Davis v. Lhim

• Citation: 124 Mich.App. 291,335 N.W.2d 481
• Decision Date: 08 June 1983
• Docket Number: Docket No. 59284
• Parties: Ruby DAVIS, Administratrix of the Estate of Mollie Barnes, Plaintiff-Appellee, v. Dr. Yong-Oh LHIM, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 481

335 N.W.2d 481

124 Mich.App. 291

Ruby DAVIS, Administratrix of the Estate of Mollie Barnes Plaintiff-Appellee, v. Dr. Yong-Oh LHIM, Defendant-Appellant.

Docket No. 59284.

Court of Appeals of Michigan.

Submitted Oct. 19, 1982.

Decided March 21, 1983.

Rehearing Denied May 24, 1983.

Released for Publication June 8, 1983.

Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick (by Steven G. Silverman), Detroit, for plaintiff-appellee.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and George L. McCargar and Craig Atchinson, Asst. Attys. Gen., for defendant-appellant.

Before MAHER, P.J., and BRONSON and CYNAR, JJ.

MAHER, Presiding Judge.

In this wrongful death case, defendant appeals by right from the judgment entered for plaintiff upon a jury verdict.

In 1975, defendant, a staff psychiatrist at the Northville State Hospital, had under his care John Patterson, the son of plaintiff's decedent, Mollie Barnes. Patterson had a long history of psychological disorder, having voluntarily signed himself into Northville on six occasions from 1972 to 1975 with complaints of insomnia, depression and hallucinations. Defendant first provided Patterson with psychiatric care from July 17, 1975, to August 4, 1975. Patterson returned to defendant's care on August 21, 1975, and remained until September 3, 1975. On both occasions, defendant was diagnosed as suffering from schizophrenia.

Patterson's last admission to Northville was on a formal voluntary order. When Patterson asked to be released on September 2, 1975, defendant discharged him the following day. Patterson was to be released into the care of his mother, Mollie Barnes, a resident of Detroit. At the time, however, his mother was visiting her relatives in Montgomery, Alabama. Patterson stayed with other relatives in Detroit until October, when he became difficult to manage, and his aunt, Ruby Davis, took him to his mother in Alabama. On November 2, 1975, Patterson began firing a shotgun in his aunt's house, where his mother was staying. His mother tried to talk Patterson out of shooting again, then attempted to restrain him. In the struggle, Patterson fired several more shots, one of which struck and killed his mother.

Ruby Davis, as administratrix of the estate of Mollie Barnes, brought suit against the defendant and Northville State Hospital. In her complaint, plaintiff alleged that defendant's negligent discharge of Patterson was the proximate cause of Mollie Barnes's death. Plaintiff was allowed to amend her complaint during the trial to allege that the defendants negligently failed to warn Mollie Barnes that Patterson was a danger to her safety. Plaintiff sought to recover damages for the loss of love and affection suffered by herself and other siblings of Mollie Barnes.

After a trial that lasted several days, the jury returned a verdict for plaintiff in the amount of $500,000. Defendant moved for judgment notwithstanding the verdict or, in the alternative, a new trial, arguing the same points he now raises on appeal. The trial court denied the motion and defendant appealed.

Defendant raises seven issues, each of which we discuss in turn.

I

Defendant contends that he is cloaked with governmental immunity and therefore, cannot be held liable for the death of Mollie Barnes. Government agencies are guaranteed statutory immunity from tort liability where the agency is engaged in the exercise or discharge of a governmental function. M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107). A state-operated psychiatric hospital is protected by governmental immunity. Perry v. Kalamazoo State Hospital, 404 Mich. 205, 273 N.W.2d 421 (1978). The governmental immunity statute, however, applies only to government agencies. A public employee's immunity, if any, must rest on a different ground.

This Court is divided on the proper test of a public employee's immunity from liability for negligence. Some panels have held that an employee is immune if his allegedly tortious conduct involved discretionary rather than ministerial acts. See, e.g., Cook v. Bennett, 94 Mich.App. 93, 288 N.W.2d 609 (1979); Fuhrmann v. Hattaway, 109 Mich.App. 429, 311 N.W.2d 379 (1981). Other panels find an employee is immune where his act "falls within the scope of his employment". See, e.g., Everhart v. Bd. of Ed. of the Roseville Community Schools, 108 Mich.App. 218, 310 N.W.2d 338 (1981); Gaston v. Becker, 111 Mich.App. 692, 314 N.W.2d 728 (1981); Lewis v. Beecher School System, 118 Mich.App. 105, 324 N.W.2d 779 (1982); Shwary v. Cranetrol Corp., 119 Mich.App. 736, 326 N.W.2d 627 (1982). The Supreme Court has not clearly endorsed either view. However, in Lockaby v. Wayne County, 406 Mich. 65, 276 N.W.2d 1 (1979), a majority of the justices appeared to apply the "scope of employment" test. In that case, the plaintiff brought an action against, inter alia, various employees of the Wayne County jail, alleging negligent operations of the jail resulting in plaintiff's injuries. A majority of the Court in separate opinions held that these employees were protected by governmental immunity. Justice Moody found that " * * * the officers and employees of the county, while acting within the scope of their employment maintaining a jail, primarily are performing essential public duties. Thus, they are immune from alleged negligent actions or selection of personnel." Id., p. 84, 276 N.W.2d 1 (Moody, J., concurring in part and dissenting in part). Chief Justice Coleman, in her opinion, in which Justice Ryan concurred, agreed with Justice Moody. Finally, Justice Williams appeared to hold that the employees were immune because their negligent conduct was not ultra vires. Consequently, a majority of the Supreme Court has held, in effect, that a public employee is protected by governmental immunity only if his alleged tortious conduct falls within the "scope of his employment".

Plaintiff proceeded on two theories of negligence by defendant. First, plaintiff alleged that defendant negligently authorized Patterson's discharge from Northville. Second, plaintiff charged that defendant failed to warn Mollie Barnes of, or take other steps to protect her from, the danger Patterson posed to her. If these negligent acts do not fall within the scope of defendant's employment as a staff psychiatrist in a state-run mental hospital, defendant cannot invoke immunity.

A negligent act falls within the scope of the actor's employment only if the duty he breached is imposed on him because he is a public employee. See Galli v. Kirkeby, 398 Mich. 527, 248 N.W.2d 149 (1976) (Coleman, J. dissenting); Lovitt v. Concord School Dist., 58 Mich.App. 593, 228 N.W.2d 479 (1975), overruled in part, 398 Mich. 527, 536, 248 N.W.2d 149 (1976); Wynn v. Cole, 68 Mich.App. 706, 243 N.W.2d 923 (1976); Tocco v. Piersante, 69 Mich.App. 616, 245 N.W.2d 356 (1976), lv. den., 399 Mich. 882 (1977); Cole v. Rife, 77 Mich.App. 545, 258 N.W.2d 555 (1977). The test is perhaps better labeled "duty dependent upon public employment". This avoids confusion with the theory of respondeat superior, which sometimes employs the phrase "scope of employment". We do not perceive the immunity of a public employee to be coextensive with his job assignment, whatever that might be. When a government employee allegedly is negligent in the performance of some task unique to government, such as operation of a jail, Lockaby, supra, and has breached a duty which has as its sole basis his government employment and which is not shared by those outside government employment, then he can avoid liability. In formulating this test, we are merely returning to established principles. Over a century ago, Justice Cooley distinguished between a government official's public duties and private duties. Cooley on Torts, pp. 385-390. As one example of public duties, Justice Cooley offered the policeman walking his beat. If he fails in his duty of vigilence and a crime is committed, the victim of the crime has no claim against him.

The defendant's duty to use reasonable care in the discharge of patients is not dependent upon his position at a state institution. All psychiatrists, whether employed by a state institution or private facility, are subject to a duty to exercise competent, professional judgment in all aspects of treatment of their patients, including the decision to discharge a patient from custodial care. Consequently, defendant is not immune from liability for negligent discharge.

There remains the allegation that defendant negligently failed to warn Mollie Barnes. As explained below, this duty is not uniquely dependent upon the defendant's position as a staff psychiatrist in a state-run psychiatric hospital. Rather, this duty stems from the general common law principle that an individual must use due care towards another person. Every psychiatrist, whether employed at a state mental hospital or in a private practice, is subject to this duty. The defendant is not immune from liability for the breach of a common-law duty. See Cole v. Rife, supra.

II

Defendant contends that he was under no duty to use reasonable care to protect Mollie Barnes against the dangerous activities of her son. In analyzing this argument, first, we must consider in what circumstances, if any, a psychiatrist may owe a duty of due care to a person injured by one of his patients. Next, we need to examine the evidence to determine if, on the facts presented, the jury could find defendant owed such a duty.

A

Although a question of first impression in Michigan, decisions from other jurisdictions have held that, under certain circumstances, a psychiatrist does owe a duty to use reasonable care to protect third persons from the harmful acts of his patient. See, e.g., Leedy v. Hartnett, 510 F.Supp. 1125 (M.D.Pa.1981) (interpreting the law of Pennsylvania), aff'd, 676 F.2d 686 (CA 3, 1982); Lipari v. Sears, Roebuck & Co., 497 F.Supp. 185 (D.Neb.1980) (interpreting the law of Nebraska)...