Reno v. Chung

• Citation: 220 Mich.App. 102,559 N.W.2d 308
• Decision Date: 12 November 1996
• Docket Number: Docket No. 175158
• Parties: Kenneth RENO, Plaintiff-Appellant, v. Yung A. CHUNG, M.D., Defendant-Appellee, and Donald Portice, Mark Tonge, Larry Rushing, and David Johnston, Defendants.
• Court: Court of Appeal of Michigan (US)

Page 308

559 N.W.2d 308

220 Mich.App. 102

Kenneth RENO, Plaintiff-Appellant, v. Yung A. CHUNG, M.D., Defendant-Appellee, and Donald Portice, Mark Tonge, Larry Rushing, and David

Johnston, Defendants.

Docket No. 175158.

Court of Appeals of Michigan.

Submitted March 5, 1996, at Detroit.

Decided Nov. 12, 1996, at 9:30 a.m.

Released for Publication Feb. 25, 1997.

[220 Mich.App. 103] Donald M. Fulkerson, Westland, for plaintiff-appellant.

Jennifer M. Granholm, Wayne County Corporation Counsel, and Ellen E. Mason, Assistant Corporation Counsel, Detroit, for defendant-appellee.

Before MacKENZIE, P.J., and CAVANAGH and T.L. LUDINGTON, ^* JJ. MacKENZIE, Presiding Judge.

Plaintiff appeals as of right from an order granting summary disposition for Wayne County Medical Examiner Dr. Yung A. Chung (hereafter defendant). We affirm.

On May 10, 1991, plaintiff came home from a shopping trip and discovered that his wife, Carlynne, and daughter, Robin, had been repeatedly stabbed. Additionally, Robin's throat had been cut. Plaintiff told investigators that Robin's dying words were that an acquaintance, Tommy Collins, was the perpetrator.

The police and the prosecutor's office considered both Collins and plaintiff to be suspects in the murders. Assistant Prosecutor Daniel Less met with defendant medical examiner, who informed Less that the wounds to Robin's neck would have made it impossible for her to talk. On the basis of this information, the authorities believed plaintiff was lying about the events of May 10. On May 11, he was charged with murder, arrested, and held without bond. Plaintiff was bound over following a preliminary examination at which defendant testified that, given the nature of the injuries to her throat, Robin could not possibly have spoken to plaintiff.

Prosecutor Less subsequently consulted with another pathologist and an otolaryngologist, both of whom found incorrect defendant's opinion that Robin would not have been able to talk. This information, along with other evidence, led to the dismissal of the charges against plaintiff the following October. Collins and another individual were eventually convicted of the murders. This suit alleging defendant's gross negligence followed.

The trial court granted summary disposition for defendant in part because, as county medical examiner, she owed no duty to plaintiff when conducting an autopsy. The question whether a duty exists is one of law for the court's resolution. Gazette v. Pontiac, 212 Mich.App. 162, 170, 536 N.W.2d 854 (1995). In a negligence action, summary disposition is properly granted pursuant to MCR 2.116(C)(8) if it is determined as a matter of law that the defendant owed no duty to the plaintiff. Id. We find that summary disposition was properly granted in this case.

Our Supreme Court has recently held that the public-duty doctrine applies in Michigan. White v. Beasley, 453 Mich. 308, 552 N.W.2d 1 (1996). Under the public-duty doctrine, a public official owes a duty to the general public and not to any one individual unless a special relationship exists between the official and the individual. Jones v. Wilcox, 190 Mich.App. 564, 568, 476 N.W.2d 473 (1991). See also Simonds v. Tibbitts, 165 Mich.App. 480, 483, 419 N.W.2d 5 (1987). At a minimum, the existence of a special relationship requires some contact between the official involved and the victim and reliance by the victim upon the promises or actions of the official. Gazette, supra, pp. 170-171, 536 N.W.2d 854. A county medical examiner is a public official. See, generally, Burse v. Wayne Co Medical Examiner, 151 Mich.App. 761, 391 N.W.2d 479 (1986); O'Toole v. Fortino, 97 Mich.App. 797, 295 N.W.2d 867 (1980); Allinger v. Kell, 102 Mich.App. 798, 302 N.W.2d 576 (1981), reversed and remanded in part on other grounds 411 Mich. 1053, 309 N.W.2d 547 (1981).

In this case, there was no special relationship between plaintiff and defendant. The parties never had direct contact with one another, and plaintiff never relied on defendant's actions. Gazette, supra. Instead, as part of her public duty to detect crime and obtain evidence, Allinger, supra, p. 818, 302 N.W.2d 576 (opinion of MacKenzie, P.J.), defendant's relationship was with plaintiff's adversary, the prosecutor's office. Defendant owed a duty to the general public to make an investigation into the cause and manner of Robin's death, M.C.L. § 52.202; M.S.A. § 5.953(2), by performing the autopsy and "carefully reduc[ing] ... to writing every fact and circumstance tending to show the condition of the body," M.C.L. § 52.205(3); M.S.A. § 5.953(5)(3). While defendant's incorrect autopsy findings may have breached the duty she owed the general public, in the absence of a duty owed to plaintiff individually, plaintiff failed to set forth a cognizable claim of negligence. Jones, supra, p. 568, 476 N.W.2d 473.

To the extent that plaintiff's claim was also premised on the theory that defendant was negligent in testifying at plaintiff's preliminary examination, summary disposition was also proper. It is well settled in Michigan that statements made by a witness in the course of a judicial proceeding are absolutely privileged provided they were relevant, material, or pertinent to the issues being tried. Meyer v. Hubbell, 117 Mich.App. 699, 709, 324 N.W.2d 139 (1982), citing Sanders v. Leeson Air Conditioning Corp., 362 Mich. 692, 695, 108 N.W.2d 761 (1961), and Pagoto v. Hancock, 41 Mich.App. 622, 623, 200 N.W.2d 777 (1972). See also Couch v. Schultz, 193 Mich.App. 292, 294-295, 483 N.W.2d 684 (1992). Defendant therefore may not be held liable for any "negligent" testimony given at plaintiff's preliminary examination.

Our disposition of the above issues makes it unnecessary to address plaintiff's remaining claims on appeal.

Affirmed.

CAVANAGH, J., concurred.

THOMAS L. LUDINGTON, Judge (dissenting).

I respectfully disagree with the opinion authored by the majority. I would find that Dr. Yung A. Chung, a Wayne County Medical Examiner, did have a duty to plaintiff that was unique or special from the duty that she owed to the public in general as a public employee. In addition, I would find that plaintiff has demonstrated the existence of an issue that should be resolved by the jury with respect to Dr. Chung's breach of the standard of care.

FACTS

The majority opinion succinctly explains the facts. However, several factual matters should be emphasized because they directly relate to the legal issues framed for this Court's consideration.

First, the importance of Dr. Chung's medical opinion with regard to Assistant Prosecutor Less' decision to charge plaintiff with the murder of his wife and daughter cannot be overstated. Dr. Chung's opinion that Robin Reno was unable to talk after receiving her throat wounds was integral to Less' conclusion that plaintiff was lying. As Less testified in deposition, Dr. Chung's medical opinion was "the most important part of my decisionmaking process."

Second, in preparation for trial, Less sought the opinions of a respected pathologist and otolaryngologist to corroborate Dr. Chung's expected trial testimony. Less consulted with Robert Mathog, M.D., who was the Chairman of Otolaryngology at Wayne State University, and Laurence R. Simson, Jr., M.D., the Ingham County Medical Examiner. Dr. Chung was unwilling to voluntarily share any of the medical evidence concerning Robin Reno's wounds. The prosecutor acquired the necessary evidence for independent review only after the issuance of a court order.

Third, Dr. Mathog and Dr. Simson agreed not only that Dr. Chung's physical findings in the autopsy of Robin Reno were erroneous, but also, as stated in an affidavit by Dr. Simson, that there was "no anatomic or physiologic basis for her assertion that Robin Reno would have been unable to speak because of her laryngeal injuries." Dr. Simson's affidavit concluded with his opinion that "[s]ince Robin Reno's ability or inability to speak was such an important issue in the case of People v. Reno, it would have been prudent for the medical examiner to have sought consultation if she did not have confidence in her own ability to interpret such laryngeal injuries."

Dr. Mathog furnished a similar affidavit replete with criticism of Dr. Chung's analysis and concluding with his opinion that Dr. Chung's conduct was "a breach of her duty to perform her duties as medical examiner as a reasonably prudent medical examiner would have, and was gross negligence defined as conduct so reckless as to demonstrate a substantial lack of concern for whether an injury was likely to result, resulting in the imprisonment of Mr. Reno based on her testimony."

PUBLIC-DUTY DOCTRINE

The trial court and my appellate colleagues believe that application of the public-duty The lead opinion in White, authored by Chief Justice Brickley, accurately observes that the public-duty doctrine has not been expressed as a doctrine of governmental immunity but one of tort, based on the initial question applicable to any negligence action, that is, whether the defendant owes the plaintiff any judicially cognizable duty.

doctrine to the facts of this case is dispositive. While I agree that our Supreme Court's decision in White v. Beasley, 453 Mich. 308, 552 N.W.2d 1 (1996), reversing White v. Humbert, 206 Mich.App. 459, 522 N.W.2d 681 (1994), is [220 Mich.App. 109] controlling, I do not agree that application of the principles enunciated in White is dispositive. However, before outlining my understanding of the special-relationship exception applied in White, I must acknowledge that I concur with the comments of Justice Levin in his dissenting opinion related to the public-duty doctrine.

The question whether a legal duty exists in a negligence action historically has been a question for the court to resolve on the basis of its balancing of the societal interest involved, the severity of the risk to the plaintiff, the burden of imposing a duty upon ...