Montgomery v. City of Detroit

• Decision Date: 21 November 1989
• Docket Number: Docket No. 112739
• Parties: Jeanette MONTGOMERY, individually and as Personal Representative of the Estate of Bobbie Robnett, Plaintiff-Appellant, v. CITY OF DETROIT, Joanne Keller, John Doe, Detroit Board of Education, Arthur Jefferson, individually and as Detroit Superintendent of Detroit Public Schools, Elijah Porter, and James Walls, jointly and severally, Defendants-Appellees, and Telecom Technicians, Defendant. 181 Mich.App. 298, 448 N.W.2d 822, 57 Ed. Law Rep. 1000
• Court: Court of Appeal of Michigan — District of US

Page 822

448 N.W.2d 822

Jeanette MONTGOMERY, individually and as Personal Representative of the Estate of Bobbie Robnett Plaintiff-Appellant, v. CITY OF DETROIT, Joanne Keller, John Doe, Detroit Board of Education, Arthur Jefferson, individually and as Detroit Superintendent of Detroit Public Schools, Elijah Porter, and James Walls, jointly and severally, Defendants-Appellees and Telecom Technicians, Defendant.

Docket No. 112739.

181 Mich.App. 298, 448 N.W.2d 822, 57 Ed. Law Rep. 1000

Court of Appeals of Michigan.

Submitted Aug. 16, 1989.

Decided Nov. 21, 1989.

Released for Publication Nov. 21, 1989.

[181 MICHAPP 301] Levenson, Disner, Ruby & Fruitman, P.C. by Marshall C. Disner, Southfield, for plaintiff-appellant.

Brenda M. Miller, Asst. Corp. Counsel, Detroit, for City of Detroit and Joanne Keller.

Patterson, Phifer & Phillips, P.C. by Nancy M. Rade, Detroit, for Detroit Bd. of Educ., Arthur Jefferson, and Elijah Porter.

Plunkett & Cooney, P.C. by Henry J. Maher and Christine D. Oldani, Detroit, for James Walls.

Before MacKENZIE, P.J., and MARILYN KELLY and BURNS, ^* JJ.

PER CURIAM.

Plaintiff appeals as of right from an October 17, 1988, circuit court order denying her motion for rehearing or reconsideration and several previous orders granting summary disposition in favor of various defendants. We affirm.

At approximately 1:50 p.m. on September 18, 1984, fourteen-year-old Bobbie Robnett collapsed while running on the track during his physical education class at Henry Ford High School. James Walls, the gym teacher who attended to Robnett, could not see the boy's pupils. Robnett was incoherent, incontinent, breathing hard, shaking uncontrollably, and sweating profusely. After a few minutes, Walls and several students carried Robnett into the gym. At 2:05 p.m., Walls informed plaintiff, Robnett's mother, of the situation by telephone and obtained her permission to call the Emergency Medical Service (EMS). Walls attempted unsuccessfully to call EMS. A new phone system had recently been installed at the school. He then called the school office and asked Mrs. Burke to [181 MICHAPP 302] call EMS. Mrs. Burke reached Joanne Keller, an EMS operator, at 2:11 p.m., and Keller immediately routed the call to the EMS vehicle dispatchers. An EMS unit was not dispatched until 2:41 p.m., because the only two EMS vehicles which had been available were dispatched at 2:07 and 2:11 p.m. Plaintiff had arrived at the school shortly after the call to EMS was made. At one point she was offered alternate transportation for Robnett, but declined it to wait for EMS. Walls' incident report indicates that a second call was made to EMS. The EMS unit arrived at approximately 2:49 p.m. Robnett was taken to the hospital where he died at 4:41 p.m. of a previously unknown, preexisting heart condition. A medical opinion indicated that if Robnett had been brought to the emergency room within thirty minutes of the onset of symptoms, he would have had a "fighting chance" to survive.

On September 30, 1986, plaintiff filed the instant wrongful death action, and on September 11, 1987, she filed a first-amended complaint alleging negligence, gross negligence, and violation of Robnett's civil rights under 42 U.S.C. Sec. 1983. Defendant Telecom Technicians, Inc. was subsequently dismissed from the case by stipulation. The remaining defendants moved for summary disposition pursuant to MCR 2.116(C)(7), (8) and (10). In a hearing on June 24, 1988, the lower court granted their motions and orders to that effect were subsequently entered. On October 17, 1988, the court denied plaintiff's motion for rehearing or reconsideration.

First, plaintiff claims that the lower court erred in granting defendants Elijah Porter, the school principal, and Walls summary disposition on the ground that their actions were discretionary and thus were entitled to immunity granted by law. MCR 2.116(C)(7). When reviewing a motion brought under MCR 2.116(C)(7), a court must consider[181 MICHAPP 303] all affidavits, pleadings, depositions, admissions, and documentary evidence filed or submitted by the parties. MCR 2.116(G)(5); Eichhorn v. Lamphere School Dist., 166 Mich.App. 527, 536, 421 N.W.2d 230 (1988).

Individual lower level governmental employees, officials and agents are immune 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 v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 633-634, 363 N.W.2d 641 (1984); Giddings v. Detroit, 178 Mich.App. 749, 756, 444 N.W.2d 242 (1989). The only element which was disputed below was whether the activities were discretionary or ministerial.

A discretionary act is one which requires personal deliberation, decision, and judgment. Ross, supra, 420 Mich. at p. 634, 363 N.W.2d 641. It involves significant decision-making on whether to engage in a particular activity, and how best to carry it out. A ministerial act might entail minor decision-making, but essentially involves the execution of a decision where the individual has little or no choice. Ross, supra, p.p. 634-635, 363 N.W.2d 641; Giddings, supra. In determining whether acts are discretionary or ministerial, we must look to the specific acts complained of, rather than to the general nature of the activity. Canon v. Thumudo, 430 Mich. 326, 334, 422 N.W.2d 688 (1988); Green v. Comstock, 177 Mich.App. 626, 630, 442 N.W.2d 745 (1989). The ultimate goal is to afford the officer, employee or agent enough freedom to decide the best method of carrying out his or her duties, while ensuring the goal is realized in a conscientious manner. Ross, supra, 420 Mich. at p. 635, 363 N.W.2d 641; Canon, supra.

[181 MICHAPP 304] In the present case, the specific acts by Porter of which plaintiff complains are his failure to provide emergency procedures and his failure to train his teachers to make emergency calls. However, the lower court correctly concluded that the promulgation of the rules in the safety handbook for medical emergencies was a discretionary act. Decisions regarding the setting of policy, or the failure to do so, including decisions regarding the establishment of safety procedures, have been found to be discretionary. Ross, supra, p. 651, 363 N.W.2d 641; Giddings, supra. Further, in school situations, the hiring, training, instructing, supervision, and monitoring of personnel have been found to be types of decisions that are discretionary. Giddings supra, citing Ross, supra, p. 640, 363 N.W.2d 641; Eichhorn, supra, 166 Mich.App. at p. 541, 421 N.W.2d 230; Willoughby v. Lehrbass, 150 Mich.App. 319, 348; 388 N.W.2d 688 (1986). Therefore, the court properly granted summary disposition to defendant Porter on this claim, pursuant to MCR 2.116(C)(7).

The specific act of Walls which plaintiff alleges was negligent is his failure to learn how to make an emergency call. Plaintiff argues that the calling of EMS was mandated by the school safety plan, and thus was a ministerial function involving the execution of a decision. See Ross, supra, 420 Mich. at p. 635, 363 N.W.2d 641.

The Handbook of Safety Regulations for Detroit Public Schools provided:

3. MEDICAL TREATMENT

* * * * * *

c.

(1) Children who become acutely ill or are injured during school hours should be taken, under normal conditions, to the nearest designated hospital.

* * * * * *

4. TRANSPORTATION

a. In an emergency case, where the injury is [181 MICHAPP 305] critical or where pain is intense, the patient should be taken at once to the hospital which has been designated for the particular school.

(1) He may be transported, either in E.M.S. (Emergency Medical Service) ambulance, which may be secured by calling 911 (see page 4), or in any other convenient conveyance which may be offered.

Clearly, Walls' determination of the seriousness of Robnett's condition and his decision to call EMS were discretionary functions. See Canon, supra; Webber v. Yeo, 147 Mich.App. 453, 459, 383 N.W.2d 230 (1985), lv. den. 425 Mich. 865 (1986). Further, nowhere in the safety handbook is it mandated that an instructor must learn how to make an emergency call. In fact, the safety handbook did not, as plaintiff argues, mandate that Walls call EMS, but offered alternate choices in transporting Robnett to the hospital. Walls did choose to call EMS, and when he was unable to complete the call, had Mrs. Burke make the call. Regardless, the safety rules did not require Walls to learn how to make an emergency call. Any decision regarding such an undertaking was discretionary, not ministerial. The court properly granted summary disposition to Walls pursuant to MCR 2.116(C)(7).

Second, plaintiff claims that the lower court erred in granting summary disposition to defendant Joanne Keller, the EMS operator, on the ground that she was not negligent in answering and dispatching the 911 call. A motion for summary disposition brought under MCR 2.116(C)(10) tests the factual support of a claim. Grochowalski v. DAIIE, 171 Mich.App. 771, 773, 430 N.W.2d 822 (1988). The trial court must consider affidavits, pleadings, depositions, admissions, and documentary evidence. Id.; MCR 2.116(G)(5). The court [181 MICHAPP 306] must give the benefit of every reasonable doubt to the opposing party, and all inferences are to be drawn in favor of that party. Dagen v. Hastings Mutual Ins. Co., 166 Mich.App. 225, 229, 420 N.W.2d 111 (1987), lv. den. 430 Mich. 887 (1988). The motion is properly granted only if the court is satisfied that it is impossible for the nonmoving party's claim to be supported by evidence at trial because of some deficiency that cannot be overcome. Grochowalski, supra, 171 Mich.App. at p. 774, 430 N.W.2d 822, St. Paul Fire & Marine Ins. Co. v. Quintana, 165 Mich.App. 719, 722, 419 N.W.2d 60 (1988), lv. den. 430 Mich. 885 ...