Young v. City of Ann Arbor

• Decision Date: 21 March 1986
• Docket Number: Docket No. 85186
• Citation: 382 N.W.2d 785,147 Mich.App. 333
• Parties: Mary Lorraine YOUNG, Personal Representative of the Estate of Kenneth Lewis Young, Deceased, Plaintiff-Appellant, v. CITY OF ANN ARBOR, a municipal corporation; Chief of Police Walter Krasny; Captain Robert Conn; Sergeant G. Miller; Officer Burke and Officer Vail, jointly and severally, Defendants-Appellees, Cross-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 785

382 N.W.2d 785

147 Mich.App. 333

Mary Lorraine YOUNG, Personal Representative of the Estate of Kenneth Lewis Young, Deceased, Plaintiff-Appellant, v. CITY OF ANN ARBOR, a municipal corporation; Chief of Police Walter Krasny; Captain Robert Conn; Sergeant G. Miller Officer Burke and Officer Vail, jointly and severally Defendants-Appellees, Cross-Appellants.

Docket No. 85186.

Court of Appeals of Michigan.

Submitted May 29, 1985.

Decided Nov. 19, 1985.

Released for Publication March 21, 1986.

Donald B. Greenspon, Belleville, for plaintiff-appellant.

John K. Van Loon, Ann Arbor, for defendants-appellees, cross-appellants.

Donald Pailen, Corp. Counsel, Detroit for amicus curiae City of Detroit.

Before MAHER, P.J., and ALLEN and KELLY, JJ.

On Remand

PER CURIAM.

This is the third occasion for this case before this Court. Originally, we held that because the alleged negligent acts of defendant Police Chief Walter Krasny were ministerial in nature he was not entitled to assume the cloak of official immunity to shield himself from potential liability. Young v. Ann Arbor, 119 Mich.App. 512, 519, 326 N.W.2d 547 (1982). Judge Maher dissented.

Subsequently, application for rehearing was granted. Upon rehearing, we concluded that under the "scope of employment" test for individual immunity defendant Krasny would be entitled to claim official immunity. Therefore, we reversed our earlier opinion and affirmed the trial court's direction of verdict in Krasny's favor. Young v. Ann Arbor (On Rehearing ), 125 Mich.App. 459, 461-462, 336 N.W.2d 24 (1983). Judge (now Justice) Cavanagh dissented, claiming that the proper test for individual immunity remained the discretionary-ministerial test.

Justice Cavanagh was the better prophet. Upon application for leave to appeal, the Supreme Court, in lieu of granting leave to appeal, remanded the case to this Court for reconsideration in light of the Supreme Court's opinion in Ross v. Consumers Power Co. (On Rehearing ), 420 Mich. 567, 363 N.W.2d 641 (1984). (Cavanagh, J., not participating). 422 Mich. 901, 367 N.W.2d 333 (1985). In that case the Supreme Court reaffirmed its support of the discretionary-ministerial test, now known as the "discretionary-decisional versus ministerial-operational" test.

Applying that test to the facts of this case, we readopt our original holding that defendant Krasny's alleged negligence was ministerial-operational in nature. It will be recalled that the Ann Arbor facility was mandated to follow departmental rules and regulations. Defendant Krasny was responsible for overseeing and enforcing relevant policies and practices. He had no discretion, therefore, to permit deviations from those rules and regulations. Paraphrasing Ross, supra, defendant Krasny's actions were those which involved the performance of a duty in which he had little or no choice, the execution of which might have entailed some minor decisions. Thus, under Ross, supra, defendant Krasny is not entitled to individual immunity. Having so decided, it is still necessary to determine whether the trial court properly granted a directed verdict in his favor.

On appeal from a trial court order granting a motion...