Hobrla v. Glass
| Decision Date | 29 August 1985 |
| Docket Number | 77437,Docket Nos. 77129,Nos. 1-25,s. 1-25 |
| Citation | 372 N.W.2d 630,143 Mich.App. 616 |
| Parties | Marilyn HOBRLA, Plaintiff-Appellant, v. Kimberly Jo GLASS, Elizabeth Brewington, Ruth Ferreber, Monte Mohr, and Unknown Agent "AY" of the Secretary of State and Does, jointly and severally, Defendants-Appellees. Marilyn HOBRLA, Plaintiff-Appellant, v. MICHIGAN, DEPARTMENT OF STATE, Secretary of State Richard H. Austin, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C., Detroit (by John P. Jacobs and Robert G. Kamenec, Detroit), for plaintiff-appellant.
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Arthur E. D'Hondt, Asst. Atty. Gen., for defendants-appellees.
Before SHEPHERD, P.J., and V.J. BRENNAN and JOBES *, JJ.
Plaintiff was seriously injured on October 25, 1981, when the car in which she was a passenger was struck by a car driven by Dennis Barker. The instant consolidated cases involve the liability, if any, of the State of Michigan and certain of its individual employees arising out of the reinstatement of Barker's suspended driver's license. In Docket No. 77437, the Court of Claims granted the defendant's motion for summary judgment for failure to state a claim upon which relief can be granted. GCR 1963, 117.2(1). In Docket No. 77129, the circuit court likewise entered an order granting the individual defendants' motion for summary judgment. Id. Plaintiff appeals as of right. We affirm and hold that under existing law the State of Michigan, the Department of State, the Secretary of State and his employees are not liable for automobile injuries caused by drivers who were negligently issued a driver's license by the Department of State.
We will review the pertinent allegations in plaintiff's complaints. Mr. Barker has a long history of traffic offenses. His driver's license had been suspended for alcohol-related offenses at least once prior to the October 25, 1981, accident. Of particular importance to these cases is an accident which resulted in Barker's 1979 conviction for negligent homicide and felonious driving. In that case, the circuit court sentenced Barker to four years probation and prohibited him from driving for two years, until December 3, 1981. The court clerk sent to the Secretary of State an "Abstract Report of Court Order and Record of Conviction". These documents indicated that, under the judgment of conviction and order of probation, Barker was not to drive for two years.
On May 20, 1980, an unknown employee of the Secretary of State placed Barker's December 3, 1979, conviction onto his driver's license record, but noted only a "one year suspension". This record, with the "one year" notation (as opposed to the two-year condition imposed by the circuit court), was then transferred to defendant Glass, who on June 2, 1980, prepared an "Order of Suspension" which also reflected a one-year suspension.
At the expiration of the one-year period listed on the Secretary of State's records, either defendant Brewington or defendant unknown agent "AY" authorized a driver's license examination for the restoration of Barker's license. On December 4, 1980, Barker appeared before defendant Ferreber and was granted an unrestricted operator's license, although under the terms of his probation he was prohibited from driving for another year.
On December 17, 1980, the circuit court amended its order of probation to allow Barker to drive to and from work. The complaints are silent as to whether or not the Secretary of State's office was informed of this amendment. Plaintiff admits that at the time of the accident Barker was not driving to or from work, "but was coming from a tavern where he had drunk to excess".
Each complaint alleged that the defendants were liable for intentional disregard of a court order, namely, the circuit court's probation order suspending Barker's license for two years. Count II contained a claim of intentional nuisance. Count III was for negligence. Plaintiff alleged that defendants had a duty to act with due care in licensing drivers and that this duty was breached by negligently disregarding the December, 1979, probation order, negligently disregarding the amended probation order, and negligently issuing a driver's license to Barker despite his driving record.
In Count IV, plaintiff alleged that defendants were liable under M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102), which allows suits against certain agencies for failure to keep highways in reasonable repair and in a condition reasonably safe and fit for travel. Plaintiff alleged that defendants, by licensing Barker, negligently failed to keep the streets and highways of Michigan reasonably safe and fit for travel and that this negligence was a proximate cause of plaintiff's injuries.
In Count V, plaintiff claimed that defendants had intentionally disregarded their statutory duties, citing M.C.L. Sec. 752.192; M.S.A. Sec. 28.662 and M.C.L. Sec. 257.309; M.S.A. Sec. 9.2009. M.C.L. Sec. 752.192 requires the department to comply with a recommendation of a circuit court to suspend the license of a person convicted of felonious driving. M.C.L. Sec. 257.309 concerns the examination of applicants for driver's licenses. Plaintiff alleged that defendants intentionally violated these duties by refusing to follow the probation order, preparing an incorrect suspension order, relicensing Barker and failing to restrict his license according to the terms of the amended probation order.
In granting the individual defendants' motion for summary judgment, the circuit court ruled that: (1) defendants' actions "cannot be construed to be a proximate cause of the injuries to the Plaintiff as a matter of law", (2) "the Defendants' duty, if it can be construed as a duty, is a governmental one and is a public duty owed to the public at large * * * [It cannot] be said that these Defendants owed this plaintiff a legally cognizable duty", (3) the accident's remoteness made it "impossible to logically and consistently conclude that * * * the issue of licensure gives rise to liability in the accident", and (4) M.C.L. Sec. 691.1402 was inapplicable to the individual defendants because they were not a governmental agency with jurisdiction over the highway where the accident occurred.
The judge of the Court of Claims found that plaintiff's claims against the Department of State were barred under principles of governmental immunity. In the alternative, she held that: (1) the department did not intentionally disregard a court order as alleged in the complaint, since the judgment of conviction and probation orders issued by the circuit court were not binding on the department (2) M.C.L. Sec. 691.1402 is inapplicable to the Secretary of State, (3) the nuisance count was barred under principles of governmental immunity, citing Disappearing Lakes Ass'n. v. Dep't. of Natural Resources, 121 Mich.App. 61, 328 N.W.2d 570 (1982), aff'd sub nom. Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), and (4) "the issue of proximate cause is entirely too remote for there to be any connection between the actions of the Secretary of State and the injuries caused to this very seriously injured Plaintiff".
We agree with the trial courts that plaintiff's claims are so clearly unenforceable as a matter of law that no factual development could possibly furnish a basis for recovery. Abel v. Eli Lilly & Co., 418 Mich. 311, 323, 343 N.W.2d 164 (1984). Moreover, we are in full accord not only with the result reached by the circuit court and Court of Claims but with much of their reasoning as well. The bases for our decision do differ in part from those of the judges who granted summary judgment, however. We will specify those differences as we consider each of plaintiff's claims.
Defendant Department of State is immune from tort liability when "engaged in the exercise or discharge of a governmental function". M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107). In Ross, supra, 420 Mich. p. 620, 363 N.W.2d 641, the Supreme Court held "that a governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law". The Legislature has assigned the task of issuing drivers' licenses to the defendant department. M.C.L. Sec. 257.202; M.S.A. Sec. 9.1902. Therefore, the Department of State is immune from suit for the alleged negligent issuance of a license to Barker. This Court so held in Freeman v. Secretary of State, 132 Mich.App. 186, 188-189, 347 N.W.2d 20 (1984). The department's immunity extends to allegations of vicarious liability, since the individual defendants, even if they acted negligently, were also "engaged at the time the tort was committed [in] the exercise or discharge of a governmental function". Ross, supra, 420 Mich. p. 625, 363 N.W.2d 641.
Whether governmental immunity, as defined in Ross, extends to the individual defendants is a more difficult issue. These defendants are immune if they acted during the course of their employment, in the scope of their authority, in good faith, and if they performed discretionary rather than ministerial acts. Id., pp. 633-634, 363 N.W.2d 641. Defendants were each performing functions within the scope of their employment duties and authority when they issued Barker the license. However, we believe it would be improper to apply the remaining factors listed in Ross, because by doing so we would be forced to venture beyond the pleadings. Blake v. Consolidated Rail Corp., 129 Mich.App. 535, 543, 342 N.W.2d 599 (1983).
At oral argument, defense counsel referred to a departmental policy which dictates that the license of a convicted felon, such as Barker, be suspended for a single year, in the absence of an express order or recommendation by the circuit...
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