Beaudrie v. Henderson

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 27, 2001

NICOLE M. BEAUDRIE,

Plaintiff-Appellant,

v No. 114261

PAULINE HENDERSON,

Defendant-Appellee,

and

CITY OF DEARBORN, and DEARBORN

POLICE DEPARTMENT,

Defendants.

____________________________________

YOUNG, J.

Plaintiff was abducted, assaulted, and raped by her

ex-boyfriend. This case pertains to the actions of defendant

Pauline Henderson, a police dispatcher and friend of the

assailant’s mother. Defendant Henderson allegedly was

contacted at her place of employment by the assailant’s mother

while plaintiff was being held captive. Plaintiff alleged

that defendant was grossly negligent and engaged in active

misconduct when she failed to notify the police of the

whereabouts of plaintiff’s assailant and acted in concert with

the assailant’s mother in withholding information from

authorities. Defendant argued that the public duty doctrine

shielded her from liability, and moved for summary disposition

under MCR 2.116(C)(8). The trial court denied defendant’s

motion, but the Court of Appeals reversed.

We granted leave to consider whether the public duty

doctrine, first recognized by this Court in White v Beasley,

453 Mich 308; 552 NW2d 1 (1996), should be extended to protect

governmental employees other than police officers who are

alleged to have failed to provide protection from the criminal

acts of third parties. We conclude that, given the

comprehensive governmental immunity statute, MCL 691.1407,1

1
MCL 691.1407 provides, in relevant part:

(1) Except as otherwise provided in this act,

a governmental agency is immune from tort liability

if the governmental agency is engaged in the

exercise or discharge of a governmental function.

Except as otherwise provided in this act, this act

does not modify or restrict the immunity of the

state from tort liability as it existed before July

1, 1965, which immunity is affirmed.

(2) Except as otherwise provided in this

section, and without regard to the discretionary or

ministerial nature of the conduct in question, each

officer and employee of a governmental agency, each

(continued...)

2

this judicially created doctrine should not be so extended.

Thus, we reverse the decision of the Court of Appeals and

remand this case to the trial court for further proceedings.

I. Factual and Procedural Background

Because this appeal arises under MCR 2.116(C)(8), we take

all material facts from plaintiff’s first amended complaint.

According to her complaint, plaintiff was abducted by her

ex-boyfriend, David Wilke, on April 6, 1994. Earlier that

day, plaintiff had given preliminary examination testimony

against Wilke in a case that arose out of a series of prior

1
(...continued)

volunteer acting on behalf of a governmental

agency, and each member of a board, council,

commission, or statutorily created task force of a

governmental agency is immune from tort liability

for an injury to a person or damage to property

caused by the officer, employee, or member while in

the course of employment or service or caused by

the volunteer while acting on behalf of a

governmental agency if all of the following are

met:

(a) The officer, employee, member, or

volunteer is acting or reasonably believes he or

she is acting within the scope of his or her

authority.

(b) The governmental agency is engaged in the

exercise or discharge of a governmental function.

(c) The officer's, employee's, member's, or

volunteer's conduct does not amount to gross

negligence that is the proximate cause of the

injury or damage. As used in this subdivision,

"gross negligence" means conduct so reckless as to

demonstrate a substantial lack of concern for

whether an injury results.

3

assaults committed by Wilke against her, including criminal

sexual conduct. Wilke was released on bond.

At approximately 1:21 a.m. on April 7, 1994, the Dearborn

Police Department issued an all points bulletin (APB)

regarding the suspected abduction, including a description of

Wilke and the vehicle that was believed to be involved. The

police knew that plaintiff had parked her own vehicle in her

driveway, but never made it inside her home. The police also

knew that Wilke had criminal charges pending against him

involving plaintiff, that he had been released on bond, that

he had threatened to kill plaintiff in the past, and that he

had access to handguns.2

Around 9:30 a.m., defendant, who was working as a

dispatcher at the Dearborn Police Department, received a call

from Wilke’s mother, who was defendant’s personal friend.

Wilke’s mother informed defendant that Wilke was missing, that

she believed him to be armed and dangerous, and that it

appeared that he had taken plaintiff with him.

Plaintiff’s first amended complaint further alleged that

2
Plaintiff’s amended complaint specifically quotes the

following portion of the APB:

The victim parked her vehicle in the driveway

and never made it inside at her home in the south

end of our city. The victim has pending csc

charges out against the suspect, and he was freed

on bond today. He has threatened to kill her in

the past and he does have access to handguns.

4

defendant suspected that Wilke had taken plaintiff to a

family-owned trailer at Camp Dearborn. Plaintiff alleged that

defendant contacted Camp Dearborn, represented herself as a

Dearborn police dispatcher, and requested that Camp Dearborn

employees verify whether the suspect vehicle was there. She

gave the employees a description of the vehicle, its license

plate number, and warned them not to approach the vehicle.

Approximately fifteen minutes later, defendant received

notification that Wilke and the vehicle were indeed at Camp

Dearborn. At that point, defendant contacted Wilke’s mother.

Plaintiff alleged that the two women agreed to withhold

information from the police until Wilke’s mother could contact

Wilke’s attorney. Wilke’s mother, having spoken with Wilke’s

attorney, allegedly contacted defendant again at approximately

11:45 a.m., at which time they agreed to withhold information

about Wilke’s whereabouts. At approximately noon, defendant

left Dearborn Police Dispatch, picked up Wilke’s mother and

sister, and drove to Camp Dearborn.

According to plaintiff’s first amended complaint, “[a]s

a direct and proximate result of these acts and/or omissions

by Defendant Pauline Henderson, the brutal rape, beating and

abduction of Plaintiff Nicole Beaudrie was allowed to

continue, and the suspect, David James Wilke, was allowed the

opportunity to escape the fenced perimeter of Camp Dearborn

with his victim.” Plaintiff subsequently filed suit against

5

defendant,3 alleging that defendant’s conduct amounted to

“intentional misconduct . . . active malfeasance, and gross

negligence,” and that plaintiff’s continued victimization was

“a direct and proximate result” of defendant’s actions.

Defendant moved for summary disposition under MCR

2.116(C)(8) on the ground that, under the public duty

doctrine, she did not owe any duty to plaintiff. The trial

court denied the motion. The Court of Appeals then reversed

in a split decision.4

We granted plaintiff’s application for leave to appeal.

463 Mich 888 (2000).

II. Standard of Review

The trial court granted summary disposition to defendants

under MCR 2.116(C)(8). We review that decision de novo.

Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A

motion for summary disposition brought under MCR 2.116(C)(8)

tests the legal sufficiency of the complaint on the basis of

the pleadings alone. The purpose of such a motion is to

determine whether the plaintiff has stated a claim upon which

relief can be granted. The motion should be granted if no

factual development could possibly justify recovery. Spiek v

3
Plaintiff also brought suit against the city of Dearborn

and the Dearborn Police Department. However, those parties

are not involved in this appeal.

4
Unpublished opinion per curiam, issued December 4, 1998

(Docket No. 202304).

6

Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201

(1998).

Summary disposition of a plaintiff’s gross negligence

claim is proper under MCR 2.116(C)(8) if the plaintiff fails

to establish a duty in tort. See Maiden, supra at 135.

Whether a defendant owes a plaintiff a duty of care is a

question of law for the court. Id. at 131.

III. History of the Public Duty Doctrine

It appears that the origins of the common-law public duty

doctrine can be traced to South v Maryland, 59 US (18 How)

396; 15 L Ed 433 (1855). There, the plaintiff was kidnapped

and held for ransom. Upon his release, the plaintiff sued the

county sheriff, alleging that, despite the plaintiff’s request

for protection, the sheriff neglected and refused to protect

him or to otherwise keep the peace. In rejecting the

plaintiff’s claim, the United States Supreme Court held that

the sheriff’s duty to preserve the public peace was “a public

duty, for neglect of which he is amenable to the public, and

punishable by indictment only.” Id. at 403. The Supreme

Court of Tennessee has noted that a clear majority of state

courts considering the issue adhere to the public duty

doctrine in one form or another. See Ezell v Cockrell, 902

SW2d 394, 399, n 5 (Tenn, 1995).

Before our 1996 decision in White, supra, this Court had

not recognized the public duty doctrine. However, the lead

7

opinion in White noted that our Court of Appeals had

consistently relied on the doctrine as early as 1970. See id.

at 322, n 7. A majority of the Court agreed that the public

duty doctrine serves a useful purpose and should apply in

Michigan. Id. at 316 (Brickley, C.J., joined by Riley and

Weaver, JJ.), 330 (Cavanagh, J., joined by Mallett, J.).

IV. The Scope of the Public-Duty Doctrine under White

Before we can determine the future of the public-duty

doctrine in Michigan, it is necessary to examine its current

state. At issue in White was whether the defendant police

officer who failed to assist and protect the plaintiff from a

criminal assault by a third party was liable in tort. This

Court invoked the public duty doctrine and found no liability.

Chief Justice Brickley’s lead opinion in White adopted

the following articulation of the public duty doctrine from

Justice Cooley’s leading 19th century treatise on torts:

[I]f the duty which the official authority

imposes upon an officer is a duty to the public, a

failure to perform it, or an inadequate or

erroneous performance, must be a public, not an

individual injury, and must be redressed, if at

all, in some form of public prosecution. On the

other hand, if the duty is a duty to the

individual, then a neglect to perform it, or to

perform it properly, is an individual wrong, and

may support an individual action for damages.

[White, supra at 316, quoting 2 Cooley, Torts (4th

ed), § 300, pp 385-386.]

However, it is not entirely clear from our fractured

decision in White whether application of the public duty

8

doctrine was intended to apply to all government employees or

only to police officers who are alleged to have failed to

provide police protection. The lead opinion suggested an

expansive application of the doctrine:

In conclusion, we find that the public-duty

doctrine still serves useful purposes. . . .

Government employees should enjoy personal

protection from tort liability based on their

action in conformity with, or failure to conform

to, statutes or ordinances not intended to create

tort liability. The job titles of government

employees alone should not create a duty to

specific members of the public. [Id. at 319.]

Fairly read, nothing in the lead opinion indicated an intent

to limit application of the public duty doctrine to any

particular class of governmental employees.

Justice Boyle agreed with the statement in the lead

opinion that “[a]pplied to police officers, the public-duty

doctrine insulates officers from tort liability for the

negligent failure to provide police protection . . . .” Id.

at 325. She noted that “a contrary result could lead to

officers arresting (and detaining) all persons who might

conceivably jeopardize a foreseeable plaintiff.” Id. at 329­

330. However, Justice Boyle argued that, even when limited to

police officers, the doctrine should only apply to cases

involving nonfeasance, i.e., “‘passive inaction or the failure

to actively protect others from harm.’” Id. at 328, quoting

Williams v Cunningham, 429 Mich 495, 498-499; 418 NW2d 381

(1988).

9

 Justice Cavanagh would have limited the decision “to only

those cases in which liability is alleged on the basis of the

police officer’s failure to protect an individual from the

actions of a third party.” Id. at 330 (Cavanagh, J.,

concurring in part and dissenting in part). He opined that

the case “should have no bearing in a case involving an injury

caused by the police officer’s own actions.” Id. Justice

Cavanagh noted that “the public-duty doctrine recognizes that

police officers and their departments must make discretionary

or policy decisions in order to carry out the duties imposed

on them.” Id. at 331. However, Justice Cavanagh also

suggested that the public duty doctrine should apply to “fire

fighters, life guards, and similar governmental safety

professionals.” Id. at 331, n 1.

Justice Levin dissented, arguing that the public-duty

doctrine is inconsistent with the governmental immunity

statute, which “hold[s] governmental officers and employees,

except those at the highest levels, subject to liability on

the basis of gross negligence, defined as reckless conduct.”

Id. at 342-343.

Clearly then, the various opinions in White offered

relatively little guidance to lower courts regarding the scope

of the doctrine recognized in that case. Since White, the

Court of Appeals has not hesitated broadly to apply the public

10

duty doctrine outside the police protection context.5

V. The Future of the Public Duty Doctrine in Michigan

We now address the issue left open in White: should the

public duty doctrine apply in cases other than those alleging

a failure to provide police protection from the criminal acts

of a third party? As illustrated by our differing opinions in

White, as well as the split decision in the Court of Appeals

in this case, the doctrine has proven to be difficult to

define and apply. Even more important, further expansion of

the doctrine is unwarranted because the governmental immunity

statute already provides government employees with significant

protections from liability.

Thus, we reject further expansion of the public duty

doctrine. The liability of government employees, other than

those who have allegedly failed to provide police protection,

should be determined using traditional tort principles without

regard to the defendant’s status as a government employee.

5
See, e.g., Elmadari v Filiak, ___ Mich App ___; ___ NW2d

___ (2001) (a city maintenance worker owed no duty to a child

injured by an allegedly dangerous slide); McGoldrick v Holiday

Amusements, Inc, 242 Mich App 286; 618 NW2d 98 (2000) (a state

ski lift inspector owed no duty to an injured skier); Koenig

v South Haven, 221 Mich App 711; 562 NW2d 509 (1997), rev’d in

part on other grounds 460 Mich 667; 597 NW2d 99 (1999) (city

officials owed no duty to decedent who was swept off a pier

into a lake during inclement weather); Reno v Chung, 220 Mich

App 102; 559 NW2d 308 (1996), aff’d on other grounds 461 Mich

109; 597 NW2d 817 (1999) (a medical examiner owed no duty to

the plaintiff who was mistakenly convicted of murder in part

because of the examiner’s report).

11

 A. Shortcomings of the Public Duty Doctrine

As stated, the public duty doctrine is widely applied.

The lead opinion in White set forth two commonly cited

justifications for retaining the doctrine: “First, the

doctrine protects governments from unreasonable interference

with policy decisions, and, second, it protects government

employees from unreasonable liability.” Id. at 317. However,

as the Supreme Court of Colorado recognized in Leake v Cain,

720 P2d 152, 158 (Colo, 1986):

[A] growing number of courts have concluded

that the underlying purposes of the public duty

rule are better served by the application of

conventional tort principles and the protection

afforded by statutes governing sovereign immunity

than by a rule that precludes a finding of an

actionable duty on the basis of the defendant’s

status as a public entity.

Indeed, a number of courts that have examined the doctrine in

detail have rejected it.6

As formulated by Justice Cooley, the public duty doctrine

provides only that a plaintiff cannot rely on the fact that a

public employee owes general duties to the public at large to

support a claim of negligence. Justice Cooley explained:

6
See, e.g., Adams v State, 555 P2d 235 (Alas, 1976); Ryan

v State, 134 Ariz 308; 656 P2d 597 (1982); Leake, supra;

Commercial Carrier Corp v Indian River Co, 371 So 2d 1010

(Fla, 1979); Jean W v Commonwealth, 414 Mass 496; 610 NE2d 305

(1993); Maple v Omaha, 222 Neb 293; 384 NW2d 254 (1986);

Brennen v City of Eugene, 285 Or 401; 591 P2d 719 (1979);

Hudson v East Montpelier, 161 Vt 168; 638 A2d 561 (1993);

Coffey v Milwaukee, 74 Wis 2d 526; 247 NW2d 132 (1976).

12

 “The failure of a public officer to perform a

public duty can constitute an individual wrong only

when some person can show that in the public duty

was involved also a duty to himself as an

individual, and that he has suffered a special and

peculiar injury by reason of its nonperformance.”

[2 Cooley, Torts (4th ed), § 300, p 386 (citation

omitted).]

Such an analysis merely states the obvious: a plaintiff must

show some common-law duty owed to him by the public employee.

However, application of the public duty doctrine has not

been so limited. In our view, application of the doctrine has

been reduced to a conclusory statement that where there is a

duty to all, there is a duty to none. Such a “reformulation”

of the doctrine is tantamount to a grant of common-law

governmental immunity, an area already dealt with by statute

in many jurisdictions, including Michigan. The Supreme Court

of Alaska was one of the first courts to reject the doctrine

on precisely this basis. In Adams v State, 555 P2d 235 (Alas,

1976), the plaintiffs were injured in a hotel fire. The hotel

had been inspected eight months earlier by the state fire

marshall’s office. It was alleged that the state inspectors

had failed to abate several hazards that they had discovered.

Rejecting the argument that the state owed a duty only to the

public generally, the Supreme Court of Alaska noted that an

application of the public duty doctrine in that case would

have resulted in a finding of no duty even though “a private

defendant would have owed such a duty . . . .” Id. at 242.

13

In the absence of statutory immunity, the court declined to

make it more difficult to establish a duty when the state is

the defendant. Id.7

Other courts have also recognized that routine

application of the public duty doctrine has resulted in an

artificial distinction between so-called “public” and

“private” duties. In Commercial Carrier Corp v Indian River

Co, 371 So 2d 1010, 1015 (Fla, 1979), the Florida Supreme

Court explained that it is

circuitous reasoning to conclude that no cause of

action exists for a negligent act or omission by an

agent of the state or its political subdivision

where the duty breached is said to be owed to the

public at large but not to any particular person.

In rejecting the public duty doctrine in Ryan v State, 134

Ariz 308, 310; 656 P2d 597 (1982), the Arizona Supreme Court

found the attempt to distinguish between public and individual

duties to be a “speculative exercise.”8

We agree with these sentiments. The fact that a public

employee owes general duties to the public at large does not

logically preclude the imposition of a private, individual

7
As noted in Wilson v Anchorage, 669 P2d 569, 571 (Alas,

1983), the Alaska Legislature has since conferred upon

municipalities immunity from liability arising from negligent

inspections.

8
Following the decision in Ryan, the Arizona Legislature

enacted various immunity provisions. See Clouse v Dep’t of

Public Safety, 194 Ariz 473, 476-477; 984 P2d 559 (Ariz App,

1998).

14

duty. These duties are not mutually exclusive. Consequently,

any attempt to draw a distinction between a government

employee’s “public duty” and “private duty” has proven to be

confusing and prone to arbitrary and inconsistent application.

Consider, for example, the case of building inspectors.

As did the Adams court, the Supreme Court of Wisconsin, in

Coffey v Milwaukee, 74 Wis 2d 526; 247 NW2d 132 (1976),

imposed on a building inspector an actionable duty of care to

perform fire safety inspections in a reasonable manner. The

court held that there was no distinction in that case between

“a ‘public duty’ and a ‘[private] duty.’” Id. at 540.

Reaching the opposite result, in Lynn v Overlook Development,

98 NC App 75, 78; 389 SE2d 609 (1990), aff’d in part and rev’d

in part 328 NC 689; 403 SE2d 469 (1991), the Court of Appeals

of North Carolina held that the duty to carry out building

inspections was owed “not to the plaintiffs, individually, but

to the general public.”9 However, the conclusory analysis in

Lynn merely begs the question why a duty to carry out building

inspections, which undeniably benefits the general public,

cannot also give rise to an individual duty in an appropriate

9
We note that, although it did not expressly overrule

Lynn, the Supreme Court of North Carolina recently decided

that the public duty doctrine should no longer apply outside

the police protection context. Thompson v Waters, 351 NC 462,

464-465; 526 SE2d 650 (2000).

15

case.10

From these examples it is clear that the courts “have not

managed to draw an intellectually defensible line between

immune ‘public’ duties and actionable negligence.” Jean W v

Commonwealth, 414 Mass 496, 510; 610 NE2d 305 (1993) (citation

omitted). We will not attempt to do so because a traditional

common-law duty analysis provides a far more familiar and

workable framework for determining whether a public employee

owes a tort-enforceable duty in a given case. Moreover, as

explained below, the need for an expanded application of the

public duty doctrine has been undermined by the protections

afforded governmental employees by our state’s broad

governmental immunity statute.

B. Relationship Between the Public Duty Doctrine and the

Governmental Immunity Act

A government employee is immune from tort liability under

the governmental immunity statute if all the following

conditions are met:

(a) The officer . . . is acting or reasonably

believes he or she is acting within the scope of

his or her authority.

(b) The governmental agency is engaged in the

exercise or discharge of a governmental function.

(c) The officer’s . . . conduct does not

10
Indeed, Justice Cooley himself recognized that, in the

inspection context, “duties are imposed in respect to the

public and also in respect to individuals.” 2 Cooley, Torts

(4th ed), § 304, p 403.

16

 amount to gross negligence that is the proximate

cause of the injury or damage. As used in this

subdivision, “gross negligence” means conduct so

reckless as to demonstrate a substantial lack of

concern for whether an injury results. [MCL

691.1407(2).]

In our view, the Legislature has expressed through these

provisions its intent to subject lower-level government

employees to potential liability for performing their jobs in

a grossly negligent manner.11 This is so even though the

governmental agency itself would be exempt from liability.

See MCL 691.1407(1). Thus, expanding the common-law public

duty doctrine to shield all government employees from tort

liability is at least arguably inconsistent with this

statutory scheme.12

Even if that were not the case, the fact that the

governmental immunity statute makes public employees immune

from liability for conduct that does not amount to “gross

negligence” and is not “the proximate cause” of the injury

certainly undermines the need for the common-law “immunity”

11
Judges, legislators, and the elective or highest

appointive executive officials of all levels of government

are, of course, absolutely immune from liability for their

policy-making decisions. See MCL 691.1407(5).

12
However, we reject Justice Levin’s suggestion in

White, supra at 355, that MCL 691.1407 “defines the duty

pursuant to which a governmental employee is subject to

liability.” The statute does not create a cause of action.

Plaintiffs are still required to establish a common-law duty.

17

granted by the public duty doctrine.13

The Supreme Court of Vermont employed similar reasoning

in Hudson v East Montpelier, 161 Vt 168, 179; 638 A2d 561

(1993), where it “[d]ecline[d] to adopt the confusing and

inconsistent public duty doctrine as a means of limiting

liability of government employees who are already protected to

some extent by [statutory immunity.]”

We recognize that public employees often are required to

perform various tasks by virtue of their position. However,

“[p]rivate persons [also] have affirmative duties arising from

their employment responsibilities that others do not have.”

Jean W, supra at 508. Again, the governmental immunity act

contemplates that government employees may be held liable for

performing their jobs in a grossly negligent manner. Indeed,

the Legislature has expressly authorized government agencies

to defend and indemnify employees facing potential tort

liability for injuries caused by the employee “while in the

course of employment and while acting within the scope of his

or her authority . . . .” MCL 691.1408(1).

In sum, the Legislature, through the governmental

immunity statute, has signified that a defendant’s status as

13
Although we recognized in White, supra, that the public

duty doctrine is part of tort law, id. at 323, the effect of

the rule arguably is identical to that of governmental

immunity. “Under both doctrines, the existence of liability

depends entirely upon the public status of the defendant.”

Leake, supra at 160.

18

a government employee alone does not preclude liability. We

choose not to undermine that public policy choice by expanding

the application of the judicially created public duty

doctrine.

Consistent with our decision in White, we will, however,

continue to apply the public duty doctrine, and its

concomitant “special relationship” exception,14 in cases

involving an alleged failure to provide police protection.15

We agree with Chief Justice Brickley’s statement in White that

14
Under the “special relationship” test adopted and

applied by a majority of the Court in White, a police officer

may be exposed to liability for failure to protect a plaintiff

from the criminal acts of a third party only if the following

elements are met:

“(1) an assumption by the municipality,

through promises or actions, of an affirmative duty

to act on behalf of the party who was injured;

(2) knowledge on the part of the

municipality’s agent that inaction could lead to

harm;

(3) some form of direct contact between the

municipality’s agents and the injured party; and

(4) that party’s justifiable reliance on the

municipality’s affirmative undertaking . . . .”

[White, supra at 320 (citation omitted).]

15
The Supreme Court of North Carolina has adopted such a

distinction. Thompson v Waters, 351 NC 462, 464-465; 526 SE2d

650 (2000). As has the Supreme Court of Georgia. See

Hamilton v Cannon, 267 Ga 655; 482 SE2d 370 (1997); Dep’t of

Transportation v Brown, 267 Ga 6; 471 SE2d 849 (1996).

Interestingly, in its decision limiting application of the

public duty doctrine to the police protection context, the

Supreme Court of North Carolina cited the same concerns that

we express today. Thompson, supra.

19

“[p]olice officers must work in unusual circumstances. They

deserve unusual protection.” Id. at 321. Moreover, the

public duty doctrine as applied in White is consistent with

the general common-law rule that no individual has a duty to

protect another who is endangered by a third person’s conduct

absent “a ‘special relationship’ either between the defendant

and the victim, or the defendant and the third party who

caused the injury.” Murdock v Higgins, 454 Mich 46, 54; 559

NW2d 639 (1997).

However, for purposes of determining the liability of

public employees other than police officers, we will determine

a government employee’s duty using the same traditional

common-law duty analysis applicable to private individuals.

VI. Application

The Court of Appeals relied solely on the public duty

doctrine in ordering that summary disposition be entered in

defendant’s favor under MCR 2.116(C)(8). As stated,

application of the public duty doctrine is limited to cases

like White involving an alleged failure of a police officer to

protect a plaintiff from the criminal acts of a third party.

We agree with plaintiff that this case clearly does not fall

within the circumstances presented in White. Accordingly, the

Court of Appeals erred in relying on the public duty doctrine

to dismiss plaintiff’s case.

VII. Conclusion

20

 Distinguishing between a government employee’s “public”

and “private” duties has proven to be an unwieldy exercise.

Moreover, the need for expanding the public duty doctrine

outside the police protection context is undermined by the

comprehensive protections from liability provided to

government employees by the governmental immunity statute.

Therefore, we decline to do so. The decision of the Court of

Appeals is reversed, and this case is remanded to the trial

court for further proceedings.

CORRIGAN , C.J., and WEAVER , TAYLOR , and MARKMAN , JJ.,

concurred with YOUNG , J.

21

 S T A T E O F M I C H I G A N

SUPREME COURT

NICOLE M. BEAUDRIE,

Plaintiff-Appellant,

v No. 114261

PAULINE HENDERSON,

Defendant-Appellee,

and

CITY OF DEARBORN, and DEARBORN

POLICE DEPARTMENT,

Defendants.

____________________________________

CAVANAGH, J. (concurring).

I join parts I and II of the majority opinion, which

accurately discuss the pleadings. I also join the majority’s

decision to reverse. I write separately, however, because I

believe the majority goes beyond what is necessary to resolve

the limited question before us. I would hold only that (1)

the plaintiff successfully pleaded a claim upon which relief

may be granted, and (2) that the defendant failed to overcome

the plaintiff’s amended pleadings because the defendant’s

claim of nonstatutory immunity was predicated on inapplicable

precedent.

I believe the majority’s discussion of the history and

wisdom of the public duty doctrine is misplaced, given that we

are examining a motion for summary disposition that tests only

the sufficiency of the pleadings. MCR 2.116(C)(8). Therefore,

I would not delve into the statutory issues discussed by the

majority. Instead, I would resolve this case on the basis of

the narrow grounds discussed in this opinion.

I

MCR 2.116(C)(8) “tests the legal sufficiency of the claim

on the pleadings alone to determine whether the plaintiff has

stated a claim on which relief may be granted. The motion

must be granted if no factual development could justify the

plaintiffs' claim for relief.” Spiek v Dep’t of

Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). The

plaintiff’s first amended complaint alleged that the defendant

had engaged in gross negligence and active misconduct.1 The

most direct discussion of gross negligence and active

misconduct can be found at the first paragraph 27 of the

plaintiff’s amended complaint, which states as follows:

1
The plaintiff labels her claims under the title, “Count

I-Gross Negligence/Active Misconduct.”

2

 At all relevant times, Defendant Pauline

Henderson committed acts of intentional misconduct,

and active malfeasance, and gross negligence, which

are not protected by the Public Duty Doctrine

and/or governmental immunity including, but not

limited to, the following:

a. Representing herself to be conducting

official police business for improper purposes;

b. Using her authority as a Dearborn Police

Dispatcher to verify the location of the suspect

for improper purposes;

c. Actively withholding and concealing

information from the authorities regarding the

verified location of a felony suspect which she

otherwise would have provided without hesitation;

d. Purposefully accepting instruction from

the suspect’s mother and criminal attorney in

contravention of her duties;

e. Intentionally conspiring to keep the

verified whereabouts of the suspect concealed

despite actual knowledge of a police emergency;

f. Affirmatively abrogating her obligations

in order to prevent the authorities from

apprehending a known suspect in the commission of a

brutal felony;

g. Intentionally abandoning her post as a

police dispatcher in order to engage in misconduct;

h. Driving to Camp Dearborn to meet with the

suspect;

i. Engaging in other active misconduct, gross

negligence and/or intentional malfeasance which may

become known prior to trial.

Further in support of her claim, the plaintiff repeatedly

alleged that the defendant conspired and agreed to abrogate

her duties as a police dispatcher and to conceal information

3

from the authorities. The complaint also specifically alleged

that the defendant’s active misconduct was “intended to

prevent police authorities from saving a rape and kidnapping

victim,” that the defendant’s intentional acts and omissions

proximately resulted in the continued abuse of the plaintiff

for an additional ten hours, and that damages resulted from

the defendant’s acts and omissions.

II

In response to the allegations raised by the plaintiff,

the defendant brought a motion for summary disposition

pursuant to MCR 2.116 (C)(8). In support of its position that

no amount of factual development could justify the plaintiff’s

claim, the defendant argued that defendant Henderson is

protected by the public duty doctrine.

The basis of defendant’s public duty doctrine claim

The defendant’s brief in support of summary disposition

claimed that “Under the public duty doctrine, a public

employee owes a duty to the general public and not to any one

individual unless a special relationship exists between the

employee and the individual.” In the defendant’s view, the

plaintiff in the present case failed to establish that a

special relationship existed, citing White v Humbert, 206 Mich

App 459; 522 NW2d 681 (1994), and Reno v Chung, 220 Mich App

102, 105; 559 NW2d 308 (1996), aff'd sub nom Maiden v Rozwood,

4

461 Mich 109; 597 NW2d 817 (1999). As such, the public duty

doctrine would bar recovery. In response to the defendant’s

motion for summary disposition, the plaintiff argued that the

defendant was not protected by the public duty doctrine

because the doctrine applies only to cases involving

nonfeasance. The present complaint alleged active misconduct

amounting to malfeasance. Further, the plaintiff alleged that

the defendant’s actions arose out her relationship with David

Wilke and his mother. Thus, plaintiff argued, the public duty

doctrine would be inapplicable. The defendant filed a reply

brief, arguing that the malfeasance versus nonfeasance

argument advocated by the defendant was unsupportable because

“[t]here is no allegation or implication that Henderson took

any dynamic step toward aiding David Wilke in his criminal

activity.”

I cannot agree with the defendant that the public duty

doctrine shields her from liability. I believe that the

defendant applies the public duty doctrine too broadly, and

ignores the plaintiff’s allegations that she called Camp

Dearborn, confirmed Wilke’s presence there, left work, drove

to Camp Dearborn, and collaborated with Kondzer and Wilke’s

attorney in addition to deciding to withhold information from

the authorities.

5

 As noted in the majority opinion, the public duty

doctrine on which the defendant builds her argument was the

subject of much discussion in White v Beasley, 453 Mich 308,

552 NW2d 1 (1996). There, in separate opinions, a majority of

this Court adopted a formulation of the doctrine that provides

that an officer may be shielded from an individual action for

damages when the officer is being charged with failing to

perform or inadequately performing a duty to the public. Yet,

the opinion did not preclude the possibility that the officer

nonetheless might owe an individual enforceable duty in tort.2

Though in Beasley, this Court acknowledged a “special

relationship exception” to the public duty doctrine, the Court

did not hold that the doctrine is so broad that a public

officer would automatically be protected from liability under

the public duty doctrine when the officer’s abrogation of

2

“[I]f the duty which the official authority

imposes upon an officer is a duty to the public, a

failure to perform it, or an inadequate or

erroneous performance, must be a public, not an

individual injury, and must be redressed, if at

all, in some form of public prosecution. On the

other hand, if the duty is a duty to the

individual, then a neglect to perform it, or to

perform it properly is an individual wrong, and may

support an individual action for damages.”

[Beasley at 316, quoting 2 Cooley, Torts (4th ed),

§ 300, pp 385-386.]

6

duties and personal involvement in the circumstances

surrounding the plaintiff allegedly caused the plaintiff’s

injuries to result.

Though the defendant tries to squeeze her case into the

parameters of Beasley, her efforts must fail because this case

is distinguishable from Beasley. The plaintiff is not

asserting that the defendant should be liable simply because

the defendant was a police dispatcher who owed a general

governmental duty to the plaintiff as a member of the public.

Instead, the pleadings assert that the defendant became

personally involved by acting upon special knowledge that she

obtained because of a personal relationship with the assailant

and his mother, and that the defendant chose to abrogate

rather than perform her duties as a police dispatcher, despite

the fact that she received information while on duty.

According to the complaint, the relationship between the

defendant, Kondzer, and Wilke made the defendant privy to

special information about the alleged attack on the plaintiff.

Thus, it was not the defendant’s position as a police

dispatcher that gave rise to the alleged misconduct, it was

her relationship with the assailant’s mother. Additionally,

the complaint alleged various ways in which the defendant

actively engaged in conduct that delayed apprehension of Wilke

so that injury to the plaintiff resulted.

7

 The allegations throughout the plaintiff’s amended

complaint, and specifically listed in the first paragraph 27,

state that the defendant knowingly and intentionally abrogated

her duties as a police dispatcher and became involved in the

case for personal reasons. I believe that the plaintiff’s

repeated references to the relationship between the defendant,

Kondzer, and Wilke, if accepted as true, would support a claim

for a common-law cause of action. As such, I am not persuaded

that this is the type of case in which the public duty

doctrine of Beasley should be applied. Thus, the basis for

the defendant’s MCR 2.116(C)(8) motion collapses, as does the

decision of the Court of Appeals. Therefore, I join the

majority’s decision to reverse.

III

I agree with the trial court that the defendant failed

to establish that the plaintiff failed to state a claim upon

which relief may be granted. As such, summary disposition was

correctly denied. Therefore, I would reverse the decision of

the Court of Appeals and remand this case for further

proceedings.

KELLY , J., concurred with CAVANAGH , J.

8

1