Opinion
Docket No. 78-188.
Decided February 6, 1979.
Morback, Cheatham MacArthur (by Stephen J. Smith), for plaintiff.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Milton I. Firestone, Thomas R. Wheeker, Terry J. Nosan and Christopher J. Dembowski, Assistants Attorney General, for defendant.
Before: DANHOF, C.J., and BASHARA and CYNAR, JJ.
Plaintiff sued the Department of Mental Health, under a theory of vicarious liability, for damages sustained from an alleged assault and battery against the plaintiff by an attendant at a state mental facility. The Court of Claims granted summary judgment for defendant. The plaintiff was an in-patient at the facility when the alleged beating occurred. In his deposition the attendant testified that the incident of which the plaintiff complains was provoked by the plaintiff's repeated violations of the hospital's rules against smoking, his refusal to leave his room with other patients for breakfast and his physical aggression towards the attendant when the latter ordered the plaintiff to leave his room. The defendant state agency claims sovereign immunity. See generally, MCL 691.1401- 691.1415; MSA 3.996(101)-3.996(115). In opposition to that claim, the plaintiff argues that his complaint, by alleging an intentional tort, states sufficient facts in avoidance of governmental immunity. As authority for that argument, he relies on Galli v Kirkeby, 398 Mich. 527; 248 N.W.2d 149 (1976).
Since the common law doctrine of soverign immunity has been abrogated in this state, Pittman v City of Taylor, 398 Mich. 41; 247 N.W.2d 512 (1976), defendant's claim is governed by statute. By § 7 of the governmental immunity act of 1964, the state and its agencies are generally "immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function". MCL 691.1407; MSA 3.996(107). Recently, the Supreme Court has affirmed the position taken by this Court that the operation of a mental hospital is a governmental function. Perry v Kalamazoo State Hospital, 404 Mich. 205; 273 N.W.2d 421 (1978); see Allen v Department of Mental Health, 79 Mich. App. 170; 261 N.W.2d 247 (1977).
Further examining the specific complained-of activity in this case — the alleged assault and battery — we must determine whether it was "in the exercise or discharge" of that governmental function. See Galli v Kirkeby, supra, at 536-537; 248 N.W.2d at 151-152, Spruytte v Department of Corrections, 82 Mich. App. 145; 266 N.W.2d 482 (1978), Duncan v Detroit, 78 Mich. App. 632; 261 N.W.2d 26 (1977). Contrary to the plaintiff's assertion, an act may be an exercise or discharge of a governmental function even though it amounts to an intentional tort. Lee v Utica, 83 Mich. App. 679; 269 N.W.2d 267 (1978). Indeed, according to Professor Cooperrider, it is the likelihood that a governmental actor may have "to act directly upon persons and property, overcoming resistence if necessary", which may distinguish his activities as "governmental". Cooperrider, The Court, The Legislature, and Governmental Tort Liability in Michigan, 72 Mich L Rev 187, 283 (1973). To illustrate that point Professor Cooperrider lists such activities as those associated with police work, fire fighting, inspection and custodial employment. We take notice that an attendant at a mental hospital serves partially in a custodial capacity.
Plaintiff's reliance on Galli v Kirkeby is misplaced. That case only held that an activity which bears no arguable relationship to a governmental function cannot be an exercise or discharge of that governmental function. In the present case, under the circumstances related in the attendant's deposition, which circumstances plaintiff has not refuted by pleading, deposition, affidavit or other documentary evidence, the alleged assault and battery by the attendant was sufficiently related to the function of the mental facility to be an exercise or discharge of it. Compare, e.g., Lee v Utica, supra, with Kriger v South Oakland County Mutual Aid Pact, 399 Mich. 835; 250 N.W.2d 67 (1977), rev'g 49 Mich. App. 7; 211 N.W.2d 228 (1973).
Avoidance of governmental immunity has been construed as an element of the plaintiff's claim. See McCann v Michigan, 398 Mich. 65, 77; 247 N.W.2d 521 (1976) (RYAN, J.). But see Pagano v Department of State Highways, 76 Mich. App. 569, 575-576 ; 257 N.W.2d 172 (1977). To avoid summary judgment, the plaintiff must establish a question of fact as to each element of his claim by affidavit, pleading, deposition, admission or other documentary evidence. Bob v Holmes, 78 Mich. App. 205; 259 N.W.2d 427 (1977). In opposition to the state's motion for summary judgment and/or accelerated judgment in this case, the plaintiff relied solely on the allegation in his complaint that the alleged tort was intentional.
None of the express exceptions to governmental function immunity is here applicable. See MCL 691.1402, 691.1405, 691.1406; MSA 3.996(102), 3.996(105), 3.996(106).
Affirmed. No costs, a public question involved.