead, so long as the
       defendant is a factual cause of the plaintiff’s injuries, then the court should
       address legal causation by assessing foreseeability and whether the defendant’s
       conduct was the proximate cause. [Id. at 74 (emphasis in original).]

        The majority avoids this analysis, likely because engaging in it inevitably points to a
conclusion that reasonable minds can differ. Was the withholding of the videotape the
foreseeable cause of Jerome’s damages? A jury could see it that way, given the cascade of
events that transpired immediately after it was produced. A jury would also be charged with
determining whether Crum’s grossly negligent failure to timely produce the videotape was “the”
proximate cause of Jerome’s damages. See id. at 76. At this point, the majority’s “perhaps”
conjectures might come into play, assuming the defense placed in evidence some factual
predicate for them. But we are not there yet. Rather, our job is to evaluate the evidence through
Jerome’s eyes. Viewed properly, the evidence points to a reasonable conclusion that Crum’s
failure to timely produce the videotape was “the” proximate cause of Jerome’s prolonged
incarceration.

                                          IV. SUMMARY

         The majority applies collateral estoppel to a proximate causation question that was
neither litigated in the federal court nor determined by the Sixth Circuit. Instead the majority
lifts various comments from the Sixth Circuit opinion, devoid of their context, and concludes that
they establish collateral estoppel. The majority’s approach flies in the face of the rule that we
must strictly apply collateral estoppel principles where issues are identical, and not merely
similar. There is no identity of issues here. In fact, when examined contextually and against the
caselaw backdrop, there is not even any similarity. The majority compounds this error by
invoking an alternative ground for affirmance rooted in proximate cause. Once again, however,
the majority skips over the facts, turns a blind eye to controlling legal principle, and settles on an
answer it favors.

       I would reverse the trial court’s grant of summary disposition regarding gross negligence,
and remand for further proceedings.




                                                              /s/ Elizabeth L. Gleicher




                                                 -9-
