Giddings v. City of Detroit

• Decision Date: 30 August 1989
• Docket Number: Docket No. 95571
• Citation: 178 Mich.App. 749,444 N.W.2d 242
• Parties: , 55 Ed. Law Rep. 732 Anna Marie GIDDINGS, Plaintiff-Appellee, v. CITY OF DETROIT, Defendant-Appellee, and Detroit Board of Education, Arthur Jefferson, Robert Boyce, Ben Crane, Robert Marshall, Eleazar Shepherd, Beverly Gray, and Hiram McKee, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 242

444 N.W.2d 242

178 Mich.App. 749, 55 Ed. Law Rep. 732

Anna Marie GIDDINGS, Plaintiff-Appellee, v. CITY OF DETROIT, Defendant-Appellee and Detroit Board of Education, Arthur Jefferson, Robert Boyce Ben Crane, Robert Marshall, Eleazar Shepherd Beverly Gray, and Hiram McKee Defendants-Appellants.

Docket No. 95571.

Court of Appeals of Michigan.

Submitted April 12, 1989.

Decided Aug. 7, 1989.

Released for Publication Aug. 30, 1989.

Meklir, Schreier, Nolish & Friedman, P.C. by Mark E. Weiss, Southfield, for plaintiff-appellee.

Patterson, Phifer & Phillips, P.C. by Trisha J. Arndt and Nancy M. Rade, Detroit, for defendants-appellants Detroit Bd. of Educ., Arthur Jefferson, Robert Boyce, Ben Crane, Robert Marshall, Eleazar Shepherd, Beverly Gray and Hiram McKee.

Before MACKENZIE, P.J., and HOOD and BRENNAN, JJ.

HOOD, Judge.

Defendants Detroit Board of Education, Arthur Jefferson, Robert Boyce, Ben Crane, Robert Marshall, Eleazar Shepherd, Beverly Gray and Hiram McKee appeal by leave granted from an opinion and order of the Wayne Circuit Court granting partial summary disposition under MCR 2.116(C)(8) and (C)(7) on issues related to governmental immunity. Plaintiff brought this action to recover for injuries suffered on May 13, 1983, when she was attacked and raped at a Detroit high school while a volunteer teaching assistant there. Plaintiff basically alleged that the school building was unsafe and that the individual defendants had failed to make adequate security provisions, including inadequacies in the hiring, training and supervising of the school security guards.

The motion for summary disposition was brought by the Detroit Board of Education and the individual defendants Jefferson (superintendent), Boyce (school principal), Crane (head of security at the school), and the security guards Gray and McKee.

The circuit court granted summary disposition on the following issues:

1. The public building exception does not apply.

2. The decision to hire security personnel was discretionary and therefore immune from liability.

3. Decisions establishing security procedures and equipment requirements were discretionary and therefore immune from liability.

The following issues were decided in favor of plaintiff and survived the motion:

1. Sufficient facts were pled on a theory of intentional nuisance to avoid governmental immunity.

2. Decisions to instruct, train, supervise and control the guards were ministerial and not protected by governmental immunity.

3. The guards basically followed directions and therefore their actions were ministerial.

4. Decisions regarding the following of security procedures were ministerial.

5. The board could be vicariously liable.

Defendants' challenges basically require consideration of three issues: (1) the intentional nuisance claim; (2) the determination of which acts were discretionary and which were ministerial; and (3) the availability of vicarious liability.

I

We begin with a review of the intentional nuisance claim.

The governmental tort liability act provides that governmental agencies shall be immune from tort liability in all cases where they are exercising or discharging a governmental function. M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107). That same section further provides that any modifications or restrictions to immunity that existed prior to July 1, 1965, will continue to be recognized. Under this section, defendant board would be immune in this suit unless a prior exception to immunity can be found.

Our Supreme Court in Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 422 N.W.2d 205 (1988), recognized that there is a nuisance exception to immunity. However, the variety of opinions in that case have left open which specific claims are included in that "nuisance exception." At the very least, it appears to recognize an exception for trespass-nuisance and nuisance per se. See Garcia v. Jackson (On Remand), 174 Mich.App. 373, 378-379, 435 N.W.2d 796 (1989) (MacKenzie, J., dissenting).

That there is a lack of specific guidance in Hadfield as to the existence of an intentional nuisance exception is demonstrated by the conflicting opinions that have resulted from this Court. Compare Garcia, supra, pp. 374-376, 435 N.W.2d 796, in which the majority opinion held that a claim of intentional nuisance is not banned by governmental immunity, and the opposite opinion reached in Scott v. Dep't of Natural Resources, 169 Mich.App. 205, 425 N.W.2d 518 (1988).

In the lead opinion in Hadfield, Justice Brickley noted that there was no pre-1964 case law recognizing an intentional nuisance exception. Hadfield, supra, 430 Mich. p. 170, 422 N.W.2d 205. Those pre-Hadfield cases which recognized an intentional tort exception appear to have done so after having analyzed Rosario v. Lansing, 403 Mich. 124, 268 N.W.2d 230 (1978), and Gerzeski v. Dep't of State Highways, 403 Mich. 149, 268 N.W.2d 525 (1978), two Supreme Court cases in which no clear majority view emerged. See, e.g., Ford v. Detroit, 91 Mich.App. 333, 283 N.W.2d 739 (1979). Justice Brickley notes however that neither Rosario nor Gerzeski represent pre-1964 case law. As such, they are not necessarily included as recognized exceptions under M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107). We are not aware of any other opinion which has addressed this issue or which has cited pre-1964 authority for the viability of the intentional nuisance exception. In the absence of relevant precedent or a statement from our Supreme Court specifically recognizing the exception, we are constrained to find there is no exception to immunity under the statute where, as here, the claim is for intentional nuisance. See Scott, supra;; Garcia, supra, (MacKenzie, J., dissenting).

This finding is consistent with the general rule that there is no intentional tort exception to governmental immunity as long as the alleged torts were committed in the performance of a governmental function. See Smith v. Dep't of Public Health, 428 Mich. 540, 544, 410 N.W.2d 749 (1987); Eichhorn v. Lamphere School Dist., 166 Mich.App. 527, 547, 421 N.W.2d 230 (1988).

Furthermore, on the facts of this case, it is not clear that plaintiff pled sufficient facts to sustain an intentional nuisance claim. In order to establish an intentional nuisance claim against a governmental agency, a plaintiff must show both that there is a condition which is a nuisance and that the agency intended to create that condition. Guilbault v. Dep't of Mental Health, 160 Mich.App. 781, 788, 408 N.W.2d 558 (1987).

We are aware that there is a conflict in this Court on the standard necessary to establish intent. While the Supreme Court has noted the conflict, it has not addressed the issue. See Hadfield, supra, 430 Mich. p. 172, n. 14, 422 N.W.2d 205. The first standard, noted above, requires that the defendant must have intended to bring about the condition alleged to be a nuisance. The second requires that the defendant who created or continued the nuisance knew or must have known that harm to the plaintiff was substantially certain to follow as a result of the defendant's actions. Ford, supra, 91 Mich.App. p. 336, 283 N.W.2d 739. This standard has been described as the more difficult to meet. See Scameheorn v. Bucks, 167 Mich.App. 302, 314, 421 N.W.2d 918 (1988) (concurring opinion of Sawyer, J.). No matter which standard is applied, however, the complaint does not indicate that defendants acted intentionally. While we agree that the complaint used all the appropriate terms to plead an intentional tort, we cannot agree that the facts actually pled are a sufficient basis on which to sustain a claim for purposes of this motion.

While plaintiff alleges knowledge on the part of defendants--that they knew or should have known that a dangerous condition existed in the school--outside of conclusory statements, the complaint does not indicate that defendants acted so as to create danger and inflict injury or with knowledge that harm was substantially certain to follow. It thus fails under the more stringent Ford standard. Moreover, the complaint does not indicate that defendants intended to create an unsafe building. Therefore, summary disposition should have been granted in favor of defendants on plaintiff's intentional nuisance claim.

II

We agree with the trial court that Superintendent Jefferson is not absolutely immune from liability. The fact that he is the highest ranking official of his governmental unit does not mean that he is involved in the type of broad, essential governmental decision-making that is protected by absolute immunity. See Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 632-633, 363 N.W.2d 641 (1984).

We agree with the Court in Kirschner v. Carney-Nadeau Public Schools, 174 Mich.App. 642, 645-646, 436 N.W.2d 416 (1989), that a superintendent of schools is not entitled to absolute immunity.

However, government employees not absolutely immune from tort liability may still be protected from liability 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.]

The only element which was disputed below was whether the individuals' activities were discretionary or ministerial.

An employee performs a protected "discretionary-decisional" act when the act requires personal deliberation, decision and judgment. This includes significant decision-making on whether to engage in a particular activity and how best to carry it out. A "ministerial-operational" act is one that may include minor decision-making, but that is basically the execution of a decision where the individual has little or no choice. Ross, supra, pp. 634-635, 363 N.W.2d 641.

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