Rathbun v. Starr Commonwealth For Boys

• Decision Date: 11 December 1985
• Docket Number: Docket No. 74301
• Citation: 377 N.W.2d 872,145 Mich.App. 303
• Parties: Diana Lynn RATHBUN, Plaintiff-Appellant, v. STARR COMMONWEALTH FOR BOYS, Kevin C. McCauley, William Barthel, Arlin Ness, Director of Michigan Department of Social Services, Roberta Porter, Norman Mixon, Gloria Anne Whittington, Ralph Patterson, Robert Little and Al Katzman, Defendants-Appellees. 145 Mich.App. 303, 377 N.W.2d 872
• Court: Court of Appeal of Michigan — District of US

Page 872

377 N.W.2d 872

Diana Lynn RATHBUN, Plaintiff-Appellant, v. STARR COMMONWEALTH FOR BOYS, Kevin C. McCauley, William Barthel, Arlin Ness, Director of Michigan Department of Social Services, Roberta Porter, Norman Mixon, Gloria Anne Whittington, Ralph Patterson, Robert Little and Al Katzman Defendants-Appellees.

Docket No. 74301.

145 Mich.App. 303, 377 N.W.2d 872

Court of Appeals of Michigan.

Submitted Nov. 8, 1984.

Decided Sept. 3, 1985.

Released for Publication Dec. 11, 1985.

[145 MICHAPP 306] Bishop & Shelton, P.C., Ann Arbor, by Thomas H. Blaske, [145 MICHAPP 307] and Blaske & Blaske, P.C. by E. Robert Blaske, Battle Creek, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Janis Meija and Christopher D. Dobyns, Asst. Attys. Gen., for the State-Employed defendants-appellees.

Before R.B. BURNS, P.J., and ALLEN, and T.L. BROWN ^*, JJ.

T.L. BROWN, Judge.

Plaintiff commenced this action against defendants based on theories of common-law negligence, intentional infliction of emotional distress, and 42 U.S.C. Secs. 1983 and 1985. Plaintiff seeks to recover for damages she suffered on August 6, 1980, as a result of being raped by a resident, Troy Williams, of defendant Starr Commonwealth for Boys (Starr), while she was employed by Starr. The trial court summarily disposed of all of plaintiff's claims except for the claim of intentional infliction of emotional distress against defendants Ness, McCauley and Barthel, who were employed by Starr at the time of this incident. The trial judge also denied plaintiff's motion to file a second amended complaint to assert a claim under 42 U.S.C. Secs. 1983 and 1985. Plaintiff appeals as of right.

I

Plaintiff argues that the trial court erred by granting summary judgment under GCR 1963, 117.2(1) in favor of defendants Porter, Mixon, Whittington, Katzman, Patterson, and Little on plaintiff's claims of common-law negligence based on governmental immunity. A motion based on GCR 1963, 117.2(1) [now MCR 2.116(C)(8) ] for failure[145 MICHAPP 308] to state a claim is to be tested by the pleadings alone and tests the legal basis of the complaint, not whether it can be factually supported. Unless a claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, a motion under this subrule should be denied. Partrich v. Muscat, 84 Mich.App. 724, 729-730, 270 N.W.2d 506 (1978).

In her complaint, plaintiff averred that Troy Williams was placed in the custody of the Michigan Department of Social Services (DSS) by the probate court after the court determined that Williams had committed second-degree criminal sexual conduct. Defendant Porter, a DSS employee, processed an exception request to allow Williams to be placed at defendant Starr. Porter's supervisors, defendants Mixon, Whittington, Katzman, Patterson, and Little, approved the exception request. According to plaintiff, they failed to follow DSS regulations which required placement of Williams at a facility other than Starr. Plaintiff alleged that Porter negligently processed the exception request for Williams in that Porter failed to obtain full information on Williams and include that information in the exception request and that defendants Mixon, Whittington, Katzman, Patterson, and Little negligently permitted the exception request to be approved.

The trial court held that the state-employed defendants are immune from liability for the common-law claims of negligence as they were acting within the scope of their employment in carrying out a governmental function in deciding to place Williams at Starr. At the time of the trial court's ruling, there was a split of authority on whether the "discretionary/ministerial" or the "scope of employment" test was the proper standard to apply when determining whether government employees[145 MICHAPP 309] are immune from tort actions. In Ross v. Consumers Power Co (On Rehearing), 420 Mich. 567, 633-634, 363 N.W.2d 641 (1984), the Supreme Court rejected the scope of employment test and adopted the discretionary/ministerial test for determining individual immunity. Under this test, the Supreme Court set forth the following parameters:

"Judges, legislators, and the highest executive officials of all levels of government are absolutely immune from all tort liability whenever they are acting within their respective judicial, legislative or executive authority. Lower level officers, employees, and agents are immune from tort liability only when they are

"a) acting during the course of their employment and are acting, or reasonably believe they are acting, within the scope of their authority;

"b) acting in good faith; and

"c) performing discretionary-decisional, as opposed to ministerial-operational, acts." 420 Mich 592, 363 N.W.2d 641.

In defining discretionary and ministerial acts, the Court transformed these words into the hyphenated "discretionary-decisional" and "ministerial-operational" form. If a particular activity involves personal deliberation, decision, and judgment, it will be considered a discretionary act for which an employee will be immune from tort liability. On the other hand, the execution or implementation of a decision is considered a ministerial act which, if performed in a tortious manner, will result in liability. 420 Mich. 634-635, 363 N.W.2d 641.

We conclude that, although the decision to place Williams at Starr was a discretionary one, defendant Porter's acts of placing the proper information on the request form and assuring that adequate information was acquired in processing the exception request were ministerial acts. Moreover, [145 MICHAPP 310] plaintiff does not allege that defendants Mixon, Whittington, Katzman, Patterson, and Little, individually, made a decision that Williams should be placed at Starr. Rather, plaintiff alleges that, under established DSS policy, defendants had no discretion to approve the exception request to send Williams to Starr. The failure to follow established procedures in supervising employees is a ministerial act. Bandfield v. Wood, 421 Mich. 774, 364 N.W.2d 280 (1985). Consequently, we also conclude that plaintiff's allegations that the individual state-employed defendants failed to follow established DSS procedures are sufficient to withstand summary judgment under GCR 1963, 117.2(1). Based on the foregoing, summary judgment for the individual state-employed defendants is, therefore, reversed.

II

Plaintiff also contends that the trial court erred in granting accelerated judgment under GCR 1963, 116.1(5) to Starr and Starr-employed defendants Ness, McCauley, and Barthel as to her claim of common-law negligence based on the exclusive-remedy provision of the Worker's Disability Compensation Act (WDCA), M.C.L. Sec. 418.131; M.S.A. Sec. 17.237(131). Plaintiff argues that the exclusivity provision of the WDCA does not apply because the rape did not arise out of her employment, but out of Starr's breach of its common-law duty to keep its premises safe. Moreover, plaintiff also argues that the exclusivity provision does not apply because plaintiff was not entitled to worker's compensation since she was not incapacitated from earning full wages for at least one week.

The trial judge's conclusion that the exclusive remedy provision of the WDCA bars plaintiff's [145 MICHAPP 311] negligence action is supported by McKinley v. Holiday Inn, 115 Mich.App. 160, 320 N.W.2d 329 (1982), lv. den. 417 Mich. 890 (1983). Although plaintiff does not allege that the rape occurred while in the course of her employment but while she was "lawfully on the premises" of Starr, there is no dispute that her personal injuries were sustained during working hours and while plaintiff was performing the duties for which she was employed by Starr. As in McKinley, where the plaintiff while working as a maid at the Holiday Inn was assaulted and raped by one of the guests at the motel, the rape of plaintiff arose during the course of her employment. This makes the WDCA plaintiff's exclusive remedy against defendant Starr. The fact that a plaintiff may not actually be entitled to receive compensation benefits does not give her the right to maintain a common-law action. McKinley, supra, pp. 162-163, 320 N.W.2d 329.

Plaintiff's claims of common-law negligence against the individual state-employed defendants are also barred because the acts and omissions of these defendants complained of by plaintiff occurred during the course of their employment. See Schwartz v. Golden, 126 Mich.App. 790, 338 N.W.2d 218 (1983). Consequently, the trial judge's award of accelerated judgment in favor of Starr and the Starr-employed defendants on plaintiff's claims of common-law negligence is affirmed.

III

Plaintiff contends that the trial judge erred in granting summary judgment under GCR 1963, 117.2(1) on her claim under 42 U.S.C. Sec. 1983. Plaintiff alleges violations of her rights to liberty, privacy, travel, and other rights guaranteed under the United States Constitution.

[145 MICHAPP 312] Plaintiff argues that the first amended complaint alleged sufficient facts to indicate that Starr and the Starr-employed defendants were reckless, grossly negligent, or acted with deliberate and conscious indifference to plaintiff's rights by accepting Williams at Starr and failing to maintain proper control over him even though they knew of his numerous acts of violence and assault, especially toward females. Plaintiff further argues that defendant Starr is liable for the actions of its employees under the doctrine of respondeat superior.

42 U.S.C. Sec. 1983 creates a cause of action for persons who have been deprived of their rights, privileges and immunities under the federal law against the person who has so deprived them when acting under color of state law. In Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912-13, 68 L.Ed.2d 420 (1981), the United States Supreme Court br...