            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                             COURT OF APPEALS



ESTATE OF RALPH BROWN, by VICTORIA                                   UNPUBLISHED
BROWN, Personal Representative,                                      August 27, 2019

               Plaintiff-Appellee,

v                                                                    No. 340533
                                                                     Oakland Circuit Court
SEAN WOLAN and JEFFREY VESCIO,                                       LC No. 2016-152431-NO

               Defendants-Appellants.


Before: MURRAY, C.J., and STEPHENS and RIORDAN, JJ.

MURRAY, C.J. (dissenting).

          Defendant Jeffrey Vescio, an experienced paramedic who has no record of prior incidents
involving the transporting of patients on stretchers, decided to individually transport plaintiff’s
decedent out of the nursing home while his partner completed some paperwork inside. As
evidenced by a video tape which captures the entire incident, as the sidewalk leads to the parking
lot, it takes a sharp turn. As the stretcher reached the turn, one of the back wheels slipped off the
edge (there are about two inches between the height of the sidewalk and the adjacent grass), and
the stretcher began to fall towards the grass. Being alert to the situation, the paramedic dropped
a medical bag that he was holding in one hand, and immediately secured the stretcher, which
kept it from falling to the ground. Meanwhile, his partner, defendant Sean Wolan, immediately
came to the scene, and helped restore the stretcher to an upright position. The plaintiff’s
decedent was transported to the hospital, and neither paramedic informed the hospital personnel
about the tipping of the stretcher.

       That is all this case is about, and these facts are undisputed. In other words, there is no
evidence that either defendant made a conscience decision to disregard any known dangers to the
decedent when transporting him down the sidewalk towards the ambulance. In addition, the
evidence establishes that neither defendant had any prior incidents or safety issues in
transporting other patients on a stretcher, even in the manner utilized with plaintiff’s decedent.
Despite this lack of evidentiary support, the majority opinion concludes that expert testimony
regarding the proper way to transport a patient on a stretcher, which the majority presumes was
known to defendants, creates a genuine issue of material fact as to whether these defendants’


                                                -1-
conduct reaches the high standard of a substantial lack of concern for whether injury results.
Suffice it to say, under these facts, plaintiff at best has established a negligence claim which is
not sufficient as a matter of law to establish a genuine issue of material fact as to whether
defendants’ conduct rises to the level of gross negligence. Accordingly, I would hold that
plaintiff’s suit is barred by governmental immunity, and should have been dismissed.

        In conducting a de novo review of the trial court’s order denying defendants’ motion for
summary disposition, Pew v Mich State Univ, 307 Mich App 328, 331; 859 NW2d 246 (2014),
it is apparent that no reasonable juror could conclude1 that defendants’ conduct rose to the high
level of gross negligence required by MCL 691.1407(2). Love v Detroit, 270 Mich App 563,
565; 716 NW2d 604 (2006). “Gross negligence” is statutorily defined as “conduct so reckless as
to demonstrate a substantial lack of concern for whether an injury results.”                  MCL
691.1407(8)(a). It is critically important to remember in cases involving statutory gross
negligence that “[e]vidence of ordinary negligence is not enough to establish a material question
of fact regarding whether a government employee was grossly negligent.” Chelsea Investment
Group, LLC v Chelsea, 288 Mich App 239, 265; 792 NW2d 781 (2010). To reach this high
threshold, one must establish an “almost . . . willful disregard of precautions or measures to
attend to safety and a singular disregard for substantial risks. It is as though, if an objective
observer watched the actor, he could conclude, reasonably, that the actor simply did not care
about the safety or welfare of those in his charge.” Tarlea v Crabtree, 263 Mich App 80, 90; 687
NW2d 333 (2004). This holds true because “[t]he plain language of the governmental immunity
statute indicates that the Legislature limited employee liability to situations where the contested
conduct was substantially more than negligent.” Maiden v Rozwood, 461 Mich 109, 122; 597
NW2d 817 (1999).

        Plaintiff alleges that four acts or omissions constituted gross negligence on the part of
defendants: (1) Vescio’s attempt to maneuver the stretcher down the ramp alone, with one hand;
(2) defendants’ failure to stabilize the decedent’s head and neck when they raised the stretcher to
the upright position; (3) defendants’ failure to promptly evaluate the decedent for head, neck, and
spinal injury; and (4) defendants’ failure to report the incident to emergency room (ER)
personnel.

       In Costa v Community Emergency Med Servs, Inc, 263 Mich App 572; 689 NW2d 712
(2004), aff’d 475 Mich 403 (2006), this Court considered whether the conduct of emergency
medical responders could be considered grossly negligent. The defendants, two municipal
emergency medical services employees, and two employees of a private emergency medical




1
  “The determination whether a governmental employee’s conduct constituted gross negligence
that proximately caused the complained-of injury under MCL 691.1407 is generally a question of
fact, but, if reasonable minds could not differ, a court may grant summary disposition.” Briggs v
Oakland Co, 276 Mich App 369, 374; 742 NW2d 136 (2007).




                                                -2-
services contractor,2 were dispatched to provide services for the plaintiff, who had been seen
lying unconscious on the ground after being struck and knocked down during a fight. Id. at 576.
When the defendants arrived, the plaintiff had been moved from the pavement to inside a
vehicle. Id. He became coherent after the defendants administered an ammonia inhalant, but
refused treatment, and signed a form acknowledging his refusal. Id. at 576-577. The plaintiff
later filed suit alleging that the defendants were grossly negligent by (1) failing to assess the
plaintiff’s vital signs; (2) failing to examine the plaintiff while he was unconscious; (3) failing to
properly assess his competence to refuse treatment; (4) failing to explain the potential
consequences of refusing treatment; and (5) failing to transport him to a hospital. Id. at 579-580.
This Court held that “[n]o reasonable juror could have found that [the defendants] behaved so
recklessly ‘as to demonstrate a substantial lack of concern for whether an injury results’ ” under
either the governmental tort liability act (GTLA), MCL 691.1401 et seq., or the emergency
medical services act (EMSA), MCL 333.20901 et seq. Id. at 579.
        Upon de novo review of the record, I would hold that no reasonable juror could conclude
that defendants’ conduct in regard to handling the stretcher and caring for the decedent during
and after the tipping incident rises to the level of statutory gross negligence. Although Vescio’s
pulling the stretcher with one hand, without Wolan guiding the other end, might not have been
the most cautious method for moving the stretcher, no reasonable trier of fact could find that it
constituted “conduct so reckless as to demonstrate a substantial lack of concern for whether an
injury results.” MCL 691.1407(8)(a).

        It is undisputed that Vescio had moved stretchers with only one hand on prior occasions,
without adverse outcomes. Although the usual procedure is for two persons to move a stretcher,
it is undisputed that Vescio attempted to compensate for the lack of a second person by
exercising the precaution of locking the rear wheels to prevent the stretcher from pivoting.
Although locking the wheels did not prevent the right wheel from veering off the walkway,
Vescio’s choice of an inadequate safeguard does not establish conduct so reckless as to
demonstrate a substantial lack of concern for the decedent’s safety. In fact, it shows that he was
concerned for decedent’s safety, but the measures taken were simply inadequate.

       Vescio’s reaction to the tipping stretcher also was not reckless. He immediately acted to
prevent the stretcher from hitting the ground by lowering the stretcher while positioning himself
beside the stretcher to break the fall. Vescio did not prevent the decedent’s head from moving,
but he prevented the more immediate and obvious harm of the decedent’s body hitting the
ground. Likewise, the evidence shows that Wolan acted immediately to prevent imminent harm


2
  Costa was decided under the governmental tort liability act (GTLA), MCL 691.1401 et seq.,
and the emergency medical services act (EMSA), MCL 333.20901 et seq. Similar to the GTLA,
the EMSA provides first responders, emergency medical technicians, and paramedics immunity
from liability for ordinary negligence, but not gross negligence. MCL 333.20965. The term
“gross negligence” as used in MCL 333.20965(1) is construed in the same manner as the GTLA,
to mean “ ‘conduct so reckless as to demonstrate a substantial lack of concern for whether an
injury results.’ ” McLain v Lansing Fire Dep’t, 309 Mich App 335, 343; 869 NW2d 645 (2015)
(citation omitted).


                                                 -3-
from the stretcher tipping. Wolan was reacting to an urgent situation, to prevent the decedent
from striking the ground. Again, defendants’ actions might have been inadequate, but no
reasonable juror could conclude that either defendant demonstrated a “substantial lack of concern
for whether an injury results.” MCL 691.1407(8)(a).

        With respect to plaintiff’s allegations that defendants failed to properly assess the
decedent for injury, failed to document the incident and their assessments, and failed to report
the incident to the hospital ER staff, these circumstances could support a jury-submissable issue
regarding negligence. Again, however, any deficiencies in Vescio’s response did not rise to the
level of gross negligence. Vescio testified that although he did not believe the incident involved
any mechanism for injury, he palpated the decedent’s neck. Vescio also testified that he did not
instruct Wolan to document the incident or report it to the hospital staff because reporting and
documentation were not part of Vescio’s duties in the ambulance run. Based on his prior
experience in working with Wolan, Vescio had no reason to doubt Wolan’s judgment in the
performance of his duties. Also, Vescio did not have supervisory authority over Wolan.
Vescio’s reliance on Wolan to properly document the incident and report it to the ER personnel,
which is not a disputed fact, is not indicative of a substantial lack of concern for the decedent’s
well-being.

        For his part, Wolan testified that he did not report or document the incident because he
did not believe the decedent had been injured. Even if Wolan exercised mistaken judgment in
this regard, no reasonable juror could conclude that this omission rises to the level of conduct so
reckless as to demonstrate a substantial lack of concern for whether an injury results, particularly
considering the absence of any immediately apparent injury or harm. The evidence establishes
that Wolan was, at worst, culpable for misjudging the incident and underestimating the
likelihood of injury, but Wolan’s failure to report and document the incident does not rise to the
level of gross negligence.

        Accordingly, in my judgment, defendants were entitled to summary disposition because
plaintiff failed to establish a genuine issue of material fact whether defendants’ conduct rose to
the level of gross negligence under the GTLA.



                                                             /s/ Christopher M. Murray




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