Jonathan Roach v. Detroit Community Schools

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

JONATHAN ROACH, UNPUBLISHED

April 21, 2022

Plaintiff-Appellant,

v No. 357448

Wayne Circuit Court

DETROIT COMMUNITY SCHOOLS, FELICIA LC No. 19-009703-NZ

JONES, PATRICIA PEOPLES, WILLIAM

COLEMAN, LILLIE RILEY, ANTHONY

WAGNER, NANCY BERKOMPAS, and

KETURAH GODFREY,

Defendants-Appellees,

and

ECHELLE JORDAN,

Defendant.

Before: JANSEN, P.J., and SAWYER and RIORDAN, JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court’s order granting summary disposition in favor of

defendants Detroit Community Schools (DCS), Felicia Jones, Patricia Peoples, William Coleman,

Lilly Riley, Anthony Wagner,1 Nancy Berkompas, Echelle Jordan, and Keturah Godfrey, in this

1

Jones, Peoples, Coleman, Riley, and Wagner, like plaintiff, are all employed by MM1, Inc.

(MM1). Thus, we will refer to Jones, Peoples, Coleman, Riley, and Wagner collectively as the

“MM1 defendants.” When necessary, we will refer to the MM1 defendants individually by their

respective last names. Although Keturah Godfrey was also an employee of MM1, she had a

separate attorney from the other MM1 employees and, therefore, for clarity’s sake, we will refer

to her as Godfrey when appropriate. As will be discussed, Echelle Jordan was, at some point,

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action alleging gross negligence, premises liability, nuisance per se, nuisance in fact, and negligent

infliction of emotional distress. We affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case concerns mold in a classroom that allegedly caused injuries to plaintiff and

defendants’ alleged failure to remedy that issue. As a preliminary matter, it is helpful to understand

the role of each party in this case. DCS is a public school academy located in Detroit, Michigan.

Plaintiff was a history teacher during the 2018-2019 school year at what is referred to as the DCS

middle school facility. That school year went from September 2018 through June 2019. The MM1

defendants were plaintiff’s co-employees. Godfrey, Berkompas, and Jordan were also plaintiff’s

co-employees. Jones was the principal of DCS;2 Peoples was the Human Resources Director for

DCS; Coleman was Chief Financial Officer for DCS; Riley was head of security and maintenance

at DCS; and Wagner was the Director of Information Technology for DCS. Godfrey was

headmaster of DCS. Additionally, Berkompas was appointed as conservator for DCS in early

October 2018 by Bay Mills Community College, the charter school authorizer for DCS, and was

subsequently approved to serve as superintendent of DCS in late July 2019.

Plaintiff alleged that DCS’s failure to maintain the roof and ceiling at the middle school

facility caused water to leak into his classroom and resulted in mold and mildew in the ceiling.

Plaintiff lodged several complaints with DCS and some of the individual defendants, informing

them of the smell of mold and mildew in his classroom and, eventually, the effect it was having

on his health. Near the end of the 2018-2019 school year, plaintiff obtained samples of the mold

and had a mold identification report prepared. Although the report indicated that mold was present

in plaintiff’s classroom, there is no evidence this report was ever provided to defendants.

In mid-July 2019, plaintiff filed a five-count complaint against defendants. Of the five

claims in plaintiff’s complaint, only one applied to every defendant, while all five claims applied

to DCS. Specifically, plaintiff maintained a claim of gross negligence against every defendant.

With respect to DCS, plaintiff alleged, in addition to the gross-negligence claim, claims of (1)

premises liability, (2) nuisance per se, (3) nuisance in fact, and (4) negligent infliction of emotional

distress. In early August 2019, DCS hired a company to investigate the mold situation in the

middle school facility, a report was prepared detailing the findings of that investigation, and, in

September 2019, DCS had the mold issue remedied.

DCS and the MM1 defendants moved for summary disposition of plaintiff’s complaint

under MCR 2.116(C)(4), (C)(7), (C)(8), and (C)(10). DCS and the MM1 defendants argued: (1)

the exclusive-remedy provision of the Workers’ Disability Compensation Act of 1969 (WDCA),

MCL 418.101 et seq., barred plaintiff’s claims against the individual defendants and the

principal of DCS, but we were unable to determine whether she was also an employee of MM1.

Nancy Berkompas was appointed conservator of DCS by Bay Mills Community College, the

charter school authorizer for DCS, and subsequently approved to serve as superintendent of DCS.

2

It appears Jordan was also principal of DCS, and because plaintiff did not serve the complaint on

Jordan, under MCR 2.102(E)(2), the dismissal of plaintiff’s claim against Jordan was automatic.

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intentional-tort exception did not apply; (2) plaintiff’s claims against DCS were barred by

governmental immunity; and (3) plaintiff’s claims for premises liability, nuisance per se, nuisance

in fact, and negligent infliction of emotional distress were subject to dismissal for various reasons

not particularly relevant to this appeal. Berkompas seemingly concurred with the arguments in

the dispositive motion of DCS and the MM1 defendants, asserting that she too was entitled to

summary disposition on governmental immunity grounds. Godfrey also requested summary

disposition, relying on the exclusive-remedy provision of the WDCA.

Plaintiff responded, asserting that the exclusive-remedy provision did not bar his claims

because defendants had committed an intentional tort by willfully disregarding his complaints

regarding the mold in his classroom and its effect on his health. Plaintiff also asserted, in relevant

part, that there was a question of fact regarding whether DCS (a governmental agency) was grossly

negligent when it disregarded his complaints. After a reply from DCS and the MM1 defendants,

the trial court held that the exclusive-remedy provision barred plaintiff’s claims against the

individual MM1 defendants, Berkompas, and Godfrey, and plaintiff had not satisfied the

requirements of the intentional-tort exception. The trial court also concluded that governmental

immunity barred plaintiff’s claims against DCS. This appeal followed.

II. EXCLUSIVE-REMEDY PROVISION OF THE WDCA AND INTENTIONAL-TORT

EXCEPTION

Plaintiff argues that the trial court erred by concluding that the exclusive-remedy provision

of the WDCA barred his claims against the MM1 defendants, and defendants Godfrey and

Berkompas, because he established the applicability of the intentional-tort exception to the

exclusive-remedy provision. We disagree.3

This Court reviews de novo a trial court’s decision to grant or deny a motion for summary

disposition. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). A

claim regarding the WDCA’s exclusive remedy provision “necessarily constitutes a challenge to

the trial court’s subject matter jurisdiction.” Harris v Vernier, 242 Mich App 306, 313; 617 NW2d

764 (2000). A party may move for summary disposition under MCR 2.116(C)(4) if “[t]he court

lacks jurisdiction of the subject matter.” “When [re]viewing a motion under MCR 2.116(C)(4),

this Court must determine whether the pleadings demonstrate that the defendant was entitled to

judgment as a matter of law, or whether the affidavits and other proofs show that there was no

genuine issue of material fact.” Cork v Applebee’s of Mich, Inc, 239 Mich App 311, 315; 608

NW2d 62 (2000). A genuine issue of material fact exists if reasonable minds could differ on the

issue. Johnson v Detroit Edison Co, 288 Mich App 688, 695; 795 NW2d 161 (2010).

Under MCL 418.131(1), the WDCA provides the exclusive remedy for an injured worker

against his or her employer. McQueer v Perfect Fence Co, 502 Mich 276, 286-287; 917 NW2d

3

For the purposes of our discussion, we assume without deciding that plaintiff is correct to

implicitly suggest that an employee’s supervisors may be liable for a workplace injury to the same

extent as the employer itself.

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584 (2018). The only exception to the exclusive-remedy provision is when an employer commits

an intentional tort. Johnson, 288 Mich App at 696. In full, MCL 418.131(1) states:

The right to the recovery of benefits as provided in this act shall be the

employee’s exclusive remedy against the employer for a personal injury or

occupational disease. The only exception to this exclusive remedy is an intentional

tort. An intentional tort shall exist only when an employee is injured as a result of

a deliberate act of the employer and the employer specifically intended an injury.

An employer shall be deemed to have intended to injure if the employer had actual

knowledge that an injury was certain to occur and willfully disregarded that

knowledge. The issue of whether an act was an intentional tort shall be a question

of law for the court. This subsection shall not enlarge or reduce rights under law.

“[T]he exclusive remedy provision of the WDCA limits the liability of the employer and

provides statutory compensation for employees regardless of fault.” Pro-Staffers, Inc v Premier

Mfg Support Servs, Inc, 252 Mich App 318, 323; 651 NW2d 811 (2002).

In Travis v Dreis and Krump Mfg Co, 453 Mich 149, 180; 551 NW2d 132 (1996), our

Supreme Court explained that MCL 418.131(1) provides “a rigorous threshold for a claim of

intentional tort.” To satisfy the threshold, a plaintiff must either provide direct evidence of an

employer’s intent to injure, or if “there is no direct evidence of intent to injure,” then “intent must

be proved with circumstantial evidence.” Id. at 173. To prove intent with circumstantial evidence,

a plaintiff must establish “actual knowledge” of an injury that was “certain to occur” and that the

employer “willfully disregarded.” Id. To establish “actual knowledge,” a plaintiff must

demonstrate “that a supervisory or managerial employee had actual knowledge that an injury

would follow from what the employer deliberately did or did not do.” Id. at 174. The “certain to

occur” requirement is “an extremely high standard,” and requires that “no doubt exist[] with regard

to whether it will occur.” Id. Finally, an employer engages in “willfull[] disregard[]” when it

“disregards actual knowledge that injury is certain to occur” or fails to act to protect a person who

is certain to be injured. Id. at 178-179.

Together, the requirements articulated in Travis require a plaintiff to demonstrate that the

defendant “conscious[ly] cho[se] to injure an employee” and “deliberately acted or failed to act in

furtherance of that intent.” Id. at 180. “[I]ntent to injure [may] be inferred if the employer had

actual knowledge that an injury was certain to occur, under circumstances indicating deliberate

disregard of that knowledge.” Id.

Simply put, a plaintiff must allege that the defendant specifically intended to injure the

plaintiff or had actual knowledge that an injury was certain to occur. Gray v Morley, 460 Mich

738, 744; 596 NW2d 922 (1999). Allegations that merely suggest the defendant acted recklessly

or with deliberate indifference “sound in gross negligence and are therefore insufficient to

constitute an intentional tort within the meaning of the WDCA.” Id.

In this case, the trial court concluded that plaintiff failed to allege that the MM1 defendants

and defendants Godfrey and Berkompas committed intentional acts and had alleged a claim of

gross negligence against them. Indeed, under his gross-negligence claim, plaintiff asserted that

defendants “assumed a duty to act with ordinary care for the safety of” employees, contractors,

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students, and others, with respect to maintenance of the middle school’s roof and ceilings, and had

breached their duties to plaintiff by “acting with negligence and/or reckless and wanton

misconduct.” Specifically, plaintiff alleged that defendants failed to train, manage, and control its

employees or agents; provide instruction regarding the proper maintenance of the roof and ceilings;

hire individuals qualified to address the issues related to the roof and ceilings; allowed its

employees and agents to “engage in negligent and willful, wanton, and reckless behavior while

acting on behalf of” DCS; and failed to exercise reasonable care. Additionally, plaintiff alleged

that “[d]efendants’ willful disregard of the obligation to maintain” the roof and ceiling in a safe

condition “reflect[ed] a disregard of the substantial risk of an unmaintained work environment.”

Moreover, plaintiff alleged that “[d]efendants’ conduct, which [he claims] proximately caused

[p]laintiff’s injuries and damages, was grossly negligent because it demonstrated a wanton and

reckless disregard, and substantial lack of concern, for whether” plaintiff or other similar

individuals “would suffer damages.” Plaintiff also alleged that “[a]s the proximate cause of

[d]efendants’ gross negligence and willful, wanton conduct,” plaintiff suffered various injuries.

The trial court properly concluded that plaintiff failed to allege any intentional acts by the

MM1 defendants or defendants Godfrey and Berkompas that would establish the intentional-tort

exception to the exclusive-remedy provision. The only claim against the individual defendants is

entitled “Gross Negligence” and it sounds purely in gross-negligence terms. Further, allegations

of only gross negligence are “insufficient to constitute an intentional tort within the meaning of

the WDCA.” Gray, 460 Mich at 742. Thus, plaintiff’s sole remedy for any claims of gross

negligence against the MM1 defendants and defendants Godfrey and Berkompas rests with the

WDCA.

Plaintiff’s argument, that his gross-negligence claim establishes the intentional-tort

exception, also fails because he fails to allege that the MM1 defendants or defendants Godfrey and

Berkompas intended to injure him. Although plaintiff alleges that these defendants “had actual

knowledge of the defects and intentionally disregarded numerous complaints regarding the same,”

plaintiff failed to plead facts establishing that these defendants specifically intended to injure him

or had actual knowledge that an injury was certain to occur. See id. at 744. Indeed, plaintiff did

not plead any facts establishing any of the requirements articulated in Travis, i.e., that these

defendants had actual knowledge of an injury that was certain to occur that the employer willfully

disregarded. Travis, 453 Mich at 173. Rather, plaintiff’s allegation about actual knowledge was

with regards to knowledge of the defects in his classroom, not actual knowledge of an injury that

was certain to occur, as required by Travis. Id. Accordingly, the allegations in plaintiff’s

complaint do not suggest that these defendants actually knew that plaintiff’s alleged injuries were

certain to occur as a result of any failure to fix the roof and ceiling at the middle school facility.

To the extent that plaintiff relies on the continuously operative dangerous condition

doctrine to establish the existence of an intentional tort, that reliance is misplaced. To establish an

intentional tort under that doctrine, plaintiff had to establish that these defendants had “knowledge

of the condition and refrain[ed] from informing [plaintiff] about it.” Luce v Kent Foundry Co, 316

Mich App 27, 35; 890 NW2d 908 (2016) (emphasis omitted). That is, “[t]he key is that the

employee is left in the dark about the danger he or she will encounter and is therefore unable to

take steps to keep from being injured.” Id. (quotation marks and citation omitted). But in this

case, plaintiff specifically alleged that he was aware of the hazardous conditions in his classroom

and had complained to defendants about those conditions. Accordingly, any reliance by plaintiff

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on the continuously operative dangerous condition doctrine is inappropriate. Thus, the trial court

properly held that the exclusive-remedy provision of the WDCA barred plaintiff’s claims against

the MM1 defendants, and defendants Godfrey and Berkompas, and the intentional-tort exception

under MCL 418.131(1) does not apply.

III. GOVERNMENTAL IMMUNITY

Plaintiff argues that the trial court erred when it granted summary disposition of plaintiff’s

claims against DCS on the basis of governmental immunity because there was a question of fact

regarding whether DCS grossly negligent and, therefore, the issue should have been left to the

jury. We disagree.4

This Court reviews de novo the applicability of governmental immunity as a question of

law. McLean v McElhaney, 289 Mich App 592, 596; 798 NW2d 29 (2010). A trial court’s grant

of summary disposition under MCR 2.116(C)(7) is also reviewed de novo. See id. “Summary

disposition under MCR 2.116(C)(7) is appropriate when a claim is barred by immunity granted by

law.” Seldon v Suburban Mobility Auth for Regional Transp, 297 Mich App 427, 432; 824 NW2d

318 (2012).

Under MCL 380.503(8), “[a] public school academy and its incorporators, board members,

officers, employees, and volunteers have governmental immunity as provided in section 7 of 1964

PA 170, MCL 691.1407.” “A public school academy is a body corporate and is a governmental

agency.” MCL 380.501(1). Under MCL 691.1407(1), “a governmental agency is immune from

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

function.” “To overcome governmental immunity for tort liability, then, plaintiff[] . . . must either

(1) plead a tort that falls within one of the . . . stated exceptions, or (2) demonstrate that the alleged

tort occurred outside the exercise or discharge of a governmental function.” Genesee Co Drain

Comm’r v Genesee Co, 309 Mich App 317, 327; 869 NW2d 635 (2015) (footnotes omitted). “The

statutory exceptions contained in the [Governmental Tort Liability Act (GTLA)] are: (1) the

highway exception, MCL 691.1402, (2) the motor vehicle exception, MCL 691.1405, (3) the

public building exception, MCL 691.1406, (4) the governmental hospital exception, MCL

691.1407(4), (5) the proprietary function exception, MCL 691.1413, and (6) the sewage system

event exception, MCL 691.1417.” In re Bradley Estate, 494 Mich 367, 378 n 21; 835 NW2d 545

(2013).

Absent from the list of statutory exceptions to governmental immunity for a governmental

agency is gross negligence. The gross-negligence exception is set forth in MCL 691.1407(2),

which provides:

Except as otherwise provided in this section, and without 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

4

Given the procedural posture of this case, in which defendants did not argue that the claims

against DCS were subject to the exclusive-remedy provision of the WDCA, we separately address

governmental immunity with respect to that defendant.

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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.

Under MCL 691.1407(8)(a), gross negligence is defined as “conduct so reckless as to

demonstrate a substantial lack of concern for whether an injury results.” Although questions

regarding whether conduct constituted gross negligence for purposes of governmental immunity

are generally questions of fact for the jury, “if reasonable minds could not differ, summary

disposition may be granted.” Wood v Detroit, 323 Mich App 416, 424; 917 NW2d 709 (2018).

On appeal and to support his arguments regarding the gross-negligence exception to

governmental immunity, plaintiff relies on allegations in his complaint that reference both DCS

and its “authorized agents and representatives as named and identified” in the complaint.

Accordingly, it appears that plaintiff argues that the gross negligence of both DCS and its agents,

i.e., the individual defendants, deprives them of their statutorily-granted governmental immunity.

To the extent plaintiff argues that MCL 691.1407(2)(c) permits liability for a governmental

entity’s gross negligence, he is mistaken. It is clear from the language of MCL 691.1407(2)(c)

that the statute only permits liability against the individual actor, not the governmental entity. See

Yoches v Dearborn, 320 Mich App 461, 476; 904 NW2d 887 (2017) (“Although Subsection (2)(c)

establishes an exception to the grant of immunity to an officer or employee of a governmental

agency, it does not provide that a governmental agency otherwise entitled to immunity can be

vicariously liable for the officer’s or employee’s gross negligence.”). Therefore, to the extent

plaintiff argues that the allegations of gross negligence by the individual defendants in his

complaint deprived DCS of governmental immunity, that argument is without merit.

In any event, we note that reasonable minds could not differ regarding whether the conduct

of the individual defendants constituted gross negligence and, therefore, summary disposition

would be appropriate to DCS and the individual defendants on this alternate basis as well. See

Wood, 323 Mich App at 424.

Plaintiff relies on six pieces of evidence to support his argument that there was a factual

issue regarding whether conduct by DCS and the individual defendants was grossly negligent and

precluded summary disposition. Those exhibits are: (1) the mold identification report prepared for

plaintiff regarding samples taken on April 10, 2019, and received on April 15, 2019; (2) the water

damage and mold assessment report dated August 16, 2019, after an investigation on August 9,

2019, and prepared for Coleman at DCS; (3) a copy of notices regarding mold and mildew plaintiff

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apparently sent to DCS or an administrator of DCS; (4) what appears to be answers to

interrogatories from DCS and the MM1 defendants; (5) an estimate and contract for mold

remediation dated September 4, 2019, and scheduling work for September 6, 2019, as well as two

signed estimates for roofing work, one dated August 30, 2019, and the other dated September 14,

2019; and (6) a screenshot of a group text message with plaintiff, Jordan, and Riley, dated

September 21, 2018, approximately a year before the mold remediation work was completed.

As an initial matter, plaintiff’s Exhibit I on appeal—the group text message with plaintiff,

Jordan, and Riley dated September 21, 2018—was not presented below and, thus, was not

considered by the trial court. “This Court’s review is limited to the record established by the trial

court, and a party may not expand the record on appeal.” Sherman v Sea Ray Boats, Inc, 251 Mich

App 41, 56; 649 NW2d 783 (2002). Therefore, we decline to consider the group text message

between plaintiff, Jordan, and Riley dated September 21, 2018 in our review of this issue.

The evidence plaintiff presented below did not establish a factual dispute regarding

whether the individual defendants were grossly negligent. The mold identification report, which

tested samples taken on April 10, 2019, shows that plaintiff’s classroom indeed had mold inside

it. But it is not clear when defendants were made aware of the results of the mold identification

report, if ever. Indeed, in none of plaintiff’s communications with defendants regarding the mold

did he mention that he had taken samples of the mold, sent it to a mold “expert,” and received a

report regarding the presence of mold. Rather, plaintiff’s communications with defendants

regarding the mold, respectively dated April 11, 2019, May 9, 2019, and June 11, 2019, mentioned

a “musty,” moldy, or mildew smell, and the fact he was suffering from headaches, a sore throat,

and runny nose, but made no mention of the mold identification report. So, while plaintiff’s

communications with defendants may have indicated that his classroom smelled like mold, his

communications do not establish that he actually conveyed the results of the mold identification

report to defendants. Similarly, the partial answers to interrogatories simply demonstrate the same

as the notices sent to defendants—that he notified DCS, Riley, and Wagner of the smell in his

classroom between April 20195 and June 2019, but not necessarily the actual results of the mold

inspection he had conducted. Plaintiff’s infrequent messages regarding the moldy smell in his

classroom, without evidence that the results of the mold identification report were shared with

defendants, are insufficient to establish that the conduct of the individual defendants was “so

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

691.1407(8)(a).

Nor is a finding of gross negligence supported by the fact an investigation of the roof and

ceiling for mold and mildew at DCS’s request did not occur until August 9, 2019, with a report

subsequently prepared on August 16, 2019. The 2018-2019 school year went from September

2018 to June 2019, so the fact the investigation was not done until early August 2019—only two

months after the school year ended and plaintiff’s latest report regarding mold in his classroom—

5

Wagner’s answer to the interrogatories indicates that plaintiff’s notices were made “[a]fter April[]

2018.” This appears to be a typographical error and should have read April 2019, not April 2018.

Plaintiff did not begin teaching at DCS until the start of the 2018-2019 school year, which began

in September 2018.

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does not support a finding that defendants lacked concern “about the safety or welfare” of the

occupants of the middle school facility. See Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d

333 (2004) (explaining that “if an objective observer watched the actor, [and] he could conclude,

reasonably, that the actor simply did not care about the safety or welfare of those in his charge,”

then gross negligence has occurred). Rather, coupled with the fact that there was no evidence

defendants were made aware of the results of the mold identification report, and only knew of the

mold and mildew smell in his classroom, plaintiff’s reliance on the water damage and mold

assessment report to support his claim of gross negligence is misplaced. Similarly, the fact the

mold remediation was not completed until early September 2019 does not support a finding that

defendants lacked concern “about the safety or welfare” of the occupants of the middle school

facility. Id.

Without evidence that the mold identification report was actually presented to defendants,

the only evidence notifying them of the potential presence of mold and mildew at the middle school

facility was plaintiff’s sporadic messages regarding the smell of mold and mildew in his classroom.

In his April 11, 2019 message, he indicated that his classroom “smells like MOLD and MILDEW

every day” and asked whether his ceiling would ever be “permanently fixed[.]” In his May 9,

2019 message, he again noted the musty, moldy smell in his classroom, indicating for the first time

(at least as far as the evidence shows) that he had a sore throat and daily headaches. And in his

June 11, 2019 message, presumably near the end of the 2018-2019 school year, plaintiff stated that

the “mold in [his] class[room] is making [him] sick,” including headaches, sneezing, and a runny

nose, that his classroom “smell[ed] horrible,” and that he had previously sent “a few requests to

address this” but “never had a response.” But again, the fact that plaintiff notified defendants of

the smell of mold and mildew in his classroom does not mean defendants engaged in “conduct so

reckless as to demonstrate a substantial lack of concern for whether an injury results” by not having

an investigation conducted until August 2019, and the remediation being completed in early

September 2019. MCL 691.1407(8)(a). As noted earlier, there is no evidence plaintiff informed

defendants of the results of the mold identification report prepared for him seemingly around April

2019. Indeed, that report does not even indicate when it was completed—it indicates the sample

date was April 10, 2019, and that the sample was received April 15, 2019, but the report itself is

undated. And although he notified defendants about the mold smell in his classroom, he did so

sporadically—once a month from April 2019 to June 2019.

Given all the evidence submitted by plaintiff, an objective observer watching the individual

defendants could not reasonably conclude that they lacked concern about the safety or welfare of

the students and staff at the DCS middle school facility. Instead, the evidence shows that after

receiving sporadic complaints from plaintiff regarding the moldy smell in his classroom, DCS had

a mold investigation conducted at the middle school facility, seemingly over summer break, and,

within a month of receiving the results of that investigation, had the issue remedied. Even if the

individual defendants were made aware of the results of the mold identification report prepared

for plaintiff regarding samples taken and received in April 2019, and there is no evidence they

were, the four-month span between when that sample was taken and the investigation conducted

on behalf of DCS was completed is not dispositive on the issue of gross negligence and plaintiff

has not demonstrated how such conduct qualifies as grossly negligent. Accordingly, there is no

factual dispute regarding whether the individual defendants were grossly negligent and the trial

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court did not err when it granted summary disposition of plaintiff’s claims against DCS on the

basis of governmental immunity, assuming that vicarious liability could apply in this context.6

IV. PREMATURITY OF SUMMARY DISPOSITION

Plaintiff argues that the trial court erred when it failed to allow him to engage in meaningful

discovery to support his claims against defendants. We disagree.

Generally, an issue must be raised in or decided by the trial court for it to be preserved for

appeal. Glasker-Davis v Auvenshine, 333 Mich App 222, 227; 964 NW2d 809 (2020). The issue

regarding prematurity of summary disposition was not raised in or decided by the trial court.

Therefore, the issue is unpreserved for appellate review. See id. In any event, plaintiff’s argument

in this regard is meritless.

Summary disposition is premature if it is granted before discovery is completed on a

disputed issue. Powell-Murphy v Revitalizing Auto Communities Environmental Response Trust,

333 Mich App 234, 253; 964 NW2d 50 (2020) (citation omitted). A party may not, however,

“simply allege that summary disposition is premature.” Id. Instead, “[t]he party must clearly

identify the disputed issue for which it asserts discovery must be conducted and support the issue

with independent evidence.” Id. “The dispositive inquiry is whether further discovery presents a

fair likelihood of uncovering factual support for the party’s position.” Id. (quotation marks and

citation omitted).

Plaintiff does not identify any disputed issue for which he claims discovery must be

conducted, and he has failed to demonstrate that further discovery presents a fair likelihood of

uncovering factual support for his position. Indeed, plaintiff concedes that “[r]egardless” of his

outstanding document request for “relative documents [that] remained in the sole possession and

control of” DCS, he had already “illustrated” through documents available when he filed his

response to summary disposition, and his brief on appeal, that he had “actually made [defendants]

aware of the hazardous condition in his classroom . . . .” Plaintiff asserts, however, that the trial

court “failed, refused, and/or neglected to consider the evidence presented.” And regarding his

claim that summary disposition was inappropriate when there existed a question of fact regarding

“whether an exception applies,” plaintiff asserts that there were “[c]ertainly . . . issues of fact”

warranting “continuing to the conclusion of discovery and to trial” regarding whether “the acts

and omissions of [defendants] amounted to gross negligence . . . .” Further, plaintiff asserted that

the facts in his complaint “raised questions of fact to be decided solely by a finder of fact, and as

such,” the trial court erred “by taking this decision into its own hands and ruling that [plaintiff]

had not presented facts worthy of meeting the threshold for gross negligence.”

6

To the extent that plaintiff challenges the trial court’s rulings regarding his claims for premises

liability, nuisance per se, nuisance in fact, and negligent infliction of emotional distress, after

review, we conclude that the trial court properly dismissed those claims on the basis of

governmental immunity. The allegations of these four claims relate to the exercise and discharge

of a governmental function, i.e., management and maintenance of the school premises. Thus, DCS

is entitled to governmental immunity related to these claims. MCL 691.1407(1).

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Plaintiff’s argument that summary disposition was prematurely granted is unavailing.

First, plaintiff acknowledged that he possessed documents supporting his claim, namely,

documents that show he had given defendants notice of the hazardous conditions in his classroom.

Second, plaintiff does not establish how further discovery “present[ed] a fair likelihood of

uncovering factual support” for his position. Powell-Murphy, 333 Mich App at 253 (quotation

marks and citation omitted). Third, plaintiff does not identify any specific issue that requires

further discovery. Instead, as DCS and the MM1 defendants note, plaintiff “summarily argues that

the trial court should not have granted summary disposition where a factual question remained

regarding whether [d]efendants’ conduct amounted to gross negligence.” Taken together,

plaintiff’s arguments on appeal regarding the prematurity of summary disposition fail to establish

that there exists a fair likelihood further discovery would allow him to establish a question of fact.

Accordingly, summary disposition was not prematurely granted.

V. CONCLUSION

The trial court correctly granted summary disposition in favor of defendants. We affirm.

/s/ Kathleen Jansen

/s/ David H. Sawyer

/s/ Michael J. Riordan

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