XT v. Flatrock Manor, Inc.

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XT, Minor, by Next Friend AMBER TOWER, and JASON TOWER, Plaintiffs-Appellants, v. FLATROCK MANOR, INC., Defendant-Appellee.

No. 364071

Court of Appeals of Michigan

November 30, 2023

UNPUBLISHED

Genesee Circuit Court LC No. 21-115409-NO

Before: O'BRIEN, P.J., and K. F. KELLY and M. J. KELLY JJ.

PER CURIAM.

Plaintiffs XT by next friend Amber Tower, and Jason Tower, appeal as of right the trial court's opinion and order granting summary disposition in favor of defendant, Flatrock Manor Inc. We affirm.

I. BACKGROUND

The pertinent facts of this case are largely undisputed, but to the extent they are disputed, this opinion will recount the facts in the light most favorable to plaintiffs as the nonmoving party.

Defendant operates 27 foster care homes for adults with mental illness or developmental disabilities. At the time of the relevant events, 25-year-old Katie Rameau was a resident at one of defendant's facilities. By way of background, Rameau was diagnosed with "a mild intellectual disability and an autism spectrum disorder." She "had a long history of problematic behavior, particularly in the form of aggression, property destruction, and self-injury." The physical aggression Rameau had demonstrated included "hair pulling, biting, scratching, hitting, and kicking." Rameau's behavioral problems also "included escape." Staff responsible for Rameau was trained in various techniques to handle Rameau's problematic behavior. One such technique was "blocking," which was accomplished by staff placing themselves between Rameau and any person she was targeting. Rameau frequently went on outings in the community, and while she had never been aggressive towards a member of the public, staff were still advised to monitor Rameau "while in the community to ensure constant safety."

Defendant's employee Jacquetta Green worked at the facility that housed Rameau. Four residents resided at the facility, and two staff members worked each shift. Nicholas Burnett, the owner and CEO of defendant, testified that defendant "would like more than one staff at all times."

On October 28, 2020, Green was working in the home with Sherry Wooster. While Wooster was away from the facility with the other residents, Green was at the facility with Rameau. At around 4:45 p.m., Green was upstairs doing paperwork while Rameau was downstairs listening to music. According to Nathan Hank, the facility's home manager, certain types of music, particularly "heavy metal music" or "rock music," were "known triggers" for Rameau, though he also believed that "all music could be a trigger" for Rameau depending on her "mood." While Green was still upstairs, she heard Rameau's music stop playing and then heard the alarm from the door leading outside. The door had a keypad that staff used to open the door, but it could also be opened via "delayed access," which allowed the door to be opened by pressing on the door handle for 15 seconds. Doing this automatically unlocked the door and caused an alarm to sound.

When Green heard the alarm, she went downstairs, and as she reached "the last step" she saw Rameau exiting through the door. Green followed Rameau to try to calm her down and get her to return home, but Rameau refused, so Green continued following her.

Jason and his two sons-three-year-old XT and XT's younger brother, ET-were walking through their neighborhood when Rameau approached them. Jason did not initially see Green with Rameau, but eventually heard Green tell Rameau that she needed to go back to the house because she did not have her shoes, at which point Jason saw that Green was about 20 feet behind Rameau. Jason did not think it unusual that Rameau approached his family because they often interacted with members of the community while on walks. However, when Rameau talked to ET, she got closer to him than Jason was comfortable with, which caused Jason to pick up ET and try to greet Rameau himself. Jason estimated that Green was still 10 feet away at this point, and he heard Green say to Rameau "stop, stop. You can't do that." Then, without warning, Rameau took a step towards XT, picked him up, and threw him on the sidewalk. Green gave Jason no warning, and Rameau acted too quickly for Jason to stop her. Jason saw XT's entire body hit the sidewalk; his back hit first, and then "his head snapped back" and the back of his head hit the sidewalk.

After XT was attacked, Jason immediately picked up XT with his free hand and carried both of his boys away from Rameau until he set them on the grass "probably like a property length" away from Rameau. When Jason looked back, he saw that Green was in a physical confrontation with Rameau. Green was eventually able to get Rameau back to defendant's facility after another one of defendant's employees pulled up in a vehicle and the two staff members got Rameau in the car.

When Jason brought XT home, he was conscious but extremely disoriented, so his parents brought him to the emergency room. XT was diagnosed with a skull fracture and a concussion. Hospital staff initially thought surgery would be required, but it was ultimately determined that no surgery was necessary. XT had to stay in the hospital overnight and was discharged the next day.

While Jason was not treating with a doctor or therapist following the accident, he testified that the physical responses he has experienced as a result of witnessing Rameau attack XT included "having a pit in your stomach," "crying," "racing thoughts," and "a sense of heightened alter anxiety." He was also seen by Dr. Gerald Shiener, who opined that Jason suffered from posttraumatic stress disorder "with secondary depression" as a result of witnessing the assault of XT. Dr. Shiener further opined that Jason "has been significantly traumatized by the experience" and was "in need of a comprehensive program of supportive psychotherapy."

On March 18, 2021, plaintiffs filed the complaint giving rise to the instant action. In Count I, plaintiffs alleged that defendant was negligent, and that XT was injured as a result of defendant's negligent actions. In Count II, plaintiffs alleged that the defendant was liable for negligent infliction of emotional distress (NIED) based on Jason witnessing Rameau's assault of his son.

On September 12, 2022, defendant filed two motions for summary disposition, one with respect to each count in plaintiffs' complaint. For Jason's claim for NIED, defendant argued that plaintiffs had failed to offer sufficient evidence establishing a question of fact about whether Jason suffered an "actual physical injury" because all of the injuries that Jason suffered related to emotional harm, which was insufficient to sustain an NIED claim as a matter of law. For plaintiffs' claim of negligence, defendant argued that it must fail because defendant did not owe XT a duty. Defendant conceded for purposes of its motion that it had a special relationship with Rameau, but contended that this did not give rise to a duty to XT because it was not reasonably foreseeable that XT would be endangered by Rameau. Defendant noted that Rameau had never had any interaction with XT and never communicated any type of threat towards XT. Defendant more generally contended that Rameau's actions were unforeseeable because Rameau had never acted aggressively or violently towards any member of the public when she was out in the community.

In response to defendant's motion with respect to Jason's NIED claim, plaintiffs contended that the injuries Jason suffered were sufficient to establish at least a question of fact whether he suffered "actual physical harm." In response to defendant's motion with respect to plaintiffs' negligence claim, plaintiffs argued that defendant owed a duty to XT because it had a special relationship with Rameau and it was reasonably foreseeable that Rameau would act aggressively towards anyone she encountered (including XT) based on her history of aggressive behavior, particularly when "triggered and agitated" like she was when she left the home. Plaintiffs alternatively argued that defendant had assumed the contractual duty to supervise Rameau, and it had performed that duty negligently, which resulted in injury to XT.

The trial court held a hearing on defendant's motions and took the matter under advisement. Eventually, in a written opinion and order, the trial court granted defendant's motions. Viewing the evidence in the light most favorable to plaintiff, the trial court assumed that Rameau "had behavioral problems, which included a known propensity for violence, and that Defendant failed to take proper precautions to prevent her from being loosed in the neighborhood." Even so, the trial court concluded that defendant did not owe XT a duty. The court based its reasoning almost exclusively on Swan v Wedgwood Christian Youth &Family Servs, Inc, 230 Mich.App. 190; 583 N.W.2d 719 (1998), which will be discussed at length below. Essentially, the court reasoned that the instant case was analogous to Swan, that the facts in Swan "were much more egregious" than this case, and that if the facts of Swan did not give rise to a duty (as this Court concluded), then the facts of this case likewise did not give rise to a duty. For Jason's NIED claim, the trial court reasoned that defendant owed no duty to Jason for the same reasons that defendant owed no duty to XT.

This appeal followed.

II. STANDARD OF REVIEW

A grant or denial of summary disposition is reviewed de novo. McMaster v DTE Energy Co, 509 Mich. 423, 431; 984 N.W.2d 91 (2022). Defendant moved for summary disposition under MCR 2.116(C)(10). Summary disposition under MCR 2.116(C)(10) is proper when "there is no genuine issue as to any material fact, and the moving party is entitled to...