*1 (On Remand) Bolton v Jones (ON REMAND) v BOLTON JONES 4, 1988, August Lansing. Docket No. 110649. Submitted at Decided 19, 1988. appeal applied December Leave to for. Bolton, personal representative Nellie of the estate of Shani- Baskin, deceased, qua and as next friend of Takara Bolton Baskin, minor, formerly brought Wayne a an action in the Jones, against Cyril M.D., Temple, Circuit Court and Robert employees probate alleged negligence court. Plaintiff malpractice improperly in that both defendants recommended probate against petition to the court that a child abuse Shani- qua’s dismissed, court, parents relying and Takara’s be that the recommendations, petition, on the dismissed the and that Shan- iqua subsequently and Takara were beaten their father and Shaniqua beating. plaintiffs died as a result of such a complaint alleged investigated negligently that defendants potential danger and evaluated the of child abuse in the event court, petition. of a dismissal of the The trial Patrick J. J., Duggan, granted summary judgment, defendants’ motion for ruling governmental that defendants were entitled to immu- nity, physician-patient relationship no existed between defen- children, provided dants and the and defendants were with immunity juvenile ap- from suit under a court rule. Plaintiff pealed. Appeals The Court of held that defendants were not protection governmental immunity, entitled to the 156 Mich (1986). sought appeal Defendants leave to to the Court, consideration, which remanded for further Mich 856 remand, Appeals On the Court of held: discretionary-decisional protected by Acts are not and thus governmental immunity where the actor fails to consider all of criteria and thus the decision to act is not an complaint alleges informed one. Plaintiffs cause action for References 2d, School, Municipal, County, Liability Am Jur and State Tort seq. 111 et §§ liability public authority parentally Tort for failure to remove neglected parents’ custody. abused or 942. children from 60 ALR4th Opinion op the Court governmental immunity which defendants are not entitled to from Reversed. Danhof, C.J., dissented. He would hold defendants harmless liability for their decisions with- *2 requiring prove out them to that their decisions were discre-
tionary because those decisions were based on a certain amount of information. He would affirm. Immunity Discretionary-Decisional — —
Governmental Acts In- formed Decisions. official,employee, agent governmental entity A lower level or of a (1) liability acting during only is immune from tort when he is employment acting, reasonably the course of his and or believes (2) acting, scope authority, acting good he is within the of his (3) faith, performing discretionary-decisional, opposed and acts; ministerial-operational discretionary-deci- acts are not protected by governmental immunity sional and thus where the actor fails to consider all of the criteria and thus the decision to act is not an informed one. Mogill, Kenneth M. plaintiff. for Schureman, Frakes, Glass & Wulfmeier Che- (by Chandler), L. ryl for defendant Jones. Turner,
Samuel A. Counsel, and Corporation Anderson-Davis, Janet Corporation Assistant Counsel, for defendant Turner.
ON REMAND Danhof, C.J., Murphy, Before: and Wahls JJ.
Wahls,
J. This case comes before us on remand
"for
Supreme
from
Court
reconsideration
Thumudo,
Lhim,
light of Canon v
Davis v
and Hall
Han,
(1988).”
v
728 173 Mich Opinion of the Court opinion relying heavily we, In our on earlier (On Remand), 8; Davis v Lhim Mich (1985), (1986), gtd Mich NW2d 195 lv assuming concluded that defendants in this case— alleged, that, as defendants had been negligent failing "properly adequately in to and inspect, investigate” regarding interview, and the parents safety Baskin to children’s with their "adequately properly investigate and review parents’ psychiatric both medical and histories and performed discretionary-deci- records” —had sional opposed ministerial-operational acts, as to dispo- acts, and thus were not entitled to employee immunity. sition on the basis of supra, Ross, Mich 648. Under lower-level governmental employees, as in such defendants liability case, if, this addition to tort are immune from having having reasonably acted or acting during believed to been have course good employment they perform- faith, were ing discretionary-decisional, opposed to ministe- rial-operational, opinion acts. In our earlier employee stated that an could not "deviate from the avoid standard of care” and thereafter
liability merely by claiming have standard,” "discretion to violate that and declared inspect, "[o]nce either chose defendant investigate, inspection, interview, or such inter- investigation view, or should have been conducted properly.” 649. portion opinion supra,
In Canon, regarding case, the Davis Court re- versed this Court’s decision and remanded the case entry judgment to the trial court for favor *4 psychiatrist. psychiatrist the defendant voluntarily hospital- Davis had determined that a patient psychiatric statutory ized requirements meet did not the hospitalization, involuntary MCL Remand) (On Bolton v Jones Opinion of the Court 14.800(401), 330.1401; MSA and thus could be re- patient’s request. leased in accordance with the Approximately patient being released, one month after the reaching
shot and killed his mother. In its state-employed psychiatrist, conclusion that Dr. the Yong-oh dispo- Lhim, was entitled to employee immunity sition on the basis of liability, from tort Supreme commenting Court, the on this issue, Court’s earlier treatment of the stated: focusing Without on whether the decision to proceedings release or initiate commitment re- discretion, quired the exercise of substantial the Appeals Court of majority concluded that Dr. judgment Lhim’s was constrained the "relevant standard of care . . . psychiatrist of a reasonable [the conduct] practicing light medicine in the Davis, knowledge.” present-day scientific App 15. inquiry
We reiterate the relevant is not specific complained negli- whether gent, the act of was it but whether was words, in nature. Lhim In other Dr. ask whether engaged making essentially was in decision program plan or in the execution of a treatment or involuntarily hospitalize failed to when he Patter- son. Mich [430 350.] clarified, footnote,
In a the Court how- psychiatrist’s ever, the decision Davis was decision, i.e., an informed was a decision made statutory of all the factors after consideration hospital- regarding discharge voluntarily the of a challenged patient, being psychiatric and was ized psychiatrist by on the basis that statutory "wrongly criteria were decided that Thus, Davis, 351, n 15. satisfied.” 430 Mich psychiatrist according Supreme Court, the to the which, decision with had made an informed hindsight, by the was characterized benefit of *5 173 Mich op Opinion the Court being plaintiff consequently, and, incorrect plaintiff’s formed the basis of the Mich 352. tort claims. 430 present case, that, In the we harbor no doubt plaintiff merely alleged had sions, that defendants’ deci- wrong, simply informed,
while were sum- disposition mary properly granted could be to ground employee immunity defendants on the that circumstance, barred Under such a discretionary-decisional character of the recom- they mendations would be obvious: since involved making significant merely decisions and not duty affording the execution of a no employee immunity. or order little or they protected clearly choice, would be case,
Plaintiff in this how- ever, claims that defendants’ recommendations not only wrong they wrong were but that were be- they plain- words, cause tiff were uninformed. In other objects only to what defendants recom- that defendants recom- mended but to the fact plaintiff differently, suggests mended. Stated defendants’ decisions could not have constituted truly actions because a judgmental discretionary per- or action cannot be having formed without sidered stated, the decision maker’s con- appropriate already all criteria. As alleged prior defendants, has making recommendations, their failed to ade- quately investigate interview and Baskins order to be able to make informed recommenda- concerning petition tions whether the child abuse should have been dismissed. Since defendants’ mo- 117.2(1), tion was filed under GCR now MCR 2.116(C)(8), upon for failure to state a claim which granted, obligated relief can be this Court is accept plaintiff’s allegations. as true Mills v White System, Inc, Castle 202, 205; Mich trial, course, NW2d 631 At or an (On Remand) Bolton v Jones by Danhof, may challenge motion, defendants plaintiffs allegations truthfulness of ter. If such in this mat- challenge successful, is i.e., if it is shown that defendants made informed recommen- judgment dations, then a verdict or disposition in defendants’ favor could be entered. precedent, however, We decline to create for the proposition that an uninformed "decision” of a governmental employee constitutes a discretion- *6 ary-decisionaí purposes which, action of immu- nity, protects automatically employee the tort remaining ap-
The issues which were on raised peal by previously by resolved this Court are not affected Court’s supra. regarding Accordingly, Canon, in decision adopt analyses issues, those forth in set our opinion. earlier 156 Mich 649-654. grant summary disposition
The circuit court’s in reversed, favor of defendants is and the case is proceedings. remanded for further Murphy, J., concurred. (dissenting). majority correctly
Danhof, The plaintiffs regarding notes that claims defendants’ by governmental employee decisions are barred immunity because those decisions were discretion- ary-decisional. majority goes hold, The on to in governmental employee’s effect, that a decision is unless it is "in- formed.” opinion case,
In our
earlier
this
we stated
Temple
that defendant
based his recommendation
weekly
on about
thirteen
visits to the Baskin
home,
Baskin,
interviews
Mr. and Mrs.
obser-
with
parents
vations of interaction between the
ap-
report.
children, and
Jones
defendant Jones’
App 725
173 Mich
by Danhop, C.J.
on an office inter-
his conclusion
parently based
Baskin and references
Mr. and Mrs.
view with
Jones,
v
156 Mich
reports. Bolton
Temple’s
(1986),
431 Mich
642,
vacated
645; 401 NW2d
(1988).
could use
any plaintiff
I dissent because
argument
as a basis for an
majority’s opinion
em-
governmental
regarding
his or her claims
that em-
are not barred because
ployee’s decision
one more test or
have conducted
should
ployee
deciding.
interview before
failed to ade-
alleged
Plaintiff
that defendants
investigate
Baskins.
quately interview
overly-broad
these claims
an
majority interprets
effect,
plaintiff,
claimed
finding
manner
failed to make informed decisions.
that defendants
to "informed”
deci-
Supreme Court
referred
Our
on
criteria. See
statutory
sions as decisions based
Thumudo,
351,
Canon v
15;
n
430 Mich
Health,
Dep’t
Teasel v
of Mental
(1988);
NW2d
390, 409;
The
defendants’
majority
decisions
some
of stan-
discretionary,
type
were
the amount of
that
governed
dards
information
they
making
should have obtained before
the deci-
and the
in
sions
manner
which the information
should have been obtained. The
further
majority
from
suggests
alleged
that defendants’
deviation
Supreme
these
standards was ministerial. Our
Davis v
Court
in
rejected
theory
advanced
(On Remand),
Lhim
8, 12-15;
147 Mich
(1985),
(1986),
NW2d 195
lv
To
such a definition for "ministerial”
would come
eliminating
close to
all immunity professionals by confusing the issues of immunity
negligence.
The
significant.
distinction is
If
every act which
professional
deviates from a
norm
categorized
"ministerial,”
were to be
would
immunity
professional
seldom shield
discretion. Noth-
Ross,
ing in
supra,
v Consumers Power Co
[Ross
(On Rehearing),
567;
420 Mich
the definition of "ministerial” which our rejected Court in Canon. Decision makers will not be free to devise the best overall solutions if are forced to their decisions problems they delay tests, in- superfluous and conduct interviews fear will be sued vestigations they because of alleged acquire for an failure to sufficient informa- deciding. tion Decision makers should before "appropriate” at trial or in an prove be forced motion, profes- their suggests, as the majority knowledge expertise sional combined with their *8 by Danhop, particular them to make a discre- case enabled tionary decision. grant court’s of sum- on
I would affirm lower disposition mary governmental employee immunity. favor of defendants based