Chivas v. Koehler

• Citation: 182 Mich.App. 467,453 N.W.2d 264
• Decision Date: 10 April 1990
• Docket Number: Docket No. 104628
• Parties: Lawrence CHIVAS, as Administrator of the Estate of Martin D. Chivas, Deceased, Plaintiff-Appellant, v. Theodore KOEHLER, Gary Wells, Raymond Buchkoe, Perry Johnson, Ronald E. Gach, Robert Brown, Jr., James Oxenford, and Thomas Sharland, Defendants-Appellees.
• Court: Court of Appeal of Michigan (US)

Page 264

453 N.W.2d 264

182 Mich.App. 467

Lawrence CHIVAS, as Administrator of the Estate of Martin D Chivas, Deceased, Plaintiff-Appellant, v. Theodore KOEHLER, Gary Wells, Raymond Buchkoe, Perry Johnson, Ronald E. Gach, Robert Brown, Jr., James Oxenford, and Thomas Sharland Defendants-Appellees.

Docket No. 104628.

Court of Appeals of Michigan.

Submitted Dec. 19, 1989.

Decided March 5, 1990.

Released for Publication April 10, 1990.

Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. by Kathleen L. Bogas, Detroit, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and K. Davison Hunter, Asst. Atty. Gen., for defendants-appellees.

Before MICHAEL J. KELLY, P.J., and SULLIVAN and ALLEN, ^* JJ.

ALLEN, Judge.

Plaintiff appeals by right from a May 21, 1987, circuit court order granting summary disposition in favor of defendants Koehler, Wells, Buchkoe, Johnson, Gach and Brown on the ground of governmental immunity and from an October 21, 1987, order granting summary disposition in favor of defendants Oxenford and Sharland on the ground that they owed no duty to plaintiff's decedent. This case was previously before this Court in Chivas v. Koehler, 124 Mich.App. 195, 333 N.W.2d 509 (1983). On May 22, 1985, our Supreme Court vacated the judgments of this Court and the circuit court, and remanded the case to the circuit court for reconsideration in light of Ross v. Consumers Power Co. (On Reh.), 420 Mich. 567, 363 N.W.2d 641 (1984). 422 Mich. 898, 368 N.W.2d 242 (1985). It is from subsequent orders issued by the circuit court that plaintiff appeals. We affirm.

Plaintiff's decedent was shot to death by two escaped prisoners on April 22, 1974. The two prisoners had previously been assigned to the Michigan Intensive Program Center (MIPC), a maximum security facility for high risk and high escape risk offenders located on the grounds of Marquette State Prison, but constituting a separate institution with a separate superintendent. However, the two inmates were transferred to Mangum Farms, a minimum security facility housing trustee prisoners. They escaped on April 20, 1974, and went on a crime spree, committing several murders including that of plaintiff's decedent.

Plaintiff filed the instant action against the various defendants, alleging that they allowed the two prisoners to escape by negligently and wrongfully placing them in a minimum security facility and by failing to carry out proper capture procedures. In the May 21, 1987, order, the trial court granted summary disposition to Perry Johnson, Director of the Michigan Department of Corrections (MDOC); Robert Brown, Jr., Deputy Director of the MDOC; Theodore Koehler, Gary Wells and Raymond Buchkoe, wardens of the Marquette Branch Prison; ¹ and Ronald Gach, superintendent of the MIPC, on the basis of governmental immunity. In the October 21, 1984, order, the trial court granted summary disposition to James Oxenford and Thomas Sharland, the guards on duty at Mangum Farms when the escape occurred, on the ground that they owed no duty to plaintiff. ²

Plaintiff argues that the trial court erred in granting Johnson, Brown, Koehler, Wells, Buchkoe and Gach summary disposition on the ground that their actions were entitled to immunity granted by law. MCR 2.116(C)(7). When reviewing a motion brought under MCR 2.116(C)(7), a court must consider all affidavits, pleadings, depositions, admissions and documentary evidence filed or submitted by the parties. MCR 2.116(G)(5); Eichhorn v. Lamphere School Dist., 166 Mich.App. 527, 536, 421 N.W.2d 230 (1988), lv. den. 431 Mich. 861 (1988).

Perry Johnson was the Director of the MDOC. Under Ross, "judges, legislators, and the highest executive officials of all levels of government are absolutely immune from all tort liability whenever they are acting within their judicial, legislative, or executive authority." Ross, supra, 420 Mich. p. 633, 363 N.W.2d 641. An executive should have broad-based jurisdiction or extensive authority similar to that of a judge or legislator. Eichhorn, supra, 166 Mich.App. p. 539, 421 N.W.2d 230. Here, Johnson was the highest executive in the MDOC. Thus, we find he would qualify under Ross for absolute immunity.

Robert Brown, Jr., Deputy Director of the MDOC in charge of the Bureau of Correctional Facilities, was responsible for approving the transfer of inmates out of the MIPC. No one else reviewed his approval for persons transferring out of the MIPC. He, too, exercised broad-based jurisdiction and extensive authority as the administrator over the Bureau of Correctional Facilities. Therefore, we find that he was one of the "highest executive officials" in his department of state government, and thus entitled to absolute immunity under Ross. Therefore, the trial court properly granted defendants Johnson and Brown summary disposition pursuant to MCR 2.116(C)(7) on the ground of governmental immunity.

The remaining defendants do not qualify as "highest executive officials." Gach was the acting superintendent of MIPC, a single facility, and would not have broad jurisdiction. Further, prison wardens are not entitled to absolute immunity. Marley v. Huron Valley Men's Facility Warden, 165 Mich.App. 78, 82, 418 N.W.2d 430 (1987).

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. [Ross, supra, 420 Mich. pp. 633-634, 363 N.W.2d 641.]

A discretionary act is one which requires personal deliberation, decision and judgment. Ross, supra, p. 634, 363 N.W.2d 641. It involves significant decision-making on whether to engage in a particular activity and how best to carry it out. A ministerial act might entail minor decision-making, but essentially involves the execution of a decision where the individual has little or no choice. Ross, supra, pp. 634-635, 363 N.W.2d 641. In determining whether acts are discretionary or ministerial, we must look to the specific acts complained of, rather than to the general nature of the activity. Canon v. Thumudo, 430 Mich. 326, 334, 422 N.W.2d 688 (1988).

Plaintiff argues that defendants were performing ministerial, as opposed to discretionary, acts and, thus, are not entitled to governmental immunity. He cites M.C.L. Sec. 791.264; M.S.A. Sec. 28.2324, which authorizes the assistant director in charge of the bureau of penal institutions to classify prisoners and, subject to the director's approval, promulgate regulations under which a classification committee in each institution is organized. Both parties point to 1979 A.C., R. 791.4401(1), which provides:

Each resident shall be classified according to his or her behavior, attitude, circumstances, and the likelihood that the trust implicit with the level of security prescribed will be honored. A security classification is not a punitive or disciplinary action on the part of the department. Residents shall be classified according to security requirements necessary for their protection, the safety of others, the protection of the general public, prevention of escape, and maintenance of control and order.

Plaintiff alleges that this rule places defendants in a nondiscretionary role for prisoner classification, because the rule specifies the considerations for classifying prisoners and, thus, carrying out the rule is ministerial.

However, evaluating such factors as behavior, attitude, circumstances, etc., in determining whether a specific inmate qualifies for a program would be a decisional process. The rule does not provide a quantitative test where someone need only total up a score to see if an inmate "passes" or "fails." It is rather a matter of qualitative analysis regarding each inmate's circumstances, which would require significant decision-making. In Williams v. Horton, 175 Mich.App. 25, 29-31, 437 N.W.2d 18 (1989), the defendant, a delinquency services worker with the Department of Social Services, also had rules regarding placement and supervision of the minors she was responsible for placing, including plaintiff's decedent. In determining a proper placement, the defendant had to consider and weigh several factors, including the goal of the intensive treatment program, the child's history, state policies, the suitability of local and available placement openings, and the need for care in a structured setting. Id., pp. 29-30, 437 N.W.2d 18. This Court determined that the placement of plaintiff's decedent constituted a discretionary activity "because it involved the making of decisions and assessments requiring a high degree of personal deliberation and judgment" rather than being "limited merely to fulfilling, by way of routine and unthinking obedience, the order to 'place the child' in this case." Id., p. 31, 437 N.W.2d 18. See also Walker v. Gilbert, 160 Mich.App. 674, 679-680, 408 N.W.2d 423 (1987), lv. den. 430 Mich. 895 (1988).

We believe, in the instant case, that the decision to transfer the inmates to the minimum security facility was similarly a matter involving a high degree of personal deliberation, taking into account the numerous factors provided by the rules. The rules did not specify what weight should be given to each factor or how they should be considered. Thus, we find that the placement of the inmates was a discretionary function. Therefore, the trial court properly granted summary...