de Sanchez v. Genoves-Andrews

• Decision Date: 20 October 1989
• Docket Number: 110072,GENOVES-ANDREWS,Docket Nos. 110071
• Citation: 179 Mich.App. 661,446 N.W.2d 538
• Parties: Francine Cullari DE SANCHEZ and Steven Jason, Co-Personal Representatives of the Estate of Thomas A. Baltus, Deceased, Plaintiffs-Appellants, v. Dr. Aurora, and State of Michigan, Department of Mental Health, Defendants-Appellees. (On Remand) 179 Mich.App. 661, 446 N.W.2d 538
• Court: Court of Appeal of Michigan — District of US

Page 538

446 N.W.2d 538

Francine Cullari DE SANCHEZ and Steven Jason, Co-Personal Representatives of the Estate of Thomas A. Baltus Deceased, Plaintiffs-Appellants, v. Dr. Aurora GENOVES-ANDREWS, and State of Michigan Department of Mental Health, Defendants-Appellees (On Remand)

Docket Nos. 110071, 110072.

179 Mich.App. 661, 446 N.W.2d 538

Court of Appeals of Michigan.

Submitted July 11, 1988.

Decided Aug. 21, 1989.

Released for Publication Oct. 20, 1989.

[179 MICHAPP 664] Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick by Richard E. Shaw, Detroit, for plaintiffs-appellants.

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

Before HOLBROOK, P.J., and WAHLS and HOOD, JJ.

HOLBROOK, Presiding Judge.

In this appeal on remand from the Supreme Court, we have been directed to reconsider our earlier opinion in light of several recent pronouncements of the higher court on issues of governmental immunity. The claims asserted[179 MICHAPP 665] by plaintiffs originated in the suicide of plaintiffs' decedent at a time that the decedent was a patient in a psychiatric hospital maintained by the state and under the psychiatric care of Dr. Genoves-Andrews. Separate suits were brought in the Court of Claims against the Department of Mental Health and in circuit court against Genoves-Andrews.

A brief explanatory history is helpful to an understanding of the issues presented in this appeal. At the outset, the Court of Claims and circuit court disposed of all claims by summary judgments in favor of defendants pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8).

The first occasion for our review was precipitated by plaintiffs' consolidated appeals as of right, in which we addressed a variety of issues:

With respect to this appeal, plaintiffs alleged the following against defendant State of Michigan:

1. Failure to adequately and properly design a building whereby plaintiffs' decedent would have been unable to commit suicide by hanging himself from the dividing bar inside a toilet stall.

2. Failure to provide the psychiatric and medical care necessary to protect plaintiffs' decedent from his suicidal tendencies in violation of 42 USC 1983.

3. Liability for breach of contract to provide adequate medical attention to decedent.

4. Liability for the "abuse" of plaintiffs' decedent in violation of MCL 330.1722; MSA 14.800(722).

Against defendant Genoves-Andrews, plaintiffs alleged the following:

1. Liability for acts of medical malpractice committed during the course of ministerial duties.

2. Liability for deprivation of medical treatment under color of law in violation of 42 USC 2983 [sic, 1983].

3. Liability for the "abuse" of plaintiffs' decedent pursuant to MCL 330.1722; MSA 14.800(722). [de [179 MICHAPP 666] Sanchez v. Genoves-Andrews, 161 Mich.App. 245, 250, 410 N.W.2d 803 (1987).]

We reversed summary judgment with respect to the public building exception to governmental immunity on the claim against the state for inadequate design of the bathroom stall and the claim against Genoves-Andrews for an alleged violation of 42 U.S.C. Sec. 1983. Summary judgment was affirmed as to all other claims. In so deciding, a majority of our panel specifically held that the state is a person for Sec. 1983 purposes, but that the claim premised on that theory was barred by sovereign immunity. We also held that Genoves-Andrews was immune from medical malpractice liability because the allegedly tortious conduct was discretionary within the meaning of Ross v. Consumers Power Co. (On Reh), 420 Mich. 567, 633-635, 363 N.W.2d 641 (1984).

Defendants' subsequent application to the Supreme Court for leave to appeal and plaintiffs' application for leave to appeal as cross-appellants culminated in the remand necessitating the instant decision. de Sanchez v. Genoves-Andrews, 430 Mich. 894, 426 N.W.2d 409 (1988).

The remand order compels our reconsideration in light of recent decisions in Canon v. Thumudo, 430 Mich. 326, 422 N.W.2d 688 (1988), Reardon v. Dep't of Mental Health, 430 Mich. 398, 424 N.W.2d 248 (1988), and Smith v. Dep't of Public Health, 428 Mich. 540, 410 N.W.2d 749 (1987). We interpret this remand as requiring our reconsideration of our previous disposition of the following issues: (1) the public building exception to governmental immunity, (2) the state's immunity for a claim based on 42 U.S.C. Sec. 1983, (3) Genoves-Andrews' individual immunity from alleged malpractice, and (4) the state's governmental immunity from a claim for [179 MICHAPP 667] abuse pursuant to M.C.L. Sec. 330.1722; M.S.A. Sec. 14.800(722).

Our reconsideration of the state's liability pursuant to the public building exception is focused on Reardon v. Dep't of Mental Health, supra, in which the Supreme Court held that the public building exception was limited to "an injury arising out of a dangerous or defective physical condition of the building itself." Id., 430 Mich. p. 409, 424 N.W.2d 248. Applying this rule, the Court concluded that the exception was inapplicable in two cases involving residents of buildings victimized by criminal wrongdoing, which allegedly resulted from inadequate precautions in the design of the building. These conclusions appear to be based on the absence of a sufficient relationship between the danger of third-party criminal conduct and the physical state of the building structure.

Our previous conclusion regarding the public building exception relied on the principle that "[w]hether a part of a public building is dangerous or defective is to be determined in light of the uses or activities for which the building is specifically assigned." 161 Mich.App. at 251, 410 N.W.2d 803. This principle was supported by citation to Bush v. Oscoda Area Schools, 405 Mich. 716, 275 N.W.2d 268 (1979), and Lockaby v. Wayne Co., 406 Mich. 65, 276 N.W.2d 1 (1979). In application of that principle, the Court in Bush held that allegations that the defendant school district provided classrooms improperly designed for laboratory experiments and lacking in safety devices appropriate for a science class stated a claim within the public building exception. Similarly, in Lockaby, the Court held that a valid claim was stated by a prisoner sustaining self-inflicted injuries during his confinement in a cell designated for mentally impaired persons, but lacking padding or other precautions specifically [179 MICHAPP 668] tailored to the persons incarcerated there. The Supreme Court in Reardon recognized the continuing viability of the holdings in Bush and Lockaby and explained that those holdings were consistent with the reasoning announced in Reardon:

[In Bush, supra ] we held that "a building may be dangerous or defective because of improper design, faulty construction or the absence of safety devices." Id. [405 Mich.] at 730 . We reiterate this proposition, as the holding in Bush is entirely consistent with today's conclusion that the injury must be occasioned by the dangerous or defective physical condition of the building itself. As long as the danger of injury is presented by a physical condition of the building, it little matters that the condition arose because of improper design, faulty construction, or absence of safety devices. [Reardon, supra, 430 Mich. pp. 409-410, 424 N.W.2d 248.]

This legislative purpose to maintain safe public places was later echoed in Bush, supra at 731-732 (public building exception applicable where claimed defect is absence of safety features), and Lockaby v. Wayne Co., 406 Mich. 65, 76-77; 276 NW2d 1 (1979) (building exception applicable where plaintiff alleged lack of padding in cell where he was being held). [Id., p. 413, 424 N.W.2d 248.]

In our earlier opinion, we identified two distinct factual allegations made by plaintiffs in support of the public building exception: (1) failure to design rest rooms so that patients could be observed by staff and (2) installation of bathroom stalls so that dividing bars were placed across the tops, thereby facilitating hanging by a suicidal patient. Upon reconsideration, we are persuaded that the former allegation fails to raise a defective condition in the building itself. There is no indication that the physical configuration of the rest room was unsafe. The relationship between the inadequacy of the [179 MICHAPP 669] rest room structure for staff observance of patients' activities within the rest room and the decedent's suicide is too tenuous to permit recovery under Reardon, where it was stated: "The Legislature intended to impose a duty to maintain safe public buildings, not necessarily safety in public buildings." Id., p. 415, 424 N.W.2d 248 (emphasis in the original). See also Gunn v. Northville State Hospital, 171 Mich.App. 669, 430 N.W.2d 815 (1988).

However, we are persuaded that our earlier decision upholding the second allegation--the dangerous condition resulting from the dividing bars placed over bathroom stalls--remains correct in light of Reardon. Given that the rest room was assigned for use by potentially suicidal patients at a mental hospital, this condition was potentially dangerous in and of itself. Because the dangerous condition was inherent in the structure of the stall, ¹ we believe that a sufficient allegation concerning the defective nature of the building has been pled.

We are aware that in Schafer v. Ethridge, consolidated for decision in Reardon, supra, 430 Mich. pp. 416-417, 424 N.W.2d 248, the Court distinguished Bush on the ground that "proper supervision [in Schafer ] would have offset any shortcomings in the configuration of the room." The instant...