Rocco v. Michigan Dept. of Mental Health

• Citation: 114 Mich.App. 792,319 N.W.2d 674
• Decision Date: 28 May 1982
• Docket Number: Docket No. 55334
• Parties: James Louis ROCCO, individually and as Personal Representative for the Estate of Daniel Rocco, Deceased, and Judith Lynne Rocco, Plaintiffs-Appellants, v. MICHIGAN DEPARTMENT OF MENTAL HEALTH, and Michigan Department of Social Services and Ypsilanti Regional Psychiatric Hospital, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 674

319 N.W.2d 674

114 Mich.App. 792

James Louis ROCCO, individually and as Personal Representative for the Estate of Daniel Rocco Deceased, and Judith Lynne Rocco Plaintiffs-Appellants, v. MICHIGAN DEPARTMENT OF MENTAL HEALTH, and Michigan Department of Social Services and Ypsilanti Regional Psychiatric Hospital Defendants-Appellees.

Docket No. 55334.

Court of Appeals of Michigan.

Submitted Oct. 7, 1981.

Decided April 6, 1982.

Released for Publication May 28, 1982.

Dykema, Gossett, Spencer, Goodnow & Trigg by Bettye S. Elkins, Ann Arbor, and James M. Cameron, Jr., Detroit, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and George L. McCargar and Alan Hoffman, Asst. Attys. Gen., for defendants-appellees.

Before ALLEN, P. J., and KELLY and KELLEY, ^* JJ.

KELLY, Judge.

On January 7, 1980, plaintiffs' decedent, Daniel Rocco, was a resident patient of the Ypsilanti Regional Psychiatric Hospital (Hospital). That night, while he was sleeping in his hospital bed, Rocco was murdered by another patient. The murderer was Andrew Higginbotham, a patient who had a history of violence and assaultive behavior.

Plaintiffs filed a complaint in the Court of Claims against two state agencies (The Department of Social Services and the Department of Mental Health) which supervise the administration of the hospital, and the hospital. The state agencies and hospital are hereinafter referred to as defendants. The complaint consisted of two counts. Count I alleged negligence in that defendants failed to take steps to protect the decedent from attack by violent patients in the hospital. Specifically, plaintiffs alleged that defendants breached their duty of care and committed malpractice in that they were aware of Higginbotham's violent and criminal tendencies, yet placed him unrestrained and unsupervised in the same ward with the decedent. Count II alleged breach of implied contract, averring that plaintiffs agreed to and did in fact pay for the care and treatment of the decedent but that defendants breached their contractual duty by failing to protect the decedent from harm and abuse by other patients at the hospital.

Defendants brought a motion for summary judgment, GCR 1963, 117.2(1), claiming immunity from suit under M.C.L. § 691.1407; M.S.A. § 3.996(107). Defendants urged that they were immune from the tort claim embodied in Count I. They further contended that Count II, alleging breach of implied contract, should be dismissed because it merely restated Count I's claim of negligence. Plaintiffs responded that M.C.L. § 330.1722; M.S.A. § 14.800(722), 1974 P.A. 258, creates an exception from immunity because it expressly authorizes abused mental patients to pursue "appropriate civil relief".

On December 5, 1980, after hearing argument, the trial court issued its opinion from the bench, granting the motion for summary judgment and dismissing the complaint. An order to that effect was entered the same day. Plaintiffs appeal from that order as of right, GCR 1963, 806.1.

Motions for summary judgment under GCR 1963, 117.2(1) are to be tested by the pleadings alone. Todd v. Biglow, 51 Mich.App. 346, 349, 214 N.W.2d 733 (1974), lv. den. 391 Mich. 816 (1974). The motion tests the legal basis of the complaint, not whether it can be factually supported. Partrich v. Muscat, 84 Mich.App. 724, 729, 270 N.W.2d 506 (1978). This Court assumes as true the plaintiff's factual allegations as well as any conclusions reasonably drawn therefrom. Rubino v. Sterling Heights, 94 Mich.App. 494, 497, 290 N.W.2d 43 (1979). Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under GCR 1963, 117.2(1) should be denied. Id.

I

Initially, plaintiffs argue that the trial court erred when it found that defendants were protected by governmental immunity. M.C.L. § 691.1407; M.S.A. § 3.996(107) reads:

"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed."

The operation of a state mental hospital is a governmental function; therefore the hospital is immune from liability in actions alleging negligence. Perry v. Kalamazoo State Hospital, 404 Mich. 205, 212, 214, 273 N.W.2d 421 (1978), app. dis., 444 U.S. 804, 100 S.Ct. 24, 62 L.Ed.2d 17 (1979); Fuhrmann v. Hattaway, 109 Mich.App. 429, 311 N.W.2d 379 (1981); Allen v. Dep't of Mental Health, 79 Mich.App. 170, 173, 261 N.W.2d 247 (1977).

However, plaintiffs claim that M.C.L. § 330.1722; M.S.A. § 14.800(722) abolishes governmental immunity where a patient in a mental hospital is abused. The statute states:

"(1) A recipient of mental health services shall not be physically, sexually, or otherwise abused.

"(2) The governing body of each facility shall adopt written policies and procedures designed to protect recipients of mental health services from abuse and to prevent the repetition of acts of abuse. The policies and procedures shall more particularly define abuse, shall provide a mechanism for discovering instances of abuse and for reviewing all charges of abuse, shall ensure that firm and appropriate disciplinary action is taken against those who have engaged in abuse, and shall contain those additional provisions deemed appropriate by the governing body.

"(3) A facility shall cooperate in the prosecution of appropriate criminal charges against those who have engaged in unlawful abuse.

"(4) Any recipient of mental health services physically, sexually, or otherwise abused shall have a right to pursue injunctive and other appropriate civil relief."

According to plaintiffs, subsection (4) of the statute repeals the governmental immunity of a state mental hospital where the patient has been abused.

Repeals by implication are not favored in the law. Flynn v. City of Fraser, 45 Mich.App. 346, 349-350, 206 N.W.2d 448 (1973). To establish a repeal by implication, a clear legislative intent to repeal must be demonstrated. Ziehm v. State Farm Mutual Automobile Ins. Co., 88 Mich.App. 576, 583, 278 N.W.2d 678 (1979). The burden of establishing the repeal is on the party claiming repeal. Flynn, supra, 45 Mich.App at 350, 206 N.W.2d 448. M.C.L. § 330.1722; M.S.A. § 14.800(722) does not contain any words of repeal and does not evidence an intent to repeal M.C.L. § 691.1407; M.S.A. § 3.996(107).

Plaintiffs also argue that M.C.L. § 330.1722; M.S.A. § 14.800(722) was enacted to prevent patient abuse in mental hospitals. According to plaintiffs, the statute was intended to place patient abuse outside the realm of governmental function as that term is used in M.C.L. § 691.1407; M.S.A. § 3.996(107).

The cardinal rule of statutory construction is to ascertain and give effect to the intention of the Legislature. White v. Ann Arbor, 406 Mich. 554, 562, 281 N.W.2d 283 (1979), May v. Leneair, 99 Mich.App. 209, 215, 297 N.W.2d 882 (1980). The legislative intent must be determined from considering all the provisions of the statute in question. Braden v. Spencer, 100 Mich.App. 523, 530, 299 N.W.2d 65 (1980). The provision in question is to be considered in light of the general purpose sought to be accomplished or the evil sought to be remedied by the statute. White, supra, 406 Mich. at 562, 281 N.W.2d 283.

M.C.L. § 330.1700 et seq.; M.S.A. § 14.800(700) et seq. enumerates certain rights possessed by recipients of mental health services. The statute's purpose is to ensure that patients are treated in a humane manner and that their privacy is maintained. The statute focuses on the duty of the health care facility towards its patients. None of the sections discusses the rights and responsibilities between patients. The statute's primary purpose is to protect the patient from certain abuses by the mental health facility or its staff. When this purpose is read into M.C.L. § 330.1722; M.S.A. § 14.800(722), it is clear that this provision was meant to prevent the staff of a mental health care facility from abusing the patients in its care. It was not the intention of the Legislature to abolish governmental immunity in those cases where one patient attacks another.

M.C.L. § 691.1407; M.S.A. § 3.996(107) grants governmental immunity to state mental hospitals. Because no exception to this statute exists where one patient attacks another, the trial court did not err when it granted summary judgment on Count I of plaintiffs' complaint.

II

Plaintiffs also argue that the trial court erred when it dismissed Count II of their complaint. In Count II of their complaint, plaintiffs alleged that they contracted with the hospital for their son's care. Although no written contract existed, plaintiffs argue that an implied contract was created when they paid for the services rendered to their son.

M.C.L. § 691.1407; M.S.A. § 3.996(107) speaks only to immunity from tort liability and does not grant immunity from contract claims. Ross v. Consumers Power Co., 93 Mich.App. 687, 691, 287 N.W.2d 319 (1979), lv gtd 408 Mich. 959 (1980). An implied contract exists where one engages or accepts beneficial services of another for which compensation is customarily made and naturally anticipated. Miller v. Stevens, 224 Mich. 626, 632, 195 N.W. 481 (1923), Rockwell & Bond, Inc. v. Flying Dutchman, Inc., 74 Mich.App. 1, 6, 253 N.W.2d 368 (1977). The existence of an implied contract, of necessity turning on inferences drawn from facts and circumstances, involves questions of fact. Erickson v. Goodell Oil Co., Inc., 384 Mich. 207, 212, 180 N.W.2d 798 (1970).

Plaintiffs' complaint alleges that a contract existed and was breached by the failure of the hospital...