Estate of Burks v. Ross

• Decision Date: 18 February 1971
• Docket Number: No. 20261.,20261.
• Citation: 438 F.2d 230
• Parties: ESTATE of Richard BURKS, Lucille Burks, Administratrix, Plaintiff-Appellant, v. Dr. Leon ROSS, Dr. Rosalie Ging, C. Dozauer, J. Treado, R. Rosendall, J. Stigail, Oliver B. Coleman, James Hampton and Robert Fletcher, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

438 F.2d 230 (1971) ESTATE of Richard BURKS, Lucille Burks, Administratrix, Plaintiff-Appellant, v. Dr. Leon ROSS, Dr. Rosalie Ging, C. Dozauer, J. Treado, R. Rosendall, J. Stigail, Oliver B. Coleman, James Hampton and Robert Fletcher, Defendants-Appellees.

No. 20261.

United States Court of Appeals, Sixth Circuit.

February 18, 1971.

Virginia C. Dare, Detroit, Mich., for appellant.

Thomas J. Press, Department of Justice, Washington, D. C., William D. Ruckelshaus, Asst. Atty. Gen., Robert V. Zener, Atty., Department of Justice, Washington, D. C., Robert J. Grace, U. S. Atty., Detroit, Mich., on the brief, for appellees.

Before WEICK, EDWARDS and McCREE, Circuit Judges.

WEICK, Circuit Judge.

This appeal is from an order of the District Court granting summary judgment in favor of the defendants, in an action for damages for wrongful death of plaintiff's decedent, against nine members of the staff of the Veterans Administration Hospital in Ann Arbor, Michigan, where the decedent had been confined as a mental patient in a locked ward. It was alleged that the Director and Administrator of the hospital, Dr. Leon Ross, the Director of Neuropsychiatry, Dr. Rosalie Ging, nurses J. Treado, R. Rosendall, J. Stigail and C. Dozauer, and psychiatric nurses' assistants Oliver B. Coleman, James Hampton and Robert Fletcher, all of whom are federal employees, were negligent in the custodial care of the decedent, as a result of which negligence he escaped from the hospital and was struck and killed by a train of the New York Central Railroad.

The District Judge, in granting summary judgment, held that the federal employees had absolute immunity from suit under the doctrine sometimes referred to as executive privilege and upheld in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), and its companion case, Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959).¹

Decedent was committed as a mentally ill person by the Probate Court of Genessee County, Michigan. The court psychiatrists diagnosed him as overly depressed, psychotic, suicidal, and a potential danger to himself. A few days after his commitment he was transferred to the Veterans Administration Hospital at Ann Arbor, as a closed ward patient, which meant that he was not allowed to go from the ward without special permission and without supervision. Dr. Ging, who was the admitting physician, gave instructions that he should be involved in activities such as occupational therapy, group therapy, and recreational therapy.

One afternoon at about 3:00 p. m., the decedent was taken with a group of patients to see movies in the hospital auditorium. During the showing he disappeared and was not missed until around 4:30 to 5:00 p. m. At about 7:30 p. m. he was found lying near the tracks of the New York Central Railroad; he died two days later from his injuries.

The duties of the hospital staff were outlined in the affidavit of Dr. Arthur J. Klippen, Director of Hospitals, Department of Medicine and Surgery, Veterans Administration Central Office in Washington D.C. as follows:

"4. That Dr. Leon Ross was director and administrator of this hospital on August 11, 1961, and as such had the duty to generally manage the hospital and to be ultimately responsible for the distribution of personnel throughout the hospital, to alter internal hospital procedures, work flow and methods of operation if deemed necessary, and to change organization flow at the professional service level if also deemed necessary by him for the purpose of improving service.

"5. That as a Psychiatrist at this hospital Dr. Rosalie Ging had the duty to diagnose, care and treat the veteran Richard C. Burks while a patient at this hospital, and the duty to prescribe and communicate instructions relative to the care of Mr. Burks to the nurses in attendance upon him either in writing or orally.

"6. That the hospital records show the defendants C. Dozauer, J. Treado and J. Stigail were on August 11, 1961, nurses assigned to the Psychiatric Unit at this hospital; that their duties included nursing care including executing the orders and instructions given by the doctor, keeping patients under observation, maintaining adequate safeguards and precautions for the patients\' safety, advising their nursing superior and doctors of the patients\' condition and behavior, and generally supervising and giving instructions to the psychiatric aides on duty during their duty hours.

"7. That the records of this hospital show that Oliver B. Coleman, James Hampton and Robert W. Fletcher were Psychiatric Nursing Assistants on August 11, 1961, and as such assigned to the closed ward. On the aforesaid date their duties including making, reporting and recording observations of patients\' behavior, initiating, supervising and participating in scheduling patient activities, maintaining safety precautions, supervising patients in personal hygiene, encouraging ward and off-ward activities of the patients, carrying out nursing procedures and interacting with the patients in the closed ward group to promote the most comfortable therapeutic atmosphere for those patients."

Barr v. Matteo, relied on by the District Judge, was a libel action against the Acting Director of the Office of Rent Stabilization, brought by former employees of the office who alleged that they were damaged by a press release issued by the Director.

In the majority opinion, written by Mr. Justice Harlan, the court referred to the fact that the law of privilege as a defense to civil damage suits for defamation, was largely of judicial making,² although the Constitution gave an absolute privilege to members of Congress.

The reasons for the privilege were stated by Justice Harlan:

"The reasons for the recognition of the privilege have been often stated. It has been thought important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties — suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government. The matter has been admirably expressed by Judge Learned Hand:

"`It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. * * *

`The decisions have, indeed, always imposed as a limitation upon the immunity that the official\'s act must have been within the scope of his powers; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment\'s reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him. * * *\' Gregoire v. Biddle, 2 Cir., 177 F.2d 579, 581.

"We do not think that the principle announced in Vilas can properly be restricted to executive officers of cabinet rank, and in fact it never has been so restricted by the lower federal courts.³ The privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government. The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy." (Footnotes omitted) Barr v. Matteo, 360 U.S. at 571-573, 79 S.Ct. at 1339.

It is the protection of executive discretion which must support any claim of official privilege in the present case.

Discretion is not a concept which has easily lent itself to precise definition; however, it is a concept with which the federal courts have had much experience. The concern for protecting discretion is found not only in the absolute executive privilege from tort liability, but also in actions for mandamus and in the "discretionary function" exemption to the Federal Tort Claims Act, 28 U.S.C. § 2680(a). As observed in Dalehite v. United States, 346 U.S. 15 at...