Estate of Xavier Ray Joe v. Community Emergency Medical Service ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
DANIELLE JOE, Personal Representative of the UNPUBLISHED
Estate of XAVIER RAY JOE, Deceased, May 26, 2016
Plaintiff-Appellant/Cross-Appellee,
v No. 323276
Oakland Circuit Court
COMMUNITY EMERGENCY MEDICAL LC No. 2014-140495-NO
SERVICE,
Defendant-Appellee/Cross-
Appellant,
and
J. FISHER, J. MERSER, and K. CANNON
Defendants-Appellees.
Before: STEPHENS, P.J., and CAVANAGH and MURRAY, JJ.
STEPHENS, P.J. (Concurring)
I write to concur in the majority’s result. I concur, that plaintiff failed to file an affidavit
under MCR 2.116(H) indicating with some specificity the basis for any prayer for denial of
either of the motions based upon the need for further discovery, including vetting of materials
offered by the opponent to support the grant of the motion. Marilyn Froling Revocable Living
Trust, 283 Mich App at 292. The trial court’s assertion that plaintiff failed to actually plead facts
in avoidance of governmental immunity was erroneous. Unlike the majority, I cannot agree that
plaintiff’s pleadings alone are defective. While most of the conduct asserted against Southfield
constituted tragic negligence, it did not rise to gross negligence. The allegation in paragraph
30(d) of the complaint, that the dispatchers told the decedent’s mother that assistance was on the
way when they in fact knew it was not, could be proven to be gross negligence
However, a motion for MCR 2.116(C)(7) summary disposition only demands that the
court accept as true those factual assertions in pleadings that are not opposed by affidavits and
documentary evidence. Smith, 290 Mich App at 683. While the source of the affidavits, tapes
and logs, was CEMS, not Southfield, a court cannot be required in this case to act as if the
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materials presented by CEMS do not exist as related to the Southfield dispatchers. A plaintiff
faced with such a circumstance is challenged to present contradictory materials or an affidavit
under MCR 2.116(H). Faced with affidavits, tapes and logs regarding the calamitous
communication regarding the decedent’s need and plan for transport, the court reached the
correct result regarding the dispatcher defendants, albeit for a reason other than that addressed in
its opinion. See Gleason v Michigan Dept of Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003)
(“A trial court's ruling may be upheld on appeal where the right result issued, albeit for the
wrong reason.”).
I, however, do not agree with the majority’s proximate cause discussion. Robinson
demands that the governmental actor’s gross negligence be the proximate cause of injury. 462
Mich at 462. However, just as every decedent succumbs to heart failure before death, the fact
that this decedent had an asthmatic event does not shield the defendants here from liability. Not
all asthma attacks are fatal. Whether the death in this case was occasioned most immediately by
any gross negligence by either defendant would have been a question for the trier of fact, not the
judge.
/s/ Cynthia Diane Stephens
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