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STATE OF MICHIGAN
COURT OF APPEALS


ALLEN FAY SHROYER and CLAUDIA KATHE IAMS, Plaintiffs-Appellees, v DAVID KLEIN, Defendant-Appellant, and GARY CAMELET, JUDD PAUL, HAROLD M. MILLS, ROSEWOOD FARM, INC., and HEATHER DRAVES, Defendants.

UNPUBLISHED May 16, 2006

No. 257842 Livingston Circuit Court LC No. 03-020032-CZ

Before: Borrello, P.J., and Saad and Wilder, JJ. PER CURIAM. I. Defendant, Deputy David Klein of the Livingston County Sheriff's Department, appeals the trial court's order that denied his motion for summary disposition. Plaintiffs allege that Deputy Klein caused damage to their property and violated their constitutional rights when he permitted agents of codefendant Heather Draves to take possession of two horses that plaintiff Claudia Iams claims she was entitled to keep. We reverse and remand. In 1997, Claudia Iams and Heather Draves agreed that Iams would take possession of Draves' mare, Effe. Iams and Draves agreed that Iams could breed Effe and would be responsible for her board and other expenses associated with her care. The women later modified the agreement to include a partnership arrangement in which Iams would own every other foal born to Effe, with the others jointly owned with Draves. According to Iams, the partnership foals were to be sold at her discretion and the profits would be shared only after she was reimbursed for the expenses of caring for Effe and the foals that were jointly owned. Iams said that, with regard to the horses that would belong only to her, she would solely responsible for Effe's expenses when she was in foal with them. -1-


On August 10, 2001, Draves sent codefendants Harold Mills and Judd Paul to retrieve Effe and two of her foals from Iams. Iams and her husband Grant lived on property owned by Iams' parents, Allen and Brigitte Shroyer. Mssrs. Mills and Paul arrived at Shroyer's property and spoke with Brigitte Shroyer, who became very upset and said that they could not take the horses. Grant called Iams to come home and also called 911. When Deputy Klein arrived, he was faced with competing claims to the foals. Mills and Paul said that they were there on behalf of Draves, the owner of the horses, and showed defendant a registration paper for Effe that listed Draves as the owner. Iams asserted that she was entitled to possession of Effe and claimed a stableman's lien for unpaid expenses for her board and care. She also said she was the owner of the foals. Deputy Klein called his sergeant, codefendant Sergeant Gary Camelet, for advice and Sergeant Camelet said that, based on the information presented to him, Paul and Mills could take the horses. Iams and her family were very visibly upset and, according to Grant Iams, the situation got "out of hand," and Deputy Klein threatened to make arrests. Paul and Mills took Effe and one of the foals but were unable to corral the other foals. II. Plaintiffs allege that, as a result of Deputy Klein's actions, significant damage was done to Shroyer's septic field. Further, Iams contends that defendant's conduct deprived her of her property without due process in violation of the Fourteenth Amendment, US Const, Am XIV. Board of Regents v Roth, 408 US 564, 569-570; 92 S Ct 2701; 33 L Ed 2d 548 (1972). A. Governmental Immunity Deputy Klein argues that he is entitled to immunity from plaintiffs' tort claim under the governmental tort liability act, MCL 691.1407(2).1 We agree. This Court reviews de novo a trial court's decision to grant or deny summary disposition. Spiek v Michigan Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A government employee is immune from tort liability for an injury he causes in the course of his employment if the following conditions are met: (1) the "employee . . . is acting or reasonably believes he or she is acting within the scope of his or her authority," (2) "[t]he governmental agency is engaged in the exercise or discharge of a governmental function," and (3) the "employee's . . . conduct does not amount to gross negligence that is the proximate cause of the injury or damage." MCL 691.1407(2). Gross negligence is defined as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results." MCL 691.1407(2)(c). Gross negligence suggests an "almost willful disregard of precautions or measures to attend to safety and a singular disregard for substantial risks." Tarlea v Crabtree, 263 Mich App 80, 90; 684 NW2d 894 (2004). Accordingly, evidence of ordinary negligence does not create a material question of fact concerning gross negligence. Maiden v Rozwood, 461

Subsection (1) of the

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Michigan Law