Smith v. State

• Decision Date: 06 May 1983
• Docket Number: Docket No. 56501
• Citation: 122 Mich.App. 340,333 N.W.2d 50
• Parties: Jack SMITH, Plaintiff-Appellant, Cross-Appellee, v. STATE of Michigan, the State of Michigan Department of Public Health, the Michigan Home and Training School, the Lapeer State Home and Training School (believed to also be known as the Michigan Home and Training School), Oakdale Center for the Developmentally Disabled (believed to be the successor to the Michigan Home and Training School and/or the Lapeer State Home and Training School), the State Institute Commission, the State Hospital Commission, and the State (of Michigan) Welfare Department, Defendants-Appellees, Cross-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 50

333 N.W.2d 50

122 Mich.App. 340

Jack SMITH, Plaintiff-Appellant, Cross-Appellee, v. STATE of Michigan, the State of Michigan Department of Public Health, the Michigan Home and Training School, the Lapeer State Home and Training School (believed to also be known as the Michigan Home and Training School), Oakdale Center for the Developmentally Disabled (believed to be the successor to the Michigan Home and Training School and/or the Lapeer State Home and Training School), the State Institute Commission, the State Hospital Commission, and the State (of Michigan) Welfare Department Defendants-Appellees, Cross-Appellants.

Docket No. 56501.

Court of Appeals of Michigan.

Submitted June 14, 1982.

Decided Jan. 10, 1983.

Released for Publication May 6, 1983.

Walz, Fershee, Jordan & Stanton, P.C. by John A. Braden, Big Rapids, for plaintiff-appellant.

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

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

T.M. BURNS, Judge.

This case is before this Court on an appeal and cross-appeal by leave granted and arises from various grants and denials of summary judgment by the Court of Claims.

Plaintiff was born on February 12, 1925, in Traverse City State Hospital (TCSH), a state institution for the insane, where his mother was a patient. Plaintiff's mother died soon after his birth and plaintiff was treated as an abandoned child (apparently his father was unknown at the time). From TCSH, plaintiff was taken to the Michigan State Public School (MSPS), pursuant to a court order dated May 15, 1925.

From MSPS, plaintiff, allegedly a normal child at this time, was transferred to the Michigan Home and Training School (MHTS), an institution for the retarded. This transfer was allegedly without a proper court order. On October 5, 1937, a second allegedly invalid court order committed plaintiff to MHTS. Plaintiff remained there until June 5, 1964, when he was transferred to TCSH, pursuant to an administrative order dated May 15, 1964. Plaintiff remained there until May 15, 1973, when he was paroled to a foster care home.

Eventually, plaintiff filed a four-count amended complaint in the Court of Claims. Count I alleged false imprisonment due to his improper commitment to MHTS; Count II alleged negligent, reckless and intentional breaches of defendants' duty to care for, treat, and educate plaintiff; Count III alleged that his due process and equal protection rights under the Michigan Constitution had been violated; Count IV sought damages under 42 U.S.C. Sec. 1983 for violation of his federal constitutional rights.

Defendants moved for summary judgment pursuant to GCR 1963, 117.2(1) or, alternatively, for accelerated judgment pursuant to GCR 1963, 116.1(5). The trial court granted summary judgment to defendants on Count I and II but denied summary judgment on Counts III and IV.

Obviously, this case deals with governmental immunity. M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107):

"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."

We will first address the trial judge's dismissal of the second count. In dealing with a governmental immunity question, we have a two-step analysis: (1) whether the operation of the state facility is a "government function"; and (2) whether the alleged tortious activity falls within the exercise or discharge of that governmental function. McCann v. Michigan, 398 Mich. 65, 247 N.W.2d 521 (1976).

Plaintiff argues that, if defendants' negligent actions in this case are protected by governmental immunity, the test for applying governmental immunity is unconstitutionally overbroad and must be restricted by applying plaintiff's new definition: a governmental function is "[a]n activity that is necessarily unique to government and that involves a high degree of discretion".

However, this argument fails to address whether or not factually the institutions involved were "of essence to governing" or could be equally effectively accomplished by the government and private sector. As it is, a state mental hospital is clothed with governmental immunity as a governmental function. Perry v. Kalamazoo State Hospital, 404 Mich. 205, 273 N.W.2d 421 (1978), app. dismissed 444 U.S. 804, 100 S.Ct. 24, 62 L.Ed.2d 17 (1979); Siener v. Michigan, 117 Mich.App. 179, 323 N.W.2d 642 (1982); Rocco v. Dep't of Mental Health, 114 Mich.App. 792, 319 N.W.2d 674 (1982); Fuhrman v. Hattaway, 109 Mich.App. 429, 311 N.W.2d 379 (1981); and Jacobs v. Dep't of Mental Health, 88 Mich.App. 503, 276 N.W.2d 627 (1979). The Supreme Court is the proper place to change either this test or the result that the operation of a mental hospital is a governmental function.

The trial court concluded that, since the operation of the three institutions was a governmental function, care, treatment, and education were within the exercise or discharge of the governmental function. Logically, this result is compelled. Once we determine that operation of these facilities is a governmental function, the care, treatment and education of the patients must be considered within the exercise or discharge of that governmental function. Any other conclusion would either eliminate the governmental immunity or lower the limits of the state's function at these institutions to a mere duty to house the patients. Because plaintiff has failed to allege facts avoiding the application of governmental immunity, we conclude that the trial judge properly dismissed Count II alleging negligence. See Perry, supra, 404 Mich. pp. 212-213, 273 N.W.2d 421.

Plaintiff also alleged in Count II intentional or reckless breach of duty. The trial judge dismissed these allegations on the separate ground that plaintiff was pleading conclusions and had therefore failed to plead facts avoiding immunity. Because plaintiff has failed to address this particular issue, we affirm the entire dismissal of Count II.

The trial judge also granted summary judgment on plaintiff's first count, stating that defendants were immune from the false imprisonment allegations. False imprisonment is an intentional tort. 1 Harper and James, The Law of Torts, Sec. 3.7, p. 228. Unfortunately, the Courts in this state right now have two different views as to whether or not a complaint alleging an intentional tort takes the plaintiff beyond governmental immunity. As was stated earlier in this opinion, a governmental agency is not immune even if what it is performing is a governmental function if the alleged tortious activity falls outside the exercise or discharge of that governmental function.

Three justices on the Supreme Court have stated that the government is not immune from an intentional tort. Lockaby v. Wayne County, 406 Mich. 65, 77, 276 N.W.2d 1 (1979). Accord, Shunk v. Michigan, 97 Mich.App. 626, 296 N.W.2d 129 (1980).

On the other hand, three other justices have held that an intentional tort allegation takes the parties outside governmental immunity only if the intentional tort is ultra vires. (Lockaby, supra, pp. 78, 82-83, 276 N.W.2d 1. Accord, Jacobs, supra.)

Despite this apparent conflict, we believe that the two views can be reconciled. If a police officer lawfully arrests an individual, he may use reasonable force if that individual resists. Delude v. Raasakka, 391 Mich. 296, 215 N.W.2d 685 (1974). Both sides would agree that the police officer is immune by governmental immunity from any suit alleging an intentional tort. However, both sides would also agree that the police officer is not immune if he uses force if the arrestee did not resist or if the officer used unreasonable force.

Underlying Justice Levin's opinion (in Lockaby ) is the argument that the State is never in the business of committing intentional torts. Justice Williams' opinion clearly states a concern that the State not be liable where a public employee is required to commit an intentional tort to carry out his duty to the public. Both views recognize the reasons for governmental immunity and define immunity within its own perception of what the State's duty may entail. Both concerns may be met in a test which grants governmental immunity where the employee's actions were justified under the case's circumstances. Thus, a police officer's "assault" on a person attempting murder is justified by the overriding necessity of protecting the potential victim. The officer's duties include this protection and sometimes require extraordinary measures. An attendant at a state mental hospital may be justified in "assaulting" a patient where the patient threatens the safety of himself or others but would not be justified in assaulting the same patient where the patient is merely recalcitrant in dressing. Justice Levin's concern that the State not be privileged in abusive behavior does not apply where the circumstances require such extraordinary actions and so justify taking the measures. Likewise, Justice Williams' concern that the State not be punished for acting where it must is also met.

Thus, whenever a plaintiff in a complaint alleges an intentional tort, a defendant may answer arguing that the allegation should be dismissed due to governmental immunity because the action was justified under the particular facts of the case. If the plaintiff does not contest these facts, the allegation would subsequently be dismissed. However, if the plaintiff does contest the facts underlying the justification, the case would proceed to trial.

Therefore, we reverse the trial judge's summary judgment grant and reinstate the...