Diehl v. Danuloff

• Decision Date: 03 October 2000
• Docket Number: Docket No. 209737.
• Citation: 242 Mich. App. 120,618 N.W.2d 83
• Parties: Cherie DIEHL, Next Friend of Amy Waterstreet and William Waterstreet, Minors, Plaintiff-Appellant, v. Lyle DANULOFF, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

618 N.W.2d 83

242 Mich. App. 120

Cherie DIEHL, Next Friend of Amy Waterstreet and William Waterstreet, Minors, Plaintiff-Appellant, v. Lyle DANULOFF, Defendant-Appellee.

Docket No. 209737.

Court of Appeals of Michigan.

Submitted October 5, 1999, at Detroit.

Decided August 4, 2000, at 9:00 a.m.

Released for Publication October 3, 2000.

Harrison & Scott, P.C. (by Keldon K. Scott and Wayne A. Harrison), Lansing, for the plaintiff.

Pearlman and Pianin (by Patrick J. Derkacz), Southfield, for the defendant.

Before WILDER, P.J., and BANDSTRA, C.J., and MARK J. CAVANAGH, J.

WILDER, P.J.

Plaintiff Cherie Diehl, as next friend of her two minor grandchildren, appeals as of right the trial court's grant of summary disposition to defendant Lyle Danuloff under MCR 2.116(C)(7) and (8). We affirm.

I. Facts and Proceedings

Bethany and David Waterstreet, the parents of the minor children, were involved in a divorce that began in 1991. In 1993, David filed a petition for custody against Cherie and Darwin Diehl, the maternal grandparents of the minor children. In connection with the custody proceeding, David filed a motion seeking a psychological evaluation of the children and family. The trial court granted David's motion and ordered defendant Lyle Danuloff, a licensed psychologist, to perform a full psychological evaluation on the children's familial unit and make a custody recommendation to the court. The trial court's order further provided that the parties were each to pay fifty percent of the costs and fees associated with defendant's evaluation. Defendant conducted multiple interviews of the family members, performed psychological testing of all the adults involved, and observed the children interact with the adults as part of his evaluation. Thereafter, defendant submitted a report to the trial court recommending that David be granted custody of the minor children. At the conclusion of the custody hearing, the trial court followed defendant's recommendation and granted custody of the minor children to David.

Plaintiff filed the instant lawsuit alleging professional negligence in the manner in which defendant performed the custody evaluation. Plaintiff alleged in her complaint that defendant was given information before he made his recommendation to the court that David had a history of sexual deviancy and had been sexually abusing the children. Plaintiff further alleged that after David was awarded custody of the children, he was charged with sexual abuse, pleaded guilty to a charge of indecent liberties with a child and other charges involving minors, and served a prison sentence for his convictions. The trial court granted summary disposition to defendant, finding that defendant was entitled to absolute immunity. The trial court also found that defendant did not owe a duty of care to plaintiff because, as a physician retained by the court to conduct an evaluation and make a recommendation, any duty owed was to the court. Finally, the trial court held that, despite the fact that plaintiff titled her cause of action as one alleging professional negligence, the claim was actually one alleging medical malpractice and, in the absence of a physician-patient relationship, the claim must fail. Plaintiff appealed.

II. Standard of Review

We review a trial court's grant or denial of summary disposition de novo. Beaty v. Hertzberg & Golden, PC, 456 Mich. 247, 253, 571 N.W.2d 716 (1997). When reviewing a motion for summary disposition under MCR 2.116(C)(7), the court must accept the nonmoving party's well-pleaded allegations as true and construe the allegations in the nonmovant's favor to determine whether any factual development could provide a basis for recovery. Amburgey v. Sauder, 238 Mich. App. 228, 231, 605 N.W.2d 84 (1999). The court must consider any pleadings, affidavits, depositions, admissions, or other documentary evidence that has been submitted by the parties, id., however, the moving party is not required to file supportive material. Maiden v. Rozwood, 461 Mich. 109, 119, 597 N.W.2d 817 (1999). If there are no facts in dispute, whether the claim is statutorily barred by immunity is a question of law. Id.

A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of the complaint and may not be supported by documentary evidence. Maiden, supra at 119, 597 N.W.2d 817; Simko v. Blake, 448 Mich. 648, 654, 532 N.W.2d 842 (1995). Viewing the evidence in the light most favorable to the nonmoving party, and accepting all factual allegations in support of the claim as true, as well as any reasonable inferences or conclusions drawn from the facts, the motion should be granted only if the claim is so clearly unenforceable as a matter of law that no factual development could justify a right of recovery. Maiden, supra; Smith v. Stolberg, 231 Mich.App. 256, 258, 586 N.W.2d 103 (1998).

III. Analysis

Plaintiff argues that the trial court erred as a matter of law in finding that defendant was absolutely immune from suit. We hold that defendant was not entitled to governmental immunity under M.C.L. § 691.1407; MSA 3.996(107), but summary disposition was nonetheless proper because defendant enjoyed quasi-judicial immunity from suit.

At issue in this case is whether a private psychologist ordered by the court to perform an evaluation of a familial unit and provide a recommendation to the court in a child custody proceeding is immune from suit for alleged negligence in conducting the evaluation. This question is one of first impression in Michigan.

A. Governmental Immunity Act

To answer this question, we must first examine the scope of the governmental immunity act of 1986, which is codified at M.C.L. § 691.1407; MSA 3.996(107). In doing so, we consider the general principles of statutory construction to discern the legislative intent that may be reasonably inferred from the words expressed in the statute. Judicial construction or interpretation is neither necessary nor appropriate where the language of the statute is clear and unambiguous. Where the intent of the Legislature is clear, the proper role of a court is simply to apply the terms of the statute to the circumstances in the case. In construing a statute, we must afford the words used by the Legislature their common and ordinary meaning. People v. McIntire, 461 Mich. 147, 153, 599 N.W.2d 102 (1999); MCL 8.3a; MSA 2.212(1).

The governmental immunity act provides in pertinent part:

(2) Except as otherwise provided in this section, and without regard to the discretionary or ministerial nature of the conduct in question, each officer and employee of a governmental agency, each volunteer acting on behalf of a governmental agency, and each member of a board, council, commission, or statutorily created task force of a governmental agency is immune from tort liability for an injury to a person or damage to property caused by the officer, employee, or member while in the course of employment or service or caused by the volunteer while acting on behalf of a governmental agency if all of the following are met:

(a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority.

(b) The governmental agency is engaged in the exercise or discharge of a governmental function.

(c) The officer's, employee's, member's, or volunteer's conduct does not amount to gross negligence that is the proximate cause of the injury or damage. As used in this subdivision, "gross negligence" means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results. [MCL 691.1407(2); MSA 3.996(107)(2).]

Further, subsection 5 of the governmental immunity act provides:

A judge, a legislator, and the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority.

In Bullock v. Huster, 209 Mich.App. 551, 553, 532 N.W.2d 202 (1995), vacated and remanded 451 Mich. 884, 549 N.W.2d 573 (1996), (On Remand), 218 Mich.App. 400, 554 N.W.2d 47 (1996), the plaintiff, a minor child, by her next friend, filed suit against the defendant alleging that she acted in a negligent and grossly negligent manner while performing her duties as a guardian ad litem. Specifically, the plaintiff alleged that the defendant failed to conduct an adequate investigation before making a recommendation. 209 Mich.App. at 553, 532 N.W.2d 202. The defendant filed a motion for summary disposition, arguing that as a guardian ad litem she was absolutely immune from tort liability. Id. The trial court denied the defendant's motion for summary disposition and her motion for reconsideration. Id. at 554. A panel of this Court affirmed, holding that the defendant was not entitled to immunity based on her status as a guardian ad litem. Id. This Court reasoned:

Clearly, the 1986 [governmental immunity] act represents a comprehensive review of governmental immunity. Yet, the Legislature failed to include guardians ad litem within the class of persons entitled to immunity. Where the Legislature undertakes such broad reform, the expression of one thing in the resulting statute may be deemed the exclusion of another. See Jennings v. Southwood, 446 Mich. 125, 142, 521 N.W.2d 230 (1994). While subsection 5 grants immunity to "judges," there is no indication that this term should be construed beyond its plain meaning to include persons appointed by judges in any capacity. The Legislature drafted subsection 5 to apply only to those persons who are the ultimate decision makers in their respective branches of government—for example, "legislators" and "elective or highest appointive executive officials." Subsections 2 and 3, regarding employees of government agencies, are inapplicable to guardians ad litem. No other provisions in ...