Bolton v. Jones
| Decision Date | 24 March 1987 |
| Docket Number | Docket No. 84364 |
| Citation | 401 N.W.2d 894,156 Mich.App. 642 |
| Parties | Nellie BOLTON, Personal Representative of the Estate of Shaniqua Baskin, Deceased and Takara Bolton, a minor, by Nellie Bolton, her next friend, Plaintiff-Appellant, v. Cyril JONES, M.D., and Robert Temple, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Mogill, Posner, Cohen & Weiss by Marjory B. Cohen and Kenneth M. Mogill, Detroit, for plaintiff-appellant.
Schurman, Frakes, Glass & Wulfmeier by Cheryl L. Chandler, Detroit, for Cyril Jones, M.D.
John D. O'Hair, Wayne County Corp. Counsel, and Glen H. Downs, Asst. Corp. Counsel, Detroit, for Robert Temple.
Before T.M. BURNS, P.J., and
Plaintiff Nellie Bolton, as personal representative of the Estate of Shaniqua Baskin, deceased, and as next friend of Takara Bolton (formerly Baskin), appeals as of right from the circuit court's grant of summary judgment in favor of defendants.
This case arises out of the Baskin family's contact with the juvenile division of the Wayne Probate Court. The Baskin family was originally comprised of Mr. Arthur Baskin II, Mrs. Gloria Baskin, and their two children, Shaniqua Baskin and Takara Baskin. Plaintiff Nellie Bolton is the mother of Mrs. Baskin.
In September, 1978, based on allegations of physical abuse, a petition was filed with the juvenile division of the probate court. Soon thereafter, a juvenile court referee found the children to be within the provisions of the Juvenile Code on the basis of abuse and neglect. The probate court exercised jurisdiction over the children, but allowed them to remain at home under the supervision of the court's abuse unit. The parents were ordered to submit to clinical evaluations, to attend PACT meetings (Parents And Children Together), and to receive family counseling.
Defendant Robert Temple is a social worker employed by the juvenile division. Pursuant to the court order, the juvenile division's abuse unit investigated the case. Defendant Temple was assigned to investigate the family and file a report. Based on weekly visits to the Baskin home (which appeared to total thirteen in number), interviews with Mr. and Mrs. Baskin, observations of interaction between the parents and children, and the report of defendant Jones, Temple recommended that the family continue with family counseling on their own and that the case be dismissed.
Defendant Cyril Jones, M.D., is a licensed practicing physician within the State of Michigan. Defendant Jones is a board certified psychiatrist employed at the juvenile division's Clinic for Child Study. Pursuant to the court order, a request was made that the Clinic for Child Study evaluate Mr. and Mrs. Baskin. Defendant Jones was assigned to do the evaluation. Apparently based upon one office interview with Mr. and Mrs. Baskin and references to Temple's reports, defendant Jones concluded that there was no continuing need for supervision of the Baskin family.
In January, 1979, the probate court held a hearing on the matter. After considering the reports of defendants Temple and Jones, and other factors mandated by statute, the probate court decided to adopt Temple's recommendation and dismiss the petition regarding the Baskin children.
On March 15, 1979, Shaniqua Baskin, then 2 1/2 years old, died after being beaten by her father. Takara Bolton, then approximately 1 1/2 years old, was allegedly also beaten on a frequent basis by her father.
On October 22, 1981, Nellie Bolton filed a complaint against defendants in the circuit court seeking damages for the injuries and death of Shaniqua Baskin, and for the injuries sustained by Takara Bolton. The complaint contained two sets of similar allegations pursuant to alternative theories of negligence and malpractice. Plaintiff alleged that defendants breached their applicable duties of care in the following manner:
to recommending termination of the temporary wardship of Plaintiff's decedent and Plaintiff-Minor;
Defendants filed responsive pleadings and thereafter moved for summary judgment. The circuit court granted summary judgment in favor of defendants on three different grounds. The court held that defendants were entitled to summary judgment because: (1) defendants were entitled to governmental immunity, (2) no physician-patient relationship existed between defendants and the children, and (3) defendants were provided with immunity by JCR 1969, 7.2(e)(4).
Plaintiff now appeals as of right from the grant of summary judgment. Plaintiff argues that the allegations contained in the complaint were sufficient to withstand summary judgment. Contrarily, defendants argue that plaintiff has failed to allege facts sufficient to withstand a motion for summary judgment. We agree with plaintiff and find that summary judgment was improperly granted.
In reviewing a grant of summary judgment under GCR 1963, 117.2(1), now MCR 2.116(C)(8), for failure to state a claim upon which relief can be granted, this Court is obligated to accept as true all well-pled facts and to determine whether plaintiff's claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Abel v. Eli Lilly & Co, 418 Mich. 311, 323-324, 343 N.W.2d 164 (1984), cert den sub nom E.R. Squibb & Sons v. Abel, 469 U.S. 833, 105 S.Ct. 123, 83 L.Ed.2d 65 (1984). A motion for summary judgment under GCR 1963, 117.2(1) seeks to test the genuineness of a claim or defense by challenging the legal, not factual, adequacy of the pleadings. Id.
Persons who are not judges, legislators, or high executive officials, but rather are lower level officials, employees, or agents of governmental entities 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-decisional, as opposed to ministerial-operational, acts. Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 592, 633-634, 363 N.W.2d 641 (1984).
We find that plaintiff alleged facts sufficient to avoid summary judgment on the ground of governmental immunity. On the basis of the allegations, we cannot conclude that defendants were performing discretionary-decisional acts, as opposed to ministerial-operational acts. Plaintiff alleged that defendants did not properly and adequately inspect, interview, and investigate. Plaintiff also alleged that defendants failed to adequately and properly investigate and review both parents' medical and psychiatric histories and records. 1
In determining that these allegations are sufficient to withstand summary judgment, we find the reasoning of this Court in Davis v. Lhim (On Remand), 147 Mich.App. 8, 382 N.W.2d 195 (1985), lv. gtd. 425 Mich. 851 (1986), and Vitale v. Reddy, 150 Mich.App. 492, 389 N.W.2d 456 (1986), to be persuasive. In those cases, this Court stated: "A professional, otherwise liable because he or she has deviated from the appropriate standard of care, cannot contend that he or she has discretion to violate that standard." We believe that this is true of professionals and nonprofessionals alike. Defendants had the duty to gather enough relevant and reliable information on which to make an informed recommendation. Once either defendant chose to inspect, interview, or investigate, such inspection, interview, or investigation should have been conducted properly. While each defendant could choose the best method for carrying out his duties, the actual performance of those duties was required to be done in a conscientious and appropriate manner.
Thus, summary judgment was inappropriate on this ground.
The trial court's second basis for the grant of summary judgment was that there was an absence of a physician-patient relationship. Technically, this ground would apply only to defendant Jones. However, the real question in this regard is whether either defendant owed a duty to the children to use reasonable care to prevent them from receiving harm from a third person. We hold that defendants owed a duty of care to the children in this case.
First, the trial court's reliance on the absence of a physician-patient relationship was misplaced. In addition to malpractice, plaintiff's complaint asserted a claim of negligence. While the trial court may have correctly granted summary judgment in regard to the malpractice claim, summary...
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