I basic facts and procedural history
The basic facts of this matter are fairly straightforward, if somewhat grisly, but the procedural history is reasonably complex. The unfortunate train of events commenced in July of 1995, when William Dampier, husband of plaintiff Johnnie Dampier, was transported to Grace
Plaintiffs thereafter filed this case, alleging a claim of negligence against Wayne County, Grace Hospital, and Stinson and a claim of intentional infliction of emotional distress against Stinson. In July of 1996, the trial court granted Wayne County’s first motion for summary disposition on the basis that Wayne County was immune with respect to plaintiffs’ claims. Plaintiffs then filed a motion to vacate entry of this order on the ground that the order failed to state
In their first amended complaint, plaintiffs added claims against Wayne County for breach of a contract delegated to it by Grace Hospital and violation of the Due Process Clause of the Michigan Constitution. Plaintiffs failed to respond in writing to Wayne County’s motion for summary disposition, but orally asserted at the ensuing hearing that they had stated a viable state constitutional claim to which Wayne County was not immune.
After the trial court indicated it was going to grant Wayne County’s motion, plaintiffs orally moved for leave to file a second amended complaint to allege a federal constitutional claim against Wayne County pursuant to 42 USC 1983, for violation of their due process rights under the Fourteenth Amendment. The trial court orally denied this motion and thereafter entered an order granting Wayne County’s motion for summary
H. STANDARD OF REVIEW
A. GENERALLY
This Court reviews de novo an order granting summary disposition.
Weisman v U S Blades, Inc,
B. GOVERNMENTAL IMMUNITY
“Summary disposition is proper under MCR 2.116(C)(7) for a claim that is barred because of immunity granted by law.”
Smith v Kowalski,
C. FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED
“Pursuant to MCR 2.116(C)(8), a motion for summary disposition is granted if the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery.”
Simko v Blake,
D. AMENDMENT OF THE COMPLAINT
Leave to amend a complaint should be freely given when justice so requires. MCR 2.118(A)(2).
Hakari v Ski Brule, Inc,
E. BREACH OF CONTRACT
In support of its motion for summary disposition of plaintiffs’ first amended complaint, Wayne County attached the affidavit of Sawait Kanluen, M.D., Wayne County Medical Examiner. Therefore, because the parties and the trial court went beyond the pleadings with regard to this issue, we address this issue pursuant to MCR 2.116(C)(10).
W B Cenac Medical Service, PC v Michigan Physicians Mut Liability Co,
A motion for summary disposition brought under MCR 2.116(C)(10), based on the lack of a genuine issue of material fact, tests whether there is factual support for the claim. Cenac, supra at 681. In ruling on the motion, the trial court must consider the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the parties. Id. The opposing party must show that a genuine issue of material fact exists. Id. The opposing party may not rest upon mere allegations or denials in the pleadings but must, by affidavit or other documentary evidence, set forth specific facts showing the existence of a genuine issue for trial. Id. If the opposing party fails to make such a showing, summary disposition is appropriate. Id.
m. GOVERNMENTAL IMMUNITY
A. INTRODUCTION
Plaintiffs argue (1) that the Wayne County Morgue constitutes a public hospital, of which William Dam-pier was a patient, so that the public hospital exception to immunity applies, (2) that a common-law exception to immunity exists for the mishandling of a decedent’s remains, and (3) that Wayne County is not immune with respect to plaintiffs’ state constitutional claim for violation of their property right in William Dampier’s
B. PUBLIC HOSPITAL EXCEPTION
MCL 691.1407; MSA 3.996(107) governs the application of governmental immunity from tort liability and provides:
(1) Except as otherwise provided in this act, ail 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 in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed.
(4) This act does not grant immunity to a governmental agency with respect to the ownership or operation of a hospital or county medical care facility or to the agents or employees of such hospital or county medical care facility As used in this subsection:
(b) “Hospital” means a facility offering inpatient, overnight care, and services for observation, diagnosis, and active treatment of an individual with a medical, surgical, obstetric, chronic, or rehabilitative condition requiring the daily direction or supervision of a physician. The term does not include a hospital owned or operated by the department of mental health or a hospital operated by the department of corrections.
Neither party disputes the characterization of the operation of the Wayne County Morgue as a governmental function. Plaintiffs argue that the Wayne County Morgue constitutes a public hospital for the operation of which Wayne County is not entitled to immunity, pursuant to MCL 691.1407; MSA 3.996(107) We disagree.
The definition of public hospital provided in the statute controls.
Tryc v Michigan Veterans’ Facility,
In Bendford, id. at 61-62, the Court determined that the testimony of the attending physician who conducted the autopsy on the plaintiff’s decedent was privileged and, therefore, was inadmissible at trial, because the physician testified that he had treated the decedent during the twelve days preceding death and based his opinion regarding the cause of death not only on the autopsy results but also on records made in connection with the decedent’s treatment before death, which records were indisputably privileged. The Court never directly addressed whether a decedent whose body had only been examined by a medical examiner for the purposes of conducting a postmortem examination qualified as a patient of the examiner and whether the examination constituted treatment.
In contrast, in a similar context involving the question of doctor-patient privilege, the Court, in
Swickard v Wayne Co Medical Examiner,
However, even if we were to accept plaintiffs’ argument that the morgue offered inpatient, overnight care, and services for observation and diagnosis of William Dampier as an individual with a medical condition, plaintiffs have failed to establish that the remaining requirements set forth in the statute are satisfied. The statute states, “Hospital’ means a facility offering inpatient, overnight care, and services for observation, diagnosis, and active treatment of an individual.” MCL 691.1407(4)(b); MSA 3.996(107)(4)(b) (emphasis added).
In construing a statute, the court should presume that every word has some meaning and should avoid any construction that would render a statute, or any part of it, surplusage or nugatory. As far as possible, effect should be given to every phrase, clause, and word. Although fre quently misused and more readily departed from than other words, the literal meaning of the words “and” or “or” should be followed if their accurate reading does not render the sense dubious. [Indenbaum v Michigan Bd of Medicine (After Remand),213 Mich App 263 , 272;539 NW2d 574 (1995) (citations omitted).]
According to the Court in Swickard, supra at 561, “when a doctor performs an autopsy, the doctor is not prescribing treatment for the deceased” (emphasis added). The governmental immunity statute requires that, in order to constitute a hospital, a facility must offer services for the observation, diagnosis, and active treatment of an individual. MCL 691.1407(4)(b); MSA 3.996(107)(4)(b). Because, according to Swickard, a doctor performing an autopsy is not rendering treatment to the deceased, the Wayne County Morgue is not a facility offering services for the treatment of an individual. As such, the Wayne County Morgue is not a hospital within the meaning of the statute.
This interpretation is further supported by this Court’s holding in Green, supra at 489, where the Court stated that the medical examiner’s performance of an autopsy on Green did not render him a patient of the examiner. Because Wayne County allegedly took possession of William Dampier’s remains for the purpose of performing an autopsy, William Dampier was not a patient of the Wayne County Medical Examiner. Accordingly, the Wayne County Morgue is not a facility offering inpatient care. MCL 691.1407(4)(b); MSA 3.996(107)(4)(b); Indenbaum, supra at 272.
Plaintiffs have also misconstrued the plain language of the statute regarding the requirement of daily-direction or supervision of a physician. Plaintiffs argue that the operation of the morgue requires the daily direction or supervision of a physician. However, the statute states that it is the observation, diagnosis, and active treatment of an individual, and not the operation of the facility itself, that requires the daily direction or supervision of a physician. MCL 691.1407(4)(b); MSA 3.996(107)(4)(b). Because the morgue does not offer treatment to individuals, and because the individuals on whom autopsies are performed are not patients, the morgue is not a hospital.
In summary, and accepting as true all of plaintiffs’ well-pleaded allegations and construing them in favor of plaintiffs, plaintiffs have failed to allege facts warranting the application of the public hospital exception to governmental immunity to plaintiffs’ claims. MCL 691.1407; MSA 3.996(107); Kowalski, supra at 616.
C. COMMON-LAW EXCEPTION
Plaintiffs argue that a common-law exception to governmental immunity exists for the mishandling of a decedent’s remains. Plaintiffs contend that MCL 691.1407;
The last sentence of subsection 1 of § 7 of the governmental immunity statute, MCL 691.1407(1); MSA 3.996(107)(1), provides:
Except as otherwise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed.
In accordance with this sentence, the Michigan Supreme Court has recognized a common-law trespass-nuisance exception to immunity.
Hadfield v Oakland Co Drain Comm’r,
“Michigan jurisprudence recognizes a common law cause of action on behalf of the person or persons entitled to the possession, control, or burial of a dead body for the tort of interference with the right of burial of a deceased person without mutilation.”
Tillman v Detroit Receiving Hosp,
Plaintiffs rely heavily on Deeg, supra at 375, in support of their claim. However, in Deeg, as well as in all of the cases cited, the plaintiff brought an action for the allegedly wrongful dissection of, or removal of organs from, the body. Specifically, in Deeg, the plaintiff, wife of the decedent, brought an action against the city of Detroit because the city had conducted an autopsy on, and had removed organs from, the body of her husband without her consent. Id. at 377. The Supreme Court recognized a claim on behalf of the plaintiff for the actions of the city, but also determined that her claim had not survived her death. Id. at 379.
Similarly, in Kelly-Nevils, Tillman, and Larson, the plaintiffs brought claims against the defendants for the wrongful mutilation of a dead body as a result of autopsies or organ harvesting conducted without the consent of the next of kin. While Nelson, supra at 470, did not deal with a claim based on the mutilation of a dead body, it did cite with approval Larson, supra, for the proposition that a plaintiff may recover damages for the mutilation of a dead body in which the plaintiff had a legal right. Thus, all of the Michigan cases that discuss this common-law claim involved the alleged evisceration or dismemberment of a dead body.
Accordingly, we hold that a cognizable claim for the mutilation of a dead body is not sufficiently broad to encompass a claim for its decomposition, which does not involve the active incision, dismemberment, or evisceration of the body, because “any exceptions
to [the] grant of immunity are [to be] narrowly construed.”
Vargo v Sauer,
D. VIOLATION OF THE MICHIGAN CONSTITUTION
Plaintiffs’ final claim in regard to Wayne County’s immunity defense is that, pursuant to Const 1963, art 1, § 17, they have a constitutionally protected property right in William Dampier’s body, that Wayne County violated that right by allegedly allowing
In
Whaley, id.
at 1486-1487, the plaintiffs argued, pursuant to 42 USC 1983, that they had been deprived of federal constitutional property rights in the corneas of their decedents because the corneas were removed without their consent pursuant to Michigan’s Anatomical Gifts Act, MCL 333.10202; MSA 14.15 (10202), in violation of due process. The district court agreed, applying the holding the Sixth Circuit Court of Appeals had reached in an earlier stage of the proceedings, reported sub nom
Whaley v Tuscola Co,
Initially, we note that Wayne County argues that the Michigan Legislature has not enacted any enabling legislation similar to 42 USC 1983, and that, until such legislation is enacted, plaintiffs have no means by which to enforce Const 1963, art 1, §17. We disagree. This Court has previously determined that those provisions of the Michigan Constitution that protect individual rights do not “require implementing legislation in order to operate as a limitation on the exercise of governmental power.”
Detroit Branch, NAACP v Dearborn,
However, we hold that plaintiffs’ constitutional claim fails because Michigan does not recognize a property right in a dead body. As plainly stated by this Court, “there is no property right in the next of kin to a dead body.” Tillman, supra at 686-687, citing Deeg, supra at 375. Furthermore, this Court, in Tillman determined that the common-law right of burial of a deceased person without mutilation, discussed earlier, is not of constitutional dimension. Id. at 687.
Moreover, while they may be considered persuasive, the
Whaley
decisions are not dispositive of the claim at hand, because the
Whaley
decisions are federal court cases construing the federal constitution
and are not binding precedent with respect to interpretations of the state constitution. Cf.
State Bd of Ed v Houghton Lake Community Schools,
IV. FAILURE TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED
A. INTRODUCTION
Plaintiffs assert that Wayne County erroneously argued (1) that it could not be sued for state constitutional violations, (2) that enabling legislation is required for plaintiffs to bring a claim for violation of a constitutional right, and (3) that plaintiffs failed to state a claim for the violation of the common-law right to the peaceful burial of William Dampier’s body because, even if Michigan recognized such a claim, Wayne County is immune to it. Plaintiffs also argued that they had established that Wayne County acted pursuant to a custom or policy that resulted in the deprivation of their state constitutional rights. We address each of plaintiffs’ arguments below.
We have held above that the Michigan Constitution does not recognize a constitutional property interest in the body of a decedent. Because plaintiffs have failed to state a claim for violation of the Michigan Constitution, whether a county government may be sued for a constitutional violation is immaterial to a decision in this case. Therefore, this Court need not consider the issue.
State ex rel Saginaw Prosecuting
Attorney v Bobenal Investments, Inc,
C. ENABLING LEGISLATION AS A PREREQUISITE FOR SUIT
We have held above that enabling legislation is not a prerequisite for bringing suit for violations of Const 1963, art 1, § 17, pursuant to NAACP, supra at 614.
D. DEPRIVATION OF BODY OR BODY PARTS
We have held above that Michigan does not recognize a right of constitutional dimension in a dead body. Therefore, it is immaterial to a decision in this case whether Wayne County actually withheld William Dampier’s body or body parts from plaintiffs.
E. CUSTOM OR POLICY
To prove a state constitutional violation against a governmental defendant, in addition to proving the violation, a plaintiff must plead and prove facts to establish that the defendant acted pursuant to a governmental custom or policy. See
Johnson v Wayne Co,
V. AMENDMENT OF COMPLAINT
MCR 2.118(A)(2) provides: “Except as provided in subrule (A)(1), a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be freely given when justice so requires.”
A motion to amend ordinarily should be granted, and denied only for particularized reasons:
“. . . such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. . . .”
To safeguard and implement the policy favoring amendment, this Court has directed that upon denial of a motion to amend “such exercise of discretion should be supported by specific findings as to reasons for the same.” [Ben P Fyke & Sons v Gunter Co,390 Mich 649 , 656;213 NW2d 134 (1973) (emphasis in original).]
“A court must specify one of the
Fyke
reasons in its denial, and a failure to do so constitutes error requiring a reversal unless such amendment would be futile.”
Terhaar v Hoekwater,
Here, plaintiffs, first orally and then in writing, moved in the trial court to be permitted to file a second amended complaint to include a claim for violation of the Fourteenth Amendment of the United States Constitution brought pursuant to 42 USC 1983. The trial court denied these motions. However, neither at the conclusion of the hearing with respect to Wayne County’s motion for summary disposition of the claims in plaintiffs’ first amended complaint nor in its order did the trial court specify the reasons for denying plaintiffs’ motion to file a second amended complaint alleging a violation of 42 USC 1983, except to say at the hearing: “I’m going to deny because when the Court of Appeals is going to end up decid ing this case, they can decide it all at once so that it doesn’t go back and forth piece meal. So, let me formally deny that. You can put that in the order.” Therefore, unless amendment of the complaint would have been futile, the trial court’s denial of plaintiffs’ motion was error requiring reversal. Terhaar, supra at 751.
The Fourteenth Amendment of the United States Constitution provides that “[no state shall] deprive any person of life, liberty,
We hold that plaintiffs could have presented a claim that is cognizable under the Fourteenth Amendment of the United States Constitution if the trial court had allowed them to file a second amended complaint. In support of this potential claim, plaintiffs rely principally on
Whaley, supra,
However, interference with a constitutional property right is insufficient in itself to give rise to a claim
for violation of the Fourteenth Amendment pursuant to 42 USC 1983. In addition, plaintiffs must also establish that the interference was committed “under color of state law.”
Brotherton v Cleveland,
923 F2d 477, 479 (CA 6, 1991). This requirement may be satisfied by establishing that defendants acted pursuant to governmental policy or custom.
Whaley, supra,
In their second amended complaint, which plaintiffs attached to their motion to amend, plaintiffs alleged that human remains were improperly cared for and allowed to decompose and deteriorate and that morgue officials failed to take the necessary action to preserve and protect the last remains entrusted to their care during a heat wave in July, 1995, which lack of action led to the decomposition of these remains. Accepting these factual allegations as true, we hold that plaintiffs’ claim was not clearly unenforceable as a matter of law. Additional factual development may have justified a right of recovery if plaintiffs were successful in proving that Wayne County acted pursuant to custom or policy when it allegedly allowed William Dampier’s remains to decompose. Simko, supra at 654. Thus, we hold that permitting plaintiffs to amend their complaint would not have been futile, so that the trial court’s denial of plaintiffs’ motion for leave to file a second amended complaint to assert a 42 USC 1983 claim was error requiring reversal. Terhaar, supra at 751.
In their second amended complaint, plaintiffs also allege that individual employees of Wayne County committed grossly negligent acts that resulted in the decomposition of William Dampier’s remains. Plaintiffs did not name these employees in their complaint as defendants individually or in their official capacities. Thus, it appears that plaintiffs are seeking to hold Wayne County additionally hable under 42 USC 1983 for the actions of its employees pursuant to a theory of respondeat superior.
Whaley, supra,
To succeed in a 42 USC 1983 claim based on a theory of respondeat superior, plaintiffs must prove, in addition to proving deprivation of a constitutional property right, that the government’s agents acted pursuant to official policy.
Whaley, supra,
In the present case, the allegedly unlawful policy of negligently monitoring and administering the morgue is not itself unconstitutional. Id. Therefore, plaintiffs must prove that Wayne County’s employees acted with deliberate indifference to plaintiffs’ rights. Id. We cannot find that Wayne County’s employees acted with deliberate indifference to plaintiffs’ constitutional rights.
In
Whaley,
the district court found that the defendant’s agents could not have acted with deliberate indifference to the plaintiffs’ constitutional rights because, at the time they did so, state law permitted them to remove the corneas from the plaintiffs’ decedents without first obtaining consent.
Id.
The present case is quite similar. In particular, the decision of the Sixth Circuit Court of Appeals in
Whaley, supra,
vi. breach of contract
In their first amended complaint, plaintiffs alleged that Grace Hospital had entered into an oral contract with plaintiffs under which the hospital agreed to conduct an autopsy on William Dampier’s remains and that the hospital thereafter delegated the performance of the contract to Wayne County. Plaintiffs alleged that Wayne County breached the terms of the contract by failing to perform any autopsy and by failing to care properly for William Dampier’s remains.
Wayne County responded to plaintiffs’ first amended complaint with a motion for summary disposition. Wayne County asserted that no contract existed between it and Grace Hospital and that it never agreed with Grace Hospital or plaintiffs to conduct an autopsy on William Dampier’s remains. Rather, Wayne County asserted that it conducts autopsies pursuant to statute and only on the medical examiner’s determination that an autopsy is necessary and that, furthermore, this decision is discretionary and therefore entitled to immunity.
In support of these assertions, Wayne County attached the affidavit of Sawait Kanluen, M.D., the Chief Medical Examiner for Wayne County. In the affidavit, Dr. Kanluen swore to assertions that Wayne County’s performance of autopsies is conducted pursuant to statute and on the decision of the examiner that an autopsy is necessary and that Wayne County did not enter into any contracts, oral or otherwise, with Grace Hospital to conduct autopsies.
Plaintiffs failed to respond to Wayne County’s motion for summary disposition and did not argue this issue before the trial court. In failing to respond to Wayne County’s motion,
The trial court’s grant of summary disposition for Wayne County with respect to plaintiffs’ state law claims is affirmed. The trial court’s denial of plaintiffs’ motion to file a second amended complaint to assert a claim pursuant to 42 USC 1983 for violation of the plaintiffs’ due process rights under the Fourteenth Amendment of the United States Constitution is reversed. The case is remanded, and on remand, the trial court shall permit plaintiffs to file such a second amended complaint. We do not retain jurisdiction.
Affirmed in part, reversed in part, and remanded.
Notes
In the interest of clarity, we note that plaintiffs’ common-law claim for the mishandling of a decedent’s remains is distinct from their claim for violation of a state constitutional property right in these remains. Plaintiffs argue that the former claim constitutes an exception to governmental immunity because the claim was recognized before the enactment of the governmental immunity statute, MCL 691.1407; MSA 3.996(107), while the latter claim, as a constitutional claim, is not subject to immunity at all. In addition, plaintiffs argue that they possessed a federal constitutional property right in William. Dampier’s remains and that they should be permitted to bring a claim pursuant to 42 USC 1983, as will be discussed.
We note that the same is not true for Const 1963, art 1, § 2 in suits involving private party defendants. This Court, in NAACP, supra at 613, stated, “Article 1, Sec. 2 is the only provision in the Michigan Constitution’s declaration of rights to impose an affirmative obligation on the Legislature for implementation by appropriate legislation” relative to private parties. However, because plaintiffs have sued Wayne County, this distinction is not at issue in the present case.
With regard to an issue of first impression utilizing Michigan law, the Sixth Circuit Court of Appeals, in
Whaley, supra,
In reaching its decision, the Sixth Circuit Court of Appeals referred to its earlier decision in Brotherton v Cleveland, 923 F2d 477, 482 (CA 6, 1991), where the court, with regard to an issue of first impression concerning Ohio law, held that “the aggregate of rights granted by the state of Ohio to [the plaintiff] rises to the level of a ‘legitimate claim of entitlement’ in [the decedent’s] body, including his corneas, protected by the due process clause of the fourteenth amendment.” The court reached this decision despite the fact that Ohio avoided characterizing rights to control or possession of a dead body as sounding in property. Id. at 480, 482.
In deciding
Brotherton,
the Sixth Circuit Court of Appeals engaged in a general discussion of the concept of property, from the initial decisions of English courts in which the law did not recognize property rights in dead bodies, to the eventual understanding that “ ‘it is now the prevailing rule in England as well as in this country, that the right to bury the dead and preserve the remains is a quasi-right in property.’ ”
Id.
at 481, quoting
Spiegel v Evergreen Cemetery Co,
117 NJL 90, 93; 186 A 585 (1936). In reaching its decision, the Sixth Circuit Court of Appeals stated that the denomination of the interest in the dead body by Ohio as property, quasi-property, or not property was irrelevant to its determination.
Brotherton, supra
at 481-482. The Sixth Circuit Court of Appeals relied on its analysis in
Brotherton,
in deciding
Whaley.
As in
Brotherton, supra
at 482, the
Whaley
court determined that the manner in which Michigan chooses to characterize this right in a dead body was not dispositive of its decision, and expressly stated that the district court erred in relying on this characterization to reach its decision.
Whaley, supra,
This is particularly true in light of the federal courts’ reliance on Ohio and Michigan cases that, as construed by the federal courts, provide a right of action to the next of kin for damage to the body or interference with possession of the body as it is when death comes.
Whaley, supra,