                            STATE OF MICHIGAN

                            COURT OF APPEALS



SEAN WOOD,                                                           UNPUBLISHED
                                                                     July 18, 2017
               Plaintiff-Appellee,

v                                                                    No. 331386
                                                                     Macomb Circuit Court
JESSICA BEELS,                                                       LC No. 2014-002750-NI

               Defendant-Appellant

and

CITY OF MEMPHIS,

               Defendant.


Before: MURPHY, P.J., and TALBOT, C.J., and O’CONNELL, J.

PER CURIAM.

        In this action involving a motor vehicle accident, defendant Jessica Beels appeals as of
right the trial court’s order denying her motion for summary disposition filed pursuant to MCR
2.116(C)(7) (governmental immunity) and MCR 2.116(C)(10) (no genuine issue of material
fact). We affirm.

                                            I. FACTS

        The parties agree that at the time of the accident Beels was driving a marked police
vehicle, acting within the scope of her authority as the Memphis City Chief of Police, and
discharging a governmental function. Eyewitness Jeff Schenck swore that he did not observe the
vehicle’s “lights or sirens activated.” As described in more detail below, Beels failed to stop at a
stop sign at an intersection and then struck a FedEx truck driven by plaintiff Sean Wood.

       Sean’s brother, Kelly Wood, swore that Sean contacted him about the accident and that
he then went to the scene. Kelly swore that he spoke to Beels, he “could smell alcohol on
[Beels’s] breath,” and Beels “seemed unsteady on her feet.” Adam Cooley, who went to the
scene with Kelly, deposed that he also “could smell alcohol” on Beels’s breath, Beels “seemed
unsteady on her feet,” and Beels “consum[ed] multiple bottles of water.” Therefore, Cooley
believed that Beels was intoxicated.


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       Sean filed suit against Beels, alleging that her conduct was grossly negligent. Beels
moved for summary disposition, alleging that she had governmental immunity because her
conduct was not grossly negligent. The trial court denied Beels’s motion, reasoning that
reasonable minds could reach different conclusions as to whether Beels’s conduct was grossly
negligent and that there was a genuine issue of material fact as to whether Beels’s conduct was
grossly negligent.

                                  II. STANDARD OF REVIEW

      We review de novo a trial court’s conclusions regarding the applicability of governmental
immunity and denial of a motion for summary disposition. Moraccini v Sterling Hts, 296 Mich
App 387, 391; 822 NW2d 799 (2012).

        A trial court may grant summary disposition pursuant to MCR 2.116(C)(7) because of
“immunity granted by law.” To determine whether immunity bars a claim, courts “will accept
the allegations stated in the plaintiff’s complaint as true unless contradicted by documentary
evidence.” Kincaid v Cardwell, 300 Mich App 513, 522; 834 NW2d 122 (2013). Courts “view
the pleadings and supporting evidence in the light most favorable to the nonmoving party.” Id.
If a court determines that reasonable minds could not differ when assessing whether immunity
applies, it should grant summary disposition. See Jackson v Saginaw Co, 458 Mich 141, 146;
580 NW2d 870 (1998).

         A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual
sufficiency of a complaint. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). A
“trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted
by the parties . . . in the light most favorable to the party opposing the motion.” Id. A trial court
must grant the motion if it finds “no genuine issue as to any material fact” and determines that
“the moving party is entitled to judgment or partial judgment as a matter of law.” MCR
2.116(C)(10).

                                         III. ANALYSIS

       Beels argues that the trial court erred in denying her motion for summary disposition
because reasonable minds could not conclude that her conduct was grossly negligent. We
disagree.

       The governmental tort liability act, MCL 691.1401, et seq., provides in relevant part that

              (2) . . . [E]ach . . . employee of a governmental agency . . . is immune
       from tort liability for an injury to a person or damage to property caused by the . .
       . employee . . . while in the course of employment or service . . . if all of the
       following are met:

              (a) The . . . employee . . . is acting or reasonably believes he or she is
       acting within the scope of his or her authority.

             (b) The governmental agency is engaged in the exercise or discharge of a
       governmental function.

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                   (c) The . . . employee’s . . . conduct does not amount to gross negligence
          that is the proximate cause of the injury or damage. [MCL 697.1407.]

Therefore, governmental immunity does not cover a government employee’s grossly negligent
conduct. MCL 697.1407(2)(c),

       Evaluating whether conduct amounts to gross negligence is a fact-specific inquiry.
Sherman v David, 293 Mich 489, 491; 292 NW 464 (1940).1 Grossly negligent conduct refers to
conduct that is “substantially more than negligent.” Maiden, 461 Mich at 122. The act defines
gross negligence as “conduct so reckless as to demonstrate a substantial lack of concern for
whether an injury results.” MCL 691.1407(8)(a). Relatedly, case law has defined gross
negligence in the context of governmental immunity as exhibiting “almost a willful disregard of
precautions or measures to attend to safety and a singular disregard for substantial risks.” Tarlea
v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004).

         In this case, Sean alleged in his complaint that Beels exhibited a willful or wanton
disregard for the safety of others, operated a motor vehicle while under the influence, drove
faster than would permit her to stop within an assured clear distance ahead, failed to pay
attention to the roadway, failed to obey a traffic control device, failed to be attentive to traffic
conditions, failed to yield to traffic, and failed to maintain control of her vehicle. Evidence
before the trial court supports many of these claims. Kelly swore that he “could smell alcohol on
[Beels’s] breath” and that Beels “seemed unsteady on her feet” at the scene of the accident.
Cooley swore that he believed Beels was intoxicated at the scene because he “could smell
alcohol” on her breath, Beels “seemed unsteady on her feet,” and Beels “consum[ed] multiple
bottles of water.” Beels thought that the speed limit was 55 miles per hour. Sean testified that
Beels drove at a “really high rate of speed.” Beels testified that she was distracted while driving,
did not notice the stop sign, did not notice Sean’s FedEx truck at the intersection, and did not
stop. Schenck swore that Beels did not brake before the accident. When viewing the pleadings
and evidence in the light most favorable to Sean, reasonable minds could conclude that Beels’s
conduct constituted gross negligence and that a genuine issue of material fact exists. Therefore,
the trial court did not err in denying Beels’s motion for summary disposition.

         Beels argues that Kelly and Cooley’s affidavits in which they swore that Beels showed
signs of intoxication lack foundation. However, their affidavits note that they observed Beels on
scene after the accident, and lay witnesses can testify about “opinions or inferences . . . which are
(a) rationally based on the perceptions of the witness[ed] and (b) helpful to a clear understanding
of . . . the determination of a fact in issue.” MRE 701. Beels further suggests that the two
witnesses are not credible. However, courts do not assess or determine credibility when ruling
on a summary disposition motion. White v Taylor Distrib Co, Inc, 275 Mich App 615, 625; 739
NW2d 132 (2007), aff’d 482 Mich 136 (2008). Finally, Beels argues that other evidence shows
that she was not intoxicated, including Schenck’s affidavit, which did not describe her as
intoxicated, and a police report that did not indicate that she was intoxicated. However, this



1
    The multiple, unpublished, nonbinding cases cited by the parties on appeal illustrate this rule.


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evidence further illustrates the factual dispute regarding Beels’s intoxication and, ultimately, the
factual dispute regarding her gross negligence.

       We affirm.

                                                             /s/ William B. Murphy
                                                             /s/ Michael J. Talbot
                                                             /s/ Peter D. O’Connell




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