Davis v. Lhim

335 N.W.2d 481, 124 Mich. App. 291
CourtMichigan Court of Appeals
DecidedMarch 21, 1983
DocketDocket 59284
StatusPublished
Cited by80 cases

This text of 335 N.W.2d 481 (Davis v. Lhim) 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
Davis v. Lhim, 335 N.W.2d 481, 124 Mich. App. 291 (Mich. Ct. App. 1983).

Opinions

R. M. Maher, P.J.

In this wrongful death case, defendant appeals by right from the judgment entered for plaintiff upon a jury verdict.

In 1975, defendant, a staff psychiatrist at the Northville State Hospital, had under his care John Patterson, the son of plaintiff’s decedent, Mollie Barnes. Patterson had a long history of psychological disorder, having voluntarily signed himself into Northville on six occasions from 1972 to 1975 with complaints of insomnia, depression and hallucinations. Defendant first provided Patterson with psychiatric care from July 17, 1975, to August 4, 1975. Patterson returned to defendant’s care on August 21, 1975, and remained until September 3, 1975. On both occasions, defendant was diagnosed as suffering from schizophrenia.

Patterson’s last admission to Northville was on [294]*294a formal voluntary order. When Patterson asked to be released on September 2, 1975, defendant discharged him the following day. Patterson was to be released into the care of his mother, Mollie Barnes, a resident of Detroit. At the time, however, his mother was visiting her relatives in Montgomery, Alabama. Patterson stayed with other relatives in Detroit until October, when he became difficult to manage, and his aunt, Ruby Davis, took him to his mother in Alabama. On November 2, 1975, Patterson began firing a shotgun in his aunt’s house, where his mother was staying. His mother tried to talk Patterson out of shooting again, then attempted to restrain him. In the struggle, Patterson fired several more shots, one of which struck and killed his mother.

Ruby Davis, as administratrix of the estate of Mollie Barnes, brought suit against the defendant and Northville State Hospital. In her complaint, plaintiff alleged that defendant’s negligent discharge of Patterson was the proximate cause of Mollie Barnes’s death. Plaintiff was allowed to amend her complaint during the trial to allege that the defendants negligently failed to warn Mollie Barnes that Patterson was a danger to her safety. Plaintiff sought to recover damages for the loss of love and affection suffered by herself and other siblings of Mollie Barnes.

After a trial that lasted several days, the jury returned a verdict for plaintiff in the amount of $500,000. Defendant moved for judgment notwithstanding the verdict or, in the alternative, a new trial, arguing the same points he now raises on appeal. The trial court denied the motion and defendant appealed.

Defendant raises seven issues, each of which we discuss in turn.

[295]*295I

Defendant contends that he is cloaked with governmental immunity and, therefore, cannot be held liable for the death of Mollie Barnes. Government agencies are guaranteed statutory immunity from tort liability where the agency is engaged in the exercise or discharge of a governmental function. MCL 691.1407; MSA 3.996(107). A state-operated psychiatric hospital is protected by governmental immunity. Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978). The governmental immunity statute, however, applies only to government agencies. A public employee’s immunity, if any, must rest on a different ground.

This Court is divided on the proper test of a public employee’s immunity from liability for negligence. Some panels have held that an employee is immune if his allegedly tortious conduct involved discretionary rather than ministerial acts. See, e.g., Cook v Bennett, 94 Mich App 93; 288 NW2d 609 (1979); Fuhrmann v Hattaway, 109 Mich App 429; 311 NW2d 379 (1981). Other panels find an employee is immune where his act "falls within the scope of his employment”. See, e.g., Everhart v Bd of Ed of Roseville Community Schools, 108 Mich App 218; 310 NW2d 338 (1981); Gaston v Becker, 111 Mich App 692; 314 NW2d 728 (1981); Lewis v Beecher School System, 118 Mich App 105; 324 NW2d 779 (1982); Shwary v Cranetrol Corp, 119 Mich App 736; 326 NW2d 627 (1982). The Supreme Court has not clearly endorsed either view. However, in Lockaby v Wayne County, 406 Mich 65; 276 NW2d 1 (1979), a majority of the justices appeared to apply the "scope of employment” test. In that case, the plaintiff brought an action against, inter alia, various employees of the Wayne County jail, alleging negli[296]*296gent operations of the jail resulting in plaintiff’s injuries. A majority of the Court in separate opinions held that these employees were protected by governmental immunity. Justice Moody found that "the officers and employees of the county, while acting within the scope of their employment maintaining a jail, primarily are performing essential public duties. Thus, they are immune from alleged negligent actions or selection of personnel.” Id., p 84 (Moody, J., concurring in part and dissenting in part). Chief Justice Coleman, in her opinion, in which Justice Ryan concurred, agreed with Justice Moody. Finally, Justice Williams appeared to hold that the employees were immune because their negligent conduct was not ultra vires. Consequently, a majority of the Supreme Court has held, in effect, that a public employee is protected by governmental immunity only if his alleged tortious conduct falls within the "scope of his employment”.

Plaintiff proceeded on two theories of negligence by defendant. First, plaintiff alleged that defendant negligently authorized Patterson’s discharge from Northville. Second, plaintiff charged that defendant failed to warn Mollie Barnes of, or take other steps to protect her from, the danger Patterson posed to her. If these negligent acts do not fall within the scope of defendant’s employment as a staff psychiatrist in a state-run mental hospital, defendant cannot invoke immunity.

A negligent act falls within the scope of the actor’s employment only if the duty he breached is imposed on him because he is a public employee. See Galli v Kirkeby, 398 Mich 527; 248 NW2d 149 (1976) (Coleman, J., dissenting); Lovitt v Concord School Dist, 58 Mich App 593; 228 NW2d 479 (1975), overruled in part 398 Mich 527, 536 (1976); [297]*297Wynn v Cole, 68 Mich App 706; 243 NW2d 923 (1976); Toceo v Piersante, 69 Mich App 616; 245 NW2d 356 (1976), lv den 399 Mich 882 (1977); Cole v Rife, 77 Mich App 545; 258 NW2d 555 (1977). The test is perhaps better labeled "duty dependent upon public employment”. This avoids confusion with the theory of respondeat superior, which sometimes employs the phrase "scope of employment”. We do not perceive the immunity of a public employee to be coextensive with his job assignment, whatever that might be. When a government employee allegedly is negligent in the performance of some task unique to government, such as operation of a jail, Lockaby, supra, and has breached a duty which has as its sole basis his government employment and which is not shared by those outside government employment, then he can avoid liability. In formulating this test, we are merely returning to established principles. Over a century ago, Justice Cooley distinguished between a government official’s public duties and private duties. Cooley on Torts, pp 385-390. As one example of public duties, Justice Cooley offered the policeman walking his beat. If he fails in his duty of vigilence and a crime is committed, the victim of the crime has no claim against him.

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Bluebook (online)
335 N.W.2d 481, 124 Mich. App. 291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-lhim-michctapp-1983.