Gilbert v. Department of Social Services

Michigan Court of Appeals

Gilbert v. Department of Social Services

380 N.W.2d 74, 146 Mich. App. 124

CourtMichigan Court of Appeals

DecidedOctober 7, 1985

DocketDocket 85835

StatusPublished

Cited by2 cases

This text of 380 N.W.2d 74 (Gilbert v. Department of Social Services) 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.

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Gilbert v. Department of Social Services, 380 N.W.2d 74, 146 Mich. App. 124 (Mich. Ct. App. 1985).

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Opinions

Cynar, J.

Plaintiffs appealed as of right from the trial court’s order granting summary judgment to the defendants based on the governmental immunity statute. This Court affirmed the trial court in an unpublished opinion filed on November 15, 1983 (Docket No. 68302, Hood, J., concurring separately). Plaintiffs filed for leave to appeal to the Michigan Supreme Court. The leave application was held in abeyance pending the decision in Ross v Consumers Power Co (On Rehearing). On order of the Michigan Supreme Court, the decision in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1985), having been issued on January 22, 1985, the application was reconsidered and in lieu of granting leave to appeal the case was remanded, 422 Mich 925 (1985), to this Court pursuant to MCR 7.302(F)(1) for reconsideration in light of Ross, supra.

[126]*126The issue on reconsideration as stated in the Michigan Supreme Court’s remand order is whether the individual defendant, L. M. Cruse, a child protective services worker, is individually immune from liability.

Individual immunity is granted to individual defendants under MCL 691.1407; MSA 3.996(107) only when they are: (1) acting in the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority; (2) acting in good faith; and (3) performing discretionary as opposed to ministerial acts. Ross, supra, pp 633-634. In Ross it was noted that an individual who decides whether to engage in an activity and how best to carry it out engages in a discretionary act. The specific acts complained of, rather than the general nature of the activity, must be examined. Ross, supra, pp 634-635. Our examination of the complaint indicates that the specific activity of which plaintiffs complain is that Cruse continued the investigation and continued to maintain records on the case notwithstanding plaintiffs’ protests. These decisions were discretionary. Cruse was exercising his discretion in deciding whether the investigation should be continued. He was therefore cloaked with immunity. Ross, supra, pp 633-634. The order of summary judgment is affirmed.

Hood, J., concurs in result only.

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Cynar, J.

Plaintiffs appealed as of right from the trial court’s order granting summary judgment to the defendants based on the governmental immunity statute. This Court affirmed the trial court in an unpublished opinion filed on November 15, 1983 (Docket No. 68302, Hood, J., concurring separately). Plaintiffs filed for leave to appeal to the Michigan Supreme Court. The leave application was held in abeyance pending the decision in Ross v Consumers Power Co (On Rehearing). On order of the Michigan Supreme Court, the decision in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1985), having been issued on January 22, 1985, the application was reconsidered and in lieu of granting leave to appeal the case was remanded, 422 Mich 925 (1985), to this Court pursuant to MCR 7.302(F)(1) for reconsideration in light of Ross, supra.

[126]*126The issue on reconsideration as stated in the Michigan Supreme Court’s remand order is whether the individual defendant, L. M. Cruse, a child protective services worker, is individually immune from liability.

Individual immunity is granted to individual defendants under MCL 691.1407; MSA 3.996(107) only when they are: (1) acting in the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority; (2) acting in good faith; and (3) performing discretionary as opposed to ministerial acts. Ross, supra, pp 633-634. In Ross it was noted that an individual who decides whether to engage in an activity and how best to carry it out engages in a discretionary act. The specific acts complained of, rather than the general nature of the activity, must be examined. Ross, supra, pp 634-635. Our examination of the complaint indicates that the specific activity of which plaintiffs complain is that Cruse continued the investigation and continued to maintain records on the case notwithstanding plaintiffs’ protests. These decisions were discretionary. Cruse was exercising his discretion in deciding whether the investigation should be continued. He was therefore cloaked with immunity. Ross, supra, pp 633-634. The order of summary judgment is affirmed.

Hood, J., concurs in result only.

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380 N.W.2d 74, 146 Mich. App. 124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilbert-v-department-of-social-services-michctapp-1985.

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