Plaintiff David A. Hamilton, administrator of the estate of Teckla Marie Hamilton, deceased, appeals the entry of accelerated judgment for defendant, John Reynolds, GCR 1963, 116.1(2), and the entry of summary judgment for defendant K. L. Reddy, M.D., GCR 1963, 117.2(1).
Plaintiff’s decedent was killed in her home by a patient from the state-operated Northville Regional Psychiatric Hospital. The patient had left the hospital grounds after being given a grounds pass by defendant Reddy.
In Wayne County Circuit Court, plaintiff sued defendant Reynolds, director of the hospital, and defendant Reddy, the patient’s physician at the hospital, alleging negligence and nuisance. In the Court of Claims, plaintiff sued the State of Michigan and the hospital alleging nuisance and structural defect in the hospital building.
Plaintiff’s motion for consolidation of the two lawsuits was granted by the Court of Claims. The Court of Claims file was transmitted to the Wayne County Circuit Court. The Wayne County circuit judge to whom the case against the individual defendants had been assigned was assigned by the state court administrator as Court of Claims judge for purposes of hearing the case against the state and the hospital. (The instant appeals do not directly involve plaintiff’s claims against the state and the hospital.)
Defendant Reynolds moved for accelerated judg *378 ment, alleging that exclusive jurisdiction over plaintiffs claim against him, a state official, lay in the Court of Claims. The circuit court agreed and granted accelerated judgment. On appeal, plaintiff argues that defendant Reynolds is not a state official, and, alternatively, that defendant Reynolds was sued in his individual capacity. We are not so persuaded and, therefore, affirm the entry of accelerated judgment for defendant Reynolds.
Plaintiff does not challenge the notion that the Court of Claims has exclusive jurisdiction over claims against state officials for actions performed in their official capacities.
Williams v Shin,
In
Bandfield v Wood,
Review of the Supreme Court’s
Freedland
opinion discloses that the Court did not resolve the issue presented in that case by mere mechanical application of the five elements of the cited Montana rule. Rather, the Court identified several rules and concluded that an employee whose duties were primarily clerical was not a public officer. The court’s primary focus was on the degree of discretion and independence associated with the position.
Even assuming, without deciding, however, that application of the rule cited supra, fn 1, is appropriate in determining the status of individual defendants for Court of Claims jurisdiction purposes, we find that, even under that test, defendant Reynolds is a "state official”. The office of director of state mental health facilities was authorized by the Legislature. MCL 330.1120; MSA 14.800(120). such directors are under the authority of the director of the Department of Mental Health and possess considerable administrative and decision-making authority, as delegated by the state director and conferred by the Legislature, to be exer *380 cised in furtherance of the state’s constitutional mandate to protect and promote public health and to foster and support institutions for the care of the mentally handicapped. Const 1963, art 4, § 51, and Const 1963, art 8, §8. MCL 330.1116; MSA 14.800(116). See, e.g., MCL 330.1400 et seq.; MSA 14.800(400) et seq.; 1979 AC, R 330.4005 et seq. And, clearly, the director’s position cannot reasonably be dismissed as temporary or occasional. Because he is a state official, defendant Reynolds’s motion for accelerated judgment was properly granted. Plaintiffs allegations are strictly concerned with defendant’s conduct in his official capacity; his assertion to the contrary is unpersuasive.
Defendant Reddy, a government employee, moved for summary judgment, alleging immunity from liability for the acts of negligence alleged by plaintiff. At the hearing on the motion, plaintiff agreed that, under
Fuhrmann v Hattaway,
We have carefully considered plaintiffs arguments concerning his allegations of nuisance, and we find that summary judgment was properly granted for defendant Reddy. As to this defendant, plaintiffs "nuisance” claim merely restated his negligence claim which, as discussed infra, was correctly rejected.
In an apparent attempt to resurrect his claim of defendant Reddy’s negligent issuance of a grounds pass to the patient who killed plaintiffs decedent, *381 plaintiff argues that this defendant is not immune from liability when performing ministerial duties.
There is currently much disagreement among the members of this Court concerning the proper test to apply to determine whether a public employee is immune from liability for negligence. We are persuaded, however, that under either the discretionary-ministerial test,
Layton v Quinn,
Affirmed as to both defendant Reynolds and defendant Reddy.
Notes
"The rule is accurately stated in
State ex rel Barney v Hawkins
[
" 'After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative *379 authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional.’ ”