de Sanchez v. Genoves-Andrews

• Decision Date: 19 August 1987
• Docket Number: 80539,Docket Nos. 80540,D,GENOVES-ANDREW
• Citation: 410 N.W.2d 803,161 Mich.App. 245
• Parties: Francine Cullari DE SANCHEZ and Steven Jason, Co-Personal Representatives of the Estate of Thomas A. Baltus, Deceased, Plaintiffs-Appellants, v. Dr. Auroraefendant-Appellee. Francine Cullari DE SANCHEZ and Steven Jason, Co-Personal Representatives of the Estate of Thomas A. Baltus, Deceased, Plaintiffs-Appellants, v. DEPARTMENT OF MENTAL HEALTH, Defendants-Appellees. 161 Mich.App. 245, 410 N.W.2d 803
• Court: Court of Appeal of Michigan — District of US

Page 803

410 N.W.2d 803

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, Defendant-Appellee.

Francine Cullari DE SANCHEZ and Steven Jason, Co-Personal

Representatives of the Estate of Thomas A. Baltus, Deceased, Plaintiffs-Appellants, v. DEPARTMENT OF MENTAL HEALTH, Defendants-Appellees.

Docket Nos. 80540, 80539.

161 Mich.App. 245, 410 N.W.2d 803

Court of Appeals of Michigan.

Submitted Nov. 19, 1985.

Decided July 7, 1987.

Released for Publication Aug. 19, 1987.

[161 MICHAPP 248] 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., and George L. McCargar [161 MICHAPP 249] and Alan Hoffman, Asst. Attys. Gen., for defendants-appellees.

Before T.M. BURNS, P.J., and HOLBROOK and PAYANT ^*, JJ.

HOLBROOK, Judge.

In March, 1984, plaintiffs filed a complaint in circuit court against Dr. Aurora Genoves-Andrews and in the Court of Claims against the State of Michigan, Department of Public Health, for the wrongful death of plaintiffs' decedent, Thomas Baltus. The defendant in each case was granted summary judgment on the basis that plaintiffs failed to plead facts sufficient to avoid the doctrine of governmental immunity. Plaintiffs' motion for rehearing was denied and they appealed in each case as of right. The cases were consolidated on appeal with plaintiffs raising several issues as to each defendant. We find we must reverse the entry of summary judgment as to defendant State of Michigan on plaintiffs' claim that the State of Michigan maintained a defective public building and as to defendant Genoves-Andrews on plaintiffs' 42 U.S.C. Sec. 1983 claim. We affirm the orders of summary judgment in all other respects.

Plaintiffs are the personal representatives of the estate of Thomas A. Baltus, who committed suicide while residing at defendant State of Michigan's Ypsilanti Regional Psychiatric Hospital. Baltus had been involuntarily admitted to the hospital on March 11, 1983, following an attempted suicide. Upon his admission to the hospital, Baltus was placed in the care of defendant Genoves-Andrews and other employees of the hospital.

During his first six days of care at the hospital, Baltus was the subject of a one-to-one suicide [161 MICHAPP 250] precaution watch. On March 16, 1983, the precaution watch was discontinued, notwithstanding Baltus' continuing threats to kill himself. The following day Baltus went to the restroom unaccompanied and unsupervised and hanged himself from an overhead dividing bar inside a toilet stall.

Plaintiffs' complaints stated numerous theories for defendants' liability in avoidance of governmental immunity. 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.

"3. Liability for the 'abuse' of plaintiffs' decedent pursuant to MCL 330.1722; MSA 14.800(722)."

Defendants each moved for summary judgment pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8), on the basis that plaintiffs' complaints failed to state a single claim upon which relief could be granted. The motions were granted in each court.

[161 MICHAPP 251] Plaintiffs first contend that pursuant to M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106) their complaint in the Court of Claims stated a claim in avoidance of immunity against the State of Michigan on the basis that the state maintained a defective public building. We agree.

Although under M.C.L. Sec. 691.1407; MSA 3.996(107) (hereafter Sec. 7) all governmental agencies are immune from tort liability to the extent that they are engaged in governmental functions, pursuant to M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106) governmental agencies remain statutorily liable for personal injuries arising out of dangerous or defective conditions in public buildings under the agency's control. Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 591, 363 N.W.2d 641 (1984). A building may be dangerous or defective because of improper design, faulty construction or the absence of safety devices. Bush v. Oscoda Area Schools, 405 Mich. 716, 730, 275 N.W.2d 268 (1979). Whether 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. Bush, supra, at p. 731, 275 N.W.2d 268; Lockaby v. Wayne Co., 406 Mich. 65, 76-77, 276 N.W.2d 1 (1979).

We do not agree with defendants' contention that the factual allegations of plaintiffs' complaint allege negligent supervision rather than a structural fault in the Ypsilanti Regional Psychiatric Hospital building. Plaintiffs' complaint alleged in the following manner that the hospital had a structural defect:

"(j) In the Ypsilanti Regional Psychiatric Hospital operating and maintaining its facilities on grounds which are inadequate to meet the physical needs of its patients and, in particular, the decedent, i.e., to provide restrooms which would allow agents, [161 MICHAPP 252] servants and/or employees of the Ypsilanti Regional Psychiatric Hospital to supervise and/or observe patients such as the decedent while they are in the restroom to prevent suicide attempts, when the Defendant knew, or in the exercise of reasonable care should have known, that such a situation constitutes a building defect that would cause serious harm and death to its in-patients, and in particular, to the decedent;

"(k) In the Defendant failing to properly design its restrooms by installing bathroom stalls within the Ypsilanti Regional Psychiatric Hospital that had dividing bars across the top of said bathroom stalls, which would allow in-patients such as the decedent to make suicide attempts by trying to hang themselves from said dividing bars, when the Defendant knew, or in the exercise of reasonable care should have known, that such design defects would cause serious harm and death to the decedent."

A motion for summary judgment pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8), tests only the legal sufficiency of the pleadings. The court must accept as true all well-pled factual allegations as well as any conclusions which can reasonably be drawn therefrom. The court may grant the motion only when the claim, on the pleadings alone, is so clearly unenforceable as a matter of law that no factual development could possibly justify the right to recovery. Partrich v. Muscat, 84 Mich.App. 724, 730, 270 N.W.2d 506 (1978). Where immunity from suit is at issue, the complaint must plead facts in avoidance of immunity. Williamson v. Jones, 125 Mich.App. 433, 436, 336 N.W.2d 489 (1983). We conclude that plaintiffs' complaint in the Court of Claims sufficiently pled facts in avoidance of immunity under the defective buildings exception by alleging a structural defect in the hospital in light of the uses or activities for [161 MICHAPP 253] which the wards in the hospital were specifically designed. Cf. Lockaby, supra; Westervelt v. Dep't of Corrections, 86 Mich.App. 788, 273 N.W.2d 563 (1978), rev'd 406 Mich. 941, 277 N.W.2d 642 (1979) (Citing Lockaby, supra.). Hence, as to the State of Michigan, summary judgment, on this ground, was inappropriate.

Plaintiffs next contend that the Court of Claims erred in granting defendant State of Michigan summary judgment with respect to plaintiffs' claim for breach of contract. Plaintiffs' claim is based on the holding in Ross, supra, that Sec. 7 granting immunity to governmental agencies will not bar recovery simply because the underlying facts could have also established a tort cause of action where a plaintiff successfully pleads and establishes a non-tort cause of action:

"Defendants brought their motion for summary judgment under GCR 1963, 117.2(1). Such motions test the legal basis of the complaint, not whether it can be factually supported. Accepting as true a plaintiff's allegations, and any conclusions that may reasonably be drawn therefrom, the motion must be denied unless the claim is so clearly unenforceable as a matter of law that no factual development could justify a right to recover. Although most of the allegations contained in Counts I and II are identical, the latter count also alleges that plaintiffs contracted and agreed with defendants for decedent's care and treatment; plaintiffs paid valuable consideration for decedent's care; and defendants breached their contractual duties to plaintiffs and decedent. These allegations are sufficient to withstand defendants' challenge.

"We recognize that plaintiffs have and will attempt to avoid Sec. 7 of the governmental immunity act by basing their causes of action on theories other than tort. Trial and appellate courts are routinely faced with the task of determining whether the essential elements of a particular cause of action have been properly pleaded and [161 MICHAPP 254] proved. If a plaintiff successfully pleads and establishes a non-tort cause of action, Sec. 7 will not bar recovery simply because the underlying facts could have also established a tort cause of action." Ross, supra,...