Maurer v. McManus

• Decision Date: 19 August 1987
• Docket Number: Docket No. 90248
• Parties: Louis W. MAURER and Carol Maurer, Individually, and Louis E. Maurer, as Next Friend of Mark Maurer, a minor, Plaintiffs-Appellants, v. Michael McMANUS, M.D., Katherine Welk, M.D., Gerald Purdy, M.D., Cynthia Gerlinger, Vicky McCullen, Amy Doe, and Colleen Doe, Children's Psychiatric Hospital, and University of Michigan Board of Regents and University of Michigan Hospital, Defendants-Appellees. 161 Mich.App. 38, 409 N.W.2d 747
• Court: Court of Appeal of Michigan — District of US

Page 747

409 N.W.2d 747

Louis W. MAURER and Carol Maurer, Individually, and Louis E.

Maurer, as Next Friend of Mark Maurer, a minor, Plaintiffs-Appellants, v. Michael McMANUS, M.D., Katherine Welk, M.D., Gerald Purdy,

M.D., Cynthia Gerlinger, Vicky McCullen, Amy Doe, and

Colleen Doe, Children's Psychiatric Hospital, and University

of Michigan Board of Regents and University of Michigan

Hospital, Defendants-Appellees.

Docket No. 90248.

161 Mich.App. 38, 409 N.W.2d 747

Court of Appeals of Michigan.

Submitted March 24, 1987.

Decided June 16, 1987.

Released for Publication Aug. 19, 1987.

[161 MICHAPP 40] Robert D. Mouradian, Birmingham, for plaintiffs-appellants.

Feikens, Foster, Vander Male & DeNardis, P.C., by Dennis J. Mendis and L. Neal Kennedy, Detroit, for defendants-appellees.

Before WAHLS, P.J., and MAHER and KALLMAN , JJ.

MAHER, Judge.

Plaintiffs appeal as of right from the January 6, 1986, order of the Washtenaw Circuit Court granting defendants' motion for summary disposition on plaintiffs' claims of medical malpractice and negligence pursuant to MCR [161 MICHAPP 41] 2.116(C)(7), immunity granted by law. Plaintiffs also appeal that aspect of the circuit court's order striking, on its own motion pursuant to MCR 2.115(B), plaintiffs' other claims not subject to governmental immunity.

I. Facts

Plaintiffs' claims arise out of the care and treatment provided to Mark Maurer while he was an inpatient at Children's Psychiatric Hospital, a division of the University of Michigan Hospital. The individually named defendants were staff members at the hospital while Mark Maurer was a patient.

The facts, as set forth in the complaint, are as follows. Mark was an inpatient at Children's Psychiatric Hospital from July 7, 1981, until May of 1982. He was eight years old at the time of his admission. In the course of his treatment as an inpatient, Mark was repeatedly threatened and sexually assaulted by a fellow patient named "Billy." Billy was a twelve-year-old resident in the same ward. Defendants knew that sexual assaults had taken place on the ward and were aware that Billy was a threat to the other children. However, defendants failed to prevent or investigate the attacks.

Plaintiffs' circuit court complaint was filed on October 31, 1983. On December 8, 1983, the parties stipulated to a consolidation of the circuit court claims with claims previously filed in the Court of Claims. The consolidated claims of plaintiffs are denominated as: (1) malpractice; (2) negligence; (3) gross negligence; (4) assault; (5) deprivation of civil rights; (6) intentional infliction of emotional distress; (7) breach of implied contract; (8) defective building and supervision; (9) nuisance; (10) civil conspiracy; and (11) loss of consortium.

[161 MICHAPP 42] On July 15, 1985, defendants filed a motion for summary disposition, alleging that the crux of plaintiffs' claims was malpractice or negligence and expressing a "sincere" belief that Mark was given proper care during his admission at Children's Psychiatric Hospital. More significantly for the purposes of this appeal, defendants asserted that they were all immune from tort liability under 1964 P.A. 170 as amended by 1970 P.A. 155, M.C.L. Sec. 691.1401 et seq.; M.S.A. Sec. 3.996(101) et seq., and requested relief under MCR 2.116(C)(7).

A hearing was held on defendants' motion on December 19, 1985. At the hearing, defendants continued to assert that summary disposition was proper on plaintiffs' medical malpractice and negligence claims under MCR 2.116(C)(7). Additionally, and for the first time, defendants asserted that summary disposition under MCR 2.116(C)(8) should be granted on plaintiffs' other claims because they were either redundant or failed to state a claim. The circuit court took the motion under advisement. On January 6, 1986, the circuit court issued an order granting summary judgment on plaintiffs' malpractice and negligence claims under MCR 2.116(C)(7), citing Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984). The trial court also struck plaintiffs' remaining claims, noting that they were redundant and poorly drawn, citing MCR 2.115. Plaintiffs appeal from that order.

II. Governmental Immunity

A. Applicable Law.

The first matter to be addressed in this appeal is whether the trial court erred by applying the rule of Ross, supra. In Ross, our Supreme Court largely [161 MICHAPP 43] rewrote the law of governmental immunity. However, the Ross Court gave no indication as to whether its new rules would be applicable to pending cases. Plaintiffs' complaint was filed on October 31, 1983--fourteen months prior to Ross. Defendants' motion for summary disposition was not filed until July 15, 1985--some six months after Ross.

In Hyde v. University of Michigan Bd. of Regents, 426 Mich. 223, 393 N.W.2d 847 (1986), our Supreme Court held that Ross was to have a "limited retroactive application" which the Court explained as follows:

"[T]he rules articulated in Ross apply to all cases commenced after January 22, 1985, the date our opinion was issued, and to those cases pending either in trial or appellate courts on January 22, 1985, in which a governmental immunity issue was properly raised and preserved." Hyde, supra, 230, 393 N.W.2d 847.

That rule appears simple on its face. However, as anticipated by the Hyde dissent, it is somewhat more complicated in application.

In Powers v. Peoples Community Hospital Authority, 426 Mich. 223, 393 N.W.2d 847 (1986), a case consolidated with Hyde, the complaint was also filed after Parker v. City of Highland Park, 404 Mich. 183, 273 N.W.2d 413 (1978), but before Ross. After stating its rule of limited retroactivity, the Supreme Court reasoned:

"In Powers, plaintiff's malpractice claim was filed after Parker was decided. Ross was issued while the case was still pending in circuit court. The court correctly concluded that plaintiff's claim should be denied pursuant to Ross." Powers, supra, 426 Mich. 242, 393 N.W.2d 847.

[161 MICHAPP 44] Obviously, the fact that the Powers claim was filed after Parker but before Ross does not dispose of the issue of whether governmental immunity had been preserved. Moreover, somewhat earlier in Powers, the Court had noted that the defendant hospital had moved for summary judgment on the ground of governmental immunity only after Ross was released. Powers, supra, 236, 393 N.W.2d 847. Some resolution to this problem is provided in footnote 7 of Powers, where the Court explained:

"This [post-Ross summary judgment motion] was the first time that the PCHA had raised the 'defense' of governmental immunity. However, the PCHA's failure to raise the issue in its first responsive pleading did not waive it. See n. 35. Plaintiff's complaint, filed prior to Ross, contained sufficient facts to raise a governmental immunity issue, or more specifically, a lack thereof. The complaint indicated that the PCHA operated a public general hospital, which was not entitled to immunity from tort liability pursuant to Parker. Moreover, paragraph two alleged that the PCHA was a profit-making institution. This allegation was sufficient to invoke the statutory 'proprietary function' exception." Powers, supra, 236, n 7, 393 N.W.2d 847.

Footnote 35, in turn, explains:

"Unlike other claims of immunity, sovereign and governmental immunity are not affirmative defenses, but characteristics of government which prevent imposition of tort liability. Ross, supra; Galli [v Kirkeby, 398 Mich 527, 541, n 5; 248 NW2d 149 (1976) ], p 541, n 5 ; McCann v Michigan, 398 Mich 65, 77, n 1; 247 NW2d 521 (1976). Compare MCR 2.111(F)(3)(a)." Powers, supra, 426 Mich. 261, n. 35, 393 N.W.2d 847.

Thus, although it is not expressly stated in Powers, we are led to believe that the rule of [161 MICHAPP 45] limited retroactivity allows the issue of governmental immunity to be preserved solely by a plaintiff's pleadings in avoidance thereof prior to Ross. The fine print in which this rule is embodied does some injustice to the irony it promulgates. But then justice would appear to have little to do with a rule that penalizes those plaintiffs who pled most carefully in the tumultuous years prior to Ross. Nevertheless, the pleadings in the instant case, whether by genius or serendipity, have avoided the immediate pitfall of Powers. Here, although the complaint was filed after Parker and before Ross, it does not specifically allege that defendants were not entitled to immunity, nor does it allege that the defendant hospital was profit-making or that it was engaged in proprietary functions.

The complaint in this case does include a number of claims which, if properly stated, might avoid the effects of governmental immunity. Defendants have alleged that these claims were nothing more than an unsophisticated attempt to circumvent the rule of governmental immunity. Thus, defendants argue that plaintiffs raised the issue of immunity by pleading in avoidance thereof in much the same manner as the Powers plaintiffs.

We would be less than frank to deny our own inclination to view the plaintiffs' pleadings as an attempt to avoid the effects of governmental immunity. Nevertheless, we are unconvinced that plaintiffs' pleadings have preserved the issue of governmental immunity in the same manner as that endorsed by the Powers Court. While the profit-making or proprietary function pled in Powers has no ordinary meaning apart from the issue of governmental immunity, the additional claims of the plaintiffs at bar might state causes of action whether pled against a governmental or nongovernmental[161 MICHAPP 46] entity. ¹ We are not prepared to divine the true purposes of plaintiffs in pleading these claims. Such a step would take us beyond the harsh irony of Powers, into its Kafkaesque shadows. We therefore conclude that the issue of governmental immunity was not properly raised and preserved prior to January 22, 1985. Ross is therefore...