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
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