                          STATE OF MICHIGAN

                           COURT OF APPEALS



ESTATE OF STEVEN JACOB JAHN, by                                     UNPUBLISHED
STEVEN C. JAHN, Personal Representative,                            May 23, 2017

               Plaintiff-Appellant,

v                                                                   No. 329613
                                                                    St. Clair Circuit Court
WILLIAM T. FARNSWORTH, THOMAS L.                                    LC No. 15-000637-NO
VALKO, PATRICIA L. SPEILBURG and
MARYSVILLE PUBLIC SCHOOLS,

               Defendants-Appellees.


Before: SERVITTO, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

        Plaintiff appeals as of right an order granting summary disposition in favor of defendants
on the ground that plaintiff’s negligence and intentional or reckless infliction of emotional
distress claims were barred by governmental immunity. We affirm.

        On March 19, 2012, Steven Jacob Jahn (Jake) was 17 years old and a senior at Marysville
High School when he was suspected of stealing a teacher’s laptop computer which held
confidential student records as well as the teacher’s course work. Instead of contacting the
police and pursuing criminal charges as advised by the school district’s attorney, the matter was
handled as a school discipline issue. In accordance with the due process policy and guidelines
set forth in the student handbook and on the school’s website, Jake had the right to be informed
of the allegations and evidence, to offer a defense to the allegations and, if necessary, to appeal
the discipline.

       On that day, Jake was brought to the front office at about 11:00 a.m. and was informed by
the school principal, defendant William Farnsworth, and the assistant principal, defendant
Thomas Valko, that he was a suspect in the theft of the laptop computer.1 Jake was told that the
punishment for theft included a ten-day suspension, removal from all extracurricular activities,


1
  Defendant Patricia Speilburg was the acting superintendent and was involved in the
investigation of this matter.


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and a recommendation to the superintendent for a long-term suspension, i.e., suspension for the
remainder of the school year. Jake was also told that surveillance videotape showed him leaving
the teacher’s classroom with a bag about 20 to 30 seconds after the laptop computer was
disconnected from the school’s network. Jake asked to see the videotape, but was told it was not
available at that time. Although Jake initially denied taking the computer, he eventually
admitted that he took it and that it was at his house.

        After Jake’s admission, a conference call was placed to Jake’s father Steven, the personal
representative in this case. Jake told his father where the laptop computer was located in his
bedroom and Steven brought the laptop to the school at about 12:00 p.m. The laptop was
examined and it was determined that Jake had “reimaged” it with different software, and the user
name and password had been reset. Steven was advised of Jake’s punishment, including
suspension, but was also told that Jake could continue his education and complete his
coursework at home. There was also a discussion about the possibility that Jake may have been
involved in other thefts at the school involving computer equipment and cell phones, which Jake
denied. Steven testified that Farnsworth and Valko told Jake that, if he did not confess, they
were going to contact the police with regard to the other thefts, as well as notify the colleges that
Jake was interested in attending about the events that had occurred. Farnsworth and Valko both
denied that they made these statements to Jake. In any case, Valko escorted Jake to his car at
about 12:45 p.m., at which time Jake became upset. Jake eventually shook Valko’s hand and
thanked him for not involving the police. Valko then returned to his office and told Jake’s father
that Jake was upset and to keep an eye on him. Jake drove home and, within a short time, his
father arrived home as well.

        Jake was home with his family until about 4:00 p.m. or 4:30 p.m. when he left his house
without anyone’s knowledge. At about 5:20 p.m. Steven realized that Jake was not home, but
Jake’s cell phone was home. However, at about 5:00 p.m., the police were dispatched to the
scene of a fatal accident on I-69. Jake had driven his vehicle into a concrete pillar, causing the
car to catch fire. Jake died of traumatic injuries and his death was ruled a suicide.

         Three years later, this lawsuit was filed. In Count I, a negligence claim, plaintiff’s
allegations included that defendants breached their duties to Jake by: (a) interrogating him in a
closed room without his parents or counsel; (b) misrepresenting facts to him during their
interrogation; (c) intimidating him; (d) lying to him about the videotape showing him in
possession of the laptop; (e) threatening him about a felony conviction and his future college
plans; (f) suspending him for the remainder of the school year; and (g) failing to follow their
suicide prevention policies although Jake was suicidal. In Count II, an intentional or reckless
infliction of emotional distress claim, plaintiff alleged that because of defendants’ actions set
forth above, Jake was subjected to severe emotional distress that caused him to commit suicide.

        Subsequently, defendants filed a motion for summary disposition pursuant to MCR
2.116(C)(7), (8) and (10). Defendants noted that this was the second lawsuit filed by plaintiff
arising out of Jake’s suspension from school for stealing a teacher’s laptop computer. The first
case was filed in the federal district court and alleged procedural and substantive due process
violations under 42 USC § 1983. Jahn v Farnsworth, 33 F Supp 3d 866 (ED Mich, 2014). That
case was dismissed on defendants’ motion for summary judgment after the district court held that
Jake received all the procedural due process to which he was entitled and that his substantive due

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process rights were not violated. The Sixth Circuit Court of Appeals affirmed the decision “in
all respects.” Jahn v Farnsworth, 617 Fed Appx 453, 464 (CA 6, 2015).

         In their motion for summary disposition of the claims brought in this case, defendants
argued that plaintiff’s claims were barred by res judicata and collateral estoppel considering the
dismissal of the federal case. Defendants further argued that plaintiff’s claims were barred by
governmental immunity. In particular, the claims against the school district were barred because
the gross negligence exception only applies to individuals not governmental agencies and
governmental entities are absolutely immune from intentional tort claims. The negligence claim
against the individual defendants was also barred because: (1) defendants owed no duty to Jake
at the time of his death since he was not on school property and had been released to the custody
of his parents several hours earlier; (2) if defendants did owe Jake a duty, their actions related to
Jake’s suspension were not grossly negligent, i.e., did not constitute “conduct so reckless as to
demonstrate a substantial lack of concern for whether an injury results;” and (3) defendants were
not “the proximate cause” of Jake’s death because the one most immediate, direct cause of Jake’s
death was his own act of committing suicide. Further, defendants argued, plaintiff’s intentional
or reckless infliction of emotional distress claim must be dismissed because none of their actions
could be considered “extreme and outrageous.” In summary, defendants argued that plaintiff’s
case must be dismissed in its entirety.

        Plaintiff responded to defendants’ motion for summary disposition, arguing first that
neither res judicata nor collateral estoppel barred his claims because these state-law claims were
dismissed without prejudice by the federal court and the ultimate issues to be decided in this
action were not the same as those in the federal action. Second, the individual defendants were
not entitled to governmental immunity for the intentional or reckless infliction of emotional
distress because the issue whether they acted in good faith in their treatment of Jake was a
question for the jury. That is, reasonable minds could differ on the issue whether defendants’
conduct was “extreme and outrageous” considering defendants’ lies about the availability of the
videotape and their intimidation when they “teamed up to grill [Jake] in a closed room with no
counsel or adult in Jake’s corner present.” Third, the individual defendants were not entitled to
governmental immunity with regard to plaintiff’s negligence claim because questions of fact
existed on the issues whether they were grossly negligent by failing to follow their suicide
prevention policies and whether defendants’ actions were the proximate cause of Jake’s death.
In support of plaintiff’s claim, he referred to reports from an educational expert and a psychiatrist
which indicated that, in light of Jake’s apparent distress, defendants should have taken further
steps to assess his mental health. Accordingly, plaintiff argued, defendants’ motion for summary
disposition should be denied.

        Subsequently, the trial court issued a lengthy written opinion granting defendants’ motion
for summary disposition, holding that governmental immunity barred plaintiff’s claims. First,
the court rejected defendants’ argument that plaintiff’s claims were barred by res judicata or
collateral estoppel, holding that the gross negligence and intentional or reckless infliction of
emotional distress claims were not adjudicated in the federal case; rather, they were dismissed
without prejudice. Second, governmental immunity barred plaintiff’s claims against Marysville
Public Schools which was engaged in the education of students at the time of this discipline
issue. Third, governmental immunity barred plaintiff’s claims against the individual defendants.
The court concluded that reasonable minds could not find that defendants engaged in reckless or

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negligent conduct. The trial court rejected plaintiff’s argument that defendants should have
followed the school’s suicide prevention policies and noted that the facts relied upon by
plaintiff’s purported experts were not supported by the evidence but were, at best, speculative.
The trial court also noted that defendants owed no duty to Jake at the time he committed suicide
because he was off school grounds and had been released in to his father’s custody several hours
earlier. But even if defendants owed Jake such duties, those duties were not breached by
defendants. None of the specified actions by defendants were so reckless as to demonstrate a
substantial lack of concern for whether an injury results. Moreover, defendants’ conduct was not
the proximate cause of Jake’s death; rather, it was Jake’s decision to commit suicide that was the
one most immediate proximate cause of his death. Accordingly, the trial court concluded,
plaintiff’s claims of negligence and intentional or reckless infliction of emotional distress were
barred by governmental immunity. Thereafter, an order was entered granting defendants’ motion
for summary disposition. This appeal followed.

        Plaintiff argues that the trial court erred in concluding that governmental immunity barred
his intentional or reckless infliction of emotional distress claim because reasonable minds could
find that defendants’ conduct was “extreme and outrageous.” We disagree.

        The applicability of governmental immunity is reviewed de novo as a question of law.
Herman v Detroit, 261 Mich App 141, 143; 680 NW2d 71 (2004). We also review de novo a
trial court’s decision on a motion for summary disposition. Id. A motion brought under MCR
2.116(C)(7) may be supported by affidavits, depositions, admissions, or other documentary
evidence. Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008) (citation omitted). “If
no facts are in dispute, or if reasonable minds could not differ regarding the legal effect of the
facts, the question whether the claim is barred by governmental immunity is an issue of law.”
Pierce v Lansing, 265 Mich App 174, 177; 694 NW2d 65 (2005).

        Governmental employees, like the acting superintendent, high school principal, and
assistant principal in this case, are immune from intentional-tort liability if the challenged actions
were (1) undertaken during the course of employment and within the scope of authority, (2)
undertaken in good faith or without malice, and (3) discretionary in nature, not ministerial.
Odom, 482 Mich at 480. In this case, it is undisputed that the actions by the three individual
defendants relating to Jake’s suspension were undertaken in the course of their employment with
Marysville Public Schools, that disciplinary actions were within the scope of their authority, and
that such actions were discretionary in nature. Plaintiff claims, however, that the actions were
not undertaken in good faith or without malice. Instead, plaintiff argues, defendants’ actions
were extreme and outrageous and gave rise to a claim for intentional or reckless infliction of
emotional distress which was not barred by governmental immunity.2




2
  To the extent plaintiff argues that the trial court did not address this issue in detail, we note that,
even if that is true, this Court may address this legal issue because all of the facts necessary for
its resolution have been presented. See Sutton v Oak Park, 251 Mich App 345, 349; 650 NW2d
404 (2002).


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        To establish a claim of intentional or reckless infliction of emotional distress, the plaintiff
must show: “(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and
(4) severe emotional distress.” Lewis v LeGrow, 258 Mich App 175, 196; 670 NW2d 675 (2003)
(quotation marks and citation omitted). To be considered “extreme and outrageous,” the
defendant’s conduct must be “so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in
a civilized community.” Id. (quotation marks and citation omitted). It is generally the trial
court’s determination whether conduct is so extreme and outrageous as to allow recovery unless
reasonable minds could disagree. Id. at 197. The second element of intent or recklessness may
be proven by showing that the defendant specifically intended to cause emotional distress to the
plaintiff or that the defendant’s conduct was so reckless that “any reasonable person would know
emotional distress would result.” Id. (quotation marks and citation omitted).

        Plaintiff argues that reasonable minds could differ on the issue whether defendants’
conduct was so extreme and outrageous that recovery is permitted. In support of his claim
plaintiff asserts that defendants intimidated, threatened, lied to, and badgered Jake during the due
process hearing which led to Jake’s confession that he did, in fact, steal the teacher’s laptop.
And defendants continued to threaten Jake about other school thefts even after he confessed to
stealing the laptop. However, we have reviewed the record and find no evidence of conduct that
was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Id.
at 196.

         Plaintiff’s allegations of “extreme and outrageous” conduct include that defendants Valko
and Farnsworth: questioned Jake in a closed room without his parents present; lied to Jake about
the availability of the videotape showing him leaving the teacher’s classroom within seconds of
the laptop being disconnected from the school network; intimidated Jake by their positions of
authority and with their questioning about the stolen laptop; told Jake that they would notify the
police about other thefts at the school; told Jake that he could be convicted of a felony with
regard to other property stolen at the school if he was involved; threatened to notify the colleges
that Jake was interested in attending about the events that had occurred; told Jake that he was
definitely suspended for the remainder of the school year; and told Jake that he could not
participate in any extracurricular activities for the remainder of the year. Reasonable minds
could not conclude that any of these alleged actions constituted “extreme and outrageous”
conduct so as to subject defendants to liability on this claim. And contrary to plaintiff’s claim,
the trial court did not confine its analysis to the events that occurred only during the due process
hearing. Rather, the trial court simply noted that the purported “threats” made by defendants did
not coerce Jake to confess to stealing the laptop because most of the alleged “threats” were made
after Jake’s confession. Further, the court noted, the purported “threats” did not coerce Jake to
confess to stealing other property that was missing at the school because he continued to deny
involvement in that regard. Accordingly, the trial court properly concluded that plaintiff’s claim
of intentional or reckless infliction of emotional distress was barred by governmental immunity.

       Plaintiff also argues that the trial court erred in concluding that governmental immunity
barred his negligence claim because the individual defendants’ actions were grossly negligent
and were the proximate cause of Jake’s death. We disagree.


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        Pursuant to MCL 691.1407(2), governmental employees are immune from liability for
negligent torts if the employee caused the alleged injury while acting in the course of
employment and (1) was acting within the scope of authority, (2) the government agency was
engaged in a governmental function, and (3) the employee’s conduct does not amount to gross
negligence that was the proximate cause of the alleged injury. See also Odom, 482 Mich at 479-
480. “Gross negligence” is defined by the statute as “conduct so reckless as to demonstrate a
substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a). “The phrase
‘the proximate cause’ is best understood as meaning the one most immediate, efficient, and
direct cause preceding an injury.” Robinson v Detroit, 462 Mich 439, 459; 613 NW2d 307
(2000).

        Plaintiff argues that the issue whether the individual defendants’ conduct was grossly
negligent was a question of fact for the jury. In particular, plaintiff claims, defendants were
grossly negligent because they failed to follow their suicide prevention policies considering the
danger of suicide. However, as the trial court held, there was no evidence that Jake was, in fact,
suicidal while he was on school property. Although Jake did become upset while being escorted
to his car, there was no evidence that Jake was suicidal at that time or that defendants should
have considered Jake to be suicidal. Even Jake’s father, who was at the school with Jake, saw no
signs that Jake was extremely upset or was considering suicide otherwise Jake’s father clearly
would not have allowed him to drive home alone. Further, Jake did not leave the school in his
vehicle and immediately commit suicide; rather, he was home with his family for several hours
before he committed suicide.

        Plaintiff also argues that the trial court improperly dismissed the opinions of his two
experts that the school should have recognized that Jake was “distraught” and reacted with some
type of suicide intervention. But, as the trial court held, even if Jake was “distraught,” there was
no evidence that he was suicidal while on school property. We also reject plaintiff’s argument
that the trial court improperly applied the doctrines of res judicata and collateral estoppel to
dismiss plaintiff’s negligence claim. The trial court’s opinion merely indicated that the “expert
report” authored by Dr. Mary Spence and submitted in support of plaintiff’s federal district court
case did not tend to establish plaintiff’s claim of gross negligence. In particular, Dr. Spence had
stated in her conclusions that Jake “was not afforded mandated due process rights in the form of
an appeal, including a formal hearing with an impartial party” but, the trial court noted, that legal
conclusion was rejected by the federal courts. In any case, the trial court properly held that the
evidence of record did not support plaintiff’s claim that the individual defendants’ conduct of
failing to initiate suicide policies was “so reckless as to demonstrate a substantial lack of concern
for whether an injury results.” MCL 691.1407(8)(a); see also Tarlea v Crabtree, 263 Mich App
80, 90; 687 NW2d 333 (2004).

        Plaintiff further argues that a question of fact existed as to whether defendants were
grossly negligent when they lied to Jake about the availability of the videotape, told Jake that if
he did not confess to other thefts at the school they would contact the colleges he wanted to
attend and advise them of these matters, and told Jake they would contact the police and he could
be convicted of a felony if he was involved in the other thefts. However, as the trial court held,
reasonable jurors could not find gross negligence from the evidence presented. See Tarlea 263
Mich App at 90. None of the conduct complained of by plaintiff was “so reckless as to
demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a).

                                                -6-
        Moreover, as the trial court held, even if any of defendants’ actions constituted gross
negligence, defendants were still entitled to governmental immunity with regard to plaintiff’s
negligence claim because defendants’ actions were not “the proximate cause” of Jake’s death.
See Robinson, 462 Mich at 462, citing MCL 691.1407(2)(c). The one most immediate and direct
cause of Jake’s death was not defendants’ conduct that occurred hours earlier in the day; rather,
it was Jake’s own conduct, i.e., his apparent decision to intentionally drive his vehicle into a
concrete pillar which caused him to sustain fatal injuries. See Cooper v Washtenaw Co, 270
Mich App 506, 509; 715 NW2d 908 (2006). Accordingly, the trial court properly concluded that
plaintiff’s negligence claim against the individual defendants was barred by governmental
immunity.3

       Affirmed. Defendants are entitled to tax costs as the prevailing parties. MCR 7.219(A).




                                                           /s/ Deborah A. Servitto
                                                           /s/ Mark J. Cavanagh
                                                           /s/ Karen M. Fort Hood




3
 Plaintiff does not challenge on appeal the dismissal of his claims as against defendant
Marysville Public Schools.


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