Abraham v. Jackson

• Decision Date: 20 May 1991
• Docket Number: Docket No. 115525
• Citation: 473 N.W.2d 699,189 Mich.App. 367
• Parties: Willie Jean ABRAHAM as Personal Representative of the Estate of Hattie B. Phelps, Plaintiff-Appellee, v. Robert A. JACKSON and Gail Esther Hawkins, Defendants-Appellants. 189 Mich.App. 367, 473 N.W.2d 699
• Court: Court of Appeal of Michigan — District of US

Page 699

473 N.W.2d 699

Willie Jean ABRAHAM as Personal Representative of the Estate of Hattie B. Phelps, Plaintiff-Appellee, v. Robert A. JACKSON and Gail Esther Hawkins Defendants-Appellants.

Docket No. 115525.

189 Mich.App. 367, 473 N.W.2d 699

Court of Appeals of Michigan.

Submitted Dec. 20, 1990, at Detroit.

Decided May 20, 1991 at 9:25 a.m.

Released for Publication Sept. 19, 1991.

[189 MICHAPP 368] Bockoff, Zamler, Mellen & Shiffman, P.C. by Gregory M. Bereznoff, Southfield, for plaintiff-appellee.

Laurel F. McGiffert, Detroit, for the defendants-appellants on appeal.

Before GRIBBS, P.J., and MacKENZIE and JANSEN, JJ.

[189 MICHAPP 369] MacKENZIE, Judge.

Defendants appeal by leave granted from that portion of an order denying their motion for summary disposition of plaintiff's gross negligence claim. We reverse.

Defendants are emergency medical technicians employed by the City of Detroit. On August 30, 1985, they transported plaintiff's decedent, who was in respiratory distress, from her home to a local hospital. The decedent went into full cardiac arrest in the ambulance and died eight days later.

Plaintiff filed this suit against defendants on April 21, 1988. Count I of plaintiff's complaint alleged negligence; count II alleged gross negligence. Defendants moved for summary disposition on the grounds of failure to state a claim and governmental immunity. The trial court granted defendants' motion for summary disposition of the negligence count, but denied their motion with respect to the gross negligence claim. In denying the latter, the court apparently relied on the definition of individual immunity and gross negligence set forth in Sec. 7 of the governmental tort liability act as amended by 1986 P.A. 175, M.C.L. Sec. 691.1407(2)(c); M.S.A. Sec. 3.996(107)(2)(c). Under that section lower-level governmental employees are not immune from tort liability if their conduct amounts to gross negligence, defined as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results."

On appeal, defendants contend that the trial court improperly applied the definitions of individual immunity and gross negligence set forth at M.C.L. Sec. 691.1407; M.S.A. Sec. [189 MICHAPP 370] 3.996(107), as amended by 1986 P.A. 175, and instead should have applied the individual immunity test set forth inRoss v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984). We agree. 1986 P.A. 175, Sec. 3 provides that the amended M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107) does not apply to causes of action "arising" before July 1, 1986. For purposes of this statute, a cause of action "arises" when the plaintiff's claim accrues, not when it is filed. See Montgomery v. Detroit, 181 Mich.App. 298, 308, 448 N.W.2d 822 (1989); DeRocco v. Harper Grace Hosp., 182 Mich.App. 188, 191, n. 1, 451 N.W.2d 549 (1989); Hyde v. Univ. of Michigan Bd. of Regents, 426 Mich. 223, 246, 393 N.W.2d 847 (1986). But see Bischoff v. Calhoun Co. Prosecutor, 173 Mich.App. 802, 806, 434 N.W.2d 249 (1988). Here, plaintiff's cause of action arose either on August 30, 1985, the date defendants transported the decedent, or September 8, 1985, the date on which she died. The amended statute therefore is inapplicable to this case. The trial court erred in denying defendants' motion for summary disposition of count II on the basis of the statute rather than Ross.

Before 1986 P.A. 175 became effective, "the existence and scope of individual immunity [was] a creature of judicial decision-making." Ross, supra, 420 Mich. at p. 629, 363 N.W.2d 641. Ross set forth the following test for individual immunity:

Lower level officials, employees, and agents are immune from tort liability only when they are

1) acting during 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. [420 Mich. at 633-634, 363 N.W.2d 641.]

The Supreme Court has applied this test to claims of liability for gross negligence, as well as ordinary negligence. See, e.g., Ross, supra, at pp. 638, n. 45, 639, 363 N.W.2d 641.

Here, there is no question that defendants were acting during the course of their employment and within the scope of their authority when they [189 MICHAPP 371] transported the decedent. Plaintiff has not alleged that defendants were acting in bad faith. Therefore, the only determination necessary is whether defendants were engaged in discretionary acts entitling them to immunity under Ross.

Discretionary acts involve significant decision making and entail personal deliberation, decision, and judgment. Ross, supra, at pp. 634, 635, 363 N.W.2d 641. Ministerial acts involve the execution of a decision with only minor decision making. Id. Although the execution of a medical decision may at times entail a series of medical decisions requiring personal deliberation and judgment, each of those decisions must entail significant decision making to be considered discretionary. Green v. Berrien General Hosp. Auxiliary, Inc., 437 Mich. 1, 13, 464 N.W.2d 703 (1990). Whether an activity is discretionary or ministerial is a question of law. Gillam v. Lloyd, 172 Mich.App. 563, 576, 432 N.W.2d 356 (1988).

Defendants' activities in this case involved more than obedience to routine procedure or minor decision making. They had to assess the degree of the decedent's respiratory distress, determine whether her condition required oxygen therapy, and make a judgment with regard to the amount of physical exertion she was medically able to tolerate. Each of these determinations involved significant...