Jayden Gohl v. Sharon Turbiak

STATE OF MICHIGAN

COURT OF APPEALS

LAUREN GOHL, as Next Friend of J.G., a minor, UNPUBLISHED

May 3, 2018

Plaintiff-Appellees,

v Nos. 335389 and 335604

Wayne Circuit Court

SHARON TURBIAK, DR. RANDY LIEPA, LC No. 15-014274-NO

CANDY SOKOL, SHELLY MOORE, NANCY

RESPONDEK, MEGAN SPROW, CAROL

DEBEAUDRY, TRACY CREWS, DIANE

SLOBODA,

Defendant-Appellants,

and

CYNTHIA DEMAN and ELIZABETH SANTER,

Defendants.

Before: BOONSTRA, P.J., and BECKERING and RONAYNE KRAUSE, JJ.

PER CURIAM.

This consolidated appeal arises from allegations of abusive behavior by former special

education teacher, defendant Sharon Turbiak, toward JG, who at the time of the alleged abuse

was a preschool student in her classroom, and from the alleged failure of the other named

defendants to report Turbiak’s behavior toward JG and others. Plaintiff is JG’s mother and duly

appointed next friend. Defendants moved for summary disposition under court rules MCR

2.116(C)(7) (immunity granted by law), (C)(8) (failure to state a claim) and (C)(10) (no genuine

issue of material fact). In Docket No. 335389, defendants appeal by right the trial court’s denial

of their consolidated motion for summary disposition on the basis of governmental immunity. In

Docket No. 335604, they appeal by leave granted the trial court’s denial of their motion pursuant

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to MCR 2.116(C)(8) and (C)(10).1 We consolidated these two claims of appeal for

administrative efficiency. 2 For the reasons stated below, we affirm in part, reverse in part, and

remand the matter for further proceedings.

I. STATEMENT OF PERTINENT FACTS AND PROCEEDINGS

JG was born with hydrocephalus, a condition in which fluid accumulates in the brain.

Doctors inserted a shunt to drain excess fluid from the area around JG’s brain into his abdomen,

and by the time of the events underlying this appeal, JG had had multiple surgical procedures to

reposition the shunt or because of infections. A May 2011 evaluation described JG as

“demonstrating significant delays in Gross Motor, sensory skills, Language and Cognitive

domains” as well as some “behavioral concerns.”

JG began attending the Moderate Cognitive Impairment (“MoCI”) Program operated by

Livonia Public Schools (“LPS”) in 2011. The MoCI program provides educational,

developmental, therapeutic, and social services for students with IQs below 55. The program for

preschoolers was at Webster Elementary School in Livonia, and consisted of morning and

afternoon sessions held four days a week. JG attended the morning sessions, which ran from

8:00 a.m. until 11:00 a.m., and Turbiak was the special education teacher assigned to JG’s

classroom. Turbiak was assisted by two paraprofessionals, defendants Nancy Respondek and

Candy Sokol. In addition, a number of specialists provided services to the children in Turbiak’s

classroom. Defendant Carol DeBeaudry provided occupational therapy services to students in

the morning class, defendant Tracey Crews provided occupational therapy services to students in

the afternoon class, and defendant Maegan Sprow, a speech pathologist, worked with students in

the afternoon class. Defendant Diane Sloboda was a social worker for the MoCI programs at

Webster and at Emerson Middle School. Defendant Shelli Moore was principal of Webster

Elementary, and defendant Randy Liepa was superintendent of LPS.

The parties rely in part on a “timeline” document produced by Moore, the relevant details

of which she confirmed during her sworn deposition testimony. On October 24, 2011, several

defendants complained about Turbiak’s treatment of staff and students to Program Specialist

Santer, who relayed their concerns to Moore. According to Moore’s account, Santer reported

that Turbiak was “harsh to students, yelled loudly in their faces and in general was not using best

practices when interacting with the pre-schoolers.” Moore responded by speaking with the

individuals who had lodged complaints with Santer. Crews told Moore that Turbiak’s classroom

was “a very uncomfortable place to work, and that she and others were always afraid that Mrs.

Turbiak would trash them if they questioned her.” Sprow also reported “concerns she had about

the treatment of children in the preschool classroom.” According to Moore, Sprow thought

1

The trial court entered orders granting summary disposition to defendants Cynthia DeMan,

Director of Personnel, and Elizabeth Santer, Program Specialist. Consequently, they are not

participating in this appeal.

2

Gohl v Turbiak, unpublished order of the Court of Appeals, entered March 3, 2017 (Docket No.

335604).

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Turbiak pushed on children’s shoulders with too much force when putting them in timeout, was

frustrated by the lower-functioning students, who were particularly vulnerable to potential rough

treatment, and let students with balance and mobility issues fall rather than help them transition

to a chair or the floor.3 Sprow testified at her deposition that she also told Moore that on one

occasion, Turbiak said, “Watch this,” said “No!” to a student, and then laughed when another

student, who was auditory defensive, covered her ears and started crying. When Sprow told

Turbiak that she could not do that, Trubiak reportedly said, “Oh, come on, that’s just a joke.”

DeBeaudry also spoke with Moore about the climate in Turbiak’s classroom, reportedly

“label[ing] the treatment of students as gruff and abrupt, and not[ing] that Mrs. Turbiak appeared

more harsh and abrupt with the lower functioning students. [DeBeaudry] gave an example of

[Turbiak] forcing a student to eat cereal with the student gagging and crying.” DeBeaudry also

told Moore that “children were picked up from the floor by one arm and that there was the

potential to dislocate a small shoulder.”

Moore contacted DeMan, LPS Director of Personnel, for guidance, after which she met

with Turbiak to discuss the complaints against her. Moore reported that Turbiak cried

intermittently during their 90-minute meeting, expressed surprise that she was assigned to

Webster, said she felt unappreciated there, and confided that she “was stressed out because of the

level of disability of her students and the reduction of support.” Turbiak did not directly admit

that she was harsh or aggressive with the children, but said she was not “touchy-feely” and could

be loud and abrupt with the children because she had high expectations and wanted them to learn

and to progress in her classroom. Moore wrote in her timeline that Turbiak asked several times

who had reported her, but she told Turbiak that the complaints had come from the morning and

the afternoon class and that it would be inappropriate to confront anyone about their conversation

because one might see such inquiry as making the workplace hostile. Turbiak reportedly talked

about changes she would make in her teaching, “making very broad statements like she wouldn’t

be touching any child, that they were only going to play [i]n her room instead of trying to teach

anything and that it was fine with her if that’s what people thought was best for children.”

Moore said she counseled Turbiak not to make sudden changes in the classroom routine and to

take a few days to process their conversation, and she assured Turbiak of her continued support.

The following day, Turbiak took her students to a neighboring room and had the teacher

in that room watch them while Turbiak held a “team meeting” in her own classroom. According

to Moore’s report, Turbiak said to those at the meeting that “she had no friends only colleagues

in the building,” told them that someone had reported her to Moore, said she could no longer

trust anyone, and that she would do everything in her power to find out who had ratted her out.

3

Regarding one of the children with balance issues, Sprow testified at her deposition that while

Turbiak was working with the child on how to go from standing to sitting in a cube chair, the

child locked her knees and balanced herself on the chair and could not make the transition.

Sprow said that Tubiak jostled the chair so that the child lost her balance and fell the short

distance to the floor. Sprow thought this was inappropriate, but could not tell what Turbiak’s

intent was. At her deposition, Turbiak offered a pedagogical explanation for what she did and

why.

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DeBeaudry went to Turbiak’s classroom at around 9:00 a.m. and discovered that the students

were still in the neighboring classroom. She told Moore that Turbiak was “still crying and

recounted the conversation [Moore] had had with her, again stating that she couldn’t trust anyone

and would ask everyone about this situation until someone grew the balls to tell her that they had

gone to talk to [Moore].”

DeMan met with Turbiak on November 2, 2011, subsequent to which she issued a letter

memorializing their conversation and warning Turbiak that “future inappropriate actions or

omissions will lead to disciplinary action.” DeMan testified at her deposition that their meeting

focused on the work environment in Turbiak’s classroom, an emphasis reflected in DeMan’s

letter to Turbiak. In the letter, DeMan admitted that Turbiak’s work in the program could be

difficult, frustrating, “and possibly overwhelming, and that it required a solid working

relationship with staff members and an “all hands on deck” approach that was currently missing

from Turbiak’s classroom. DeMan indicated that regardless of how exhausting and frustrating

teaching can be, “there is never an excuse for any teacher, especially an experienced teacher as

yourself, to lapse into inappropriate behaviors with either staff or students.” DeMan concluded

by stating what she expected Turbiak to do to remedy the fractured working relationship between

her and other staff members, by expressing confidence that Turbiak’s behavior was an isolated

event, and by issuing the aforementioned warning. Crews, DeBeaudry, Moore, Sokol, and

Sprow, among others, testified that after Turbiak spoke with DeMan, conditions in the classroom

improved. In addition, Moore testified that she frequently visited Turbiak’s classroom thereafter.

There is no evidence that Turbiak engaged in any concerning behavior with respect to her

students over the next four months.

The specific incident that gave rise to the underlying lawsuit occurred on March 5, 2012.

Social worker Sloboda entered Turbiak’s classroom at around 9:30 in the morning and,

according to her memorandum of the incident, she “saw [Turbiak] grab [JG] by the top of the

head and jerk it back quite aggressively. She also yelled ‘You need to listen’ very close to his

face.” Sloboda immediately reported the incident to Moore and then, at Moore’s insistence,

wrote the aformentioned memorandum. Sloboda testified at her deposition that she watched

Turbiak release JG and he showed no signs of being in pain, distress, or discomfort. Moore

testified that “knowing [JG] the way I did I think things could look like JG’s head was being

jerked around where, in fact, his head could have been supported because he was moving his

head around.” Nevertheless, having not seen the incident, Moore did not express her

reservations or discount what Sloboda saw, and she thought Sloboda’s description of the incident

warranted reporting to the central office.

Moore testified that after Sloboda’s report, she sought guidance from several people at

the central office, and then went back to Turbiak’s classroom and remained there until she could

escort Turbiak back to her (Moore’s) office. Moore said that while Turbiak was in her office,

Turbiak “was crying. She was throwing up. She was in a fetal position in one of my chairs.

And she kept . . . kind of hyperventilating.” When DeMan and Human Resources Director

Dorothy Chomicz interviewed Turbiak about the incident, Turbiak explained that JG had thrown

a ring stacker, subsequent to which she had placed one hand under his chin and the other behind

his head to protect his head because he tended to thrust it when being reprimanded, and told him

that throwing toys was unacceptable. Chomicz testified that Turbiak’s explanation was

reasonable and that, although she was nervous, she delivered it with confidence and without any

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signs of having been coached. In short, Chomicz and DeMan thought Turbiak’s explanation

resonated with what they knew, so they allowed her to return to her classroom.4

The following month, Sokol informed DeMan that she thought Turbiak was intimidating

her and she could no longer work in Turbiak’s classroom. DeMan relayed to Mark Schultz,

Adminstrator of Employee Relations and Public Safety, that she had received information from

Sokol of a “hostile workplace claim.” Schultz responded by opening an investigation on April

23, 2012; on the same day, Turbiak was placed on paid administrative leave. Schultz testified

that on April 24, 2012, having read written reports from Moore (the timeline), DeBeaudry,

Sloboda’s memo about the March 5, 2012 incident, and statements from Sokol, Santer, Crews,

and Sprow, he telephoned the police to report suspected child abuse.5 On June 12, 2012, LPS

filed tenure charges against Turbiak, and the board of eduction voted to proceed with the

charges. Various other defendants were disciplined, including Respondek, whose employment

was terminated on June 13, 2012, for her own actions toward two students and for failing to take

steps to prevent Turbiak’s inappropriate conduct toward students; DeBaudry and Crews, who

were disciplined for failure to report their concerns with Turbiak directly to Moore; Sloboda,

who was disciplined for failure to report suspected child abuse to the proper state authority; and

Moore, who was disciplined for failure to report suspected child abuse to the proper state

authority, to inform plaintiff that JG’s head had been grabbed, and to inform another child’s

parents that Respondek had spanked him.

Plaintiff removed JG from Webster in the summer of 2012. She testified at her

deposition to improvements in JG’s behavior while he was at Webster, but said that after she

removed him, JG exhibited anxiety, a return to repetitive behaviors, and increased clinginess.

Plaintiff said that JG would grab her face and turn her head to look at him if he wanted to get her

attention, that he would overreact to things that she did not think should upset him, and that he

was “absolutely not listening at all.”

In November of 2012, plaintiff brought an action in federal district court against the

school district and defendants alleging both state and federal claims. Among the federal claims,

plaintiff claimed that Turbiak’s alleged conduct constituted excessive force in violation of JG’s

rights under the Fourteenth Amendment. Gohl v Livonia Pub Schs, 134 F Supp 3d 1066, 1082-

1083 (ED Mich, 2015). The district court dismissed plaintiff’s federal claims with prejudice and

her state claims without prejudice, thus allowing her to file the instant lawsuit. The court

4

At her deposition, Turbiak denied grabbing JG by the head and jerking it back aggressively.

She said that afterward, she pointed to the rings and, if JG was not looking in their direction,

would guide his head to look where she was pointing, and that JG willingly picked up the rings.

Respondek testified that JG was laughing when Turbiak removed him from his chair, that he

picked up the rings, and that he started giggling when Turbiak returned him to his chair.

5

Schultz eventually reached a Detective Burklow, with whom he met on April 26, 2012, and

turned over all the information he had about Turbiak’s classroom. Although the detective

conducted an independent investigation, the Wayne County Prosecutor’s office declined to issue

any warrants, citing insufficient evidence.

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concluded that Turbiak’s “single act of abuse does not rise to the level of conscience-shocking

behavior[,]” and, therefore, that “Turbiak’s conduct did not violate [JG’s] substantive due

process rights.” Gohl, 134 F Supp 3d at 1084. The district court also concluded that there was

no “evidence from which a reasonable jury could find that [JG] sustained any physical injury,

much less a severe physical injury, as a result of Turbiak’s conduct on March 5, 2012[,]” or even

“that Turbiak’s alleged conduct created a serious risk of severe physical injury.” Id. at 1085.

The district court likewise rejected plaintiff’s assertion that Turbiak’s alledged abuse of other

children in JG’s presence constituted conscience-shocking emotional abuse. Id. Specifically, the

federal court found “no record citations to substantiate the assertion that [JG] witnessed any of

these alleged incidents” of abuse of other children and that the alleged incidents occurred in the

afternoon sessions, which JG did not attend, or in the previous school year, before JG began

attending Webster. Id. at 1085-1086. The Sixth Circuit Court of Appeals affirmed the district

court’s ruling, Gohl v Livonia Pub Schs, 836 F3d 672, 676 (CA 6, 2016)6, and the United States

Supreme Court denied plaintiff’s petition for certiorari, __ US __; 138 S Ct 56 (mem); 199 L

Ed2d 18 (2017).

After the federal district court dismissed her state claims without prejudice, plaintiff filed

a four-count complaint in the instant case. In Count I, plaintiff alleged claims of gross

negligence, willful and wanton misconduct, and assault and battery against Turbiak. In Count II,

she alleged that defendants failed to report suspected child abuse in violation of the child

protection law, MCL 722.621 et seq. In Count III, she alleged that all of the defendants except

for Turbiak acted with gross negligence or willful and wanton misconduct, and in Count IV, she

alleged that the conduct of all defendants constituted the intentional infliction of emotional

distress. The parties adopted the discovery that had been conducted in the Gohl federal action.

As indicated above, defendants filed a joint motion for summary disposition pursuant to

MCR 2.116 (C)(7), (C)(8), and (C)(10) on September 19, 2016. Subsequent to the October 11,

2016 hearing on the motion, the trial court entered an order denying summary disposition on all

counts with respect to Turbiak, simply stating that there was a “question of fact as to Sharon

Turbiak.” As to the other defendants, the trial court granted summary disposition on plaintiff’s

count of intentional infliction of emotional distress (Count IV), but denied summary disposition

on counts for gross negligence (Count III) and failure to report suspected child abuse (Count II).

These appeals followed.

II. ANALYSIS

A. STANDARD OF REVIEW

The Court reviews de novo a trial court’s decision on a summary disposition motion.

Dillard v Schlussel, 308 Mich App 429, 444; 865 NW2d 648 (2014). Defendants filed a joint

motion for summary disposition under MCR 2.116(C)(7) (immunity by law), (C)(8) (failure to

state a claim), and (C)(10) (no genuine issue of material fact). The trial court appears to have

6

Judge Clay issued an impassioned dissenting opinion. Id., 836 F3d at 685-698.

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based its summary disposition decisions on MCR 2.116(C)(10). “In evaluating a summary

disposition motion brought under MCR 2.116(C)(10), a trial court considers affidavits,

pleadings, depositions, admissions, and other evidence submitted by the parties, MCR

2.116(G)(5), in the light most favorable to the party opposing the motion.” Maiden v Rozwood,

461 Mich 109, 120; 597 NW2d 817 (1999). A party is entitled to summary disposition where the

proffered evidence fails to create a genuine issue of material fact and the party is entitled to

judgment as a matter of law. MCR 2.116(C)(10). “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).

B. ASSAULT & BATTERY CLAIM AGAINST TURBIAK

In a joint brief, defendants allege that the trial court erred by denying summary

disposition as to “Count I of the complaint, with respect to the claim of assault and battery pled

against Turbiak.” Defendants contend that Turbiak was entitled to summary disposition based

on the collateral estoppel effect of the Sixth Circuit’s “findings” that establish her right to

governmental immunity, plaintiff’s alleged failure to establish a genuine issue of material fact

with regard to assault and battery, and an application of the Paul D. Coverdell Teacher Protection

Act of 2001, 20 USC §§ 7918 to 7948. We disagree.

Defendants first contend that the federal courts’ dispositive rulings establish Turbiak’s

entitlement to governmental immunity. We review the applicability of governmental immunity

de novo. Co Rd Ass’n of Mich v Governor, 287 Mich App 95, 117-118; 782 NW2d 784 (2010).

Under Michigan law, “governmental employees acting within the course of their employment

and the scope of their authority are immune from tort liability except in cases where their actions

constitute gross negligence.” Tarlea v Crabtree, 263 Mich App 80, 89; 687 NW2d 333 (2004);

MCL 691.1407(2). However, this general grant of statutory immunity does not apply to an

intentional tort by a governmental employee. Sudul v City of Hamtramck, 221 Mich App 455,

458; 562 NW2d 478 (1997). The test for governmental immunity where, as here, the plaintiff

has pleaded an intentional tort is laid out in Odom v Wayne Co, 482 Mich 459, 480; 760 NW2d

217 (2008), which provides that a defendant may establish individual governmental immunity

for an intentional tort by satisfying the following three criteria:

(a) [t]he 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.

Governmental employees bear the burden of raising and proving their entitlement to immunity as

an affirmative defense. Id., 482 Mich at 479.

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The parties do not dispute that Turbiak’s actions were undertaken during the course of

her employment and that they were discrectionary, as opposed to ministerial. But they do

dispute whether she was acting within the scope of her authority and in good faith or without

malice. Turbiak argues that these two criteria are satisfied by the Sixth Circuit’s “findings” that

she was acting for a pedagogical purpose and without malice or sadism, and that these findings

should be given collateral estoppel effect.

Collateral estoppel precludes relitigation of an issue in a subsequent, different cause of

action between the same parties when the prior proceeding culminated in a valid final judgment

and the issue was actually and necessarily determined in that prior proceeding. Leahy v Orion

Twp, 269 Mich App 527, 530; 711 NW2d 438 (2006). Generally, three elements must be

satisfied in order for collateral estoppel to apply:

(1) a question of fact essential to the judgment must have been actually litigated

and determined by a valid and final judgment; (2) the same parties [or their

privies] must have had a full [and fair] opportunity to litigate the issue; and (3)

there must be mutuality of estoppel. [Monat v State Farm Ins Co, 469 Mich 679,

683; 677 NW2d 843 (2004) (quotation marks and citation omitted); VanVorous v

Burmeister, 262 Mich App 467, 480; 687 NW2d 132 (2004), overruled on other

grounds by Odom, 482 Mich 459 (2008).]

Mutuality of estoppel is not required where one party uses estoppel defensively against another

party who has already had a full and fair opportunity to litigate the issue. Monat, 469 Mich at

691.

Turbiak claims she established she was acting in good faith or without malice when she

interacted with JG on March 5, 2012, based on the Sixth Circuit’s rulings concerning plaintiff’s

substantive due process federal claim. In reviewing plaintiff’s substantive due process claim, the

Sixth Circuit addressed whether plaintiff had satisfied the applicable “shocks the conscience” test

used to determine whether Turbiak’s conduct rose to the necessary level of excessive force to

constitute an actionable claim. Gohl, 836 F3d at 678. It noted, “[t]he question is whether the

force applied [by the government employee] caused injury so severe, was so disproportionate to

the need presented, and was so inspired by malice or sadism rather than a merely careless or

unwise excess of zeal that it amount to a brutal and inhumane abuse of official power literally

shocking the conscience. Id, (quotation marks and citations omitted). To answer this question,

the Sixth Circuit adopted the analytical framework employed by the Third Circuit Court of

Appeals in Gottlieb v Laurel Highlands Sch Dist, 272 F3d 168 (CA 3, 2001). The purpose of the

framework, according to the Third Circuit, was to “avoid conflating the various elements of the

shocks the conscience test into a vague impressionistic standard.” Gottlieb, 272 F3d at 173.

Following Gottlieb, the Sixth Circuit asked the following four questions:

a) Was there a pedagogical justification for the use of force?; b) Was the force

utilized excessive to meet the legitimate objective in this situation?; c) Was the

force applied in a good-faith effort to maintain or restore discipline or maliciously

and sadistically for the very purpose of causing harm?; and d) Was there a serious

injury? [Gohl, 836 F3d at 678-679.]

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The Sixth Circuit noted that these questions are “not exhaustive,” and their application to

determine whether conduct shocks the conscience is not merely a “counting exercise.” Gohl,

836 F3d at 679. The appeals court concluded that no evidence refuted Turbiak’s explanation that

her contact with JG had a pedagogical justification, although it also noted that “a jury could

conclude that Turbiak used more force than needed.” Id. at 679. The Sixth Circuit ultimately

concluded that the record evidence would not permit a reasonable to jury to find that Turbiak

acted “maliciously and sadistically for the very purpose of causing harm,” and that there was no

evidence of “serious injury.” Id.

In light of the unrebutted evidence the Sixth Circuit relied on in determining that Turbiak

had a pedagogical justification for her March 5, 2012 engagement with JG,7 we agree with

defendants’ contention that Turbiak established she was acting, or reasonably believed she was

acting, within the scope of her authority. See Odom, 482 Mich at 480. Even though one may

question the propriety of how she executed the tasks delegated to her, the scope of her authority

entailed teaching, correcting, and keeping safe those students assigned to her care. See Backus v

Kauffman, 238 Mich App 402, 410; 605 NW2d 690 (1999) (ruling that a teacher who taught at

one school in the morning and another in the afternoon was acting within the scope of her

authotiy when she had an auto accident while driving from one school to the other in fulfillment

of her obligation to the school disctrict, even if she drove negligently and caused an accident).

However, we reject defendants’ attempt to equate the good faith standard in Michigan’s

governmental immunity law applicable to intentional tort claims with the malice standard

involved in a substantive due process claim, or to otherwise extrapolate from the Sixth Circuit’s

rulings as defendants urge us to do. The Sixth Circuit concluded that no evidence permits a jury

to find that Turbiak acted “maliciously and sadistically for the very purpose of causing harm.”

Gohl, 836 F3d at 679 (emphasis added). But it also noted that a jury could conclude Turbiak

used more force than needed, so much so that her conduct bothered Sloboda enough to report her

to the principal. Id. The federal court’s “shocks the conscience” standard for assessing the

viability of plaintiff’s excessive force claim requires a finding of a substantially higher level of

malice than those acts that subject a governmental employee to an intentional tort claim. As the

federal district court stated, “a substantive due process claim is quite different than a claim of

assault and battery under state tort law.” Gohl, 134 F Supp 3d at 1084. Thus, given this

substantially higher standard in the federal court, we do not consider the Sixth Circuit’s

conclusion regarding Turbiak’s intent binding in state court.

7

In order for collateral estoppel to apply, the question of fact at issue must have been “essential”

to the judgment. VanVorous, 262 Mich App at 480. We are not convinced that the Sixth

Circuit’s conclusion that Turbiak had a pedagogical justification for her conduct was essential to

the judgment, as it was determined as one of four “guiding questions,” Gohl, 836 F3d at 678,

among a list that was “not exhaustive.” Id. at 679. Nevertheless, the record evidence supports

the Sixth Circuit’s conclusion, so we need not address whether it has been established by

collateral estoppel.

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We acknowledge that Turbiak consistently described the technique she used on JG as

“redirecting,” that Chomicz believed the explanation had the ring of truth, and that the record

corroborates JG’s habit of thrusting his head. Nevertheless, plaintiff presented depositional

evidence that Turbiak was frustrated and sometimes overwhelmed by the needs of the students in

her class, that she seemed to exploit certain children’s vulnerabilities for her amusement, and that

she could be harsh, abrupt, and aggressive toward her students and staff. In addition, Moore

testified that Turbiak was crying, throwing up, hyperventilating, and assuming the fetal position

in one of Moore’s chairs after Moore removed Turbiak from her classroom following the March

5, 2012, incident. Viewing this evidence in the light most favorable to plaintiff—that Turbiak

grabbed the top of JG’s head and jerked it back “quite aggressively” while yelling very close to

his face—creates a genuine issue of material fact with regard to whether Turbiak acted in good

faith or without malice in her contact with JG, a disabled child, especially in light of his

underlying condition of hydrocephalus. For this reason, we conclude that Turbiak has not

established that she is entitled to governmental immunity.

For the same reasons, Turbiak is not entitled under MCR 2.116(C)(10) to summary

disposition of plaintiff’s allegations of assault and battery. As this Court explained in

VanVorous, 262 Mich App at 482-483, overruled on other grounds by Odom, 482 Mich 459

(2004):

To recover civil damages for assault, plaintiff must show an “intentional unlawful

offer of corporal injury to another person by force, or force unlawfully directed

toward the person of another, under circumstances which create a well-founded

apprehension of imminent contact, coupled with the apparent present ability to

accomplish contact.” To recover for battery, plaintiff must demonstrate a “wilful

and harmful or offensive touching of another person which results from an act

intended to cause such a contact.” [Quotation marks and citations omitted.]

Turbiak has consistently maintained that her intent in touching JG on March 5, 2012, was

to protect his head while teaching him that it was not acceptable to knock toys off a table. That

may be so. However, complaints had been lodged against Turbiak for purposefully mistreating

students and bullying staff, and Sloboda recounted that she saw her “grab” JG by “the top of”8

his head and “jerk it back quite aggressively” while yelling “You need to listen” very close to his

face. In addition, Turbiak was in such a state in Moore’s office after the alleged head-grabbing

incident that Moore telephoned the central office for advice regarding what to do. A reasonable

jury could conclude that Turbiak was overwhelmingly upset in that moment because she knew

she had gone too far and lost her temper when handling JG. Viewing the evidence in a light

most favorable to plaintiff, Dillard, 308 Mich App at 445, there remains a material question of

fact as to whether Turbiak’s actions showed an “intentional and unlawful threat or offer to do

bodily injury” to JG and whether she created in JG a “fear of imminent peril.” The same

evidence raises a question of fact as to whether Turbiak completed the assault by committing a

8

In contrast, Turbiak claimed that she had put her hand behind JG’s head.

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battery, i.e., by willfully and intentionally grabbing and jerking JG’s head back quite

aggressively against his will.

Defendants contend that the Paul D. Coverdell Teacher Protection Act of 2001, 20 USC

§§ 7941 to 7948, provides Turbiak with immunity against plaintiff’s assault and battery claim.

However, defendants have not established that this federal legislation even applies to preempt

Michigan civil claims, and no caselaw, either state or federal, supports their contention.

Furthermore, the protections of the Act do not insulate school employees from willful

misconduct, gross negligence, or reckless misconduct, nor are they available where a teacher’s

actions are not carried out in conformity with state laws. See 20 USC §7946. For these reasons,

and in light of our determination that, viewed in the light most favorable to plaintiff, the record

raises a factual issue regarding whether Turbiak acted in good faith and without malice, we

conclude that Turbiak has not met her burden to prove entitlement to the protections of the Act.

Accordingly, the trial court did not err in denying defendants’ motion for summary disposition of

plaintiff’s claim against Turbiak for assault and battery.

Plaintiff also alleged in Count I of the complaint that Turbiak acted with gross

negligence, as well as willful and wanton misconduct. Defendants contend in their brief that

“[t]hese allegations of gross negligence and/or willful and wanton misconduct were included by

Plaintiff in Count I presumably only to avoid governmental immunity.” Defendants contend that

plaintiff has cited “no authority in the lower court for the proposition that such claims are

actionable separately from the assault and battery claims.” This may explain why defendants do

not raise as a question presented whether the trial court erred in denying defendants’ motion for

summary disposition with respect to these claims. Nevertheless, we find no reason why plaintiff

was not entitled to bring a gross negligence action against Turbiak.9 See Bellinger by Bellinger v

Kram, 319 Mich App 653; 904 NW2d 870 (2017).

“ ‘Gross negligence’ means conduct so reckless as to demonstrate a substantial lack of

concern for whether an injury results.” MCL 691.1407(8)(a). Turbiak knew that JG was a

medically fragile child with hydrocephalus and a shunt and that it was important to protect the

child’s head because any severe head movement could have serious medical effects. In light of

what Turbiak knew, and viewing the evidence in the light most favorable to plaintiff, Dillard,

308 Mich App at 445, a reasonable jury could find that Turbiak’s alleged grabbing of JG’s head

and jerking it back “quite aggressively,” especially when knowing that he suffered from

hydrocephalus and was medically fragile, demonstrated a substantial lack of concern for whether

injury resulted. Thus, to the extent defendant has raised the issue, we conclude that the trial

9

With regard to plaintiff’s allegation that Turbiak engaged in willful and wanton misconduct, it

is unclear whether such purported cause of action even exists in the current factual setting.

Because neither party has undertaken to brief the issue, the Court declines to undertake the task

of its own accord. See Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998) (indicating

the Court’s disinclination to discover and rationalize the basis for a party’s claims).

Accordingly, we will not disturb the trial court’s denial of summary disposition with respect to

this allegation.

-11-

court did not err in denying Turbiak’s motion for summary disposition with regard to plaintiff’s

claim of gross negligence.

C. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Defendants argue that the trial court erred in denying summary disposition to defendant

Turbiak with respect to plaintiff’s claim in Count IV of intentional infliction of emotional

distress (IIED) because Turbiak’s conduct was not extreme and outrageous, and there is no

evidence JG suffered any psychological injuries, as the Sixth Circuit concluded.10 Based on the

record evidence, we agree that Turbiak was entitled to summary disposition of this claim.

To establish a prima facie claim of intentional infliction of emotional

distress, the plaintiff must present evidence of (1) the defendant’s extreme and

outrageous conduct, (2) the defendant’s intent or recklessness, (3) causation, and

(4) the severe emotional distress of the plaintiff. Only when a plaintiff can

demonstrate that the defendant’s conduct is so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious and utterly intolerable in a civilized community will liability

attach. [Dalley v Dykema Gossett, 287 Mich App 296, 321; 788 NW2d 679

(2010) (quotation marks and citations omitted).]

Even if we were to assume for the sake of argument that plaintiff established the first two

prongs of a prima facie case for IIED, she has not presented admissible evidence that Turbiak’s

conduct caused JG to suffer severe emotional distress. Quoting Restatement Torts, 2d, §46,

comment j, p 77, our Supreme Court in Roberts v Auto-Owners Ins. Co, 422 Mich 594, 608-609;

374 NW2d 905, described “severe emotional distress” as follows:

Emotional distress passes under various names, such as mental suffering,

mental anguish, mental or nervous shock, or the like. It includes all highly

unpleasant mental reactions, such as fright, horror, grief, shame,

humiliation, embarrassment, anger, chagrin, disappointment, worry, and

nausea. It is only where it is extreme that the liability arises. Complete

emotional tranquillity [sic] is seldom attainable in this world, and some

degree of transient and trivial emotional distress is a part of the price of

living among people. The law intervenes only where the distress inflicted

is so severe that no reasonable man could be expected to endure it.”

Further, although bodily injury need not result, the Restatement commentary

suggests that “more in the way of outrage” may be required where a claim is

based on emotional injury alone. Id., comment K, p 78.

10

As noted above, the trial court dismissed Count IV with respect to the other defendants.

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Defendants point to the Sixth Circuit’s conclusion that there was no evidence JG suffered

from either physical or psychological injury, or that any behavioral problems JG developed in

the summer of 2012 could be linked to the March 5, 2012 incident. Gohl, 836 F3d at 679.

Regardless of whether such conclusion constitutes collateral estoppel, the Sixth Circuit

accurately described the record evidence. There simply is no admissible evidence to create a

genuine issue of material fact as to whether JG suffered extreme emotional distress caused by the

March 5, 2012 incident.

Plaintiff maintains that JG suffered severe emotional distress due to the March 5, 2012

incident as well as his witnessing the abuse of other children in the classroom. However,

plaintiff’s contentions are unsupported by the record. First, rather than cite to the record to

establish that JG actually witnessed or was at least in the classroom when the alleged acts of

abuse to other children occurred, plaintiff relies on general statements made to Moore regarding

Turbiak’s harsh, abrupt, and aggressive treatment of students and paints in broad, emotionally

charged strokes, a picture of a classroom characterized by “systematic” abuse. In addition,

plaintiff does not point to any record evidence indicating that JG suffered what a reasonable jury

might conclude to be severe emotional distress.

Second, plaintiff’s reliance on Gerald A. Shiener, M.D.’s “report” to support a claim for

IIED is misplaced. As noted by the federal district court when entertaining defendants’ motion

for summary judgment, Shiener’s unsworn report is hearsay. MRE 801; Gohl, 134 F Supp 3d at

1086 n 13. Documentary evidence offered in support of or in opposition to a motion for

summary disposition “shall only be considered to the extent that the content or substance would

be admissible evidence to establish or deny the grounds stated in the motion.” MCR

2.116(G)(6). Because the content of Shiener’s report is inadmissible hearsay, it cannot be

considered in support of plaintiff’s allegation.

Even if Shiener’s report could be considered, his expert opinion is conclusory,

unsubstantiated, and based on facts contrary to the record. The essence of Shiener’s opinion is

that JG’s behavioral changes starting in the summer of 2012 are attributable to changes in his

brain brought about by Turbiak’s physical abuse of JG and the emotional trauma JG suffered

watching Turbiak abuse other children. Shiener based his opinion in part on information that

Turbiak was “grabbing [JG’s] head, shaking his head, jerking his head, and twisting his head.”

Shiener opined that the “kind of behaviors described would have an extremely negative effect

and damaging effect on brain tissue.” However, nowhere in the record is there any evidence that

Turbiak shook or twisted JG’s head. Shiener also appears to have based his opinion on an

understanding that JG’s behavioral changes began in March 2012, shortly after the alleged head-

grabbing incident. However, plaintiff testified that JG’s behavioral changes did not begin until

the summer of 2012, after she removed him from Webster and months after the March 5, 2012

incident. With regard to Shiener’s opinion that JG’s behavioral changes arose from changes in

JG’s brain attributable to Turbiak’s conduct, Shiener provides no evidence of any changes in

JG’s brain, nor is there any evidence that Shiener conducted testing to determine whether such

changes actually occurred. In light of the inadmissibility of Shiener’s opinion, the unsupported

facts upon which he based his opinion, and the lack of any facts or medical data supporting his

expert opinion, the content of Shiener’s report does not support plaintiff’s assertion that JG

suffered severe emotional distress arising from any of the complained-of conduct of Turbiak.

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Because plaintiff has failed to create a genuine issue of material fact as to whether JG

suffered severe emotional distress due to Turbiak’s conduct, we conclude that the trial court

erred in denying defendants’ motion for summary disposition of the IIED claim against Turbiak.

D. FAILURE TO REPORT SUSPECTED CHILD ABUSE OR NEGLECT

Defendants claim that the trial court erred in not granting their motion for summary

disposition of plaintiff’s allegations in Count II of failure to report suspected child abuse or

neglect in violation of MCL 722.623. We agree.

This Court reviews questions of statutory interpretation and application de novo.

Farmers Ins Exch v AAA of Mich, 256 Mich App 691, 694; 671 NW2d 89 (2003). The primary

goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the

Legislature. Mich Ed Ass’n v Secretary of State (On Rehearing), 489 Mich 194, 217; 801 NW2d

35 (2011). Provisions must be read in the context of the entire statute to produce a harmonious

whole. CG Automation & Fixture, Inc v Autoform, Inc, 291 Mich App 333, 338; 804 NW2d 781

(2011).

The purpose of the child protection law (CPL) “is to protect abused and neglected

children.” Becker-Witt v Bd of Examiners of Social Workers, 256 Mich App 359, 364; 663

NW2d 514 (2003). The CPL focuses on protecting children in situations “where abuse and

neglect frequently go unreported, i.e., when perpetrated by family members or others with

control over the child.” People v Beardsley, 263 Mich App 408, 413; 688 NW2d 304 (2004);

MCL 722.623. “Child abuse,” as used in the CPL,

means harm or threatened harm to a child’s health or welfare that occurs through

nonaccidental physical or mental injury, sexual abuse, sexual exploitation, or

maltreatment, by a parent, a legal guardian, or any other person responsible for

the child’s health or welfare or by a teacher, a teacher’s aide, or a member of the

clergy.” MCL 722.622(g).

To achieve the purpose of the CPL, MCL 722.623(1)(a) imposes a duty on certain people

to report suspected child abuse or neglect immediately to the proper state authority. Those with

a statutory duty to report include anyone who is a “social worker, licensed master’s social

worker . . . school administrator, school counselor or teacher[.]” MCL 722.624 permits non-

mandatory reporters who have “reasonable cause to suspect child abuse or neglect” to “report the

matter to the department [of health and human services (DHHS)] or a law enforcement agency.”

Mandatory and non-mandatory reporters who report in good faith, “cooperate[] in an

investigation, or assist[] in any other requirement of [the CPL] [are] immune from civil or

criminal liability that might otherwise be incurred by that action.” MCL 722.625. A mandatory

reporter who fails to report suspected child abuse or neglect as required by the CPL “is civilly

liable for the damages proximately caused by the failure.” MCL 722.633(1).

Occupational therapists DeBeaudry and Crews, speech pathologist Sokol, and

paraprofessionals Respondek and Sprow are entitled to summary disposition of plaintiff’s

failure-to-report claim because they are not mandatory reporters under MCL 722.623. Plaintiff

urges the Court to interpret the statute broadly enough to include these defendants because doing

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so would serve the Legislature’s intended purpose and because these defendants exercise roles

“essentially identical to that of a teacher.” We decline to interpret the statutory language beyond

its plain meaning.

Reading the provisions of the CPL as a whole, CG Automation & Fixture, Inc, 291 Mich

App at 338, indicates that the Legislature intended to identify and limit those upon whom it

imposed a duty to report. The list of professions in MCL 722.623 clearly informs people in

those professions of their statutory duty to report suspected child abuse and neglect, regardless of

where they encounter such abuse. Plaintiff’s proposition that courts should impose liability on

one whose job title may not be identified in MCL 722.623(1)(a), but whose function in a

particular setting is similar to that of an identified mandatory reporter, substitutes vagueness for

clarity and has the potential to substantially increase the ranks of mandatory reporters. Neither

result comports with the Legislator’s clearly expressed intent to limit mandatory reporters to a

clearly defined group of professionals. This Court has resisted arguments to expand the

reporting requirements beyond those clearly delineated by the Legislature. See Beardsley, 263

Mich App at 414, 416 (declining to expand reportable contact to include sexual contact between

two minor students). Accordingly, we decline to expand the meaning of “teachers” to include

paraprofessionals and ancillary service staff, and conclude that the trial court should have

dismissed plaintiff’s failure-to-report allegations against DeBeaudry, Crews, Sokol, Sprow, and

Respondek because they are not mandatory reporters under MCL 722.623.

Defendants also argue that mandatory reporters Liepa, Moore, and Sloboda are entitled to

summary disposition based on governmental immunity. We agree. As previously stated, the

applicability of governmental immunity is a question of law that this Court reviews de novo. Co

Rd Ass’n of Mich, 287 Mich App at 117-118.

According to this Court’s binding precedent, the mandatory reporting provisions of MCL

722.623 do not nullify the governmental immunity statute, MCL 691.1407. Jones v Bitner, 300

Mich App 65, 68; 832 NW2d 426 (2013). Thus, as superintendent of LPS, Liepa is entitled to

executive immunity pursuant to MCL 691.1407(5). Nalepa v Plymouth-Canton Community Sch,

207 Mich App 580, 587; 525 NW2d 897 (1992) (establishing that executive immunity applies to

a school superintendent). MCL 691.1407(5) provides in relevant part that “the elective or

highest appointive executive official of all levels of government” is immune from tort liability

for injuries to persons “if he or she is acting within the scope of his or her judicial, legislative, or

executive authority.” Plaintiff does not contend that Liepa was not acting within the scope of his

authority during all times relevant to these proceedings. Therefore, the trial court erred by not

granting Liepa summary disposition of plaintiff’s failure-to-report claim pursuant to MCR

2.116(C)(7).

Moore and Sloboda are also entitled to summary disposition of plaintiff’s failure-to-

report allegations based on governmental immunity. “As with all other mandated reports, the

failure to report when required to do so is judged under an ordinary negligence standard.” Lee v

Detroit Med Ctr, 285 Mich App 51, 70; 775 NW2d 326 (2009). Governmental employees are

immune from negligent tort liability if while in the course of employment they were acting or

reasonably believed they were acting within the scope of their authority, they were engaged in

the discharge of a governmental function, and they did not act with gross negligence that is the

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proximate cause of the alleged injury or damage. MCL 691.1407(2); see also Odom, 482 Mich

at 470, 479-480.

Plaintiff argues that Moore and Sloboda are not entitled to governmental immunity

because they were not, or could not reasonably believe that they were, acting within the scope of

their authority when they failed to report Turbiak’s alleged child abuse to the proper state

authority. This argument lacks merit. Plaintiff acknowledges that Michigan law and LPS policy

authorized Moore and Sloboda to report Turbiak’s allegedly abusive conduct. Moore reported

the results of her investigation to DeMan, and Sloboda reported what she saw on March 5, 2012,

to Moore. We hold that by reporting, both women were acting within the scope of their

authority. That they did not report Turbiak’s alleged abuse to the proper authorities pursuant to

MCL 722.623 may give rise to a presumption of negligence, but it does not mean that they were

acting outside the scope of their authority. See Backus, 238 Mich App at 410.

Plaintiff also argues that Moore and Sloboda are not entitled to governmental immunity

because their conduct constituted gross negligence. “[W]hether a governmental employee’s

conduct constituted gross negligence under MCL 691.1407 is generally a question of fact.” Id. at

88. However, “a court may grant summary disposition under MCR 2.116(C)(7) “ ‘if, on the

basis of the evidence presented, reasonable minds could not differ . . . .’ ” Id., quoting Jackson v

Saginaw Co, 458 Mich 141, 146; 580 NW2d 870 (1998).

Even if we assume for the sake of argument that Moore and Sloboda should have

reported suspected child abuse to the proper state authority rather than simply handling their

concerns internally, the actions they did take do not present sufficient indicia of gross negligence

to create a genuine issue of material fact for a jury to decide. See Maiden v Rozwood, 461 Mich

at 122-23 (“[E]vidence of ordinary negligence does not create a material question of fact

concerning gross negligence.”). The record shows that in the fall of 2011, Moore investigated

complaints about Turbiak’s treatment of staff and students, sought guidance from DeMan,

counseled Turbiak, and subsequently monitored her classroom. With regard to the March 5,

2012 incident, Sloboda immediately reported the incident to Moore and, at Moore’s request,

followed up her verbal account with a written statement. Moore informed and sought guidance

from several people in the central office, after which she returned to and remained in Turbiak’s

classroom until she could escort Turbiak to her office in order to investigate what occurred and

determine whether it rose to the level of child abuse or neglect. Turbiak explained her conduct,

which had a ring of truth to Moore, as she knew JG had a habit of throwing his head back,

requiring measures to protect him from hurting himself, and there had even been talk about

placing him in a soft helmet to protect him from his own conduct. There is no evidence that

Turbiak ever laid hands on JG again or otherwise mistreated another child in his presence. On

this record, an objective observer could not reasonably conclude that the conduct of Moore and

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

results,” MCL 691.1407(8)(a), or that they “simply did not care about the safety or welfare of

those in [their] charge,” Tarlea, 263 Mich App at 90.

Defendants Moore and Sloboda have established that they were acting within the scope

of their authority and without gross negligence. Given that plaintiff has not contested that they

were acting in the course of their employment and their acts were discretionary, Moore and

Sloboda are entitled to governmental immunity. Tarlea, 263 Mich App at 89 (“governmental

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employees acting within the course of their employment and the scope of their authority are

immune from tort liability except in cases where their actions constitute gross negligence.”). We

need not address whether their actions were the proximate cause of JG’s alleged injuries. For

these reasons, the trial court erred in not granting to Moore and Sloboda summary disposition of

plaintiff’s failure-to-report allegations pursuant to MCR 2.116(C)(7).

Finally, Turbiak contends that the trial court erred in not only interpreting plaintiff’s

allegations regarding failure to report child abuse in Count II as including her, but then refusing

to grant her summary disposition when the matter was raised at the hearing of defendant’s

motion for summary disposition. Defendants argue that the Legislature could not have intended

that the potential perpetrators of child abuse, who are mandatory reporters themselves, must

report themselves to the DHHS or a law enforcement agency when they have reasonable cause to

suspect that they may have abused a child. Plaintiff contends that she meant to include Turbiak

among those liable in Count II, and that under the plain language of MCL 722.623, Turbiak is

liable for failing to report herself to the proper authority. Defendants’ arguments have merit.

The heading in plaintiff’s complaint for Count II states: “Violation of MCL 722.623 –

Failure to Report Child Abuse – All Defendants.” But in its numbered paragraph allegations,

plaintiff specifically alleges, “Liepa, Moore, Respondek, Sprow, DeBeaudry, Sokol, DeMan,

Crews, and/or Sloboda, knew of Turbiak’s abuse of children before, during and after her abuse of

[JG],” and that “Liepa, Moore, Respondek, Sprow, DeBeaudry, Sokol, DeMan, Crews, and/or

Sloboda failed to submit an oral report to CPS in direct contravention of MCL 722.623.”

Further, plaintiff states, “[a]s a or the direct and proximate cause of the statutory violations,

Turbiak was enabled to continue her abusive behavior . . . .” Plaintiff did not include Turbiak in

any of the allegations as failing to report herself. At the hearing of defendants’ motion for

summary disposition, one of plaintiff’s attorneys asserted that they had intended Count II to

include Turbiak. However, by intending to plead the count against Turbiak without actually

specifying her in any of the allegations, plaintiff arguably failed to fulfill the primary function of

pleading in Michigan, which “is to give notice of the nature of the claim or defense sufficient to

permit the opposite party to take a responsive position.” Dalley, 287 Mich App at 305; MCR

2.111(B)(1). At the very least, plaintiff’s complaint is ambiguous. A heading, although it

conveys the nature of the claim, is not an allegation to which a defendant is required to respond.

MCR 2.111(C). Nowhere in plaintiff’s complaint did plaintiff specifically allege that Turbiak

was liable for violating MCL 722.623 by failing to report her own conduct, and thus, defendants

were not required to respond to such a claim.

No Michigan authority has addressed whether a perpetrator who also happens to be a

mandatory reporter is obligated to report his or her conduct under MCL 722.623, and the CPL is

silent on the issue. The only known authority addressing the question is Craig v Lima City Schs

Bd of Ed, 384 F Supp 2d 1136, 1150-1151 (ND Ohio, 2005), which concluded, “it is a ridiculous

proposition that an abuser would report himself.” Although we are not bound by the federal

district court’s decision, it is persuasive. Abela v Gen Motors Corp, 469 Mich 603, 607; 677

NW2d 325 (2004). The CPL’s focus on protecting children in situations where abuse and

neglect frequently go unreported, Beardsley, 263 Mich App at 413, as when the perpetrator is a

parent, a legal guardian, a teacher, a teacher’s aide, or a member of the clergy, MCL 722.622(g),

reasonably suggests that the Legislature’s operative assumption was not that perpetrators would

report themselves. Nevertheless, we need not reach the issue of statutory interpretation because

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plaintiff did not plead her failure-to-report claim against Turbiak with sufficient specificity to put

her on notice that plaintiff meant to include her in the allegations. Consequently, the trial court

erred in ordering that Count II included a claim against Turbiak and denying Turbiak summary

disposition of such claim. MCR 2.116(C)(8).

E. GROSS NEGLIGENCE AND WILLFUL AND WANTON MISCONDUCT

Defendants Liepa, Moore, Respondek, Sprow, DeBeaudry, Sokol, DeMan, Crews, and

Sloboda contend that the trial court erred in denying their motion for summary disposition with

respect to plaintiff’s allegations against them in Count III for gross negligence and willful and

wanton misconduct. They claim that governmental immunity applies to bar such claims, as no

reasonable jury would conclude that their conduct rose to the level of gross negligence or willful

and wanton misconduct. In light of the record evidence, we agree.11

We turn first to plaintiff’s allegation of willful and wanton misconduct. Even if we

assume that such a cause of action exists in these circumstances (see note 9), and without

consideration of governmental immunity, plaintiff has not presented evidence sufficient to raise a

material question of fact regarding whether the conduct of these defendants showed “an intent to

harm or, if not that, such indifference to whether harm will result as to be the equivalent of a

willingness that it does.” Burnett v City of Adrian, 414 Mich 448, 455; 326 NW2d 810 (1982).

As to plaintiff’s allegations of gross negligence, we explained elsewhere in this opinion

that Liepa is immune from tort liability because he was acting within the scope of his executive

authority. In addition, Moore and Sloboda are entitled to governmental immunity because

plaintiff failed to raise a genuine issue of material fact that they acted outside the scope of their

authority or with gross negligence. MCL 691.1407(2); Tarlea, 263 Mich App at 89.

Plaintiff argues that Respondek, Sprow, DeBeaudry, Sokol, and Crews are not entitled to

governmental immunity because they were not, or could not reasonably believe that they were,

acting within the scope of their authority when they failed to act on their knowledge of Turbiak’s

alleged abuse of the students in her classroom, and that this failure constituted gross negligence.

Plaintiff grossly mischaracterizes the conduct of Crews, Sprow, Sokol, and DeBeaudry.

The record shows that these defendants did not simply discuss their concerns about Turbiak’s

conduct among themselves and do nothing.12 They shared their concerns about Turbiak’s

behavior toward staff and students with Program Specialist Santer and with Moore in October

2011. Their reports were the catalyst for events that eventually lead to DeMan’s warning letter

to Turbiak and that, according to multiple deponents, ushered in a period of improved conditions.

Whatever else these defendants could have done or might have done, they were operating within

11

Defendants also contend that because Turbiak was not grossly negligent, they cannot possibly

be deemed grossly negligent; however, we need not address this argument given our conclusion

based on the record evidence concerning their own conduct.

12

As already discussed, none of these defendants were mandatory reporters under the CPL.

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their scope of authority when considering whether and to whom to relay their concerns, and an

objective observer could not reasonably conclude that these defendants “simply did not care

about the safety or welfare of [the children] in [their] charge.” Tarlea, 263 Mich App at 90; see

also Maiden, 461 Mich at 122-123 (“[E]vidence of ordinary negligence does not create a

material question of fact concerning gross negligence.”). Accordingly, Crews, Sprow, Sokol,

and DeBeaudry are entitled to protection from tort liability based on governmental immunity

and, therefore, to summary disposition of plaintiff’s claims of gross negligence.

Respondek does not appear to have been among those voicing concerns about Turbiak to

Santer and Moore.13 However, plaintiff has presented scant evidence regarding Respondek’s

conduct prior to the March 5, 2012, incident that gave rise to this action, and has failed to present

any evidence indicating that her conduct relative to JG constituted gross negligence. There is no

evidence that Respondek mistreated JG or witnessed the March 5, 2012, incident in question

involving Turbiak, other than to observe the alleged aftermath, which Respondek described as

JG laughing when Turbiak removed him from his chair, after which he picked up the rings, and

then started giggling when Turbiak returned him to his chair. Simply put, the record evidence

does not create a genuine issue of material fact as to whether Respondek was grossly negligent in

any way with respect to JG.

In light of the foregoing, we conclude that the trial court erred by denying defendants’

motion for summary disposition of plaintiff’s claims under Count III of her complaint pursuant

to MCR 2.116(C)(7). There is no genuine issue of material fact as to whether anyone’s conduct

but Turbiak’s rose to the level of gross negigence.14

III. CONCLUSION

We affirm the trial court’s order denying summary disposition to Turbiak with respect to

Count I (assault and battery; gross negligence; willful and wanton misconduct).

We reverse the trial court’s order denying summary disposition to defendants with

respect to Counts II (failure to report) and III (gross negligence and willful and wanton

misconduct). Liepa is entitled to executive immunity as to both counts pursuant to MCL

691.1407(5). With regard to Count II, Respondek, Sprow, DeBeaudry, Sokol, and Crews were

not mandatory reporters, and are thus entitled to summary disposition pursuant to MCR

2.116(C)(8), Moore and Sloboda are entitled to governmental immunity, MCR 2.116 (C)(7), and

plaintiff did not specifically include Turbiak in Count II of her complaint, MCR 2.116 (C)(8).

With regard to Count III, defendants are entitled to governmental immunity, MCR 2.116(C)(7),

13

A significant motivating factor for the reports made to Moore by Crews, Sprow, and,

especially, Sokol, were concerns about Turbiak’s treatment of those providing ancillary services.

Respondek, a paraprofessional in Turbiak’s class, does not appear to have been a target of

Turbiak’s ill treatment.

14

Plaintiff’s claims of gross negligence and willful and wanton misconduct by Turbiak were

raised in Count I, not Count III, so dismissal of Count III is appropriate.

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as to plaintiff’s allegations of gross negligence. As to willful and wanton misconduct,

defendants are entitled to summary disposition pursuant to MCR 2.116(C)(10) because plaintiff

has failed to present evidence supporting her allegations that their conduct showed an intent to

harm or indifference that amounted to a willingness that harm occur.

We reverse the trial court’s order denying summary disposition to Turbiak with respect to

Count IV pursuant to MCR 2.116(C)(10) because plaintiff failed to present any admissible

evidence raising a material question of fact as to whether JG suffered severe emotional distress.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with

this opinion. We do not retain jurisdiction.

/s/ Mark T. Boonstra

/s/ Jane M. Beckering

/s/ Amy Ronayne Krause

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