Bolton v. Jones

434 N.W.2d 415, 173 Mich. App. 725
CourtMichigan Court of Appeals
DecidedDecember 19, 1988
DocketDocket 110649
StatusPublished
Cited by7 cases

This text of 434 N.W.2d 415 (Bolton v. Jones) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bolton v. Jones, 434 N.W.2d 415, 173 Mich. App. 725 (Mich. Ct. App. 1988).

Opinions

ON REMAND

Before: Danhof, C.J., and Wahls and Murphy, JJ.

Wahls, J.

This case comes before us on remand from the Supreme Court "for reconsideration in light of Canon v Thumudo, Davis v Lhim, and Hall v Han, 430 Mich 326 [422 NW2d 688] (1988).” Bolton v Jones, 431 Mich 856 (1988). In our earlier opinion, we reversed the Wayne Circuit Court’s grant of summary disposition in favor of defendants Cyril David Jones, M.D., and Robert Temple. [727]*727Upon reconsideration in light of the Supreme Court’s decision in the consolidated cases cited above, we again conclude that the trial court erred in granting summary disposition to the govern-mentally employed defendants in this case on the basis of entitlement to the protection of employee immunity from tort liability. Ross v Consumers Power Co (On Remand), 420 Mich 567, 592, 633-634; 363 NW2d 641 (1984).

The facts in this case were set forth in our earlier opinion, Bolton v Jones, 156 Mich App 642, 644-647; 401 NW2d 894 (1986). Essentially, plaintiff sued Dr. Jones, a psychiatrist employed by the Clinic for Child Study of the Wayne Probate Court’s juvenile division, and Mr. Temple, a state-licensed social worker employed by the juvenile division, for negligence and malpractice, alleging that both men had improperly recommended to the probate court that a certain child abuse petition against Arthur Baskin and Gloria Baskin be dismissed. Relying, in part, on the recommendations of Jones and Temple, the probate court, in January, 1979, dismissed the child abuse petition regarding the Baskins’ two children, Shaniqua and Takara. In March, 1979, Shaniqua, then 2 Vi years old, died after being beaten by her father, Arthur Baskin, who also allegedly had been beating his daughter Takara on a frequent basis. In October, 1981, Nellie Bolton, as personal representative of the estate of Shaniqua Baskin and as next friend of Takara Baskin, filed suit in the Wayne Circuit Court, claiming, among other things, that defendants had negligently investigated for, and evaluated the potential danger of, child abuse in the event the Baskin children were placed in the charge of their parents without the benefit of court supervision.

[728]*728In our earlier opinion we, relying heavily on Davis v Lhim (On Remand), 147 Mich 8; 382 NW2d 195 (1985), lv gtd 425 Mich 851 (1986), concluded that defendants in this case — assuming that, as plaintiff alleged, defendants had been negligent in failing to "properly and adequately inspect, interview, and investigate” regarding the Baskin children’s safety with their parents and to "adequately and properly investigate and review both parents’ medical and psychiatric histories and records” — had not performed discretionary-decisional acts, as opposed to ministerial-operational acts, and thus were not entitled to summary disposition on the basis of employee immunity. 156 Mich App 648. Under Ross, supra, lower-level governmental employees, such as defendants in this case, are immune from tort liability if, in addition to having acted or having reasonably believed to have been acting during the course of employment and in good faith, they were performing discretionary-decisional, as opposed to ministerial-operational, acts. In our earlier opinion we stated that an employee could not "deviate from the appropriate standard of care” and thereafter avoid liability merely by claiming to have the "discretion to violate that standard,” and declared that "[o]nce either defendant chose to inspect, interview, or investigate, such inspection, interview, or investigation should have been conducted properly.” 156 Mich App 649.

In the portion of the opinion in Canon, supra, regarding the Davis case, the Supreme Court reversed this Court’s decision and remanded the case to the trial court for entry of judgment in favor of the defendant psychiatrist. The psychiatrist in Davis had determined that a voluntarily hospitalized psychiatric patient did not meet the statutory requirements for involuntary hospitalization, MCL [729]*729330.1401; MSA 14.800(401), and thus could be released in accordance with the patient’s request. Approximately one month after being released, the patient shot and killed his mother. In reaching its conclusion that the state-employed psychiatrist, Dr. Yong-oh Lhim, was entitled to summary disposition on the basis of employee immunity from tort liability, the Supreme Court, commenting on this Court’s earlier treatment of the issue, stated:

Without focusing on whether the decision to release or initiate commitment proceedings required the exercise of substantial discretion, the Court of Appeals majority concluded that Dr. Lhim’s judgment was constrained by the "relevant standard of care . . . [the conduct] of a reasonable psychiatrist practicing medicine in the light of present-day scientific knowledge.” Davis, 147 Mich App 15.
We reiterate that the relevant inquiry is not whether the specific act complained of was negligent, but whether it was discretionary-decisional in nature. In other words, we ask whether Dr. Lhim was essentially engaged in decision making or in the execution of a treatment program or plan when he failed to involuntarily hospitalize Patterson. [430 Mich 350.]

In a footnote, the Supreme Court clarified, however, that the psychiatrist’s decision in Davis was an informed decision, i.e., was a decision made after consideration of all the statutory factors regarding the discharge of a voluntarily hospitalized psychiatric patient, and was being challenged by the plaintiff on the basis that the psychiatrist "wrongly decided that the statutory criteria were not satisfied.” 430 Mich 351, n 15. Thus, in Davis, according to the Supreme Court, the psychiatrist had made an informed decision which, with the benefit of hindsight, was characterized by the [730]*730plaintiff as being incorrect and, consequently, formed the basis of the plaintiff’s tort claims. 430 Mich 352.

In the present case, we harbor no doubt that, had plaintiff merely alleged that defendants’ decisions, while informed, were simply wrong, summary disposition could properly be granted to defendants on the ground that employee immunity barred liability. Under such a circumstance, the discretionary-decisional character of the recommendations would be obvious: since they involved the making of significant decisions and not merely the execution of a duty or order affording little or no choice, they would clearly be protected by employee immunity. Plaintiff in this case, however, claims that defendants’ recommendations not only were wrong but that they were wrong because they were uninformed. In other words, plaintiff objects not only to what defendants recommended but to the fact that defendants recommended. Stated differently, plaintiff suggests that defendants’ decisions could not have constituted discretionary-decisional actions because a truly judgmental or discretionary action cannot be performed without the decision maker’s having considered all of the appropriate criteria. As already stated, plaintiff has alleged that defendants, prior to making their recommendations, failed to adequately interview and investigate the Baskins in order to be able to make informed recommendations concerning whether the child abuse petition should have been dismissed.

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Bolton v. Jones
434 N.W.2d 415 (Michigan Court of Appeals, 1988)

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Bluebook (online)
434 N.W.2d 415, 173 Mich. App. 725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bolton-v-jones-michctapp-1988.