PER CURIAM.
Defendant Lowell Phillips, a police officer for the city of Ferndale, appeals an order of the circuit court denying his motion for summary disposition of claims arising from the death of motorist Laszlo J. Latits under MCR 2.116(C)(7). We reverse and remand.
While the parties disagree over many of the factual details and the interpretation of various facts, the basic facts needed to resolve this matter are undisputed. The events that gave rise to this action began with a routine traffic stop of Latits's vehicle by Ferndale Police Officer Ken Jaklic. Latits initially stopped as directed. When Latits opened his glove compartment, presumably to retrieve his registration and proof of insurance, Jaklic observed a bag of marijuana. Jaklic ordered Latits out of the vehicle. Instead of complying, Latits took off in his vehicle, with Jaklic giving chase. The chase was soon joined by three other patrol cars, including defendant's.
The videos taken by the patrol cars' dashboard cameras show Latits fleeing from and eluding the police, even after the officers attempted a PIT maneuver.
Defendant left his vehicle and approached Latits's vehicle from the passenger side with his weapon drawn. As Latits continued to attempt to evade capture by driving backwards, defendant fired four times.
In his deposition, defendant described his decision to shoot as follows:
(It should be noted that the reference to ramming Jaklic is actually to ramming Jaklic's patrol car while Jaklic was still in the vehicle.)
Plaintiff Debbie Jean Latits, personal representative of Latits's estate, filed a complaint, alleging a claim of gross negligence and a claim of assault and battery. Defendant thereafter moved for summary disposition on the basis of governmental immunity. The trial court denied the motion with only brief explanation, stating that there were "issues of fact here" and that the videos were "very interesting and very troubling."
The relevant standard of review was summarized by the Supreme Court in Odom v. Wayne Co., 482 Mich. 459, 466, 760 N.W.2d 217 (2008):
We begin by noting that this passage addresses plaintiff's argument that defendant's motion for summary disposition cannot be supported by factual statements from police reports because police reports are inadmissible as evidence at trial. Plaintiff's argument is flawed for two reasons. First, as the quotation alludes to, while a motion for summary disposition must be supported by admissible evidence, that evidence "does not have to be in admissible form." Barnard Mfg. Co., Inc. v. Gates Performance Engineering, Inc., 285 Mich.App. 362, 373, 775 N.W.2d 618 (2009); see also Maiden v. Rozwood, 461 Mich. 109, 123-124, 597 N.W.2d 817 (1999). In this case, defendant's reliance on those reports was in reference to the officers' personal observations, and those officers could have testified at trial to the substance of the material in the reports. That evidence would be admissible. Second, it is not necessarily the case that those reports would, in fact, be inadmissible at trial. As noted in Maiden, 461 Mich. at 124-125, 597 N.W.2d 817, police reports are "plausibly admissible" under MRE 803(6), though any secondary hearsay within the documents would not be. They might also be admissible under MRE 803(8). See In re DMK, 289 Mich.App. 246, 258 n. 6, 796 N.W.2d 129 (2010). But, because the officers could testify about their own observations, we need not resolve that issue.
We turn to the question whether defendant was entitled to the protection of governmental immunity under MCL
Plaintiff concedes the first and third prongs of the test, but argues that defendant was not acting in good faith. We disagree.
The substance of plaintiff's argument is that defendant exercised poor judgment or was mistaken about his justification in using deadly force. But even if we were to agree with plaintiff, it would not affect the immunity analysis. As the Court explained in Odom, showing that an officer made a mistake does not defeat an immunity defense. In Odom, the claim was for false imprisonment and malicious prosecution. The trial court denied summary disposition because "there remained a question of fact whether defendant lacked probable cause to detain or arrest plaintiff." Odom, 482 Mich. at 481, 760 N.W.2d 217. But, as the Court explained, that did not resolve the governmental immunity question:
Thus, while plaintiff would ultimately have to prove that defendant was not justified in using deadly force in order to prevail at trial on her assault and battery claim, this showing is inadequate to defeat the defense of governmental immunity. As long as defendant can show that he had a good-faith belief that he was acting properly in using deadly force, he is entitled to the protections of governmental immunity regardless of whether he was correct in that belief. And there is no evidence in this case to show that defendant did not have such a belief.
Defendant's stated reason for firing his weapon was to ensure his safety and the safety of others. The facts support the conclusion that defendant would have such a reason, and plaintiff presented no evidence to establish any other motivation. Defendant testified in his deposition that he was informed that Latits had rammed and attempted to ram police cars, that there had been a chase, and Latits had
Plaintiff, on the other hand, identifies no evidence supporting a finding of malice. Plaintiff spends a good portion of her argument on this point discussing whether the use of deadly force was justified. But the standard in evaluating the governmental immunity question is not whether, when viewing the facts objectively with the benefit of hindsight, the use of deadly force was justified. Rather, as discussed in Odom, 482 Mich. at 481, 760 N.W.2d 217, the standard is a subjective one from the perspective of defendant with respect to whether he was acting in good faith. Whether the legal standards for acting in self-defense or defense of others was met is not controlling. Whether the information relayed to defendant by the other officers was accurate is not relevant.
In this regard, we find the United States Supreme Court's opinion in Brosseau v. Haugen, 543 U.S. 194, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004), somewhat instructive. In that case, police officer Rochelle Brosseau shot the plaintiff in the back as he was attempting to flee in a vehicle. Her stated reason for doing so was her concern for the safety of the other officers on foot in the area, as well as any civilians who might be in the plaintiff's path. Id. at 196-197, 125 S.Ct. 596. The plaintiff sued Brosseau under 42 USC 1983. Ultimately, however, the Court declined to determine whether Brosseau employed excessive force under the standards of Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), and Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
Of course, unlike Brosseau, the case at bar does not involve a claim under § 1983 or issues of qualified immunity. But Brosseau does provide guidance on two points. First, it draws into question plaintiff's claim that the force was excessive. If Brosseau's actions were on the "hazy border" between acceptable and excessive force, defendant's actions in the case at bar would seem to more clearly fall into the area of acceptable force. Second, and more to the point, if Brosseau's actions, and the circumstances surrounding her decision to shoot Haugen, did not clearly establish excessive force, then the circumstances surrounding defendant's decision
The closest that plaintiff comes to defeating defendant's claim of acting in good faith is that three rounds apparently fired by defendant are unaccounted for. Defendant has maintained that he fired a single, four-round burst at Latits. Yet seven shell casings were recovered at the scene. But because there is no explanation of the extra three rounds being fired, plaintiff can merely speculate about when those rounds were fired, whether they are the rounds that struck Latits, and what defendant's motivation was in firing those rounds.
In sum, defendant was entitled to summary disposition on the assault and battery claim if he could show that it was uncontroverted that he acted in good faith. Defendant is able to present evidence that he was acting in good faith at the time that he shot Latits. Plaintiff has not identified any contradictory evidence. Therefore, summary disposition should have been granted to defendant on this claim.
We turn next to the issue of plaintiff's gross negligence claim. As discussed in Odom, 482 Mich. at 479-480, 760 N.W.2d 217, the standard is different for establishing governmental immunity with respect to negligent torts and intentional torts. For negligent torts, the governmental employee is not entitled to the protection of governmental immunity if the "conduct amounted to gross negligence that was the proximate cause of the injury or damage." Id. at 480, 760 N.W.2d 217. Paragraph 30 of plaintiff's amended complaint alleges that the following items constitute gross negligence rather than the intentional tort of assault and battery:
These allegations do not defeat defendant's claim of governmental immunity. Defendant did not recklessly shoot Latits. There is no claim that Latits was shot as the result of an accidental discharge of defendant's firearm or that defendant otherwise had not intended to shoot Latits. Negligence might have been the proper claim if defendant had unintentionally pulled the trigger or if defendant had been aiming at a different target but accidentally shot Latits instead. But there was nothing negligent or reckless about defendant's decision to point his firearm at Latits and shoot — he did so intentionally.
Furthermore, the claim that defendant failed to appreciate that Latits did not pose a risk of harm may have some bearing on whether defendant made the proper decision to shoot, but it does not alter the fact that it was an intentional decision to shoot. Similarly, any failure to follow procedures would potentially be relevant to the correctness of the decision to shoot, but not whether that decision was intentional. As for the allegation of a cover-up, because that claim involves events that occurred after the shooting, it cannot establish
As the Court noted in Maiden, 461 Mich. at 135, 597 N.W.2d 817, "the gravamen of plaintiff's action is determined by considering the entire claim." That is, plaintiff cannot avoid the protections of immunity by "artful pleading." Id. Moreover, "this Court has rejected attempts to transform claims involving elements of intentional torts into claims of gross negligence." VanVorous v. Burmeister, 262 Mich.App. 467, 483-484, 687 N.W.2d 132 (2004).
The gravamen of plaintiff's claim against defendant is that he intentionally and improperly shot Latits. Plaintiff's claim is one of an intentional tort, and no amount of artful pleading can change that fact. And, as discussed earlier, defendant is entitled to the protections of governmental immunity for an intentional tort claim arising from that shooting.
Reversed and remanded to the trial court with instructions to enter an order of summary disposition in favor of defendant on plaintiff's claims against him. We do not retain jurisdiction. Defendant may tax costs.
SAAD, P.J., and SAWYER and MARK J. CAVANAGH, JJ., concurred.