                          STATE OF MICHIGAN

                           COURT OF APPEALS



CINTHIA S. MURILLO,                                                 UNPUBLISHED
                                                                    December 10, 2015
               Plaintiff-Appellant,

v                                                                   No. 323027
                                                                    Kent Circuit Court
KEVIN MICHAEL HAFF, a/k/a KEVIN                                     LC No. 13-009194-NO
MICHAEL HAFF-ROBYDEK,

               Defendant-Appellee.


Before: OWENS, P.J., and MURPHY and HOEKSTRA, JJ.

PER CURIAM.

       Plaintiff Cinthia S. Murillo appeals as of right the trial court’s order granting defendant
Kevin Michael Haff’s motion for summary disposition pursuant to MCR 2.116(C)(7) and (10).
We affirm.

        On March 18, 2011, plaintiff was a student in the 10th grade at the Godfrey-Lee
Alternative School in Kent County. At approximately 2:50 p.m., after classes ended, she walked
onto the grounds of the Godfrey-Lee High School intending to confront a student. A physical
fight ensued between plaintiff and two students. Defendant, a special education teacher at the
Godfrey-Lee High School, was inside the school building and was notified by another school
employee about the fight. Defendant and three other teachers went to the fight and intervened.
Defendant testified at his deposition that he restrained plaintiff, asked her whether she was
alright, and released her when she said that she was fine. Then, plaintiff attacked a girl that was
being restrained by another teacher. Defendant again restrained plaintiff. She resisted his
restraint. During the struggle, plaintiff’s right arm was broken.   On September 26, 2013,
plaintiff sued defendant on two counts, negligence and assault and battery. Defendant argued
that he was immune from liability under MCL 380.1312 and MCL 691.1407 and moved the trial
court for summary disposition. The trial court granted his motion on both counts.

       We review de novo a trial court’s ruling on a motion for summary disposition. Spiek v
Dep’t of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). The applicability of immunity is
likewise reviewed de novo on appeal. Snead v John Carlo, Inc, 294 Mich App 343, 354; 813
NW2d 294 (2011). MCR 2.116(C)(7) provides for summary disposition when a claim is “barred
because of . . . immunity granted by law . . . .” The movant may submit affidavits, depositions,


                                                -1-
admissions, or other documentary evidence in support of the motion if substantively admissible.
Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008). The complaint’s contents are
accepted as true unless contradicted by the documentary evidence. Id. This Court must consider
the documentary evidence in a light most favorable to the nonmoving party for purposes of MCR
2.116(C)(7). RDM Holdings, Ltd v Continental Plastics Co, 281 Mich App 678, 687; 762 NW2d
529 (2008). “If there is no factual dispute, whether a plaintiff’s claim is barred under a principle
set forth in MCR 2.116(C)(7) is a question of law for the court to decide.” Id. When, however, a
relevant factual dispute does exist, summary disposition is not appropriate. Id.

        To state a claim of negligence, a plaintiff must prove that the defendant owed a duty of
care to the plaintiff, that the defendant breached this duty, and that this breach caused the
plaintiff injury. Henry v Dow Chem Co, 473 Mich 63, 71-72; 701 NW2d 684 (2005). MCL
380.1312 provides, in pertinent part, as follows:

              (4) A person employed by . . . a local or intermediate school board or
       public school academy may use reasonable physical force upon a pupil as
       necessary to maintain order and control in a school or school-related setting for
       the purpose of providing an environment conducive to safety and learning. In
       maintaining that order and control, the person may use physical force upon a pupil
       as may be necessary for 1 or more of the following:

                                                 ...

               (b) For . . . the defense of another.

                                                 ...

               (d) To quell a disturbance that threatens physical injury to any person.

                                                 ...

               (5) A person employed by . . . a local or intermediate school board or
       public school academy who exercises necessary reasonable physical force upon a
       pupil, or upon another person of school age in a school-related setting, as
       described in subsection (4) is not liable in a civil action for damages arising from
       the use of that physical force . . . . This subsection does not alter or limit a
       person’s immunity from liability provided under 1964 PA 170, MCL 691.1401 to
       691.1415.

                                                 ...

               (7) In determining whether an employee . . . acted in accordance with
       subsection (4), deference shall be given to reasonable good-faith judgments made
       by that person. [Emphasis added.]




                                                 -2-
        There is no dispute that, at the time of the incident, defendant was employed by Godfrey-
Lee High School, that plaintiff was a pupil or a “person of school age in a school-related
setting,” and that, after entering the premises of the Godfrey-Lee High School, plaintiff engaged
in a physical altercation with two other girls. Defendant testified that, after he had initially
released plaintiff from his grasp in a safe manner, the following occurred:

               And then she jumped on top of the other girl [who was being restrained by
       another teacher], grabbed her hair and started punching her, so that’s when I
       restrained her again.

        Defendant explained that plaintiff began punching the other girl while she was
defenseless, and the punches were directed “towards the face and the head.” A video of the
incident, apparently recorded on the cellular telephone of another student, shows defendant
attempting to restrain plaintiff after she started attacking the other student. Defendant testified
that he tried to restrain her by employing a restraint technique that he was trained to use and
which he had used numerous times in a prior job. The technique was designed to enable the
restrainer to safely restrain another person. Defendant testified that he was unable to use this
technique effectively on plaintiff because she was struggling against him. The video shows
plaintiff kicking her legs in an effort to escape defendant. Plaintiff argues that defendant forced
her downward and that this motion resulted in her breaking her arm. While defendant turned
plaintiff to the right, he did not appear to direct her downward; rather, the downward motion was
the result of plaintiff’s own struggles, and chiefly her wild kicking. Plaintiff testified in her
deposition that she did not struggle against defendant and did not fight him in an attempt to get
away, but any reasonable person viewing the video would conclude that plaintiff’s assertions had
no basis in fact. Indeed, the video reveals actions by defendant that reflected, given the
circumstances, the imposition of limited, necessary, and very reasonable physical force, along
with the exercise of reasonable good-faith judgment.

         We conclude that plaintiff failed to establish a question of fact as to whether defendant
used necessary and reasonable physical force in restraining plaintiff. Widdoes v Detroit Pub Sch,
242 Mich App 403, 412-413; 619 NW2d 12 (2000). Therefore, defendant was immune from
liability under MCL 380.1312 and the trial court properly granted defendant’s motion for
summary disposition. Moreover, defendant was additionally protected by immunity under the
governmental tort liability act (GTLA), MCL 691.1401 et seq. Under the facts discussed above,
and with respect to the tort of negligence alleged by plaintiff, there is no triable question of fact
that defendant was acting in the course of his employment with the school, which was exercising
a governmental function, that defendant was acting within the scope of his authority, and that
defendant’s conduct did not amount to gross negligence, i.e., reckless conduct demonstrating a
substantial lack of concern that an injury would result. MCL 691.1407(2) and (7)(a).
Accordingly, defendant was shielded by governmental immunity from plaintiff’s negligence
claim. Odom, 482 Mich at 479-480. Also, under the facts discussed above, and with respect to
plaintiff’s intentional tort claim, assault and battery, there is no triable question of fact that
defendant was acting in the course of his employment, that defendant was acting within the
scope of his authority, that defendant’s actions were discretionary, and that the challenged



                                                -3-
conduct was undertaken in good faith, absent any malice. Id. at 480. Accordingly, defendant
was shielded by governmental immunity from plaintiff’s assault and battery claim. Id.

      Affirmed. Having fully prevailed on appeal, defendant is awarded taxable costs pursuant
to MCR 7.219.



                                                         /s/ Donald S. Owens
                                                         /s/ William B. Murphy
                                                         /s/ Joel P. Hoekstra




                                             -4-
