Parpart v. City of Detroit

487 N.W.2d 506, 194 Mich. App. 561

• Court: Michigan Court of Appeals
• Decided: July 6, 1992
• Docket: Docket 124665
• Status: Published

Opinions

T. J. Lesinski, J.

Plaintiff appeals as of right a Wayne Circuit Court order granting summary disposition in favor of defendants Hinton, McDonald, and Morgan pursuant to its finding that plaintiff had failed to establish a factual issue regarding gross negligence on the part of those defendants, emergency telephone operators for the defendant City of Detroit. See MCR 2.116(C)(10). We affirm.

Plaintiff alleged that ten calls were made to the City of Detroit’s 911 number between 8:43 p.m. and 10:22 p.m. on July 16, 1986, seeking assistance for decedent. Ems technicians arrived at decedent’s residence at 10:29 p.m. to find that decedent had no vital signs. Decedent was pronounced dead at 11:05 p.m. at Oakwood Hospital in Dearborn, Michigan. Plaintiff asserts that defendants’ failure to respond quickly to the emergency constituted negligence, gross negligence, and wanton or wilful conduct, conduct for which governmental immunity is not available. See MCL 691.1407(2)(c); MSA 3.996(107)(2)(c).

In support of their motion for summary disposition, defendants offered the daily log of calls received by the 911 operators. The log indicates that someone called the 911 number on behalf of decedent three times on the night of July 16, 1986, specifically at 10:13 p.m., 10:20 p.m., and 10:22 p.m. The log is devoid of any entry preceding the one listed at 10:13 p.m. The record also contains evidence that ems technicians received the call from a 911 operator at 10:16 p.m. and arrived at decedent’s residence by 10:29 p.m. The motion was supported by an affidavit of defense counsel that stated that the affidavit was based on personal knowledge, and that the affiant knew the contents of the motion and that they were true except with regard to those matters therein stated to be upon information and belief, which she believed to be true.

In defense of her position, plaintiff merely reiterated the allegations contained in the complaint, namely, that a total of ten calls were made to the 911 operators on the night in question. No challenge using documentary evidence, affidavits, or depositions was filed in support of plaintiff’s opposition to the facts asserted by the defendants in the motion for summary disposition or the documents attached thereto.

A motion for summary disposition brought under MCR 2.116(0(10) tests whether there is factual support for a claim. Once the moving party has supported its position with documentary evidence, the party opposing the motion has the burden of showing that a genuine issue of disputed fact exists. Pantely v Garris, Garris & Garris, PC, 180 Mich App 768, 773; 447 NW2d 864 (1989). The nonmovant may not rest upon mere allegations in the pleadings but must, by the use of documentary evidence, set forth specific facts showing that there is a genuine issue for trial. MCR 2.116(G)(4); McCart v J Walter Thompson USA, Inc, 437 Mich 109, 114-115; 469 NW2d 284 (1991). All inferences are to be drawn in favor of the nonmovant. Dagen v Hastings Mutual Ins Co, 166 Mich App 225, 229; 420 NW2d 111 (1987). Before judgment may be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by the evidence at trial. Peterfish v Frantz, 168 Mich App 43, 48-49; 424 NW2d 25 (1988).

Applying the facts of this case to the law, we conclude that the trial court properly ruled that plaintiff failed to raise a genuine issue of material fact regarding whether the defendants were guilty of gross negligence. Consequently, the trial court properly granted defendants’ motion for summary disposition upon finding that the case failed to come within any exception to governmental immunity.

Affirmed.

Jansen, J., concurred.