Patterson v. Kleiman , 199 Mich. App. 191 ( 1993 )

199 Mich. App. 191 (1993) 500 N.W.2d 761

PATTERSON
v.
KLEIMAN

Docket No. 134858.

Michigan Court of Appeals.

Submitted February 3, 1993, at Detroit. Decided April 5, 1993, at 10:35 A.M.

Lakin, Worsham & Victor, P.C. (by Larry A. Smith and Lori A. Young-Barker), for the plaintiff.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Clive D. Gemmill and Mark S. Meadows, Assistant Attorneys General, for the defendants.

Before: WAHLS, P.J., and MICHAEL J. KELLY and CONNOR, JJ.

CONNOR, J.

Plaintiff appeals as of right the trial court's order granting defendants' motion for summary disposition based on governmental immunity, MCR 2.116(C)(7). We reverse.

Plaintiff sued defendants for medical malpractice. Defendants moved for summary disposition without answering the complaint. They argued that, accepting plaintiff's pleadings as true, they were immune from liability. The trial court agreed, and dismissed plaintiff's complaint pursuant to MCR 2.116(C)(7).

To state a malpractice claim, plaintiff had to allege facts sufficient to establish simple negligence. As government employees, defendants are immune from tort liability if their conduct does not amount to gross negligence. MCL 691.1407(2); MSA 3.996(107)(2). However, governmental immunity is an affirmative defense; therefore it is something for which defendants, not plaintiff, were required to plead supporting facts. See MCR 2.111(F)(3). Because plaintiff is not required to anticipate an affirmative defense, she had no duty to allege gross negligence.

When considering a motion brought under MCR 2.116(C)(7), we consider all the affidavits, pleadings, and other documentary evidence filed or submitted by the parties. Haywood v Fowler, 190 Mich App 253, 255-256; 475 NW2d 458 (1991). We must consider all well-pleaded allegations as true and construe them most favorably to the plaintiff. Id. If reasonable minds cannot differ with respect to whether a defendant's actions amounted to gross negligence, summary disposition is appropriate. Vermilya v Dunham, 195 Mich. App. 79, 83; 489 NW2d 496 (1992). However, summary disposition before the completion of discovery is proper only where further discovery does not stand a fair chance of uncovering factual support for the opposing party's position. Miller v Irwin, 190 Mich. App. 610, 614; 476 NW2d 632 (1991).

Given plaintiff's allegations of fact, we cannot say that a reasonable mind could not find defendants' conduct "so reckless as to demonstrate a substantial lack of concern for whether an injury results." MCL 691.1407(2)(c); MSA 3.996(107)(2)(c). We also cannot say that discovery would not stand a fair chance of uncovering factual support for finding gross negligence. We find that the trial court erred in granting defendants' motion. While it was appropriate for the trial court to have ruled that plaintiff would be required to establish gross negligence, it was not appropriate to have dismissed plaintiff's claims at this stage in the proceedings.

Reversed and remanded. We do not retain jurisdiction.