Frohriep v. Flanagan ( 2009 )

763 N.W.2d 279 (2009)

Eric C. FROHRIEP, and all others similarly situated, Plaintiffs-Appellants,
v.
Michael P. FLANAGAN, Jeremy M. Hughes, and Frank P. Ciloski, Defendants-Appellees.

Docket No. 136636. COA No. 273426.

Supreme Court of Michigan.

April 1, 2009.

Order

By order of October 27, 2008, the application for leave to appeal the April 29, 2008 judgment of the Court of Appeals was held in abeyance pending the decision in Odom v. Wayne Co. (Docket No. 133433). On order of the Court, the case having been decided on December 30, 2008, 482 Mich. 459, 760 N.W.2d 217 (2008), the application is again considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REVERSE in part the judgment of the Court of Appeals, and we REMAND this case to the Ingham Circuit Court for further proceedings in light of the Odom decision. We agree with the Court of Appeals that the plaintiffs failed to state a claim for intentional infliction of emotional distress, but do not agree that the plaintiffs failed to state claims for the remaining intentional torts. The Court of Appeals erred in concluding that the burden of proof with regard to the qualified governmental immunity applicable to the defendants Hughes and Ciloski under Ross v. Consumers Power (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), lay with the plaintiffs, rather than with the defendants. See Odom, supra.