Opinion
Docket No. 29950.
Decided October 11, 1977. Leave to appeal applied for.
Appeal from Court of Claims, Martin B. Breighner, J. Submitted June 8, 1977, at Lansing. (Docket No. 29950.) Decided October 11, 1977. Leave to appeal applied for.
Complaint in the Court of Claims by Barry Allen, administrator of the estate of Daniel Cova, deceased, and by Nancy Cova, for herself and as next friend of Mellisa Cova and Nicholas Cova, minors, against the Michigan Department of Mental Health and Clinton Valley Center, for damages for the wrongful death of Daniel Cova. Accelerated judgment for defendants. Plaintiffs appeal. Affirmed.
Bookholder Storchan, for plaintiffs.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Norbert G. Jaworski, Assistant Attorney General, for defendants.
Plaintiffs brought a wrongful death action in the Court of Claims alleging negligence by defendants' employees in allowing plaintiffs' decedent to be temporarily released from a state mental health facility. Plaintiffs' decedent committed suicide while on a temporary visit to his parents' home. The Court of Claims granted defendants' motion for accelerated judgment, grounded on sovereign immunity, MCLA 691.1407; MSA 3.996(107). Plaintiffs appeal as of right.
A majority of the Michigan Supreme Court recently held that the proper inquiry in a case such as this is whether the activity has been treated as a "governmental function" by the case law at the time of enactment of 1970 PA 155 (MCLA 691.1407 et seq; MSA 3.996(107) et seq.), Thomas v Department of State Highways, 398 Mich. 1; 247 N.W.2d 530 (1976). Prior case law has uniformly treated operation of a public hospital as a "governmental function". See White v Detroit, 74 Mich. App. 545; 254 N.W.2d 572 (1977), and Snow v Freeman, 55 Mich. App. 84; 222 N.W.2d 43 (1974). In the instant case, plaintiffs' allegations of tortious activity: employing incompetent personnel, granting a patient with suicidal tendencies temporary release for visits with his parents, failing to supervise the activities of the patient while on the temporary visit, and failing to instruct the parents of the patient in the care and treatment of the patient while on temporary visit, all relate to the exercise or discharge of a governmental function. Plaintiff has failed to "plead facts in the complaint, in avoidance of immunity". McCann v State of Michigan, 398 Mich. 65, 77, 80; 247 N.W.2d 521 (1976), RYAN, J., concurring. Therefore, the "specific tortious activity alleged against the state or its agencies" is within the protection of the immunity doctrine.
Plaintiffs contend that MCLA 691.1407; MSA 3.996(107) is unconstitutional. The Michigan Supreme Court has recently had an opportunity to consider that issue and has declined to hold the statute unconstitutional, Thomas, supra, McCann, supra, and Pittman v City of Taylor, 398 Mich. 41; 247 N.W.2d 512 (1976). We decline as well.
Affirmed. No costs, a public question.
I reluctantly concur in the judgment affirming the dismissal of this complaint on the basis of statutory governmental immunity. MCLA 691.1407; MSA 3.996(107). The Legislature and the Supreme Court have indicated this archaic doctrine is to have some continuing vitality. I would limit its application to the discretionary acts of governmental officials or agencies. See, Siess v Bureau of Pardons Paroles, 74 Mich. App. 613; 255 N.W.2d 2 (1977).
The hiring of employees by the Michigan Department of Mental Health and the acts surrounding the decision to release plaintiff's decedent for a home visit fall in this narrow band of activities. Negligent treatment of a patient by these same personnel would not allow defendants to be cloaked in immunity. White v Detroit, 74 Mich. App. 545, 548; 254 N.W.2d 572 (1977) (T.M. BURNS, dissenting), Duncan v Detroit, 78 Mich. App. 632; 261 N.W.2d 26 (1977) (T.M. BURNS, dissenting). It is not the "operation of a public hospital" but the nature of the wrongs alleged which leads to a finding of immunity in this case.