Pawlak v. Redox Corp., Docket No. 117082
| Citation | 182 Mich.App. 758,453 N.W.2d 304 |
| Decision Date | 10 April 1990 |
| Docket Number | Docket No. 117082 |
| Parties | Sophia Ann PAWLAK, Individually, and as the Personal Representative of the Estate of John P. Reynolds, Deceased, Plaintiff-Appellant, v. REDOX CORPORATION, a Michigan corporation, individually and d/b/a Woodlawn Cemetery Association, a Michigan Corp d/b/a Woodlawn Cemetery and Crematory Company, an unregistered corporation or assumed name, and the City of Detroit, a municipal corporation, and Detroit Emergency Medical Service, a division of the City of Detroit, jointly and severally, Defendants-Appellees. 182 Mich.App. 758, 453 N.W.2d 304 |
| Court | Court of Appeal of Michigan — District of US |
[182 MICHAPP 760] Robert H. Golden, Southfield, for plaintiff-appellant.
Tucker & Rolf, P.C. by Peter B. Kupelian and A. William Rolf, Southfield, for Redox Corp.
Laurel F. McGiffert, Detroit, for the City of Detroit.
Before HOLBROOK, P.J., and HOOD and BURNS, * JJ.
Plaintiff's decedent, John P. Reynolds, was employed as a groundskeeper for defendant Woodlawn Cemetery and Crematory Company (Woodlawn) at its cemetery. On July 18, 1986, decedent was riding on top of the cab of a flat-bed truck owned by Woodlawn. The truck was being driven by a coworker on cemetery grounds. Decedent's legs were dangling down the back of the cab into the truck's bed. According to plaintiff, the truck was driven in an erratic manner causing decedent to fall off the roof of the cab onto the roadway sustaining a serious closed-head injury.
Cemetery employees summoned an ambulance by calling 911 between 2:55 p.m. and 3:10 p.m. Defendant Detroit Emergency Medical Service (EMS) dispatched an available unit. Hospital records indicate that Mr. Reynolds arrived at Detroit Receiving Hospital at 3:50 p.m. Approximately twelve hours later, decedent died from his injuries.
On August 18, 1987, plaintiff, individually and as personal representative of decedent's estate, filed a wrongful death action against the City of Detroit, EMS, Woodlawn and its parent corporation, Redox Corporation, doing business as Woodlawn [182 MICHAPP 761] Cemetery Association. Plaintiff's six-count complaint alleged that: (1) Woodlawn intentionally and deliberately failed to rectify its employees' erratic operation of vehicles and knowingly allowed decedent to ride on top of the truck, (2) Woodlawn breached an implied contract of employment to provide emergency medical services by waiting an unreasonable length of time for EMS and failing to summon a private ambulance, (3) the City of Detroit breached an implied contract to transport decedent to a hospital within a reasonable time, (4) the City of Detroit engaged in a proprietary function by operating an ambulance service and acted in a negligent, willful and wanton manner in failing to promptly supply an ambulance and transporting decedent to a distant hospital, (5) the City of Detroit knowingly and intentionally failed to provide immediate ambulance service (intentional tort), and (6) the City of Detroit and EMS intentionally failed to provide prompt medical assistance to decedent by choosing to transport to Detroit Receiving Hospital when closer hospitals were available. 1
On February 6, 1987, the City of Detroit and EMS filed a motion for summary disposition. Following a hearing on February 10, 1989, the trial court granted EMS summary disposition ruling that it was not a proper party. The court then held its decision as to the City of Detroit in abeyance until plaintiff filed a response.
Subsequently, on April 17, 1989, the trial court granted summary disposition in favor of the city, finding that the city could not be liable on an implied contract theory because it owed a preexisting statutory duty to provide emergency medical [182 MICHAPP 762] services to decedent and that as to the remaining counts the city was entitled to governmental immunity (city not engaged in a proprietary function). The court then indicated that its April 17, 1989, order was final as to the city and EMS.
On April 14, 1989, Woodlawn (and its parent company) filed a motion for a summary disposition. Following oral argument on the motion conducted on April 28, 1989, the trial court ruled that plaintiff had not alleged an intentional act by Woodlawn to avoid the Workers' Disability Compensation Act's exclusive remedy provision. Therefore, Woodlawn was granted summary disposition in a May 9, 1989, order. This final order disposed of the remaining counts in plaintiff's complaint and, thus, plaintiff appeals as of right from the order.
Plaintiff first argues that she pled facts in avoidance of governmental immunity by claiming that the city committed an intentional tort. Specifically, plaintiff alleges that the City of Detroit engaged in willful, wanton and intentional conduct because, when it dispatched the EMS ambulance, it knew that the unit was so far away that it could not arrive for at least twenty to twenty-five minutes, but its dispatcher did not disclose this information nor was anything done to dispatch someone else who could arrive at the scene sooner. Therefore, plaintiff alleges, the trial court erred in granting the city summary disposition.
The trial court did not specify under which court rule summary disposition was granted. However, the city moved for summary disposition pursuant to MCR 2.116(C)(7) and (8). We find both court rules applicable and proceed from this basis.
[182 MICHAPP 763] MCR 2.116(C)(7) provides for summary disposition when suit is barred by immunity granted by law. When a governmental agency moves for summary disposition under this court rule, the plaintiff's complaint must be reviewed to see whether facts have been pled justifying a finding that recovery in a tort cause of action is not barred by governmental immunity. Dettloff v. Royal Oak, 178 Mich.App. 319, 321, 443 N.W.2d 410 (1989).
Summary disposition under MCR 2.116(C)(8) is available when the plaintiff has failed to state a claim upon which relief can be granted. A motion in accordance with this rule tests the legal sufficiency of the claim by the pleadings alone. Formall, Inc. v. Community National Bank of Pontiac, 166 Mich.App. 772, 777, 421 N.W.2d 289 (1988). All factual allegations in support of a claim are accepted as true, as well as all inferences which can fairly be drawn from the facts. Mills v. White Castle System, Inc., 167 Mich.App. 202, 205, 421 N.W.2d 631 (1988), lv. den. 431 Mich. 880 (1988). The motion should only be granted when a claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recovery. Scameheorn v. Bucks, 167 Mich.App. 302, 306, 421 N.W.2d 918 (1988), lv. den. 430 Mich. 886 (1988).
Our Supreme Court has held, in a memorandum opinion, that there is no intentional tort exception to governmental immunity. Smith v. Dep't of Public Health, 428 Mich. 540, 544, 410 N.W.2d 749 (1987), reh. den. 429 Mich. 1207 (1987), aff'd sub nom Will v. Michigan Dep't of State Police, 491 U.S. ----, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). 2 As stated by [182 MICHAPP 764] Justice Brickley in his separate opinion in Smith, "intentional torts are immune if committed within the scope of a governmental function." Id., p. 611, 410 N.W.2d 749; See also Giddings v. Detroit, 178 Mich.App. 749, 754, 444 N.W.2d 242 (1989). A governmental function was defined by the Supreme Court in Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), reh. den. 421 Mich. 1202 (1985), as an activity which is expressly or impliedly mandated or authorized by constitution, statute or other law. Id., p.p. 618, 620, 363 N.W.2d 641. 3 The Ross definition is to be broadly applied and only requires that there be some constitutional, statutory or other legal basis for the activity in which the governmental agency was engaged. Hyde v. University of Michigan Bd. of Regents, 426 Mich. 223, 253, 393 N.W.2d 847 (1986).
In the case at bar, there was a statutory basis for the City of Detroit's operation of an ambulance service. See M.C.L. Sec. 333.20708; M.S.A. Sec. 14.15(20708). It follows that the city was engaged in a governmental function. Therefore, under Smith, supra, plaintiff's allegations of an intentional tort were not sufficient to avoid governmental immunity because no such exception exists.
However, we also note that plaintiff did not plead or even assert in the lower court the limited statutory exception to immunity under M.C.L. Sec. 333.20737; M.S.A. Sec. 14.15(20737) enunicated by a panel of this Court in Malcolm v. East Detroit, 180 Mich.App. 633, 638-640, 447 N.W.2d 860 (1989). Therefore, we decline further review. Summary disposition pursuant to MCR 2.116(C)(7) or (8) was appropriate.
Plaintiff next contends that the trial court erred in granting the city summary disposition on plaintiff's claim for breach of an implied contract to transport decedent to a close hospital in a reasonable amount of time.
The trial court again failed to state under which court rule it was granting summary disposition. However, defendant moved to summarily dispose of this claim in accordance with MCR 2.116(C)(8) and our analysis will proceed under this rule.
In the instant case, we believe that plaintiff has failed to state a claim upon which relief can be granted because plaintiff failed to establish all the elements for a contract, specifically the element of consideration.
In Lowery v. Dep't of Corrections, 146 Mich.App. 342, 359, 380 N.W.2d 99 (1985), lv. den. 425 Mich. 870 (1986), this Court made the following statements regarding the elements of an implied contract.
[A] contract based on implication must still satisfy the elements of mutual assent and consideration, Spruytte v Dep't of Corrections, 82 Mich App 145; 266 NW2d 482 (1978). In Spruytte, the Court found that no implied bailment contract could be found to exist because (1) there...
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