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142438-9, 142441 - Patterson v Nichols

Delaina Patterson, as Personal Representative for the Estate of Sherrill Turner, Deceased, and Robert Turner, a Minor, Individually, by his Next Friend, Delaina Patterson,
Heather A. Glazer
(Appeal from Ct of Appeals)
(Wayne – Murphy J.)
Sherry Nichols,
Terri Sutton,
Mark S. Mackley
Delaina Patterson, as Personal Representative for the Estate of Sherrill Turner, Deceased, and Robert Turner, a Minor, Individually, by his Next Friend, Delaina Patterson,
Sherry Nichols, a/k/a Sharon J. Nichols,                           
Rhonda Y. Reid Williams
Terri Sutton,


​On February 20, 2006, shortly before 6 p.m. five-year-old Robert Turner called 911 after finding his mother, Sherrill Turner, lying unconscious on the floor of her bedroom. He told 911 operator Sherry Nichols that his “mom has passed out.” When Nichols asked to speak to his mother, Robert said, “She’s not gonna . . . she not gonna talk.” Although Nichols told the boy that she would send the police to the house, she did not do so, logging the call as a child’s prank. Three hours later, Robert again called 911, reaching operator Terri Sutton. When Robert said that his mom “has passed out in her room,” Sutton asked, “Where the grown-up at?” Robert answered, “In her room. . . .” Sutton asked to speak to her, and Robert repeated that his mother had passed out and was not going to talk. Sutton said: “Okay. Well, you know what then? She’s gonna talk to the police. Okay. She’s gonna talk to the police because I’m sending them over there.” When Robert said, “She’s still not gonna talk,” Sutton responded: “I don’t care. You shouldn’t be playing on the phone. . . . Now put her on the phone before I send the police out there to knock on the door and you gonna be in trouble.” Sutton dispatched a police officer, who arrived at the Turner home about 9:30 p.m., responding to Sutton’s report of a “child playing on phone.” When he discovered Sherrill Turner lying unresponsive on the floor, the officer summoned emergency medical services. The EMS workers, who arrived about 20 minutes later, determined that Ms. Turner was dead. It appeared that she had died sometime within the past two hours.

Delaina Patterson, Robert’s older sister, sued Nichols and Sutton on behalf of Sherrill Turner’s estate and on Robert Turner’s behalf. Patterson alleged that the two 911 operators were grossly negligent and that their negligence caused her mother’s death. The lawsuit also included a claim for intentional infliction of emotional distress.

Sutton moved to dismiss the claims against her, arguing that she was entitled to governmental immunity. As to the wrongful death claim, Sutton contended that she owed Sherrill Turner no duty to provide assistance, that her failure to summon medical aid did not amount to gross negligence, and that her conduct was not the proximate cause of the woman’s death. As to the claim for intentional infliction of emotional distress, Sutton argued that she was entitled to governmental immunity under MCL 691.1407(2) because she did not commit an intentional tort; Sutton maintained that she did not intend to cause Robert any distress. Nichols filed a similar motion, making the same arguments that Sutton had made. The trial court denied both defendants’ motions.

Both Nichols and Sutton appealed, but in an unpublished per curiamopinion, the Court of Appeals affirmed the trial court’s ruling. Turning to the wrongful death claim first, the Court of Appeals noted that governmental employees are immune from tort liability unless their conduct amounts to “gross negligence that is the proximate cause of the injury of damage.” MCL 691.1407(2)(c). “Gross negligence” is defined at MCL 691.1407(7)(a) as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” The Court of Appeals concluded that Nichols’ and Sutton’s conduct was grossly negligent, and that there was a genuine issue of material fact whether that grossly negligent conduct was the proximate cause of Sherrill Turner’s death. “[A] question of fact clearly exists regarding whether the underlying medical event or defendants’ failure to provide the requested medical assistance was ‘the proximate cause,’ i.e., the one most immediate, efficient, and direct cause of decedent’s death,” the Court of Appeals panel stated. As to the intentional infliction of emotional distress claim, the appellate panel ruled that there was a question of fact regarding whether Nichols and Sutton were acting in good faith, and whether they were performing discretionary rather than ministerial acts. Moreover, a reasonable jury could conclude that Nichols and Sutton engaged in “extreme and outrageous conduct,” the Court of Appeals said. Accordingly, the 911 operators were not entitled to dismissal of the intentional tort claim on governmental immunity grounds, the appellate court concluded. Sutton and Nichols appeal.