MAURER
v.
McMANUS
Docket No. 90248.
Michigan Court of Appeals.
Decided June 16, 1987.Robert D. Mouradian, for plaintiffs.
Feikens, Foster, Vander Male & DeNardis, P.C. (by Dennis J. Mendis and L. Neal Kennedy), for defendants.
Before: WAHLS, P.J., and R.M. MAHER and J.T. KALLMAN,[*] JJ.
R.M. MAHER, J.
Plaintiffs appeal as of right from the January 6, 1986, order of the Washtenaw Circuit Court granting defendants' motion for summary disposition on plaintiffs' claims of medical malpractice and negligence pursuant to MCR *41 2.116(C)(7), immunity granted by law. Plaintiffs also appeal that aspect of the circuit court's order striking, on its own motion pursuant to MCR 2.115(B), plaintiffs' other claims not subject to governmental immunity.
I. FACTS
Plaintiffs' claims arise out of the care and treatment provided to Mark Maurer while he was an inpatient at Children's Psychiatric Hospital, a division of the University of Michigan Hospital. The individually named defendants were staff members at the hospital while Mark Maurer was a patient.
The facts, as set forth in the complaint, are as follows. Mark was an inpatient at Children's Psychiatric Hospital from July 7, 1981, until May of 1982. He was eight years old at the time of his admission. In the course of his treatment as an inpatient, Mark was repeatedly threatened and sexually assaulted by a fellow patient named "Billy." Billy was a twelve-year-old resident in the same ward. Defendants knew that sexual assaults had taken place on the ward and were aware that Billy was a threat to the other children. However, defendants failed to prevent or investigate the attacks.
Plaintiffs' circuit court complaint was filed on October 31, 1983. On December 8, 1983, the parties stipulated to a consolidation of the circuit court claims with claims previously filed in the Court of Claims. The consolidated claims of plaintiffs are denominated as: (1) malpractice; (2) negligence; (3) gross negligence; (4) assault, (5) deprivation of civil rights; (6) intentional infliction of emotional distress; (7) breach of implied contract; (8) defective building and supervision; (9) nuisance; (10) civil conspiracy; and (11) loss of consortium.
*42 On July 15, 1985, defendants filed a motion for summary disposition, alleging that the crux of plaintiffs' claims was malpractice or negligence and expressing a "sincere" belief that Mark was given proper care during his admission at Children's Psychiatric Hospital. More significantly for the purposes of this appeal, defendants asserted that they were all immune from tort liability under 1964 PA 170 as amended by 1970 PA 155, MCL 691.1401 et seq.; MSA 3.996(101) et seq., and requested relief under MCR 2.116(C)(7).
A hearing was held on defendants' motion on December 19, 1985. At the hearing, defendants continued to assert that summary disposition was proper on plaintiffs' medical malpractice and negligence claims under MCR 2.116(C)(7). Additionally, and for the first time, defendants asserted that summary disposition under MCR 2.116(C)(8) should be granted on plaintiffs' other claims because they were either redundant or failed to state a claim. The circuit court took the motion under advisement. On January 6, 1986, the circuit court issued an order granting summary judgment on plaintiffs' malpractice and negligence claims under MCR 2.116(C)(7), citing Ross v Consumers Power Co (On Rehearing), 420 Mich. 567; 363 NW2d 641 (1984). The trial court also struck plaintiffs' remaining claims, noting that they were redundant and poorly drawn, citing MCR 2.115. Plaintiffs appeal from that order.
II. GOVERNMENTAL IMMUNITY
A. Applicable Law.
The first matter to be addressed in this appeal is whether the trial court erred by applying the rule of Ross, supra. In Ross, our Supreme Court largely *43 rewrote the law of governmental immunity. However, the Ross Court gave no indication as to whether its new rules would be applicable to pending cases. Plaintiffs' complaint was filed on October 31, 1983 fourteen months prior to Ross. Defendants' motion for summary disposition was not filed until July 15, 1985 some six months after Ross.
In Hyde v University of Michigan Bd of Regents, 426 Mich. 223; 393 NW2d 847 (1986), our Supreme Court held that Ross was to have a "limited retroactive application" which the Court explained as follows:
[T]he rules articulated in Ross apply to all cases commenced after January 22, 1985, the date our opinion was issued, and to those cases pending either in trial or appellate courts on January 22, 1985, in which a governmental immunity issue was properly raised and preserved. [Hyde, supra, 230.]
That rule appears simple on its face. However, as anticipated by the Hyde dissent, it is somewhat more complicated in application.
In Powers v Peoples Community Hospital Authority, 426 Mich. 223; 393 NW2d 847 (1986), a case consolidated with Hyde, the complaint was also filed after Parker v City of Highland Park, 404 Mich. 183; 273 NW2d 413 (1978), but before Ross. After stating its rule of limited retroactivity, the Supreme Court reasoned:
In Powers, plaintiff's malpractice claim was filed after Parker was decided. Ross was issued while the case was still pending in circuit court. The court correctly concluded that plaintiff's claim should be denied pursuant to Ross. [Powers, supra, p 242.
*44 Obviously, the fact that the Powers claim was filed after Parker but before Ross does not dispose of the issue of whether governmental immunity had been preserved. Moreover, somewhat earlier in Powers, the Court had noted that the defendant hospital had moved for summary judgment on the ground of governmental immunity only after Ross was released. Powers, supra, p 236. Some resolution to this problem is provided in footnote 7 of Powers, where the Court explained:
This [post-Ross summary judgment motion] was the first time that the PCHA had raised the "defense" of governmental immunity. However, the PCHA's failure to raise the issue in its first responsive pleading did not waive it. See n 35. Plaintiff's complaint, filed prior to Ross, contained sufficient facts to raise a governmental immunity issue, or more specifically, a lack thereof. The complaint indicated that the PCHA operated a public general hospital, which was not entitled to immunity from tort liability pursuant to Parker. Moreover, paragraph two alleged that the PCHA was a profit-making institution. This allegation was sufficient to invoke the statutory "proprietary function" exception. [Powers, supra, p 236, n 7.]
Footnote 35, in turn, explains:
Unlike other claims of immunity, sovereign and governmental immunity are not affirmative defenses, but characteristics of government which prevent imposition of tort liability. Ross, supra; Galli [v Kirkeby, 398 Mich. 527, 541, n 5; 248 NW2d 149 (1976)]; McCann v Michigan, 398 Mich. 65, 77, n 1, 247 NW2d 521 (1976). Compare MCR 2.111(F)(3)(a). [Powers, supra, p 261, n 35.]
Thus, although it is not expressly stated in Powers, we are led to believe that the rule of *45 limited retroactivity allows the issue of governmental immunity to be preserved solely by a plaintiff's pleadings in avoidance thereof prior to Ross. The fine print in which this rule is embodied does some injustice to the irony it promulgates. But then justice would appear to have little to do with a rule that penalizes those plaintiffs who pled most carefully in the tumultuous years prior to Ross. Nevertheless, the pleadings in the instant case, whether by genius or serendipity, have avoided the immediate pitfall of Powers. Here, although the complaint was filed after Parker and before Ross, it does not specifically allege that defendants were not entitled to immunity, nor does it allege that the defendant hospital was profit-making or that it was engaged in proprietary functions.
The complaint in this case does include a number of claims which, if properly stated, might avoid the effects of governmental immunity. Defendants have alleged that these claims were nothing more than an unsophisticated attempt to circumvent the rule of governmental immunity. Thus, defendants argue that plaintiffs raised the issue of immunity by pleading in avoidance thereof in much the same manner as the Powers plaintiffs.
We would be less than frank to deny our own inclination to view the plaintiffs' pleadings as an attempt to avoid the effects of governmental immunity. Nevertheless, we are unconvinced that plaintiffs' pleadings have preserved the issue of governmental immunity in the same manner as that endorsed by the Powers Court. While the profit-making or proprietary function pled in Powers has no ordinary meaning apart from the issue of governmental immunity, the additional claims of the plaintiffs at bar might state causes of action whether pled against a governmental or nongovernmental *46 entity.[1] We are not prepared to divine the true purposes of plaintiffs in pleading these claims. Such a step would take us beyond the harsh irony of Powers, into its Kafkaesque shadows. We therefore conclude that the issue of governmental immunity was not properly raised and preserved prior to January 22, 1985. Ross is therefore inapplicable to plaintiffs' claims.
B. The Pre-Ross Immunity of the Governmental Entity.
Since plaintiffs' claims against the defendant governmental entity were filed subsequent to Parker v City of Highland Park, supra, and since Ross is inapplicable, the issue of governmental immunity must be decided under the rule of Parker. Murray v Beyer Memorial Hospital, 409 Mich. 217; 293 NW2d 341 (1980). In Parker, our Supreme Court held that activities conducted by a municipally owned general hospital providing medical services to the public for fees do not constitute a governmental function and therefore are not entitled to immunity. Following Parker, we held in Churchwell v Regents of the University of Michigan, 97 Mich. App. 463; 296 NW2d 75 (1980), that the activities of the University of Michigan Hospital, though state-owned, did not constitute a governmental function entitled to immunity. We see no reason to review Churchwell's interpretation of Parker at this late date. We therefore hold that the defendant governmental entity is not entitled to immunity. The trial court erred by granting summary disposition under MCR 2.116(C)(7) to this defendant.
*47 III. OFFICER IMMUNITY.
A. Applicable Law.
Sovereign or governmental immunity, as noted in the Powers footnote quoted supra, are not affirmative defenses, but rather characteristics of government which prevent imposition of tort liability. It is for this reason that Michigan courts have held that plaintiffs must plead affirmatively in avoidance of sovereign or governmental immunity to state a claim against governmental entities. See Hoffman v Genessee Co, 157 Mich. App. 1; 403 NW2d 485 (1987). On the other hand, immunity is not an inherent characteristic of individual governmental employees and therefore must be raised as an affirmative defense in responsive pleadings. Hoffman, supra. See also MCR 2.111(F)(3). Thus, defendants argue that they were themselves entitled to raise the issue as to the individual defendants and the issue might therefore have been preserved prior to Ross, although not raised in the complaint.
We fully agree with this aspect of defendants' argument, though the fact remains that none of the defendants raised the issue of governmental immunity prior to Ross. Defendants acknowledge this fact, but argue further that they might have amended their pleadings to add the affirmative defense of governmental immunity. Defendants point out that, under MCR 2.118(D), an amendment would relate back to the date of their original response, which predated Ross.
There are two problems with this argument. First, defendants have not moved to amend their pleadings either in the trial court, under MCR 2.118(A), or in this Court, under MCR 7.216(A)(1). Moreover, as one commentator has explained, the *48 chief purpose of the rule allowing the relation back of amendments is to determine whether or not the statute of limitations has been satisfied. 1 Martin, Dean & Webster, Michigan Court Rules Practice, pp 474-481. We confess a great deal of trepidation in response to defendants' invitation to extend this rule from avoidance of the statutes of limitation to avoidance of stare decisis. Finally, excluding gross legal malpractice, to allow a relation back of amendments in this instance would be to entirely nullify the "limited" retroactive application of Ross apparently anticipated in Hyde and Powers. Therefore, addressing only those arguments raised by defendants, we would be inclined to apply pre-Ross law to the claims against the individual defendants. However, giving further consideration to the matter, we believe that it would be grave and perhaps ludicrous error to do so.
Although the matter was given scant attention by the parties in their briefs and arguments before this Court, Ross not only rewrote the law of governmental immunity as applied to governmental entities, but also as to individual employees sometimes referred to as the law of officer immunity. As explained in Ross:
The governmental immunity act does not address whether or when individual officers, employees, and agents are immune from tort liability. It merely authorizes governmental agencies to defend, indemnify, and insure officers and employees who have committed negligent torts during the course of their employment and while acting within the scope of their authority. §§ 8, 9. Thus, the existence and scope of individual immunity continues to be a creature of judicial decision-making. [Ross, supra, pp 628-629.]
As further explained in Ross, the law of individual *49 immunity was quite settled in Michigan prior to 1979: Officers and agents and employees were immune when engaged in discretionary, as opposed to ministerial, acts which were within the scope of their authority. Ross, supra, pp 625-626, citing Wall v Trumbull, 16 Mich. 228, 235-238 (1867).
In 1979, two plurality decisions of our Supreme Court unsettled the law of individual governmental immunity. Bush v Oscoda Area Schools, 405 Mich. 716; 275 NW2d 268 (1979); Lockaby v Wayne Co, 406 Mich. 65; 276 NW2d 1 (1979). Following those decisions, this Court split three ways on the issue of officer immunity. Most panels held that governmental employees are generally immune when the tort occurs in the scope of their employment. See, e.g., Knapp v Moreno, 137 Mich. App. 769; 359 NW2d 560 (1984), vacated 422 Mich. 886 (1985). Other panels held that governmental employees are generally immune when the tort occurs within the scope of their employment, but only if their employment was within a "governmental function" as then defined. See, e.g., Pomilee v Detroit, 121 Mich. App. 121; 328 NW2d 595 (1982), lv den 422 Mich. 891 (1985). Still others continued to apply the ministerial/discretionary test established prior to Bush and Lockaby. See, e.g., Fisher v Dep't of Mental Health, 128 Mich. App. 72; 339 NW2d 692 (1983), rev'd 422 Mich. 884 (1985).
Ross seemingly put an end to the chaos following Bush and Lockaby by reinstituting a modified ministerial/discretionary test for officer immunity. However, if we were to give literal effect to Hyde, the relatively safe haven of Ross would be out of reach and we would be thrown once again into the chaos of the Bush and Lockaby plurality decisions.
The effect of deciding these tort claims under *50 the pre-Ross Michigan law of officer immunity would be alternately fascinating, perverse and paradoxical. Perhaps the first question one might ask is what pre-Ross law applies? Should panel members refer to their own pre-Ross decisions?[2] Should new members of this Court return to the fertile ground of Bush and Lockaby for yet another Michigan common law rule of officer immunity? Might new splits be resolved by a Supreme Court deciding what it might have held if it had never decided Ross? It is one thing to come face to face with irony, stepping through the looking glass is entirely another matter.
We decline to apply Hyde to the issue of officer immunity for the technical reason that the issue was not before the Hyde Court. We decline to apply pre-Ross law to the issue of officer immunity for the simple and practical reason that Michigan had no pre-Ross law of officer immunity. We therefore hold that the individual defendants in this case are subject to the law of officer immunity as set forth in Ross and subsequent decisions of this Court.
B. Application of the Law.
The now-familiar rule of Ross regarding officer immunity is as follows:
Lower level officials, employees, and agents are immune from tort liability only when they are
1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority,
2) acting in good faith; and
*51 3) performing discretionary, as opposed to ministerial acts. [Ross, supra, pp 633-634.][[3]]
Here there has been no allegation that the individual defendants acted in bad faith, nor is it disputed that the defendants were, at all pertinent times, acting within the scope of their employment. The only remaining issue under Ross is whether plaintiffs have properly pled that defendants were engaged in ministerial, rather than discretionary, acts.
The Ross Court has provided considerable guidance in distinguishing discretionary from ministerial acts:
"Discretionary" acts have been defined as those which require personal deliberation, decision, and judgment. Prosser, [Torts (4th ed)], § 132, p 988. This definition encompasses more than quasi-judicial or policy-making authority, which typically is granted only to members of administrative tribunals, prosecutors, and higher level executives. However, it does not encompass every trivial decision, such as "the driving of a nail," which may be involved in performing an activity. For clarity, we would add the word "decisional" so the operative term would be "discretionary-decisional" acts.
"Ministerial" acts have been defined as those which constitute merely an obedience to orders or the performance of a duty in which the individual has little or no choice. Id. We believe that this definition is not sufficiently broad. An individual who decides whether to engage in a particular activity and how best to carry it out engages in discretionary activity. However, the actual execution of this decision by the same individual is a ministerial act, which must be performed in a nontortious manner. In a nutshell, the distinction between "discretionary" and "ministerial" acts is that the former involves significant decision-making, while the latter involves the execution of a *52 decision and might entail some minor decision-making. Here too, for clarity, we would add the word "operational" so the operative term would be "ministerial-operational" acts.
Many individuals are given some measure of discretionary authority in order to perform their duties effectively. Therefore, to determine the existence and scope of the individual's immunity from tort liability in a particular situation, the specific acts complained of, rather than the general nature of the activity, must be examined. The ultimate goal is to afford the officer, employee, or agent enough freedom to decide the best method of carrying out his or her duties, while ensuring that the goal is realized in a conscientious manner. [Ross, supra, pp 634-635.]
Turning again to the complaint, we find that some of the allegations of negligence are directed toward ministerial acts, while others are addressed to more discretionary acts of the individual defendants. In the former category are the following allegations of negligence or malpractice contained in paragraph 21:
21. that Defendants herein were negligent and violated the standards of care required of them as professionals in the care, treatment and housing of Mark Maurer during his stay at the said Children's Psychiatric Hospital in the following manner:
a. Failed to ensure that Mark Maurer was free from physical and emotional harm through physical or sexual assaults and abuse by fellow patients at said hospital.
* * *
c. Failed to properly supervise the patients on the ward or floor where Mark Maurer was a resident to ensure his safety.
d. Failed to properly investigate complaints and information regarding threats, physical and sexual assaults, and abuse upon Mark Maurer which *53 were brought to their attention by Mark Maurer and his parents.
In our view, the staff of a psychiatric hospital may exercise considerable judgment or deliberation in deciding whether to provide inpatient care and what the nature of the care, i.e., the treatment plan, will be. However, once the decision has been made to provide such care, it must be carried out in a conscientious manner. Bolton v Jones, 156 Mich. App. 642; 401 NW2d 894 (1986). It cannot seriously be contended that defendants retained discretion to allow or ignore repeated physical or sexual assaults upon patients entrusted to their care.[4] We hold that plaintiffs have properly pled that the negligent acts of the individual defendants occurred in the course of ministerial duties.
Since the pleadings establish that the individual defendants were acting in the course of ministerial duties during some of the acts of negligence, they are not entitled to officer immunity under Ross. The trial court erred in granting summary disposition to the individual defendants under MCR 2.116(C)(7).
IV. THE ORDER OF SUMMARY DISPOSITION ON PLAINTIFFS' ALTERNATIVE THEORIES.
As we have previously noted, plaintiffs have leveled eleven separate claims in their complaint each arising out of the same transaction or occurrence. After disposing of plaintiffs' malpractice and negligence claims under a theory of governmental immunity, the trial court took exception to the "unconventional-practice [sic] of the plaintiffs in raising a multiplicity of purported causes of action from the same series of incidents...." On its own motion, the trial court then *54 proceeded to strike plaintiffs' claims under these alternative theories, citing MCR 2.115. On appeal plaintiffs take exception to the trial court's action in doing so.
The Michigan Court Rules provide in pertinent part:
(B) Motion to Strike. On motion by a party or on the court's own initiative, the court may strike from a pleading redundant, immaterial, impertinent, scandalous, or indecent matter, or may strike all or part of a pleading not drawn in conformity with these rules. [MCR 2.115(B).]
Here, the trial court ruled that plaintiffs' alternative theories were not properly pled; that they failed to state claims upon which relief may be granted. MCR 2.116(C)(8).
We find no error in plaintiffs' election to plead various types of claims based upon the same transaction or occurrence. See, generally, 2 Martin, Dean & Webster, Michigan Court Rules Practice, pp 28-33. We are inclined to agree with the trial court's conclusion that plaintiffs' alternative theories were not properly drawn. On the other hand, we also note that plaintiffs had previously filed a motion to amend their complaint. Furthermore, we are aware that Michigan's liberal rule of amended pleadings is well-established under MCR 2.118(A)(2) and case law. Commodities Export Co v Detroit, 116 Mich. App. 57; 321 NW2d 842 (1982). We conclude that it was an abuse of discretion on the part of the trial court to strike the alternative theories under these circumstances without a hearing. Commodities Export Co, supra. Nevertheless, we do not preclude the trial court from striking any or all of these claims upon remand after affording plaintiffs a hearing on their motion.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Costs to plaintiffs.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] As discussed in Part III, infra, we take no position on whether these claims do state causes of action or are subject to summary disposition under MCR 2.116(C)(8).
[2] As an aside, it should be noted that, if we were to apply the pre-Ross rule of the majority of the panels of this Court, the positions of counsel at oral argument would be perverse. Plaintiffs, who urged that pre-Ross law should prevail, would find that there was no liability on the part of the individual defendants and, hence, no vicarious liability on the part of the governmental entity. Defendants, of course, argued contrary to this result.
[3] It is not alleged that any tortious act was committed by the members of the board of regents in their individual capacities.
[4] Paragraph 17 of the complaint states that defendants were aware of sexual assaults upon Mark Maurer "at various times."