                          STATE OF MICHIGAN

                           COURT OF APPEALS



ROBERT OSTROWSKI,                                                   UNPUBLISHED
                                                                    July 27, 2017
               Plaintiff-Appellee,

v                                                                   No. 331949
                                                                    Wayne Circuit Court
CHARTER TOWNSHIP OF CANTON, MARK                                    LC No. 15-007921-NO
HUMBURGER, and MATTHEW SARNA,

               Defendants-Appellants.


Before: GLEICHER, P.J., and M. J. KELLY and SHAPIRO, JJ.

PER CURIAM.

        Defendants appeal as of right 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). We reverse.

        Plaintiff filed this lawsuit following injuries he sustained while playing softball at a
sports complex operated by defendant Canton Township. Defendant Humburger is an employee
of Canton Township in its Parks Department; he oversees maintenance at the softball fields.
Defendant Sarna is also employed by Canton Township as a laborer in the Parks Department,
and his duties include daily maintenance of the softball fields. Plaintiff’s injury occurred as he
attempted to slide into second base. Plaintiff alleges 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 attributes to
the gross negligence of defendants.1 Defendants claim that plaintiff’s injury was the result of his
improper slide. The trial court concluded that a genuine issue of material fact existed with
regard to whether defendants Humburger and Sarna engaged in gross negligence that was the




1
 Canton Township uses Soft Touch bases at the sports complex, which are designed to flex and
absorb energy as a player slides into them. If the player slides forcefully enough, the base is
designed to disengage from the mound.



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proximate cause of plaintiff’s injuries. Additionally, the trial court concluded that defendant
Canton Township could be held vicariously liable for any gross negligence of its employees.2

        Initially, the trial court’s conclusion that Canton Township could be vicariously liable
was clearly erroneous. The Government Tort Liability Act, MCL 691.1401 et seq., states that
“[e]xcept 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.”
MCL 691.1407(1). The Supreme Court has defined the phrase “tort liability” in MCL
691.1407(1) to mean “all legal responsibility arising from a noncontractual civil wrong for
which a remedy may be obtained in the form of compensatory damages.” Mick v Kent Co
Sheriff’s Dep’t, 494 Mich 367, 385; 835 NW2d 545 (2013) (emphasis added). Therefore, the
broad grant of immunity provided in MCL 691.1407(1) to governmental agencies includes cases
where a plaintiff seeks to impose tort liability vicariously. The language of the gross negligence
exception in MCL 691.1407(2) 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 suit against the governmental agency, and
not merely its officers or employees, the governmental agency cannot be held vicariously liable
for the acts of its employees. See Ross v Consumer Power Co, 420 Mich 567, 621-625; 363
NW2d 641 (1985) (“A governmental agency can be held vicariously liable only when its officer,
employee, or agent, acting during the course of employment and within the scope of authority,
commits a tort while engaged in an activity which is nongovernmental or proprietary, or which
falls within a statutory exception.”) abrogated by statute on other grounds as stated in Jones v
Bitner, 300 Mich App 65, 74-75; 832 NW2d 426 (2013).3

       The issue concerning the claim against Humburger and Sarna, is whether plaintiff
presented sufficient evidence to create a genuine issue of material fact that Humburger and Sarna
engaged in gross negligence that was the proximate cause of plaintiff’s injury. See MCL
691.1407(2)(c).4 In his complaint, plaintiff alleged that the reason the base did not disengage
from the mount as designed when he slid into it was because Humburger and Sarna failed to
properly clean the underside of the base and failed to adequately maintain the ground around the



2
 We review the trial court’s grant of summary disposition “de novo to determine if the moving
party is entitled to judgment as a matter of law.” Maiden v Rozwood, 461 Mich 109, 118; 597
NW2d 817 (1999).
3
  Ross was decided prior to statutory amendments that provided governmental immunity to
individuals, such as employees and officials of governmental agencies, and, therefore, decided
that such immunity existed under the common law. Jones, 300 Mich App at 74-75. After the
legislature provided this immunity via statute, the statutory language, and not Ross, controls the
applicability of immunity to individual government employees and officials. Id.
4
  Plaintiff has not disputed, either before the trial court or on appeal, that Sarna and Humburger
were acting within the course of their employment and within the scope of their authority and
that Canton Township was engaged in the exercise of a governmental function. See MCL
691.1407(2)(a) & (2)(b).



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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, plaintiff relies on the deposition testimony of his manager,
Gary Turnbull, who testified that, after plaintiff’s injury, he struck the base with a bat several
times, and it did not disengage. Plaintiff also relies on the affidavit of his expert, Shawn Pender.5
Pender averred that a buildup of dirt and residue on the back and lateral sides of the bases can
cause the base to fail to disengage. Pender concluded that because the base did not disengage
when Turnbull hit it with a bat, that 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 Humburger nor Sarna disputed that the underside of the
bases was not regularly cleaned. Sarna testified that the underside would rarely, if ever, have
any accumulation of dirt or debris. Humburger simply testified that such cleaning was not
required for the bases to function properly. Sarna did testify in detail, however, about how he
would clean up along the outside of the base mounds. Sarna 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 shows that Sarna dragged each softball field and
then set all the bases at the sports complex on an almost daily basis. The supervisor of umpires
at the sports complex, Larry White, also testified that the fields were always in excellent
condition before each game.

        Grossly negligent conduct 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.” Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999). We have
been reluctant to find gross negligence where a plaintiff simply alleges that a defendant should
have taken additional precautions above and beyond those employed. See Tarlea v Crabtree,
263 Mich App 80, 90-92; 687 NW2d 333 (2004) (requiring students to exercise in high
temperatures and high humidity was not gross negligence where the defendants also required
student athletes to obtain a physical examination before participation, provided student athletes
with adequate water and food, and allowed breaks) and Vermilya v Dunham, 195 Mich App 79,
83; 489 NW2d 496 (1992) (failing to take additional precautions to prevent students from
playing on a faulty soccer goal was not gross negligence where the defendant, a school principal,
asked maintenance to determine how to better anchor the goal, made announcements instructing
the children to stay off the goal, and disciplined students for climbing on the goal). In contrast,
we have characterized gross negligence “as a willful disregard of safety measures and a singular
disregard for substantial risks.” Oliver v Smith, 290 Mich App 678, 685; 810 NW2d 57 (2010),
see also Bellinger v Kram, ___ Mich App ___, ___; ___ NW2d ___ (2017) (Docket No.
331199), slip op at 4-5 (evidence of gross negligence existed where the defendant, a shop
teacher, took active steps to remove and discourage the use of the only safety device that could
prevent a specific table saw injury and then pressured the plaintiff into using the table saw in the
unsafe condition).




5
 Pender’s resume states that he was previously a professional baseball player with the Pittsburg
Pirates and that he has also worked as a MLB scout and college level coach.



                                                -3-
        The evidence in this case at most suggests that defendants should have taken additional
precautions with respect to maintaining the bases. Plaintiff has not offered any evidence to
challenge Sarna’s testimony that he dragged the field prior to setting all three bases on the day of
plaintiff’s injury. Although 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 from the fact that the base did not disengage when he slid or when Turnbull hit it
with a bat. Therefore, the only allegation of improper maintenance that plaintiff was able to
show evidence of, was Humburger’s and Sarna’s failure to remove any imbedded dirt or debris
from the underside of the bases. This does not show a willful disregarded for safety measures or
a lack of concern for a significant risk of injury.6 At most, it shows that Humburger and Sarna
could or perhaps should have been more careful in performing their duties. While such evidence
could suggest negligence, it is not sufficient to raise a jury question concerning gross negligence.

        While a factual dispute may exist with regards to whether the proximate cause of
plaintiff’s injury was the base’s failure to disengage or was plaintiff’s actions in not sliding
properly, we need not consider the evidence of causation as plaintiff’s failure to show gross
negligence is sufficient to resolve this appeal. We reverse the decision of the trial court in all
respects and remand for entry of summary disposition in favor of each defendant.

       Reversed. We do not retain jurisdiction.



                                                             /s/ Elizabeth L. Gleicher
                                                             /s/ Michael J. Kelly
                                                             /s/ Douglas B. Shapiro




6
  The only evidence in the record that even suggests Sarna and Humburger should have been
aware that failure to clean the underside of the bases could result in injury is a base set-up
instruction sheet that directs that the underside be cleaned prior to attaching it to the mount and
that contains a general disclaimer stating that a risk of injury “could increase” for failure to
follow the set-up procedure. However, a general disclaimer warning of the possibility of injury
for failure to follow general instructions is not equivalent to knowledge that failure to employ a
specific safety technique is necessary to prevent against a substantial risk of injury. Therefore,
even if failed to follow these general instructions, such conduct does not evidence “conduct so
reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL
691.1407(8)(a).



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