Young v. City of Ann Arbor
382 N.W.2d 785
Mich. Ct. App.
1985
Check Treatment

On Remand

Before: R. M. Maher, P.J., and Allen and M. J. Kelly, JJ. *335 Per Curiam.

This is the third occasion for this case before this Court. Originally, we held that because the alleged negligent acts of defendant Police Chief Walter Krasny were ministerial in nature he was not entitled to assume the cloak of official immunity to shield himself from potential liability. Young v Ann Arbor, 119 Mich App 512, 519; 326 NW2d 547 (1982). Judge Maher dissented.

Subsequently, application for rehearing was granted. Upon rehearing, we concluded that under the "scope of employment” test for individual immunity defendant Krasny would be entitled to claim official immunity. Therefore, we reversed our earlier opinion and affirmed the trial court’s direction of verdict in Krasny’s favor. Young v Ann Arbor (On Rehearing), 125 Mich App 459, 461-462; 336 NW2d 24 (1983). Judge (now Justice) Cavanagh dissented, claiming that the proper test for individual immunity remained the discretionary-ministerial test.

Justice Cavanagh was the better prophet. Upon application for leave to appeal, the Supreme Court, in lieu of granting leave to appeal, remanded the case to this Court for reconsideration in light of the Supreme Court’s opinion in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). 422 Mich 900 (1985) (Cavanagh, J., not participating). (1985). In that case, the Supreme Court reaffirmed its support of the discretionary-ministerial test, now known as the "discretionary-decisional versus ministerial-operational” test.

Applying that test to the facts of this case, we readopt our original holding that defendant Krasny’s alleged negligence was ministerial-operational in nature. It will be recalled that the Ann Arbor *336 facility was mandated to follow departmental rules and regulations. Defendant Krasny was responsible for overseeing and enforcing relevant policies and practices. He had no discretion, therefore, to permit deviations from those rules and regulations. Paraphrasing Ross, supra, defendant Krasny’s actions were those which involved the performance of a duty in which he had little or no choice, the execution of which might have entailed some minor decisions. Thus, under Ross, supra, defendant Krasny is not entitled to individual immunity. Having so decided, it is still necessary to determine whether the trial court properly granted a directed verdict in his favor.

On appeal from a trial' court order granting a motion for a directed verdict, this Court will view the evidence presented in the light most favorable to the nonmoving party. Cody v Marcel Electric Co, 71 Mich App 714; 248 NW2d 663 (1976), lv den 399 Mich 851 (1977); Hensley v Colonial Dodge, Inc, 69 Mich App 597; 245 NW2d 142 (1976). The proper test for determining whether the motion should be granted is whether or not evidence was offered upon which reasonable minds could differ. Armstrong v LeBlanc, 395 Mich 526; 236 NW2d 419 (1975).

It has already been established that defendant’s duty was to see that the required departmental rules and regulations were enforced. Defendant’s own testimony indicates that he did not require compliance. That evidence is sufficient to preclude the direction of a verdict in his favor. The trial court committed reversible error in so directing.

Reversed. No costs.