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STATE OF MICHIGAN COURT OF APPEALS

LINELL DERRICKSON, Plaintiff-Appellant, v DAVID STONE, Defendant-Appellee. Before: SAWYER, P.J., and BANDSTRA and WHITBECK, JJ. PER CURIAM.

UNPUBLISHED November 9, 2010

No. 290727 Oakland Circuit Court LC No. 2008-090673-NO

Plaintiff appeals as of right from the circuit court's final judgment entered February 13, 2009. We affirm. On July 2, 2007, plaintiff and his two friends were leaving a nightclub. Plaintiff stopped to urinate on a utility box. Defendant, a police officer, thought plaintiff was a suspect who had thrown a rock at him. When plaintiff would not respond to defendant's commands, defendant fired three pepper balls at the utility box. Defendant handcuffed plaintiff and subsequently released him when he realized that plaintiff was not the rock-throwing suspect. Plaintiff sued defendant for gross negligence and assault and battery. Defendant raised a governmental immunity defense. The circuit court granted defendant's motion for summary disposition based on governmental immunity. Plaintiff first argues that because defendant used extreme and excessive force against him, defendant was not entitled to the governmental immunity privilege. We disagree. The applicability of governmental immunity is a question of law that is reviewed de novo on appeal. Co Rd Ass'n of Mich v Governor, 287 Mich App 95, 117-118; 782 NW2d 784 (2010). The circuit court relied on Odom v Wayne Co, 482 Mich 459, 478-479; 760 NW2d 217 (2008), which set forth the test for evaluating a claim for governmental immunity. There is no evidence in the record that the circuit court improperly applied the test for governmental immunity under Odom and Ross v Consumers Power Co, 420 Mich 567; 363 NW2d 641 (1984). In Odom, 482 Mich at 478-479, our Supreme Court clarified the burden of proof for governmental immunity. The Court set forth the following steps that must be followed when a defendant raises a governmental immunity defense:

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(1) Determine whether the individual is a judge, a legislator, or the highest ranking appointed executive official at any level of government who is entitled to absolute immunity under MCL 691.1407(5). (2) If the individual is a lower-ranking governmental employee or official, determine whether the plaintiff pleaded an intentional or a negligent tort. (3) If the plaintiff pleaded a negligent tort, proceed under MCL 691.1407(2) and determine if the individual caused an injury or damage while acting in the course of employment or service or on behalf of his governmental employer and whether: (a) the individual was acting or reasonably believed that he was acting within the scope of his authority, (b) the governmental agency was engaged in the exercise or discharge of a governmental function, and (c) the individual's conduct amounted to gross negligence that was the proximate cause of the injury or damage. (4) If the plaintiff pleaded an intentional tort, determine whether the defendant established that he is entitled to individual governmental immunity under the Ross test by showing the following: (a) The acts were undertaken during the course of employment and the employee was acting, or reasonably believed that he was acting, within the scope of his authority, (b) the acts were undertaken in good faith, or were not undertaken with malice, and (c) the acts were discretionary, as opposed to ministerial. [Id. at 479-480.] In this case, plaintiff pled both a negligent tort of "gross negligence" and an intentional tort of assault and battery.1 The circuit court properly applied both the Odom and Ross tests as mentioned above and found that defendant met the standard for governmental immunity. Plaintiff first argues that defendant acted with gross negligence because he used extremely excessive and unreasonable force against plaintiff. Applying the Odom factors to plaintiff's case, defendant was a lower-ranking governmental employee and plaintiff pled a negligent tort. Because plaintiff pled a negligent tort, we proceed under MCL 691.1407(2) and determine if defendant caused an injury while acting in the course of his employment and if:

Plaintiff in his complaint pled other claims, which he is not addressing on appeal: intentional infliction of emotional distress and false imprisonment/false arrest.

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(a) the individual was acting or reasonably believed that he was acting within the scope of his authority; (b) the governmental agency was engaged in the exercise or discharge of a governmental function; and (c) the individual's conduct amounted to gross negligence that was the proximate cause of the injury or damage. First, there is no dispute that defendant was acting during the course of his employment

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