Fuhrmann v. Hattaway

• Decision Date: 10 September 1981
• Docket Number: Docket No. 52382
• Parties: Martin FUHRMANN and Karen Fuhrmann, Plaintiffs-Appellants, v. Charles HATTAWAY, M.D., and Dennis Koson, M.D., Defendants-Appellees. 109 Mich.App. 429, 311 N.W.2d 379
• Court: Court of Appeal of Michigan — District of US

Page 379

311 N.W.2d 379

Martin FUHRMANN and Karen Fuhrmann, Plaintiffs-Appellants, v. Charles HATTAWAY, M.D., and Dennis Koson, M.D. Defendants-Appellees.

Docket No. 52382.

109 Mich.App. 429, 311 N.W.2d 379

Court of Appeals of Michigan.

Sept. 10, 1981.

Rehearing Denied Oct. 27, 1981.

Nov. 4, 1981.

[109 MICHAPP 431] Lopatin, Miller, Freedman, Bluestone, Erlich & Rosen by Steven G. Silverman, Detroit, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., and George L. McCargar, Jr., and Craig Atchinson, Asst. Attys. Gen., for defendants-appellees.

Before J. H. GILLIS, P. J., and BASHARA and SANBORN, ^* JJ.

SANBORN, Judge.

On March 3, 1976, plaintiff Martin Fuhrmann, who was acting in his employment as a police officer for the City of Detroit, answered a call that an armed man had barricaded himself in a room at the Addison Hotel. During the course of this episode a police chaplain was killed when he was shot by the armed man, Chauncy West. Plaintiff sustained serious, permanent injuries when he, too, was struck by bullets from West's gun.

Earlier, on July 1, 1975, West had allegedly set fire to a vacant house in Detroit. Following his arrest and arraignment on arson charges, West underwent psychiatric evaluation in the Detroit Recorder's Court Psychiatric Clinic. Thereafter, doctors from that facility adjudged him to be mentally incompetent to stand trial.

On July 23, 1975, West was committed to the Center for Forensic Psychiatry. Upon being judged competent to stand trial, West was returned to Detroit, where he was found not guilty by reason [109 MICHAPP 432] of insanity. West was then returned to the Center for Forensic Psychiatry for another evaluation.

The second evaluation was done by defendants Hattaway and Koson, who were acting in their employment as psychiatrists at the Center. Both psychiatrists certified that, while West was mentally ill, he was not dangerous to himself or to other persons. Upon receiving a notice from the Wayne County Prosecuting Attorney that no petition would be filed for a court hearing on West's condition, the Center released West on November 5, 1975. The shooting incident followed less than four months later.

The initial complaint in this matter was filed January 26, 1977, in Wayne County Circuit Court. Thereafter, by stipulation and court order, the Center was dismissed from this case. The stipulation provided that, since plaintiffs' action was against a state agency in tort, exclusive jurisdiction reposed in the Court of Claims.

On January 12, 1978, the circuit judge entered a stipulated order allowing plaintiffs to add Hattaway and Koson as parties defendant.

The plaintiffs asserted that defendants "did negligently release the defendant-decedent Chauncy West, who was then mentally deranged and suffering from severe mental illness and was dangerous to himself as well as to others". It was claimed that, as a proximate cause of the defendants' negligence, West shot Fuhrmann and occasioned his injuries.

The complaint specifically recites that defendants owed a general duty and that they breached the same in this case: (a) by releasing West with knowledge of his homicidal tendencies and of the threats he had made under such circumstances, (b) in failing to examine, diagnose and evaluate West [109 MICHAPP 433] before his release in accordance with the standard of practice in the community for psychiatrists, (c) in failing to keep West under observation for a sufficient period of time in order to properly diagnose his mental disorders, and (d) in failing to warn the proper authorities of West's homicidal tendencies.

On February 28, 1980, Hattaway and Koson filed a motion seeking a summary judgment of dismissal in their favor pursuant to GCR 1963, 117.2(1). The motion was predicated upon three grounds: (a) that defendants were immune from liability under M.C.L. § 691.1407; M.S.A. § 3.996(107), (b) that the discretionary nature of their activity precluded a holding of liability against them, and (c) that they owed no duty to plaintiffs.

Following an extensive hearing on May 16, 1980, the circuit court granted the defendants' motion. The present appeal was then filed.

The standard for review of summary judgments based on GCR 1963, 117.2(1), is well established. In citing this subrule, defendants charge that the plaintiffs' complaint fails to state a claim upon which relief may be granted. The motion challenges the legal sufficiency of the complaint and must be evaluated with reference to the context of the complaint alone. All well-pleaded allegations of fact must be taken as true. The proper inquiry is whether the claims made are so clearly unenforceable as a matter of law that no factual development thereunder could possibly justify a right to recovery. Crowther v. Ross Chemical & Manufacturing Co., 42 Mich.App. 426, 202 N.W.2d 577 (1972), and Bashara, The Elusive Summary Judgment Rule: Sifting Through the Maze, 1976 Det.Col.L.Rev. 396.

Analysis of the substantive issues in this case [109 MICHAPP 434] must be prefaced by noting that a burden rested upon the plaintiffs to plead facts in avoidance of governmental immunity. Butler v. Wayne County Sheriff's Dept., 75 Mich.App. 202, 255 N.W.2d 7 (1977), and Furness v. Public Service Comm., 100 Mich.App. 365, 299 N.W.2d 35 (1980). Plaintiffs have attempted to surmount this hurdle in several ways.

It is claimed that defendants owed a special duty to Martin Fuhrmann, as a police officer, because of the frequency with which persons in his capacity would be expected to encounter individuals such as West. Plaintiffs have submitted no authority imposing a higher duty of care toward police officers than is required toward members of the public at large. In this absence, we are constrained to reject the theory upon the ground that it has been abandoned. Erdman v. Yolles, 62 Mich.App. 594, 599, 233 N.W.2d 667 (1975).

A second issue concerns the scope of the aegis of governmental immunity in the case. There is little question that a state mental hospital is clothed with governmental immunity. In Perry v. Kalamazoo State Hospital, 404 Mich. 205, 214, 273 N.W.2d 421 (1978), Justice Moody, in concurring, stated that:

"The day-to-day care by an attendant, physician or other employee on the staff of a mental hospital represents a governmental function furthering the public need to segregate, treat and rehabilitate citizens suffering from mental disease who cannot otherwise care for themselves and who often are committed voluntarily or involuntarily through governmental action.

"Accordingly, as public...