20241112_C366791_37_366791.Opn.Pdf

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

QC, Minor, by Guardian JENNIFER ANN COKER, UNPUBLISHED

November 12, 2024

Plaintiff-Appellant, 3:36 PM

v No. 366791

Kalamazoo Circuit Court

BRANDON TYLER LUKES and KALAMAZOO LC No. 2022-000284-NO

PUBLIC SCHOOL DISTRICT,

Defendants-Appellees.

Before: BOONSTRA, P.J., and MURRAY and CAMERON, JJ.

PER CURIAM.

Plaintiff appeals as of right an order granting defendants’ motion for summary disposition

pursuant to MCR 2.116(C)(7) and (10). We affirm.

This case arises out of defendant Kalamazoo Central High School (KCHS) Dean of

Students Brandon Tyler Lukes’s attempt to remove QC, then a student at KCHS, from a large

student fracas in the school cafeteria. Most of the relevant circumstances were recorded on video

that were submitted to the trial court as exhibits.

Following a fight between several KCHS students that was stopped by the KCHS assistant

principal, four students who were engaged in that fight joined QC near the cafeteria and entered

with her as a group. QC then began arguing with another student, during which QC jumped up

and down and continued to move closer and closer to the other student, who was backing away.

At that time, after receiving a call for assistance from a campus safety officer, Lukes entered the

cafeteria and moved his way through the unruly crowd toward QC.1

Lukes approached QC and instructed her to leave the area. Lukes turned his back to QC

as she turned to walk away. Seconds later, however, QC quickly turned around and ran back

1

Video evidence shows at a minimum several dozen students in the cafeteria, with the majority

acting unruly and in an excited manner.

-1-

toward the other student. To keep her from attacking the student, Lukes grabbed QC by the waist,

and QC struggled to get out of his hold. Lukes then grabbed QC from behind, lifted her into the

air, twisted and used his body to drop her (and himself) onto the ground. Lukes then guided QC

through the crowd, with his arms still wrapped around her, as they both exited the cafeteria.

Several months later, QC’s guardian, plaintiff, filed a complaint against Lukes, alleging

that Lukes’s conduct constituted “the torts of assault and battery” and gross negligence. Plaintiff

later filed an amended complaint adding Kalamazoo Public School District (KPS) as a defendant,

asserting that it was liable for Lukes’s torts on a respondeat superior theory, and adding a new

claim against Lukes alleging excessive force and unlawful search and seizure. After conducting

discovery, defendants moved for summary disposition under MCR 2.116(C)(7) and (10). The trial

court held a hearing, and then granted defendants’ motion, essentially holding that Lukes acted

reasonably under the chaotic circumstances by restraining QC and taking her to the ground to avoid

further disruptive conduct in the school.

I. STANDARD OF REVIEW

We review “de novo a trial court’s decision on a motion for summary disposition,

reviewing the record in the same manner as must the trial court to determine whether the movant

was entitled to judgment as a matter of law.” Bronson Methodist Hosp v Auto-Owners Ins Co, 295

Mich App 431, 440; 814 NW2d 670 (2012). “Our review is limited to the evidence that had been

presented to the circuit court at the time the motion was decided.” Innovative Adult Foster Care,

Inc v Ragin, 285 Mich App 466, 475-476; 776 NW2d 398 (2009).

MCR 2.116(C)(7) provides that “[e]ntry of judgment, dismissal of the action, or other relief

is appropriate because of . . . immunity granted by law” and “requires consideration of all

documentary evidence filed or submitted by the parties,” Wade v Dep’t of Corrections, 439 Mich

158, 162; 483 NW2d 26 (1992). Whether an entity is entitled to governmental immunity is a

question of law that we review de novo. Mich Co Rd Ass’n v Governor, 287 Mich App 95, 118;

782 NW2d 784 (2010). “In order to survive a motion for summary disposition, the plaintiff

must . . . allege facts justifying application of an exception to governmental immunity.” Wade,

439 Mich at 163.

MCR 2.116(C)(10) provides that the trial court may grant summary disposition in favor of

the moving party when “[e]xcept as to the amount of damages, there is no genuine issue as to any

material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.”

“A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to

the opposing party, leaves open an issue upon which reasonable minds might differ.” West v Gen

Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). The moving party must support its

motion for summary disposition with either “affirmative evidence that negates an essential element

of the nonmoving party’s claim” or by demonstrating “to the court that the nonmoving party’s

evidence is insufficient to establish an essential element of the nonmoving party’s claim,” Lowrey

v LMPS & LMPJ, Inc, 500 Mich 1, 7; 890 NW2d 344 (2016) (quotation marks and citation

omitted). “[T]he nonmovant’s burden to avoid summary disposition after the movant has satisfied

its burden through one of these two courses of action” is to “go beyond the pleadings to set forth

specific facts showing that a genuine issue of material fact exists.” Id. (quotation marks and

citation omitted).

-2-

II. GOVERNMENTAL IMMUNITY

Defendants moved for summary disposition of plaintiff’s tort claims on the bases of

immunity under both MCL 691.1407 (Lukes’s conduct did not arise to statutory gross negligence,

nor as to the intentional torts, was his conduct in bad faith) and MCL 380.1312(5) (providing

immunity to school personnel who use reasonable force to maintain control in the school). As the

trial court concluded, each of these provisions entitles defendants to immunity from plaintiff’s tort

claims.

A. INDIVIDUAL IMMUNITY FROM INTENTIONAL TORTS

In Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 633-634; 363 NW2d 641

(1984), the Michigan Supreme Court held:

Lower level officials, employees, and agents are immune from tort liability only

when they are

1) acting during the course of their employment and acting, or reasonably

believe they are acting, within the scope of their authority;

2) acting in good faith; and

3) performing discretionary, as opposed to ministerial acts.

The governmental immunity act, MCL 691.1401 et seq., was subsequently amended to provide:

(2) . . . [W]ithout regard to the discretionary or ministerial nature of the

conduct in question, each officer and employee of a governmental agency, each

volunteer acting on behalf of a governmental agency, and each member of a board,

council, commission, or statutorily created task force of a governmental agency is

immune from tort liability for an injury to a person or damage to property caused

by the officer, employee, or member while in the course of employment or service

or caused by the volunteer while acting on behalf of a governmental agency if all

of the following are met:

(a) The officer, employee, member, or volunteer is acting or reasonably

believes he or she is acting within the scope of his or her authority.

(b) The governmental agency is engaged in the exercise or discharge of a

governmental function.

(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not

amount to gross negligence that is the proximate cause of the injury or damage.

[MCL 691.1407(2).]

In Odom v Wayne Co, 482 Mich 459, 479; 760 NW2d 217 (2008), the Court provided

“steps to follow when a defendant raises the affirmative defense of individual governmental

-3-

immunity.” If the individual is “a lower-ranking governmental employee or official,” then the trial

court must first “determine whether the plaintiff pleaded an intentional or a negligent tort.” Id.

“If the plaintiff pleaded a negligent tort, [the court must] proceed under MCL 691.1407(2)

and determine if the individual caused an injury or damage while acting in the course of

employment or service or on behalf of his governmental employer,” and whether:

(a) the individual was acting or reasonably believed that he was acting

within the scope of his authority,

(b) the governmental agency was engaged in the exercise or discharge of a

governmental function, and

(c) the individual’s conduct amounted to gross negligence that was the

proximate cause of the injury or damage. [Id. at 479-480.]

“If the plaintiff pleaded an intentional tort,” then the trial court must determine “whether

the defendant established that he is entitled to individual governmental immunity under the Ross

test,” by showing that:

(a) The acts were undertaken during the course of employment and the

employee was acting, or reasonably believed that he was acting, within the scope

of his authority,

(b) the acts were undertaken in good faith, or were not undertaken with

malice, and

(c) the acts were discretionary, as opposed to ministerial. [Id. at 480.]

B. IMMUNITY WHEN USING REASONABLE FORCE ON STUDENTS

With regard to the use of corporal punishment, defined as “the deliberate infliction of

physical pain by hitting, paddling, spanking, slapping, or any other physical force used as a means

of discipline,” MCL 380.1312(1), the statute provides:

(3) A person employed by . . . a local or intermediate school board or public

school academy shall not inflict or cause to be inflicted corporal punishment upon

any pupil under any circumstances.

(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:

-4-

(a) To restrain or remove a pupil whose behavior is interfering with the

orderly exercise and performance of school district or public school academy

functions within a school or at a school-related activity, if that pupil has refused to

comply with a request to refrain from further disruptive acts.

(b) For self-defense or the defense of another.

(c) To prevent a pupil from inflicting harm on himself or herself.

(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 and is presumed not to have violated subsection (3) by the use of that

physical force. . . .

(6) A person who willfully or through gross negligence violates subsection

(3) or who willfully or through gross negligence violates subsection (4) may be

appropriately disciplined by his or her school board or public school academy. This

subsection does not limit a school board’s or public school academy’s authority to

discipline an employee for a violation of its own policies.

(7) In determining whether an employee, volunteer, or contractor has acted

in accordance with subsection (4), deference shall be given to reasonable good-faith

judgments made by that person. [MCL 380.1312(3) to (7) (emphasis added).]

C. REASONABLE FORCE-ANALYSIS

In Widdoes v Detroit Pub Sch, 242 Mich App 403, 405; 619 NW2d 12 (2000), a student

was playing in the school gymnasium, although he knew he was not supposed to be there at that

time, and a teacher, the petitioner, grabbed the student by the arm and pulled him to the door after

the student refused his verbal commands to leave. The Detroit Board of Education subsequently

terminated the teacher, finding “sufficient evidence to support the charge of excessive use of

force.” Id. at 406. The State Tenure Commission denied the teacher’s appeal, holding that the

teacher unlawfully inflicted corporal punishment on the student in violation of MCL 380.1312. Id.

This Court reversed the Commission’s ruling, holding that the teacher’s use of force was

reasonable and that “[n]umerous are the forces that intrude on the classroom to disturb the learning

environment, and teachers must be able to deal with such problems promptly and decisively.” Id.

at 414.

In granting defendants’ motion for summary disposition, and concluding that Lukes was

entitled to governmental immunity under MCL 380.1312(5), in regard to the reasonableness of

Lukes’s use of force, the trial court stated:

-5-

The—the claim that there was a slipping is, I’m gonna use the term suspect,

because that’s really a question of—of fact, and ultimately I’m not gonna make

that. That’s not material to my inquiry but I will say I—I—just observing the—

particularly last video, I cannot conclude that there was a slipping by [Lukes],

resulting in them both falling. There was—there was certainly a degree of force

associated with that. I, in viewing, the video, particularly the last one, cannot

determine that that was someone who slipped and fell.

We disagree with plaintiff’s argument that whether Lukes’s use of force was reasonable is

a question of fact for a jury. The testimony and video evidence do not contain any material factual

disputes, even when accepting plaintiff’s characterization of Lukes’s “slamming” her to the floor.

The evidence shows that Lukes was presented with a chaotic situation when arriving in the

cafeteria. Security personnel could not alone handle the chaos, and when Lukes arrived, he

prudently focused on where the main disruption was taking place. Once there, he saw that QC

was engaged with at least one other student, and so he immediately instructed her to move away.

She did so for a few seconds, but then turned and lunged toward the student again. To keep QC

separated from that other student, Lukes grabbed QC, lifted her feet off the ground, and turned

away from the student QC was attempting to get to, which also removed QC from that location.

After a few steps, Lukes (while QC was struggling to get away from him) twisted and dropped to

the ground, where he landed on top of QC.

In light of the circumstances facing Lukes, which required immediate action to quell a

large, on-going and chaotic situation (of which QC was a significant player), his grabbing and

“taking down” QC while she was struggling with him to get away (and to potentially get to her

target, another student), was a reasonable, good faith judgment to use this physical force. No

reasonable juror could conclude otherwise given these facts, particularly so because of the required

deference that must be given to Lukes under MCL 380.1312(7) (“deference shall be given to

reasonable good-faith judgments made by that person”). Certainly other actions could have been

taken by Lukes, but given QC’s repeated attempts to engage with the other student, her disregard

of Lukes’s instructions, her attempts to get out of his control, the seemingly similar size between

QC and Lukes, and the chaotic and dangerous situation ongoing in front of him, Lukes’s forceable

action towards QC was reasonable, and entitles him to immunity on the negligence and assault and

battery claims for his use of reasonable force.

D. GROSS NEGLIGENCE-ANALYSIS

MCL 691.1407(2)(c) provides that governmental immunity is granted if “[t]he officer’s,

employee’s, member’s, or volunteer’s conduct does not amount to gross negligence that is the

proximate cause of the injury or damage.” MCL 691.1407(8)(a) defines “gross negligence” for

the purpose of governmental immunity as “conduct so reckless as to demonstrate a substantial lack

of concern for whether an injury results.” See also Oliver v Smith, 290 Mich App 678, 685; 810

NW2d 57 (2010) (stating that gross negligence “has been characterized as a willful disregard of

safety measures and a singular disregard for substantial risks”). “Proximate cause in the context

of MCL 691.1407(2) refers to the cause that is the one most immediate, efficient, and direct cause

preceding an injury.” Id. at 686 (quotation marks and citation omitted). “If reasonable jurors could

honestly reach different conclusions regarding whether conduct constitutes gross negligence, the

-6-

issue is a factual question for the jury. However, if reasonable minds could not differ, the issue

may be determined by a motion for summary disposition.” Id. at 685.

In granting defendants’ motion for summary disposition, and concluding that Lukes was

entitled to governmental immunity under MCL 691.1407(8)(a), the trial court stated:

In looking over the video and other evidence presented, this Court finds that

the imminent danger posed by the minor, minor’s violent and volatile behavior

required the Defendant Lukes to exercise quick judgment in deciding how to

physically intervene and prevent harm to other students. This Court does not

believe that picking up a minor to try to remove her from a fight, and then when

behavior continued to escalate . . . is in fact reckless. I think that the takedown was

appropriate given all those circumstances and I determine that—that the behavior

of the minor was in fact reckless in causing potential serious harm to others.

Plaintiff argues that whether Lukes was grossly negligent and whether his conduct was the

proximate cause of QC’s injury are questions of fact for a jury and that, therefore, the trial court

erred by granting defendants’ motion for summary disposition. Neither argument can succeed

under these facts.

First, there is no material fact question as to whether Lukes’s conduct amounted to

“conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”

MCL 691.1407(8)(a). In Maiden v Rozwood, 461 Mich 109, 113-114; 597 NW2d 817 (1999), a

resident at a mental-health facility, the decedent, became physically and verbally abusive and

caused a disturbance in the facility’s dining room. The defendants, a resident care aide and a nurse,

unsuccessfully attempted to calm the decedent, and then restrained him by holding his head, arms,

and legs. Id. at 114. The decedent eventually stopped breathing and was later pronounced dead.

Id. at 115. A wrongful death suit was subsequently filed, and the circuit court dismissed the

complaint on the basis of government immunity, which the plaintiff appealed, arguing that “the

individual defendants’ conduct was grossly negligent within the meaning of

[MCL 691.1407(2)(c)] and thus not immune from liability.” Id. The trial court granted the

defendants’ motion for summary disposition, concluding that the defendants’ actions did not

amount to gross negligence, and this Court reversed the trial court’s ruling. Id. at 115-116.

The Supreme Court then reversed this Court and affirmed the trial court, holding that

[t]he imminent danger posed by decedent’s volatile behavior required that the staff

exercise split-second judgment in deciding how and when to use physical

intervention. While they might have used other means to restrain [the decedent],

reasonable minds could not agree that the failure to employ those alternatives was

so reckless as to demonstrate a substantial lack of concern for whether an injury

results. [Id. at 126-127 (quotation marks omitted).]

The Court also noted that, to establish gross negligence pursuant to MCL 691.1407(2)(c), “the

plaintiff must focus on the actions of the governmental employee, not on the result of those actions.

That death resulted from the restraint does not support the conclusion that defendant’s actions were

-7-

so reckless ‘as to demonstrate a substantial lack of concern for whether an injury results.’ ” Id.

at 127 n 10.

Similarly, and as just noted, the fight between QC and the other student took place in a

crowded cafeteria under chaotic circumstances. When faced with this situation, Lukes was

required to “exercise split-second judgment in deciding how and when to use physical

intervention.” Id. at 126-127. When Lukes picked up QC, she continued to struggle against him,

and Lukes then fell with her onto the ground. Although it is true that Lukes could have used other

means to restrain QC, “the failure to employ those alternatives” was not “so reckless as to

demonstrate a substantial lack of concern for whether an injury results.” Id. at 127 (quotation

marks omitted). A focus on Lukes’s actions, rather than the result of those actions, leads to the

conclusion that Lukes’s conduct did not constitute gross negligence pursuant to

MCL 691.1407(2)(c). See id. at 127 n 10.

Second, there is also no material fact question as to whether Lukes’s conduct was the “most

immediate, efficient, and direct cause” of QC’s injury. Oliver, 290 Mich App at 686. In Oliver,

290 Mich App at 681, the defendant, a police officer, arrested the plaintiff after he was disruptive

and uncooperative. The plaintiff filed a complaint, alleging that he was injured during the arrest

because the officer used excessive force. Id. This Court reversed the trial court’s ruling that denied

the officer’s motion for summary disposition, holding that the plaintiff’s “wrist and hand injury is

not clearly attributable to [the officer] alone and instead may just as fairly be attributed to plaintiff”

because the “facts as developed clearly indicate that plaintiff was actively resisting arrest and the

record indicates that plaintiff’s injuries were just as likely caused by his own efforts to thwart the

officers’ attempts to restrain him.” Id. at 687.

The same holds true here, where the surveillance footage demonstrates that QC struggled

against Lukes’s attempts to stop her from getting into a physical fight with the other student. Lukes

and QC then both fell to the ground, as a result of both QC’s resistance toward Lukes’s hold, and

Lukes’s use of force. Therefore, QC’s injury was not clearly attributable to Lukes alone, but may

“just as fairly” be attributed to QC. See id. If QC had complied with Lukes’s original verbal

commands to leave the scene, or stopped resisting once Lukes grabbed her, her injury would not

have occurred.

As a result, reasonable minds could not differ as to whether Lukes’s conduct constituted

gross negligence that was the proximate cause of QC’s injury, see id. at 685; MCL 691.1407(2)(c),

and there is no factual dispute on this question, see MCR 2.116(C)(7). Accordingly the trial court

did not err by granting defendants’ motion for summary disposition in this regard. See Bronson

Methodist Hosp, 295 Mich App at 454.

E. GOOD FAITH-ANALYSIS

MCL 691.1407(3) provides that Subsection (2), which lists the requirements for immunity

from tort liability for government employees, “does not alter the law of intentional torts as it

existed before July 7, 1986.” In Ross (On Rehearing), 420 Mich at 633-634, the Court held that

lower level government employees are immune from tort liability only when they are “acting

during the course of their employment,” “acting in good faith,” and “performing discretionary, as

opposed to ministerial acts.” See also Odom, 482 Mich at 480. The determination whether “the

-8-

defendant acted in the course of his employment and within the scope of his authority and acted in

good faith, are questions of fact” that should be left to the jury if “reasonable minds could differ.”

Gillam v Lloyd, 172 Mich App 563, 577; 432 NW2d 356 (1988). Whether an employee was

“acting in good faith” under Ross is a subjective test. Oliver, 290 Mich App at 688.

Plaintiff’s amended complaint pleaded the intentional torts of assault and battery. In

granting defendants’ motion for summary disposition, and concluding that Lukes acted in good

faith for purposes of governmental immunity under MCL 691.1407(3) and the Ross test, the trial

court stated that “Lukes conducted his actions discretionary as he believed this was the right course

of action for himself to take to de-escalate the situation” and that “no evidence was presented by

anyone to determine whether or not [Lukes] was angry or did not act in good faith given the

situation.”

In challenging this decision, plaintiff argues that, because the trial court found that Lukes

intentionally took QC to the ground, he could not have acted in good faith. However, whether

Lukes was acting in good faith is a subjective test. See Oliver, 290 Mich App at 688; Latits v

Phillips, 298 Mich App 109, 115; 826 NW2d 190 (2012) (“As long as defendant can show that he

had a good-faith belief that he was acting properly in using deadly force, he is entitled to the

protections of governmental immunity regardless of whether he was correct in that belief.”). And

here, Lukes testified that he picked up QC to “remove her from the situation,” that he decided to

physically intervene to restrain QC from “attacking other students,” and that he was concerned for

QC’s safety and the safety of other students. Lukes was attempting to “deescalate the situation”

and “remove [QC] from the situation,” which was a chaotic cafeteria in which QC was attempting

to fight another student in front of a large crowd of students.

The record demonstrates that Lukes held the belief that he was properly using physical

intervention, see Latits, 298 Mich App at 115, and nothing in the record refutes his testimony.

Therefore, reasonable minds could not differ as to whether Lukes was acting in good faith, see

Gillam, 172 Mich App at 577, and the trial court did not err by concluding that Lukes was entitled

to governmental immunity as to plaintiff’s claims of assault and battery, see Odom, 482 Mich

at 480.

III. VICARIOUS LIABILITY AS TO DEFENDANT KALAMAZOO PUBLIC SCHOOLS

MCL 691.1407(1) provides as follows:

Except as otherwise provided in this act, a governmental agency is immune

from tort liability if the governmental agency is engaged in the exercise or discharge

of a governmental function. Except as otherwise provided in this act, this act does

not modify or restrict the immunity of the state from tort liability as it existed before

July 1, 1965, which immunity is affirmed.

The operation of public schools is a “uniquely governmental function.” Deaner v Utica

Community Sch Dist, 99 Mich App 103, 108; 297 NW2d 625 (1980). Tort liability under

MCL 691.1407(1) “means all legal responsibility arising from a noncontractual civil wrong for

which a remedy may be obtained in the form of compensatory damages.” In re Bradley Estate,

494 Mich 367, 385; 835 NW2d 545 (2013).

-9-

In Ross (On Rehearing), 420 Mich at 623-624, the Court explained that “[a]llegations of

vicarious tort liability generally arise where an employment relationship exists between the

governmental agency and the individual tortfeasor.” The Court held that “[e]ven when the tort is

committed during the employee’s course of employment and is within the scope of the employee’s

authority, the governmental agency is not automatically liable.” Id. at 624-625. Rather, “the focus

should be on the activity which the individual was engaged in at the time the tort was committed,”

and “if the activity in which the tortfeasor was engaged at the time the tort was committed

constituted the exercise or discharge of a governmental function (i.e., the activity was expressly or

impliedly mandated or authorized by constitution, statute, or other law),” the agency is immune

pursuant to the governmental immunity act. Id. at 625.

Article 1, § 11, of the Michigan Constitution provides:

The person, houses, papers, possessions, electronic data, and electronic

communications of every person shall be secure from unreasonable searches and

seizures. No warrant to search any place or to seize any person or things or to

access electronic data or electronic communications shall issue without describing

them, nor without probable cause, supported by oath or affirmation. [Const 1963,

art 1, § 11.]

In Tennessee v Garner, 471 US 1, 3; 105 S Ct 1694; 85 L Ed 2d 1 (1985), the United States

Supreme Court determined “the constitutionality of the use of deadly force to prevent the escape

of an apparently unarmed suspected felon.” The Court held that “there can be no question that

apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of

the Fourth Amendment.” Id. at 7. See US Const, Am IV. In Bauserman v Unemployment Ins

Agency, 509 Mich 673, 708 n 13; 983 NW2d 855 (2022), the Court held that the state “is liable for

harms it commits in violation of the Constitution,” but it declined to address whether “other

entities, such as municipal governments or individual government actors, can be liable for

constitutional torts.”

Plaintiff argues that KPS is vicariously liable for Lukes’s conduct because Lukes’s use of

force violated Article 1, § 11 of the Michigan Constitution as an unreasonable seizure pursuant to

Tennessee, 471 US at 3. Plaintiff further argues that, because Bauserman, 509 Mich at 707, held

that the Court would not “limit the standard of liability in a constitutional-damages claim to a

direct standard of liability,” KPS can be held liable alongside Lukes. We disagree with plaintiff’s

arguments.

Plaintiff does not provide any persuasive support for her contention that Lukes’s conduct

constituted a seizure under the Michigan Constitution. Plaintiff’s argument is essentially that,

because the Court in Tennessee, 471 US at 7, held that “the use of deadly force is a seizure subject

to the reasonableness requirement of the Fourth Amendment,” Lukes’s conduct was equal to

deadly force and, therefore, subject to the reasonableness requirement of Article 1, § 11. Plaintiff’s

reliance on Tennessee is misplaced because Tennessee concerned the use of deadly force by a

police officer on an unarmed felon, an issue that is entirely distinct from the present case, in which

Lukes either slammed or slipped and fell with QC, a minor, in order to prevent her from engaging

in a fight with other students. Plaintiff has no viable seizure claim under the Michigan

Constitution.

-10-

Although KPS could be vicariously liable if Lukes was likewise liable for QC’s injuries,

Ross (On Rehearing), 420 Mich at 623-624, because the trial court did not err by granting summary

disposition as to Lukes, it did not err in dismissing KPS.

Affirmed.

/s/ Mark T. Boonstra

/s/ Christopher M. Murray

/s/ Thomas C. Cameron

-11-