Hoffman v. Genesee County

• Decision Date: 03 June 1987
• Docket Number: Docket No. 71348
• Citation: Hoffman v. Genesee County, 403 N.W.2d 485, 157 Mich.App. 1 (Mich. App. 1987)
• Parties: Edward Howard HOFFMAN and Fred Herschel Hoffman, Plaintiffs-Appellants, v. GENESEE COUNTY, Defendant, and Genesee County Deputies, Genesee County Sheriff, Police Officers, Chief, and City of Swartz Creek, Defendants-Appellees. 157 Mich.App. 1, 403 N.W.2d 485
• Court: Court of Appeal of Michigan

Page 485

403 N.W.2d 485

Edward Howard HOFFMAN and Fred Herschel Hoffman Plaintiffs-Appellants, v. GENESEE COUNTY, Defendant and Genesee County Deputies, Genesee County Sheriff, Police Officers, Chief, and City of Swartz Creek Defendants-Appellees.

Docket No. 71348.

157 Mich.App. 1, 403 N.W.2d 485

Court of Appeals of Michigan.

Submitted April 16, 1986.

Decided Jan. 5, 1987.

Released for Publication April 16, 1987.

Leave to Appeal Denied June 3, 1987.

[157 MICHAPP 4] Philip J. Olson, II, Grand Blanc, for plaintiffs-appellants.

Nill, Kirby, Rockwell & Swann, P.C. by Robert H. Shannon, Flint, for Deputy Max Warden, Deputy Sergeant Dan Spaniola, and Sheriff John P. O'Brien.

Wilson, Portnoy, Leader, Pidgeon & Roth, P.C. by Robert P. Roth, Bloomfield Hills, for Officer Rick Clolinger, Officer Robert R. Adams, Police Chief Ray Adams, and City of Swartz Creek.

Before ALLEN, P.J., and MacKENZIE and SWALLOW, ^* JJ.

SWALLOW, Judge.

Plaintiff Edward Hoffman, a [157 MICHAPP 5] mentally ill person, and his conservator, plaintiff Fred Hoffman, seek damages from defendants for injuries suffered by Edward when he was struck by a freight train. Plaintiffs in their original and second amended complaint advance several theories of liability all of which are based upon an alleged failure of defendant officers and/or their employers to properly protect Edward as a mentally ill person. See M.C.L. Sec. 330.1427; M.S.A. Sec. 14.800(427).

Plaintiffs now appeal as of right from the trial court's order dismissing their original complaint by a motion for summary disposition under GCR 1963, 117.2(1), now MCR 2.116(C)(8), as against original defendants, City of Swartz Creek (hereinafter city), Swartz Creek Police Chief Ray Adams (hereinafter police chief), and Swartz Creek Police Officers Rick Clolinger and Robert Adams (hereinafter police officers), as well as the trial court's order denying leave to amend the original complaint as to these original defendants.

Plaintiffs also appeal as of right from the trial court's order dismissing their second amended complaint by motion for summary disposition under GCR 1963, 117.2(1), now MCR 2.116(C)(8), as against Genesee County Sheriff John P. O'Brien (hereinafter sheriff) and his deputies Spaniola and Warden (hereinafter deputies).

The grounds required for summary dismissal of a complaint under both GCR 1963, 117.2(1) and MCR 2.116(C)(8) are identical, namely, that the opposing party has failed to state a claim upon which relief can be granted.

The granting of a motion for summary disposition based upon a failure to state a claim upon which relief can be granted is to be tested by the pleadings alone, and all well pled material allegations must be taken as true. Abel v. Eli Lilly & Co., 418 Mich. 311, 343 N.W.2d 164 (1984).

When pleading a cause of action against a governmental entity entitled to immunity under the [157 MICHAPP 6] governmental tort liability act, M.C.L. Sec. 691.1401 et seq.; M.S.A. Sec. 3.996(101) et seq., a plaintiff has an affirmative duty to plead facts in his or her complaint in avoidance of immunity, i.e., he or she must allege facts which would justify a finding that the alleged tort does not fall within the concept of sovereign or governmental immunity. This may be accomplished by stating a claim which fits into one of the statutory exceptions or pleading facts which demonstrate that the tort occurred during the exercise or discharge of a nongovernmental or proprietary function. Sovereign and governmental immunity are not affirmative defenses, but are characteristics of government which prevent imposition of tort liability upon the governmental agency. Galli v. Kirkeby, 398 Mich. 527, 532, 540-541, 248 N.W.2d 149 (1976), cited in Ross v. Consumers Power Co. (On Reh.), 420 Mich. 567, 621, n. 34, 363 N.W.2d 641 (1984). Avoidance of governmental immunity is a necessary part of a claim against a governmental agency, and a motion under GCR 1963, 117.2(1), now MCR 2.116(C)(8), is appropriate to test the adequacy of a plaintiff's complaint.

Plaintiffs' original complaint does not allege that the basis of their claim against the city falls within one of the statutory exceptions to governmental immunity, nor have they pled facts which demonstrate that the tort occurred during the exercise or discharge of a nongovernmental or proprietary function. Further, we find no pleadings filed in support of plaintiffs' motion to amend their complaint which would support a cause of action against the city.

The trial court's dismissal of plaintiffs' original complaint under GCR 1963 117.2(1), now MCR 2.116(C)(8), as against the City of Swartz Creek and subsequent denial of their motion for leave to [157 MICHAPP 7] amend the complaint as to this defendant should be affirmed.

The defendant deputies and police officers, as well as the sheriff and police chief, unlike governmental entities, are not inherently immune, but rather, as explained in Ross, supra, 420 Mich. 621-635, 363 N.W.2d 641, are protected by a grant of common law immunity which is delegated to an individual in his capacity as a governmental servant; the immunity conferred is a qualified grant of immunity.

Additionally, the individual defendant peace officers, under the circumstances of this case, are also entitled to a qualified grant of immunity under Sec. 427b of the Mental Health Code, M.C.L. Sec. 330.1001 et seq.; M.S.A. Sec. 14.800(1) et seq. Section 427b, M.C.L. Sec. 330.1427b; M.S.A. Sec. 14.800(427b), provides that peace officers acting in compliance with the code are acting in the course of their official duty and are not liable for actions taken unless they engage in behavior involving gross negligence or wilful and wanton misconduct.

Thus, while the immunity of a governmental entity is an inherent characteristic of government which prevents imposition of tort liability and is not an affirmative defense, Ross, 420 Mich. 596-608, 621, n. 34, 363 N.W.2d 641, conversely, the concept of governmental immunity, when applied to an employee of a governmental agency, is not an inherent characteristic of the employee, but is instead a delegated immunity, derivative of government, which may be affirmatively asserted to avoid the legal effect of claims that arise out of activities which are within the scope of the immunity delegated. Differently put, governmental immunity when asserted by an employee of government constitutes a defense which, by reason of affirmative matter, seeks to avoid the legal effect of a plaintiff's claims. As such, in a cause of action against a governmental [157 MICHAPP 8] employee, governmental immunity must be classified as an affirmative defense under former GCR 1963, 111.7, now MCR 2.111(F)(3). See 1 Honigman & Hawkins, Michigan Court Rules Annotated, p. 201, Comment 3D; see also 1 Martin, Dean & Webster, Michigan Court Rules Practice, p. 192, Comment 6b.

Consequently upon the maintenance of an action against a governmental employee, as distinguished from a governmental entity, a plaintiff need not plead facts in avoidance of immunity in his or her complaint. See Booth Newspapers, Inc. v. U of M Regents, 93 Mich.App. 100, 109, 286 N.W.2d 55 (1979). Thus, a trial court, when considering if a plaintiff has stated a claim against a governmental employee under GCR 1963, 117.2(1), now MCR 2.116(C)(8), should analyze the pleadings without reference to governmental immunity. If governmental immunity is to be asserted as a basis for summary disposition on behalf of a governmental employee, it should be raised under MCR 2.116(C)(7), i.e., the plaintiff's claim is barred because of immunity granted by law.

The trial judge granted motions for summary disposition both as to plaintiffs' original complaint and second, amended complaint under GCR 1963, 117.2(1), now MCR 2.116(C)(8), for failure to state a claim upon which relief can be granted. We concur with the holding of the trial judge as to plaintiffs' original complaint, but believe she subsequently erred in prohibiting amendment of that complaint as to defendant police chief and defendant police officers for the reason that it reasonably appears that plaintiffs would be able to plead a cause of action without reference to governmental immunity against these defendants. Ben P. Fyke & Sons v. Gunter Co., 390 Mich. 649, 213 N.W.2d 134 (1973). As to the second, amended complaint, we find [157 MICHAPP 9] plaintiffs have met the minimal pleading requirements in stating a claim against the sheriff and his deputies and therefore hold that the trial...