Mosqueda v. Macomb County Youth Home

• Decision Date: 04 May 1984
• Docket Number: 66702,Docket Nos. 66701
• Citation: 132 Mich.App. 462,349 N.W.2d 185
• Parties: Candida MOSQUEDA, as Personal Representative of the Estate of John Mendoza, Plaintiff-Appellant, v. MACOMB COUNTY YOUTH HOME, Defendant-Appellee. Candida MOSQUEDA, as Guardian for the Estate of Rosa Fonseca, Plaintiff- Appellant, v. MACOMB COUNTY YOUTH HOME, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 185

349 N.W.2d 185

132 Mich.App. 462

Candida MOSQUEDA, as Personal Representative of the Estate

of John Mendoza, Plaintiff-Appellant, v. MACOMB COUNTY YOUTH HOME, Defendant-Appellee.

Candida MOSQUEDA, as Guardian for the Estate of Rosa

Fonseca, Plaintiff- Appellant, v. MACOMB COUNTY YOUTH HOME, Defendant-Appellee.

Docket Nos. 66701, 66702.

Court of Appeals of Michigan.

Submitted Oct. 5, 1983.

Decided March 5, 1984.

Released for Publication May 4, 1984.

Marston, Sachs, Nunn, Kates, Kudushin & O'Hare, P.C. by Kathleen L. Bogas, Detroit, for plaintiff-appellant.

Thomas L. Buller, Corp. Counsel, Mount Clemens, for defendant-appellee.

Before KELLY, P.J., and HOOD and SHEPHERD, JJ.

SHEPHERD, Judge.

Plaintiff appeals as of right from the summary judgments entered in favor of defendant in the two actions brought by plaintiff. In both cases, the trial court based the grants of summary judgment upon the governmental immunity claimed by defendant.

On February 26, 1979, plaintiff's decedent, John Mendoza, was made a delinquent state ward and remanded to defendant youth home. He had previously been held in the youth home in connection with the same charge from September, 1978, to January, 1979, but had been released on bond under "house restriction" to his own home until final disposition was made in February, 1979. On February 27, 1979, apparently the day after he was sent to defendant youth home, at approximately 8:30 p.m., Mendoza hanged himself in his room. He died in a hospital approximately ten days later.

Complaints were filed in November, 1981, by plaintiff as personal representative of the estate of Mendoza and as guardian for the estate of Rosa Fonseca, Mendoza's mother. In March, 1982, plaintiff moved to amend the complaint on behalf of Mendoza's estate. In April, 1982, defendant moved for summary judgment based on governmental immunity. As a result of the motions for summary judgment, plaintiff's complaints were dismissed with the provision that she would be allowed to amend. After her amended complaints were filed, the trial court entered its opinion and order granting summary judgment as to both actions. Plaintiff raises four issues on appeal, one of which is meritorious.

Plaintiff first argues that her amended complaints adequately alleged an intentional tort. Since no governmental immunity exists for intentional torts, plaintiff argues that summary judgment as to those claims was improper. In Count II of each of her amended complaints, plaintiff alleged that defendant intentionally, wilfully and wantonly caused Mendoza's death. Essentially the same allegation was made in Count II of each of her initial complaints except that there plaintiff had not alleged that defendant's conduct was intentional.

It now appears to be well settled in Michigan law that an intentional tort is not within the exercise or discharge of a governmental function. Governmental immunity is therefore not available as a defense to an intentional tort. Lockaby v. Wayne County, 406 Mich. 65, 276 N.W.2d 1 (1979); Graves v. Wayne County, 124 Mich.App. 36, 333 N.W.2d 740 (1983). A governmental agency may be liable for an employee's intentional misconduct under the doctrine of respondeat superior. Graves, supra; Gaston v. Becker, 111 Mich.App. 692, 314 N.W.2d 728 (1981).

However, not all intentional activity constitutes an intentional tort. See Randall v. Delta Charter Twp., 121 Mich.App. 26, 328 N.W.2d 562 (1982); Jacobs v. Dep't of Mental Health, 88 Mich.App. 503, 276 N.W.2d 627 (1979). In Elliott v. Dep't of Social Services, 124 Mich.App. 124, 333 N.W.2d 603 (1983), this Court recently noted:

"The Randall opinion emphasizes, and common sense indicates, that negligence is not transformed into an intentional tort by merely alleging that defendant's activity was intentional, wilful, and in conscious disregard of the consequences. Otherwise governmental immunity from tort liability would be eliminated. As clarified by Randall and Smith 's [ Smith v. State of Michigan, 122 Mich.App. 340, 333 N.W.2d 50 (1983) ] careful analysis, the criterion employed by a majority of the Supreme Court in determining whether governmental immunity applies is whether the plaintiff has pleaded facts showing tortious activity which is outside the exercise or discharge of the governmental function. Merely characterizing activity as 'wilful', 'intentional', and 'in conscious disregard of the consequences' is not dispositive." Elliott, supra, 124 Mich.App. pp. 128-129, 333 N.W.2d 603. (Emphasis in original.)

Applying the Randall analysis, we conclude that the trial judge did not err in granting summary judgment as to plaintiff's claim of intentional tort in each case. Count II of each of plaintiff's amended complaints consisted of the same conclusionary allegations made in her initial complaints. No facts were pled by plaintiff which showed that an intentional tort had been committed. In fact, plaintiff did not actually label the intentional tort which defendant was supposed to have committed. In Elliott, supra, this Court supported the limitation on the characterization of intentional torts proposed in Randall. Citing Randall, this Court said:

" 'The Supreme Court's decisions concerning the avoidance of governmental immunity where intentional torts are involved relate to torts such as assault, Lockaby, supra, and intentional interference with economic relations, defamation and slander, McCann [v. State of Michigan, 398 Mich. 65, 247 N.W.2d 521 (1976) ]. This Court has also ruled that immunity is not available where claims such as conversion, Willis v. Ed Hudson Towing, Inc, 109 Mich.App. 344, 311 N.W.2d 776 (1981), trespass, Madajski v. Bay County Dep't of Public Works, 99 Mich.App. 158, 297 N.W.2d 642 (1980), and other similar claims are involved. All of these decisions have involved claims concerning activities which have traditionally been regarded as intentional torts. In our opinion, for purposes of determining governmental immunity, where the complained-of act is one of omission, rather than commission, the claim cannot be characterized as an intentional tort.' Randall, 121 Mich.App. p. 26, 328 N.W.2d 562." Elliott, supra, 124 Mich.App. p. 130, 333 N.W.2d 603.

As to Count II of each complaint, therefore summary judgment was proper.

Plaintiff next argues that, even if she failed to plead an intentional tort in avoidance of governmental immunity, the conduct of defendant was ministerial and therefore no immunity attached thereto. At present, this Court is split on whether the discretionary/ministerial test or the scope of employment test is the proper standard to apply when determining whether government employees are immune from tort actions. Cf., Layton v. Quinn, 120 Mich.App. 708, 328 N.W.2d 95 (1982); Lewis v. Beecher School System, 118 Mich.App. 105, 324 N.W.2d 779 (1982).

The discretionary/ministerial debate is relevant, however, only where individual employees are named as defendants. See Willis v. Neinow, 113 Mich.App. 30, 38-40, 317 N.W.2d 273 (1982); Armstrong v. Ross Twp., 82 Mich.App. 77, 83-84, 266 N.W.2d 674 (1978). Since plaintiff failed to commence suit against individual employees of defendant, and did not raise this argument before the trial court, this Court need not and will not review this issue.

Plaintiff next claims that defendant failed to properly maintain its premises, which were defective under the public building exception to governmental immunity. That statutory exception provides in pertinent part:

"Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or take action reasonably necessary to protect the public against the condition." M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106).

The statute sets forth the elements of proof of the action:

(1) defect(s); (2) knowledge; and (3) failure to act.

Plaintiff's amended complaint alleges in relevant part:

"6. That such injury and resultant death was proximately caused by the intentional, grossly negligent, negligent acts and/or wilful and wanton misconduct of the defendant, by and through its agents, servants and/or employees, by such acts, including, but not limited to:

"a. Failing to maintain its premises in a reasonably safe condition;

"b. Failing to hire competent, careful and knowledgeable agents, servants and/or employees to maintain, inspect and repair its premises so as to render same in a reasonably safe condition;".

Plaintiff, however, failed to sufficiently plead the statutory defect exception to immunity in her complaint. First, even if it can be said that plaintiff alleged that defendant failed to act, there is no specific allegation of a defect. Second, plaintiff did not mention the statute in her complaint. She now suggests that the allegations in support of her negligence claim, in fact, constituted a defective building claim. We disagree.

The building exception is not a negligence action. In Weaver v. Duff Norton Co, 115 Mich.App. 286, 320 N.W.2d 248 (1982), this Court precluded reliance on the exception to avoid a motion for summary judgment where plaintiff failed to plead the statutory exception and had alleged negligence instead. It appears that, in the instant case, plaintiff discovered the statutory exception too late, since the exception was neither in the complaint nor, from the record before us, does it appear that it was raised before the trial court. Summary judgment on this issue was therefore proper.

Finally, plaintiff argues that the trial court erred in dismissing her 42 U.S.C. Sec. 1983 claim for deprivation of the rights...