This action was brought by plaintiffs Mary and Larry Williamson, as personal representatives of the estate of Clifton George Williamson, deceased. The decedent was a resident of the Fairlane Center, a juvenile mental health facility administered and operated by the State of Michigan in Oakland County. He was 17 years of age, mildly retarded, and suffered from epilepsy.
On or about September 13, 1981, decedent allegedly drowned while taking a tub bath. Defendant Henry Bareiss, a "child care worker”, had admitted the decedent to the shower/bathroom area at approximately 9 a.m. after the decedent had asked to take a shower. Thereafter, defendant Lyn Jones, employed as a "staff nurse” in Meadowview 3, directed defendant Bareiss to attend to a disturbance by another resident down the hall. Defendant Jones remained at the nurses’ station directly across from the entrance to the shower/bath area where decedent had entered. Defendant Janet Waymaster was employed as "head nurse” of Meadowview 3. Defendant Vickie Welch was employed as "head nurse” of Meadowview 5.
At approximately 9:30 a.m. plaintiff Mary Williamson arrived at Meadowview 3 and asked for her son. Defendant Bareiss informed Mrs. Williamson that decedent was taking a shower. Bareiss proceeded to the shower to check on decedent.
Defendant Bareiss then found that decedent had not, in fact, taken a shower but had proceeded to *436 take a tub bath and had apparently suffered a seizure, causing his death by drowning.
Each defendant brought a motion for summary judgment based on GCR 1963, 117.2(1), contending that plaintiffs had failed to state a claim upon which relief could be granted. The trial court granted said motions and plaintiffs appeal as of right.
Plaintiffs first claim the trial court erred in granting summary judgments under GCR 1963, 117.2(1). We disagree.
On review of a motion for summary judgment based on GCR 1963, 117.2(1), this Court must accept as true all of the factual allegations of plaintiffs as well as any conclusions which can reasonably be drawn therefrom and determine whether plaintiffs’ claim on the pleadings is so clearly unenforceable as a matter of law that no factual development can possibfy justify a right to recovery. Where immunity from suit is an issue, the complaint must plead facts in avoidance of immunity.
Armstrong v Ross Twp,
It is well settled that operation of a "public” mental health institution is a governmental function within the meaning of MCL 691.1407; MSA 3.996(107) to which the principle of governmental immunity from tort liability applies.
Perry v Kalamazoo State Hospital,
We believe the proper test to apply to determine
*437
whether a public employee is cloaked with governmental immunity is the "scope of employment test”. We decline to follow the ministerial-discretionary test. See
Cook v Bennett,
While this writer recognizes that, in his partial dissenting opinion in
Gaston v Becker,
"* * * The Center for Forensic Psychiatry therefore performs a governmental function in such instances.
"Likewise, the personnel employed by the center are acting within the scope of a governmental function. As such, they are cloaked with governmental immunity. Galli v Kirkeby,398 Mich 527 , 543, 544;248 NW2d 149 (1976); Lockaby v Wayne County,406 Mich 65 , 84;276 NW2d 1 (1979) (Moody, J., concurring in part, dissenting in part). This is particularly true in the present case. A contrary holding would result in the center facing extreme difficulty in hiring qualified personnel to perform the center’s statutorily appointed tasks and would vitiate the enabling statute by indirection. This we cannot condone.” (Emphasis supplied.) Fuhrmann, supra, p 435.
*438 Under the scope of employment test, to avoid the defense of governmental immunity plaintiffs must have pled that defendants’ acts were ultra vires or outside the scope of their employment. We find plaintiffs failed to allege sufficient facts in avoidance of governmental immunity as to each of the defendants herein. The court properly granted defendants’ motions for summary judgment.
Second, plaintiffs claim the trial court failed to consider the pleadings before it and improperly treated the motions as being under GCR 1963, 116, as a request for accelerated judgment. We find this argument to be without merit. As noted in Fuhrmann, supra, p 433, a motion for summary judgment pursuant to GCR 1963, 117.2(1) "challenges the legal sufficiency of the complaint and must be evaluated with reference to the context of the complaint alone”. The trial court’s reliance upon Perry, supra, and Fuhrmann, supra, clearly reveals the grounds the court relied upon.
Affirmed. No costs, a public question involved.