Bozarth v. Harper Creek Bd. of Ed., Docket No. 78-5025

• Citation: 288 N.W.2d 424,94 Mich.App. 351
• Decision Date: 18 December 1979
• Docket Number: Docket No. 78-5025
• Parties: June Lower BOZARTH, Individually and on behalf of Jessy Lower, a minor, Plaintiff-Appellant, v. HARPER CREEK BOARD OF EDUCATION, Defendant-Appellee, and Loren Mixson, Defendant. 94 Mich.App. 351, 288 N.W.2d 424
• Court: Court of Appeal of Michigan (US)

Page 424

288 N.W.2d 424

June Lower BOZARTH, Individually and on behalf of Jessy

Lower, a minor, Plaintiff-Appellant, v. HARPER CREEK BOARD OF EDUCATION, Defendant-Appellee, and Loren Mixson, Defendant.

Docket No. 78-5025.

94 Mich.App. 351, 288 N.W.2d 424

Court of Appeals of Michigan.

Dec. 18, 1979.

Released for Publication Feb. 28, 1980.

[94 MICHAPP 352] H. James Starr, Lansing, for plaintiff-appellant.

Jonathan S. Damon, Grand Rapids, James A. Fisher, Battle Creek, for Harper Creek Bd. of Ed.

Grant J. Gruel, Grand Rapids, for Mixson.

Before CYNAR, P. J., and WALSH and BeBEAU, ^* JJ.

WALSH, Judge.

Plaintiff June Lower Bozarth, acting individually and on behalf of her minor son, appeals entry of summary judgment in favor of defendant Harper Creek Board of Education. We have carefully considered the arguments raised on appeal and find no error in the dismissal of counts I and II of plaintiff's complaint.

Plaintiff's complaint arose out of alleged homosexual assaults by a teacher, defendant Mixson, on [94 MICHAPP 353] plaintiff's son. Count I alleged defendant school board's negligence in the hiring and supervision of Mr. Mixson. Count II alleged the board's vicarious liability for Mixson's conduct under the doctrine of Respondeat superior. ¹ The trial court found that the defense of governmental immunity barred count I and that plaintiff had not stated a claim under the Respondeat superior doctrine.

The trial court's determination that the defense of governmental immunity defeats the claim stated in count I of plaintiff's complaint was correct. The screening, hiring and supervision of teachers is a governmental function. Galli v. Kirkeby, 398 Mich. 527, 248 N.W.2d 149 (1976).

A homosexual assault by a teacher on a student is clearly outside the scope of the teacher's employment. See Galli v. Kirkeby, supra, 542-543, 248 N.W.2d 149 (dissenting opinion of Coleman, J.). The Respondeat superior doctrine, therefore, does not apply in such a situation to subject the governing school board to liability. 1 Restatement Agency, 2d, § 219, p. 481. McCann v. State of Michigan, 398 Mich. 65, 71, 247 N.W.2d 521 (1976) (opinion of Kavanagh, C. J.).

By brief and oral argument, plaintiff has focused on the following language, taken from the Restatement on Agency, and found in Justice Kavanagh's opinion in McCann, supra, 71, 247 N.W.2d 526:

[94 MICHAPP 354] "The employer is also liable for the torts of his employee if 'the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, Or he was aided in accomplishing the tort by the existence of the agency relation'. 1 Restatement Agency, 2d, § 219(2)(d), p. 481." (Emphasis added.)

It is plaintiff's argument that a jury must be allowed to determine whether Mixson "was aided in accomplishing the tort by the existence of the agency relation".

Plaintiff has cited no cases in which this subsection of the Restatement has been applied as now urged by plaintiff. In our view, proper application of the principle of liability enunciated in the subsection is limited to situations where, from the viewpoint of the person being harmed, the agent appears to have been acting within the scope of his employment. ² Justice Kavanagh so framed the issue in McCann :

"The issue in this case thus becomes whether these employees of the State of Michigan were acting within the Apparent scope of their employment." (Emphasis added.) 398 Mich. 65, 71-72, 247 N.W.2d 521, 526.

"The complaint in this case alleges that the tortious conduct of the individual defendants was 'Made possible by their positions with the State Hospital, which parties purportedly acted on behalf of said hospital, vested with Apparent authority to do so * * * '. * * * I am satisfied that as a matter of law the complaint in this case contains allegations which, if proven, would properly allow the fact finder to determine that the torts were committed by employees of the State of Michigan who were acting within the Apparent scope of their authority." (Emphasis added.) 398...