Burse v. Wayne County Medical Examiner

• Decision Date: 15 August 1986
• Docket Number: Docket No. 79096
• Citation: 391 N.W.2d 479,151 Mich.App. 761
• Parties: Betty BURSE, Plaintiff-Appellant, v. WAYNE COUNTY MEDICAL EXAMINER, Defendant-Appellee. 151 Mich.App. 761, 391 N.W.2d 479
• Court: Court of Appeal of Michigan — District of US

Page 479

391 N.W.2d 479

Betty BURSE, Plaintiff-Appellant, v. WAYNE COUNTY MEDICAL EXAMINER, Defendant-Appellee.

Docket No. 79096.

151 Mich.App. 761, 391 N.W.2d 479

Court of Appeals of Michigan.

Submitted April 8, 1986.

Decided May 20, 1986.

Released for Publication Aug. 15, 1986.

[151 MICHAPP 763] Veleta Brooks-Burkett, Detroit, for plaintiff-appellant.

John D. O'Hair, Corp. Counsel, and Glen H. Downs, Asst. Corp. Counsel, Detroit, for defendant-appellee.

Before DANHOF, C.J., and HOOD and SULLIVAN, JJ.

PER CURIAM.

Plaintiff appeals as of right from an order granting summary judgment to defendant, Wayne County Medical Examiner, on the basis of governmental immunity and from the [151 MICHAPP 764] denial of plaintiff's motion to amend her complaint. We affirm.

This case arises out of the death of plaintiff's brother, James Earl Burse, who was killed in an automobile accident and pronounced dead on arrival by Dr. Haresh Mirchandani, Assistant Wayne County Medical Examiner. The cause of death was listed as chest injuries received in an automobile accident. An autopsy was performed later by another Assistant Wayne County Medical Examiner.

Plaintiff, in her complaint for declaratory judgment, alleged that she was outraged that the defendant agency performed a nonconsensual autopsy on the decedent under circumstances where it did not have statutory authority to perform an autopsy without the consent of the next of kin. She further alleged that the autopsy was performed to obtain body parts for transplant. Defendant filed a motion for summary judgment pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8), claiming that the plaintiff had failed to state a claim upon which relief could be granted. At the first hearing the motion was denied. However, the motion was thereafter granted at a rehearing after defendant argued that it had statutory authority to perform the nonconsensual autopsy and, thus, was protected from tort liability.

A motion for summary judgment brought pursuant to GCR 1963, 117.2(1) tests the legal sufficiency of the claims and is to be resolved by reference to the pleadings alone. In reviewing a grant of summary judgment under this subrule, this Court assumes that the factual allegations in the plaintiff's complaint are true and determines whether the claim, on the pleadings alone, is so clearly unenforceable as a matter of law that no factual development can permit recovery. Guilloz v. Aetna [151 MICHAPP 765] Casualty & Surety Co., 146 Mich.App. 830, 833, 382 N.W.2d 189 (1985); Rodis v. Herman Kiefer Hospital, 142 Mich.App. 425, 427-428, 370 N.W.2d 18 (1985).

State and local government agencies are immune from tort liability for injuries arising out of the exercise or discharge of a non-proprietary governmental function. Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 591, 363 N.W.2d 641 (1984); M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107). A governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute or other law. Ross, supra, pp. 617-621, 363 N.W.2d 641. When a governmental agency engages in such an activity, it is immune from tort liability unless the activity is proprietary in nature or falls within one of the other statutory exceptions. Ross, supra, p. 620, 363 N.W.2d 641.

The office of the county medical examiner is authorized by law pursuant to M.C.L. Sec. 52.201; M.S.A. Sec. 5.953(1), which provides:

"The board of supervisors of each county of this state shall by resolution abolish the office of coroner, and appoint a county medical examiner to hold office for a period of 4 years. Should the office of county medical examiner become vacant before the expiration of the term of office, the board of supervisors may appoint a successor to complete the term of office. In counties having a civil system, the appointment and tenure of the medical examiner shall be made in accordance with the provisions thereof. County medical examiners shall be physicians licensed to practice within the state and shall be residents of the county for which they are appointed or of a neighboring county. Two or more adjoining counties, by resolution of the respective boards of supervisors thereof, may enter into common agreement to employ the same person to act as medical examiner for all of the counties."

[151 MICHAPP 766] Further, pursuant to M.C.L. Sec. 52.205(4); M.S.A. Sec. 5.953(5)(4), the county medical examiner may conduct an autopsy whenever he determines that such autopsy reasonably appears to be required pursuant to his duty to "make investigations as to the cause and manner of death in all cases of persons ... whose death was unexpected." M.C.L. Sec. 52.202; M.S.A. Sec. 5.953(2). See also Allinger v. Kell, 102 Mich.App. 798, 811, 302 N.W.2d 576 (1981), modified on other grounds 411 Mich. 1053, 309 N.W.2d 547 (1981).

Plaintiff argues, however, that the investigation as to the cause of the decedent's death under M.C.L. Sec. 52.202; M.S.A. Sec. 5.953(2) was improper because another physician had already determined the cause of death. That statute provides in pertinent part as follows:

"County medical examiners or deputy county medical examiners shall make investigations as to the cause and manner of death in all cases of persons who have come to their death by violence; or whose death was unexpected; or without medical attendance during the 48 hours prior to the hour of death unless the attending physician, if any, is able to determine accurately the cause of death...."

Contrary to plaintiff's argument, the limitation on the medical examiner in performing the autopsy where another physician certifies the cause of death is applicable only where the deceased did not die violently or unexpectedly, and when the decedent did not receive medical attendance...