Docket No. 96831.

447 Mich. 429 (1994)

526 N.W.2d 879


Supreme Court of Michigan.

Decided November 15, 1994.

Attorney(s) appearing for the Case

Lakin, Worsham & Victor, P.C. (by Larry A. Smith), 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.


This is a medical malpractice case in which the circuit court granted summary disposition under MCR 2.116(C)(7), but the Court of Appeals reversed. We affirm the judgment of the Court of Appeals, but clarify the proper analysis of a motion under MCR 2.116(C)(7).


The plaintiff's decedent was a long-time resident of the Northville Regional Psychiatric Hospital. He suffered a seizure on February 6, 1989, and was taken to St. Mary Hospital in Livonia, where he died.

The plaintiff filed suit against two physicians at Northville, alleging that they were responsible for the faulty insertion of an endotracheal tube. The defendants responded with a motion for summary disposition. The motion was supported by the defendants' affidavits in which they swore that they had not been involved in the insertion of such a tube.

The plaintiff's answer to the motion was supported by two documents. One was a physician's letter in which he offered the opinion that the tube had been inserted in a manner that was grossly negligent. The second was an emergency room report that the plaintiff submitted to support her allegation that the disputed tube had been inserted before the decedent's arrival at St. Mary Hospital.

The circuit court granted the motion for summary disposition, finding the defendants immune. The Court of Appeals reversed. 199 Mich.App. 191; 500 N.W.2d 761 (1993).1 The defendants have applied to this Court for leave to appeal.


The defendants' motion for summary disposition was filed under three separate paragraphs of MCR 2.116(C). The defendants said that they were immune from suit. MCR 2.116(C)(7). They also said that the plaintiff had failed to state a claim on which relief can be granted. MCR 2.116(C)(8). Finally, they asserted that there was no genuine issue as to any material fact, and that they were entitled to judgment as a matter of law. MCR 2.116(C)(10).

The requirements for a motion for summary disposition and the manner in which such a motion is considered by the trial court vary, depending on the nature of the motion. A motion under MCR 2.116(C)(7) may be supported by affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(3). If such material is submitted to the court, it must be considered. MCR 2.116(G)(5).

A motion under MCR 2.116(C)(8) may not be supported by affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(2). When considering such a motion, the trial court must rely only on the pleadings. MCR 2.116(G)(5).

A motion under MCR 2.116(C)(10) must be supported by affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(3)(b). The adverse party may not rest upon mere allegations or denials of a pleading, but must, by affidavits or other appropriate means, set forth specific facts to show that there is a genuine issue for trial. MCR 2.116(G)(4). All this supporting and opposing material must be considered by the court. MCR 2.116(G)(5).

As noted above, the defendants' motion was filed under all three paragraphs.2 However, the circuit court expressly granted summary disposition on the basis of governmental immunity. Thus the summary disposition in this case was rendered under MCR 2.116(C)(7).


The Court of Appeals has reversed the summary disposition entered by the circuit court. We affirm that result. However, it is necessary to clarify the Court of Appeals analysis.

At one point in its discussion, the Court of Appeals stated:

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 N.W.2d 458 (1991). We must consider all well-pleaded allegations as true and construe them most favorably to the plaintiff. Id. [199 Mich.App. 192-193.]

Those two principles are accurately attributed to Haywood, and they have been presented together in other decisions, as well.3 Likewise, each leg of Haywood finds support in the published decisions of the Court of Appeals.4

However, the practical effect of these maxims often is directly contradictory. If, as in the present case, the defendants submit affidavits that contradict the allegations of the complaint, it is not possible to honor fully both rules — the circuit court cannot simultaneously consider all well-pleaded allegations as true and give meaningful consideration to the additional papers filed to support and oppose the motion.

In the present case, the plaintiff filed a complaint alleging that her decedent died as the direct result of the defendants improperly and unwisely inserting an endotracheal tube. The defendants then filed affidavits saying, in essence, that the plaintiff sued the wrong defendants — they never inserted such a tube or caused anyone else to insert it.5 The plaintiff responded with documentation to support her claim that the defendants were the persons responsible for her decedent's death.

If a motion under MCR 2.116(C)(7) were considered in the same manner as a motion under MCR 2.116(C)(8), the defendants' sworn denials and the plaintiff's responsive documentation would be of no account, since the court would be required simply to treat the allegations of the complaint as true. However, MCR 2.116(G)(5) provides that the court must consider the affidavits and other supplementary papers filed by the parties. Neibarger v Universal Cooperatives, Inc, 439 Mich. 512, 532, n 29; 486 N.W.2d 612 (1992). Thus, all these materials were properly considered by the courts below.6

In this case, the Court of Appeals properly reviewed all the material submitted in support of, and in opposition to, the plaintiff's claim, and correctly determined that "it was not appropriate to have dismissed plaintiff's claims at this stage in the proceedings." 199 Mich.App. 193.

With clarification of the proper manner for consideration of a motion under MCR 2.116(C)(7), we affirm the judgment of the Court of Appeals. MCR 7.302(F)(1).


BOYLE, J. (dissenting).

The rationale of the per curiam opinion seems to be that "what was, is."

I would grant leave to appeal to allow the profession to educate the members of the Court on how or why the Michigan rule and its apparent adherence to a nonunified approach to motion practice is superior to the approach under FR Civ P 12(b), 12(c), and 56. In my view, it is ill-advised to issue a per curiam decision that affects every civil case in our state without input from the practicing bar and an invitation for briefs amici curiae from the trial judiciary.

BRICKLEY, J., concurred with BOYLE, J.


1. The Court of Appeals later denied rehearing. Unpublished order issued May 25, 1993 (Docket No. 134858).
2. Whether the defendants actually were involved in the insertion of an endotracheal tube, and whether they did so in a manner that was grossly negligent, are questions that affect both their immunity to suit, MCR 2.116(C)(7), and their possible entitlement to judgment as a matter of law, MCR 2.116(C)(10). That is because, as governmental employees, they are ordinarily immune from suit for actions that do not involve gross negligence. MCL 691.1407(2)(c); MSA 3.996(107)(2)(c).
3. See, e.g., Marrero v McDonnell Douglas Capital Corp, 200 Mich.App. 438, 440-441; 505 N.W.2d 275 (1993); Simmons v Apex Drug Stores, Inc, 201 Mich.App. 250, 252; 506 N.W.2d 562 (1993); Jones v State Farm Mutual Automobile Ins Co, 202 Mich.App. 393, 396-397; 509 N.W.2d 829 (1993); Skotak v Vic Tanny Int'l, Inc, 203 Mich.App. 616, 617; 513 N.W.2d 429 (1994). See also Wade v Dep't of Corrections, 439 Mich. 158, 162-163; 483 N.W.2d 26 (1992).
4. Compare Montgomery v Detroit, 181 Mich.App. 298, 302-303; 448 N.W.2d 822 (1989), Chivas v Koehler, 182 Mich.App. 467, 471; 453 N.W.2d 264 (1990), and Harrison v Director of Dep't of Corrections, 194 Mich.App. 446, 449; 487 N.W.2d 799 (1992), with Mollett v City of Taylor, 197 Mich.App. 328, 332-333; 494 N.W.2d 832 (1992), Brownell v Garber, 199 Mich.App. 519, 529; 503 N.W.2d 81 (1993), and Diversified Financial Systems, Inc v Schanhals, 203 Mich.App. 589, 591; 513 N.W.2d 210 (1994).
5. As noted in n 2, this denial could be used to support summary disposition under MCR 2.116(C)(10) (no wrongful conduct at all) or under 2.116(C)(7) (no gross negligence, hence governmental immunity).
6. A party who files a motion under MCR 2.116(C)(10) must support the motion with affidavits or other appropriate documentation, MCR 2.116(G)(3)(b), and the adverse party may not rest upon the pleadings, MCR 2.116(G)(4). The difference between a motion under MCR 2.116(C)(7) and a motion under MCR 2.116(C)(10) is that a movant under MCR 2.116(C)(7) is not required to file supportive material, and the party opposing the motion is not required to respond in kind. Moreover, the contents of the complaint must be accepted as true unless specifically contradicted by the affidavits or other appropriate documentation submitted by the movant.


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