Gaston v. Becker

Bronson, P.J.

Plaintiff, Yvonne Gaston, appeals as of right from an order granting summary judgment for defendants DeMarte, Steudle, and Cherry Hill School District (hereinafter defendants), pursuant to GCR 1963, 117.2(1), based on the govern*695mental immunity statute, MCL 691.1407; MSA 3.996(107).

Plaintiffs complaint arose out of alleged repeated, slanderous remarks and assaults and batteries by a teacher, defendant Becker, on her son, Sam McIntosh. Yvonne Gaston, individually and as her son’s next friend, commenced this action against Cherry Hill School District, its superintendent, the principal, and the teacher.

Only Counts II and III are pertinent to this appeal. Count II alleges defendants’ negligence in the screening, hiring, and supervision of Becker. Count III alleges defendants’ vicarious liability for Becker’s conduct under the doctrine of respondeat superior. The trial court found that the defense of governmental immunity barred Counts II and III.

I

We agree with Judge Holbrook’s partial dissent, infra, that the school board is immune from negligence in the hiring and supervision of defendant Becker. However, we disagree with the partial dissent to the extent that it implies that any function carried out as part of the operation of a public school is an activity leaving the school district without liability because of the doctrine of governmental immunity. We are not sure that the panel of this Court which decided Deaner v Utica Community School Dist, 99 Mich App 103; 297 NW2d 625 (1980), really meant to hold that every incident of a public school’s operation constitutes a governmental function. Both Judge Holbrook’s partial dissent in this case and the majority opinion in Churilla v School Dist for City of East Detroit, 105 Mich App 32; 306 NW2d 381 (1981), cite Deaner for this proposition, however. The dissent in Churilla centered on Justice Moody’s *696views concerning governmental immunity as expressed in Parker v City of Highland Park, 404 Mich 183; 273 NW2d 413 (1978), and Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978).1 In Parker, supra, 200, Justice Moody stated:

"To delineate a complete and balanced definition of governmental function within a simplistic format would be presumptuous. However, as a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government’s ability to govern, activities that fall outside this perimeter, although performed by a government agency, are not governmental functions and therefore not immune.” (Emphasis added.)

The majority in Churilla and Judge Holbrook impliedly in this case analyzes Justice Moody’s position as an all-or-nothing approach. That is, either all of the governmental unit’s operational activities are immune from tort liability or none are. We believe, however, that the emphasized portion of Justice Moody’s opinion in Parker supports the notion that the specific activities complained of and performed by the governmental agency are of paramount importance to resolving the immunity question and not simply the governmental unit’s overall purpose. Thus, in Churilla, *697the dissent concluded that an extracurricular school football program is not a "uniquely governmental” function nor school district liability arising from injuries sustained during such a program "an unacceptable interference with government’s ability to govern”. We agree with the Deaner panel, however, that the government’s pervasive role in education and the inadequacy of private schools’ ability to provide free and universal education makes a public school’s operations, when specifically related to education qua education, immune from liability. In the instant case, we believe that the hiring and supervision of teachers is a function that is the essence of government in the sense used by Justice Moody. Public education obviously cannot be carried out without the hiring and supervision of teachers. Thus, we agree that the school district is immune from liability for the acts of negligence pled in this case.

II

We disagree with Judge Holbrook’s analysis concerning the potential liability of the superintendent and principal. In our opinion, four members of the Supreme Court would hold them entitled to the cloak of the school district’s immunity from suit. In Bush v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 (1979), the Supreme Court dealt with the problem of a superintendent’s and principal’s liability for negligence. Justice Moody, joined on this point by Chief Justice Coleman, stated that a superintendent and principal were immune from liability for ordinary negligence. Justice Williams basically took the same position, except that he analyzed the problem as whether the injurious acts were ultra vires. There is no doubt that the supervision of a teacher by a *698principal or superintendent is not an ultra vires act even if negligently performed. Justice Ryan, joined by Chief Justice Coleman, would have held the school district and individual defendants to have been immune from liability under any of the theories advanced based on the doctrine of governmental immunity and the inapplicability of any of the statutory exceptions.

Instead of attempting to divine the impact of Bush on this case, Judge Holbrook’s partial dissenting opinion notes the confused state of Supreme Court precedent and analyzes the problem in accordance with other opinions from this Court distinguishing ministerial and discretionary acts. If the acts complained of are ministerial only, the individual defendants would not be immune from suit. See Cook v Bennett, 94 Mich App 93; 288 NW2d 609 (1979), and Vargo v Svitchan, 100 Mich App 809; 301 NW2d 1 (1980). We note Judge Bashara’s partial dissent in Cook in which he observes that the governmental immunity statute2 does not distinguish between discretionary and ministerial acts. Relying on Justice Williams’ opinion in Bush, Judge Bash ara contends that the proper test to apply is merely whether the principal and superintendent were acting within the scope of their employment. If so, they cannot be held liable.

We are inclined to agree with Judge Bashara’s view. However, in our opinion, to adopt this position requires some comment on Justice Moody’s statement in Bush that the individual defendants, who were held immune from liability, were engaged primarily in the exercise of "discretionary *699activities”. Justice Moody’s opinion at least suggests that the discretionary-ministerial dichotomy does indeed have continuing vitality.

It is our belief that Justice Moody’s subsequent opinion in Lockaby v Wayne County, 406 Mich 65, 83-84; 276 NW2d 1 (1979), shows that he, like Justice Williams, is really concerned with whether the individual defendants were acting within the scope of their employment as opposed to whether their activities were discretionary. In Lockaby, Justice Moody stated:

"However, plaintiff fails to state a cause of action against the defendants under Count II of his complaint. The operation of a county jail is essentially a governmental function. The county is, therefore, immune under this claim. See Parker, supra; Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978). In addition, the officers and employees of the county, while acting within the scope of their employment maintaining a jail, primarily are performing essential public duties. Thus, they are immune from alleged negligent actions or selection of personnel. See Bush v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 (1979).” Id., 84.

As can be seen, Justice Moody did not give the slightest hint that a distinction between discretionary and ministerial activities was important to his decision. We believe his reference in Bush to "discretionary activities” had no significance to his holding. Instead, Justice Moody was merely recognizing the extensive executive and limited judicial authority of the individual defendants in Bush. Consequently, under the standards set forth in Cook, supra, 100, we believe the majority there reached the wrong result in finding the principal’s functions to have been ministerial only.

*700III

We agree with Judge Holbrook’s conclusion that under certain circumstances a governmental unit may be liable under the doctrine of respondeat superior for an agent’s intentional misconduct. Each of the four opinions in McCann v State of Michigan, 398 Mich 65; 247 NW2d 521 (1976), implies as much.

In the instant case, plaintiff alleges that her son was choked and beaten on several occasions by defendant Becker without "justification or provocation”. Additionally, plaintiff avers that her son was slurred by defendant Becker without provocation. These epithets included the following: "nigger”, "dumb”, "immature”, "helpless”, "black liar”, and "homosexual”. These allegations, if proven, involve activity outside the exercise or discharge of a governmental function. Thus, the doctrine of governmental immunity would insulate neither Becker nor the school district from liability.

Only after it has been determined that the doctrine of governmental immunity does not protect the governmental unit from liability does any question of vicarious liability based upon respondeat superior arise. As Judge Holbrook’s opinion notes, only if plaintiffs son reasonably could have viewed Becker’s actions as within the scope of his apparent authority could the school district be liable on a respondeat superior theory. It is this aspect of the case which we are most troubled by. Ultimately, we do not believe that any factual development can arise which could justify the finder of fact in concluding that the racial and sexual slurs alleged to have occurred here were *701within the apparent scope of Becker’s employment. As concerns the remainder of the verbal assaults and the use of physical force, however, we think it is conceivable that a rational finder of fact could conclude that plaintiffs son believed Becker was acting within the apparent scope of his employment.

Finally, we agree with Judge Holbrook that neither the superintendent nor principal can be held liable for Becker’s torts under the doctrine of respondeat superior.

IV

To summarize our views, we believe that the order granting summary judgment in favor of the principal and superintendent was correctly entered on the basis of governmental immunity. We further believe that defendant school district cannot be held liable for its alleged negligence because of the doctrine of governmental immunity. We also believe, however, that the school district is potentially liable on a respondeat superior theory. However, to prevail on this theory, plaintiff must prove that unprovoked and unjustified verbal or physical assaults were used by defendant Becker and that plaintiffs son believed the use of this force was within the scope of Becker’s employment.

Affirmed in part, reversed in part, and remanded for trial.

R. M. Ransom, J., concurred.

We perceive Justice Moody’s position on governmental immunity as the key to understanding how the Supreme Court would resolve this issue. Justices Levin, Fitzgerald, and Kavanagh have taken the position that the day-to-day operation of a school is not a governmental function. Conversely, Chief Justice Coleman, Justice Ryan, and Justice Williams have disagreed. See Galli v Kirkeby, 398 Mich 527; 248 NW2d 149 (1976).

MCL 691.1407; MSA 3.996(107).