*1 County v Genesee HOFFMAN v GENESEE COUNTY 16, 1986, Lansing. April at Decided 71348. Docket No. Submitted 5, 1987. appeal applied January for. Leave to Hoffman, person, away allegedly mentally ill ran H. Edward Creek. their brother-in-law Swartz from his twin brother and help sought from of the and The brother brother-in-law apprehend Department to Edward. Gene- Creek Police Swartz Deputies responded County assisted Sheriff’s also and see talking locating apprehending to and Edward Hoffman. After awhile, the Edward Hoffman to for the officers released him brother-in-law, him home. his and who took care of brother subsequently away again struck ran and was Edward Hoffman conservator, Fred H. H. Hoffman and his a train. Edward Hoffman, County, negligence the filed a action Genesee Sheriff, County Deputies the Sheriff’s Genesee involved, Genesee Creek, City Police the Swartz Creek Chief, involved in Genesee Swartz Creek Police Officers advancing liability, all based several theories Circuit Court protect properly upon to Edward Hoffman failure J., court, Fullerton, mentally person. A. ill The Judith disposition granted summary all the on favor of defendants grounds to entitled that defendants were failed to state claim that appealed granted. from orders of could be Plaintiffs relief except as to all defendants County. Appeals held: The Court References 2d, Incompetent Am Jur Persons 38.§ 2d, School, Municipal, Liability 310- Am and State Tort §§ Jur 312. 2d, Pleading seq. Am 152 et Jur §§ 2d, Employees 369 et 620. Am Jur Public Officers and §§ Sheriffs, 2d, Police, 159. Am and Constables § Jur public injuries Immunity of for caused officer negligently released individual. ALR4th 773. Liability municipality unit failure to or other for police protection. provide 46 ALR3d 1084. Annotations under Incom- also the annotations in Index to See Persons; Pleadings. petent and Insane allege original complaint 1. Plaintiffs’ did not that the basis of their claim of Swartz falls one Creek within exceptions statutory governmental immunity, nor did demonstrating during the tort occurred discharge nongovernmental proprietary the exercise or Further, support plaintiffs’ function. no filed in complaint support their motion cause of action *2 against plaintiff’s city. original the The trial court’s dismissal of complaint, subsequent and of denial their motion for leave to complaint, against City of Creek is affirmed. granting grounds governmen- 2. The trial court erred in on of immunity summary disposition tal in favor the Swartz Creek of Chief Police and the individual officers and in of involved favor County deputies the Genesee Sheriff and the in- individual may against volved. Plaintiffs state cause a of action those necessity pleading defendants without of facts their in governmental immunity. to avoid allega- 3. The trial erred court insofar as it found that the plaintiffs’ complaint immunity part tions reveal an on the sheriff, deputies, police police the defendant chief and officers development. which cannot be overcome further factual error, however, preclude raising That does not defendants from summary disposition supported by proper a motion for affida- documentary vits other or evidence. granting summary disposition 4. The trial court’s order as to denying plain- of Swartz Creek is affirmed. The order police tiff's leave to amend their as to the and chief police granting summary disposition officers and the order as to deputies reversed, the sheriff and his are and the matter is proceedings. remanded for further part, Affirmed in reversed in and remanded. J., Mackenzie, portion majority dissented that of the opinion holding by granting summary trial court erred police deputy favor of the individual officers and sheriffs. She would hold that the officers’ decision to release custody family Hoffman to the of his was within their discre- tion under the Mental Health Code and that are not civilly liable for that decision. would She affirm the trial court’s grant summary disposition favor deputy sheriffs. Opinion of the Court Immunity — Immunity (cid:127)— 1. Governmental Avoidance of Plead- ing. pleading A governmen- when cause action v immunity governmental entity under the tort
tal entitled to in his or her facts act has an affirmative i.e., alleged must be in avoidance of justify finding that the tort does fall which would immunity; sovereign governmental concept of or this within the by stating accomplished fits into one of a claim which exceptions pleading statutory facts which demonstrate or discharge during the exercise or that the tort occurred (MCL nongovernmental proprietary 691.1401 et function seq.). et MSA 3.996[101] Liability Immunity — — 2. Governmental Tort Governmental Agencies. Sovereign are defen- not affirmative impo- ses, prevent government but characteristics of liability upon agencies. sition of tort Immunity — Immunity — Plead- 3. Governmental Avoidance ing. necessary part immunity is a Avoidance of governmental agency. claim Immunity — — 4. Torts Police Officers. entities, officers, inherently are not Police unlike qualified liability, protected by a rather are immune to tort but grant law which is of common *3 capacity in his as a servant. individual — Immunity — — Health Code. 5. Torts Police Officers Mental acting compliance in with the Health Code Peace Mental acting duty course official and are not liable are in the of their engage involving they in behavior for actions taken unless (MCL gross negligence or and wanton misconduct wilful 330.1427b; 14.800[427b]). MSA Employees — Immunity — Affir- 6. Governmental Governmental Pleading. — mative Defenses governmental entity liability to is an The of tort imposi- government prevents characteristic of which inherent defense; an con- tion of tort and is not affirmative applied concept versely, when agency, employee an inherent is not employee, immu- but is instead a characteristic of government, affirmatively nity, be derivative legal arise out of to avoid the effect claims that asserted scope dele- are activities which within gated. 157 Opinion of the Court Employees Pleading. — — 7. Torts Governmental plaintiff governmental employee A in a tort action need governmental immunity not avoidance of in his complaint. Employees Pleading — Summary — — 8. Torts Governmental Disposition Immunity. — court, considering A trial when whether a has stated a governmental employee action, claim ain tort should analyze without reference to im- munity; governmental immunity if is asserted as a basis governmental employee, for on behalf of a ground it should be asserted on the that the is claim (MCR immunity granted by 2.116[C][7]). barred because law by Mackenzie,
Dissent Mentally Custody — — 9. Mental Health III Persons Protective — Police Officers. civilly making Police officers liable for a decision not to place mentally person protective custody ill act where compliance with the Mental Health Code in the course gross negligence their official and no or wilful and wanton (MCL 330.1427[1]; 330.1427b; misconduct 14.800[427][1], 14.800[427b]). II, Philip J. Olson plaintiffs. for Nill, Kirby, Swann, Rockwell & P.C. Robert (by Shannon), H. Warden, for Deputy Max Deputy Sergeant Spaniola, Dan and Sheriff John P. O’Brien.
Wilson, Leader, Portnoy, Pidgeon Roth, & P.C. Roth), Robert P. (by for Officer Rick Clolinger, Adams, Officer Robert R. Adams, Police Chief Ray of Swartz Creek. P.J., Allen, Before: and J. P. and Mackenzie Swallow,* JJ. *4 P. Swallow, Hoffman, J. Plaintiff Edward
* judge, sitting Appeals Circuit by assignment. on the Court of v Genesee op Opinion the Court conservator, and his person, ill
mentally for Hoffman, damages from defendants seek Fred by he was struck Edward when injuries suffered original in their freight Plaintiffs train. theo- several advance amended second upon are based all ries or their em- of defendant alleged failure mentally as protect Edward ployers properly 14.800(427). 330.1427; MSA MCL ill See person. trial right appeal now as Plaintiffs their dismissing original court’s order under GCR summary for by a motion 2.116(C)(8), as Creek, defendants, of Swartz original Adams, and Swartz Creek Ray Chief Creek Police Adams, Robert Clolinger and Rick Police Officers leave to denying court’s order as as the trial well original as to these original complaint defendants. trial from the right also as appeal
Plaintiffs amended dismissing their second court’s order disposition un- summary motion for complaint by 2.116(C)(8), 1963, 117.2(1), MCR now der GCR P. O’Brien Sheriff John against Genesee County and Warden. deputies Spaniola and his for dismissal required The grounds 117.2(1) under both'GCR 2.116(C)(8) identical, namely, MCR upon state a claim opposing party has failed to granted. which relief can be summary disposi- of a motion for granting The upon state a claim a failure to tion based granted is to tested which relief can be alone, allega- pled and all well material Co, Lilly as true. Eli & must be taken Abel v tions 311; NW2d gov- of action pleading When a cause immunity under entity ernmental entitled to *5 6 1 op Opinion the Court governmental liability act, tort 691.1401 MCL et 3.996(101) seq., et has an affirmative plaint his or her com immunity, i.e., in avoidance of he or she allege justify finding must that facts which would
the tort does not fall within the concept sovereign immunity. or accomplished by stating This be a claim statutory exceptions which fits one into or pleading facts which demonstrate that the tort during discharge occurred the or exercise of a nongovernmental eign proprietary or function. Sover immunity
and
are not affirma
govern
defenses,
tive
but are
characteristics
prevent
imposition
ment which
tort
governmental agency.
Kirkeby,
Galli v
(1976),
527, 532,
398
540-541;
Mich
Plaintiffs’ does not against city the basis of their claim falls statutory exceptions govern- within one of the they pled mental nor have facts which th¿t during demonstrate exercise or the tort occurred
discharge nongovernmental proprietary Further, function. we find no support plaintiffs’ filed in motion to amend their support which would a cause of action city. plaintiffs’ original The trial court’s dismissal of under GCR 2.116(C)(8), as of Swartz Creek subsequent and denial of their motion for leave to v op Opinion the Court to this defendant should as affirmed. deputies officers, as
The defendant
govern-
police chief, unlike
well as the sheriff
inherently immune,
entities,
but
are
mental
rather,
supra,
explained
Ross,
Thus, of a while the government entity of an characteristic is inherent imposition prevents and is of tort which not an affirmative 596-608, Ross,
defense, 420 Mich conversely, concept governmental 621, 34, of n gov- applied employee immunity, a to when an agency, ernmental not an inherent characteris- employee, tic of the but is instead a government, derivative legal affirmatively effect asserted avoid which are within claims that arise out of activities Differently immunity delegated. scope governmental immunity put, an when asserted government employee a defense constitutes matter, which, seeks of affirmative reason plaintiffs legal As claims. avoid the such, effect against in a of action cause 157 Opinion of the Court employee, governmental immunity must be classi- fied as affirmative defense under former GCR 2.111(F)(3). Honigman 1963, 111.7, now MCR 1See Michigan p Hawkins, & Annotated, Court Rules 201, Webster, 3D; Martin, Comment see also Dean &
Michigan p Practice, Court Rules Comment 6b.
Consequently
the maintenance of an action
governmental employee,
distinguished
governmental entity,
plaintiff
from a
plead
need not
facts in
avoidance
in his or her
complaint.
Newspapers,
See Booth
Inc Uv
of M
Regents,
App 100, 109;
should without govern- immunity. reference to If mental is to be asserted as basis for summary disposition employee, 2.116(C)(7), on behalf aof
it should be raised under MCR i.e., the claim is barred be- immunity granted by cause of law. judge granted
The trial motions for plaintiffs’ original complaint as to both *7 and second amended under GCR 117.2(1), 2.116(C)(8), now MCR for failure to state a upon granted. claim with the original complaint, which relief can be We concur
holding judge plaintiffs’ of the trial toas subsequently
but believe she
prohibiting
erred in
amendment of that
police
police
as to defendant
chief and defendant
reasonably appears
officers for the reason that
it
plaintiffs
would be able to
cause
action without reference to
immu-
nity against
Fyke
these defendants. Ben P
& Sons
(1973).
Co,
v Gunter
390
649;
Mich
213
NW2d
complaint,
As to the second amended
find
we
v Genesee
Opinion
Court
pleading require-
have met the minimal
stating
ments in
a claim
the sheriff and
deputies
judge
his
and therefore hold that
trial
granting
summary disposition pursuant
erred
2.116(C)(8).
to GCR
complete
Our discussion would not be
should we
mislabeling
fail to note that mere
of a motion does
preclude
review where the lower court record
permits
Presque
otherwise
review. Witucke v
Isle
Bank,
599, 604, 2;
n
We retain no and remand for fur- proceedings ther in the trial court. *8 App 1 by Mackenzie, J. Dissent
No costs.
Allen, P.J. concurred. part). in (dissenting
Mackenzie, respectfully I majority opinion portion dissent that by granting erred judge that the trial holding defendant to the individual judgment as sheriffs. deputy officers and peace Code, MCL Mental Health 427b of the Section 14.800(427b), peace 330.1427b; provides that the code are with acting compliance officers duty official in the course of their acting engage taken unless not liable for actions wilful involving gross negligence or behavior 427(1) of the code Section wanton misconduct. part: provides pertinent conduct peace an individual If a officer observes ing in manner causes or herself himself reasonably peace officer believe requiring . . . treatment person individual peace protec individual into officer take the transport to a custody and the individual tive hospital may notify ... for examination emergency unit community mental health service inter purpose requesting mental health for the vention 330.1427(1); MSA .... services [MCL 14.800(427)(1). Emphasis added.] clearly makes decision language
This person protective or not to take a into whether heath community or to mental custody notify with the emergency discretionary service unit 330.1426; MSA MCL peace Compare officer. 14.800(426). It an affirmative does not create custody to take into on the Gilchrist v treatment. See persons requiring 1984). (ED Mich, Livonia, 599 F Supp Here, that defen- plaintiffs’ complaint indicates Hoffman in place Edward dants decided not *9 v by Mackenzie, Dissent protective It custody. does not allege this decision gross constituted negligence or wilful and wanton misconduct. In my opinion, the officers’ decision to release Hoffman to the custody of his family was within the granted decision them un- der 427 of the and, Mental Health Code thus, § consistent code, with 427b of the § are not civilly liable for that decision. I
Accordingly, would affirm the trial court’s grant of summary judgment favor defendants Clolinger, Adams, Warden and Spaniola.