The Court of Appeals recently held that a public park patron, who was struck by a rock hurled from a passing lawnmower, could not bring a claim against the operator or the government agency due to governmental immunity. The case is Raspberry v. Yates Township, unpublished Michigan Court of Appeals case 333099, decided May 9, 2017. In Raspberry, the plaintiff claimed that she was having a picnic with her family at Williams Island Beach Park, when the Yates Township maintenance crew began cutting the grass. The plaintiff claimed that one Yates Township employee drove his mower within ten feet of the picnic table where the plaintiff’s family was seated. Before the plaintiff and her family could retreat, the employee drove near the table a second time. The plaintiff claimed that she was seriously injured after she was struck between the eyes by a rock that shot out of the passing lawnmower. She suffered a fracture to her “left nasal bone,” as well as “swelling and bruising around her eyes and nose.” The trial court denied defendants’ motion to dismiss the case, because it reasoned that it was possible for reasonable jurors to determine that gross negligence had occurred.

On appeal, the Court of Appeals reversed the trial court’s holding and remanded the case for dismissal. The Court of Appeals held that pursuant to MCL 691.1407(2), a government employee is immune from liability for injuries caused in the course of employment while acting on behalf of his or her government employer if: “(a) [t]he [individual] is acting or reasonably believes he or she is acting within the scope of his or her authority”; “(b) [t]he governmental agency is engaged in the exercise or discharge of a governmental function”; or “(c) [t]he [individual's] conduct does not amount to gross negligence that is the proximate cause of the injury or damage.” The Plaintiff did not contend that the employee was not working in the scope of his authority when the accident occurred. Therefore, the court only considered whether the employee’s conduct rose to the level of gross negligence. Under MCL 691.1407(8)(a), gross negligence is defined as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” The court held that while the employee’s conduct was not a safe practice, it did not rise to the level of gross negligence. The township could not be held vicariously liable for the conduct of its employee, because the employee was acting “during the course of employment” and “within the scope of his authority” and no immunity exception applied.

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