Beaudrie v. Henderson, Docket No. 114261, Calendar No. 1

• Court: Supreme Court of Michigan
• Writing for the Court: YOUNG, J.
• Citation: 631 N.W.2d 308,465 Mich. 124
• Docket Number: Docket No. 114261, Calendar No. 1
• Decision Date: 27 July 2001
• Parties: Nicole M. BEAUDRIE, Plaintiff-Appellant, v. Pauline HENDERSON, Defendant-Appellee, and City of Dearborn, and Dearborn Police Department, Defendants.

631 N.W.2d 308
465 Mich. 124

Nicole M. BEAUDRIE, Plaintiff-Appellant,
v.
Pauline HENDERSON, Defendant-Appellee, and
City of Dearborn, and Dearborn Police Department, Defendants

Docket No. 114261, Calendar No. 1

Supreme Court of Michigan.

Argued March 6, 2001.

Decided July 27, 2001.

631 N.W.2d 309

Fieger, Fieger, Schwartz & Kenney (by Geoffrey N. Fieger and William J. McHenry) Southfield, MI, and Bendure & Thomas (by Mark R. Bendure) Detroit, MI, for plaintiff

Laurie M. Sabon and Debra A. Walling, Dearborn, MI, for defendant-appellee.

Opinion

YOUNG, J.

Plaintiff was abducted, assaulted, and raped by her ex-boyfriend. This case pertains to the actions of defendant Pauline Henderson, a police dispatcher and friend of the assailant's mother. Defendant Henderson allegedly was contacted at her place of employment by the assailant's mother while plaintiff was being held captive. Plaintiff alleged that defendant was grossly negligent and engaged in active misconduct when she failed to notify the police of the whereabouts of plaintiff's assailant and acted in concert with the assailant's mother in withholding information from authorities. Defendant argued that the public duty doctrine shielded her from liability, and moved for summary disposition under MCR 2.116(C)(8). The trial court denied defendant's motion, but the Court of Appeals reversed.

We granted leave to consider whether the public duty doctrine, first recognized by this Court in White v. Beasley, 453 Mich. 308, 552 N.W.2d 1 (1996), should be extended to protect governmental employees other than police officers who are alleged to have failed to provide protection from the criminal acts of third parties. We conclude that, given the comprehensive governmental immunity statute, M.C.L. § 691.1407,¹ this judicially created doctrine should not be so extended. Thus, we reverse the decision of the Court of Appeals and remand this case to the trial court for further proceedings.

I. Factual and Procedural Background

Because this appeal arises under MCR 2.116(C)(8), we take all material facts from plaintiff's first amended complaint. According

631 N.W.2d 310

to her complaint, plaintiff was abducted by her ex-boyfriend, David Wilke, on April 6, 1994. Earlier that day, plaintiff had given preliminary examination testimony against Wilke in a case that arose out of a series of prior assaults committed by Wilke against her, including criminal sexual conduct. Wilke was released on bond

At approximately 1:21 a.m. on April 7, 1994, the Dearborn Police Department issued an all points bulletin (APB) regarding the suspected abduction, including a description of Wilke and the vehicle that was believed to be involved. The police knew that plaintiff had parked her own vehicle in her driveway, but never made it inside her home. The police also knew that Wilke had criminal charges pending against him involving plaintiff, that he had been released on bond, that he had threatened that he had threatened to kill plaintiff in the past, and that he had access to handguns.²

Around 9:30 a.m., defendant, who was working as a dispatcher at the Dearborn Police Department, received a call from Wilke's mother, who was defendant's personal friend. Wilke's mother informed defendant that Wilke was missing, that she believed him to be armed and dangerous, and that it appeared that he had taken plaintiff with him.

Plaintiff's first amended complaint further alleged that defendant suspected that Wilke had taken plaintiff to a family-owned trailer at Camp Dearborn. Plaintiff alleged that defendant contacted Camp Dearborn, represented herself as a Dearborn police dispatcher, and requested that Camp Dearborn employees verify whether the suspect vehicle was there. She gave the employees a description of the vehicle, its license plate number, and warned them not to approach the vehicle.

Approximately fifteen minutes later, defendant received notification that Wilke and the vehicle were indeed at Camp Dearborn. At that point, defendant contacted Wilke's mother. Plaintiff alleged that the two women agreed to withhold information from the police until Wilke's mother could contact Wilke's attorney. Wilke's mother, having spoken with Wilke's attorney, allegedly contacted defendant again at approximately 11:45 a.m., at which time they agreed to withhold information about Wilke's whereabouts. At approximately noon, defendant left Dearborn Police Dispatch, picked up Wilke's mother and sister, and drove to Camp Dearborn.

According to plaintiff's first amended complaint, "[a]s a direct and proximate result of these acts and/or omissions by Defendant Pauline Henderson, the brutal rape, beating and abduction of Plaintiff Nicole Beaudrie was allowed to continue, and the suspect, David James Wilke, was allowed the opportunity to escape the fenced perimeter of Camp Dearborn with his victim." Plaintiff subsequently filed suit against defendant,³ alleging that defendant's conduct amounted to "intentional misconduct ... active malfeasance, and gross negligence," and that plaintiff's continued victimization was "a direct and proximate result" of defendant's actions.

631 N.W.2d 311

Defendant moved for summary disposition under MCR 2.116(C)(8) on the ground that, under the public duty doctrine, she did not owe any duty to plaintiff. The trial court denied the motion. The Court of Appeals then reversed in a split decision.⁴

We granted plaintiff's application for leave to appeal. 463 Mich. 889, 618 N.W.2d 767 (2000).

II. Standard of Review

The trial court granted summary disposition to defendants under MCR 2.116(C)(8). We review that decision de novo. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). A motion for summary disposition brought under MCR 2.116(C)(8) tests the legal sufficiency of the complaint on the basis of the pleadings alone. The purpose of such a motion is to determine whether the plaintiff has stated a claim upon which relief can be granted. The motion should be granted if no factual development could possibly justify recovery. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998).

Summary disposition of a plaintiff's gross negligence claim is proper under MCR 2.116(C)(8) if the plaintiff fails to establish a duty in tort. See Maiden, supra at 135, 597 N.W.2d 817. Whether a defendant owes a plaintiff a duty of care is a question of law for the court. Id. at 131, 597 N.W.2d 817.

III. History of the Public Duty Doctrine

It appears that the origins of the common-law public duty doctrine can be traced to South v. Maryland, 59 U.S. (18 How) 396, 15 L Ed 433 (1855). There, the plaintiff was kidnapped and held for ransom. Upon his release, the plaintiff sued the county sheriff, alleging that, despite the plaintiff's request for protection, the sheriff neglected and refused to protect him or to otherwise keep the peace. In rejecting the plaintiff's claim, the United States Supreme Court held that the sheriff's duty to preserve the public peace was "a public duty, for neglect of which he is amenable to the public, and punishable by indictment only." Id. at 403. The Supreme Court of Tennessee has noted that a clear majority of state courts considering the issue adhere to the public duty doctrine in one form or another. See Ezell v. Cockrell, 902 S.W.2d 394, 399, n. 5 (Tenn., 1995).

Before our 1996 decision in White, supra, this Court had not recognized the public duty doctrine. However, the lead opinion in White noted that our Court of Appeals had consistently relied on the doctrine as early as 1970. See id, at 322, n. 7, 552 N.W.2d 1. A majority of the Court agreed that the public duty doctrine serves a useful purpose and should apply in Michigan. Id. at 316, 552 N.W.2d 1 (Brickley, C.J., joined by Riley and Weaver, JJ.), at 330, 552 N.W.2d 1 (Cavanagh, J., joined by Mallett, J.).

IV. The Scope of the Public-Duty Doctrine under White

Before we can determine the future of the public-duty doctrine in Michigan, it is necessary to examine its current state. At issue in White was whether the defendant police officer who failed to assist and protect the plaintiff from a criminal assault by a third party was liable in tort. This Court invoked the public duty doctrine and found no liability.

Chief Justice Brickley's lead opinion in White adopted the following articulation of the public duty doctrine from Justice Cooley's leading 19th century treatise on torts:

[I]f the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an

631 N.W.2d 312

inadequate or erroneous performance, must be a public, not an individual injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages. [White, supra at 316, 552 N.W.2d 1, quoting 2 Cooley, Torts (4th ed), § 300, pp 385-386.]

However, it is not entirely clear from our fractured decision in White whether application of the public duty doctrine was intended to apply to all government employees or only to police officers who are alleged to have failed to provide police protection. The lead opinion suggested an expansive application of the doctrine:

In conclusion, we find that the public-duty doctrine still serves useful purposes.... Government employees should enjoy personal protection from tort liability based on their action in conformity with, or failure to conform to, statutes or ordinances not intended to create tort liability. The job titles of government employees alone should not create a duty to specific members of the public. [Id. at 319, 552 N.W.2d 1.]

Fairly read, nothing in the lead opinion indicated an intent to limit application of the public duty doctrine to any particular class of governmental employees.

Justice Boyle agreed with the statement...