Bolton v. Jones , 156 Mich. App. 642 ( 1986 )

156 Mich. App. 642 (1986) 401 N.W.2d 894

BOLTON
v.
JONES

Docket No. 84364.

Michigan Court of Appeals.

Decided December 15, 1986.

Mogill, Posner, Cohen & Weiss (by Marjory B. Cohen and Kenneth M. Mogill), for plaintiff.

Schurman, Frakes, Glass & Wulfmeier (by Cheryl L. Chandler), for Cyril Jones, M.D.

John D. O'Hair, Wayne County Corporation Counsel, and Glen H. Downs, Assistant Corporation Counsel, for Robert Temple.

Before: T.M. BURNS, P.J., and WAHLS and T.R. THOMAS,^[*] JJ.

PER CURIAM.

Plaintiff Nellie Bolton, as personal representative of the Estate of Shaniqua Baskin, deceased, and as next friend of Takara Bolton (formerly Baskin), appeals as of right from the circuit court's grant of summary judgment in favor of defendants.

This case arises out of the Baskin family's contact with the juvenile division of the Wayne Probate Court. The Baskin family was originally comprised of Mr. Arthur Baskin II, Mrs. Gloria Baskin, and their two children, Shaniqua Baskin and Takara Baskin. Plaintiff Nellie Bolton is the mother of Mrs. Baskin.

In September, 1978, based on allegations of physical abuse, a petition was filed with the juvenile division of the probate court. Soon thereafter, a juvenile court referee found the children to be within the provisions of the Juvenile Code on the basis of abuse and neglect. The probate court exercised jurisdiction over the children, but allowed them to remain at home under the supervision of the court's abuse unit. The parents were ordered to submit to clinical evaluations, to attend PACT meetings (Parents And Children Together), and to receive family counseling.

Defendant Robert Temple is a social worker employed by the juvenile division. Pursuant to the court order, the juvenile division's abuse unit investigated the case. Defendant Temple was assigned to investigate the family and file a report. Based on weekly visits to the Baskin home (which appeared to total thirteen in number), interviews with Mr. and Mrs. Baskin, observations of interaction between the parents and children, and the report of defendant Jones, Temple recommended that the family continue with family counseling on their own and that the case be dismissed.

Defendant Cyril Jones, M.D., is a licensed practicing physician within the State of Michigan. Defendant Jones is a board certified psychiatrist employed at the juvenile division's Clinic for Child Study. Pursuant to the court order, a request was made that the Clinic for Child Study evaluate Mr. and Mrs. Baskin. Defendant Jones was assigned to do the evaluation. Apparently based upon one office interview with Mr. and Mrs. Baskin and references to Temple's reports, defendant Jones concluded that there was no continuing need for supervision of the Baskin family.

In January, 1979, the probate court held a hearing on the matter. After considering the reports of defendants Temple and Jones, and other factors mandated by statute, the probate court decided to adopt Temple's recommendation and dismiss the petition regarding the Baskin children.

On March 15, 1979, Shaniqua Baskin, then 2 1/2 years old, died after being beaten by her father. Takara Bolton, then approximately 1 1/2 years old, was allegedly also beaten on a frequent basis by her father.

On October 22, 1981, Nellie Bolton filed a complaint against defendants in the circuit court seeking damages for the injuries and death of Shaniqua Baskin, and for the injuries sustained by Takara Bolton. The complaint contained two sets of similar allegations pursuant to alternative theories of negligence and malpractice. Plaintiff alleged that defendants breached their applicable duties of care in the following manner:

a. By failing properly and adequately to inspect the premises in question;

b. By failing properly and adequately to interview Arthur Baskin II and Gloria Baskin, the parents of Plaintiff's decedent and Plaintiff-Minor;

c. By failing properly and adequately to conduct an investigation to insure the safety and physical and emotional health of Plaintiff's decedent and Plaintiff-Minor;

d. By failing adequately and properly to investigate and review the medical and psychiatric history and records of Arthur Baskin II and Gloria Baskin prior to recommending termination of the temporary wardship of Plaintiff's decedent and Plaintiff-Minor;

e. By failing properly and adequately to assess and evaluate the stability and emotional health of Arthur Baskin II and Gloria Baskin;

f. By failing properly and adequately to make reports and recommendations to the Wayne County Probate Court, Juvenile Division, about the danger to Plaintiff's decedent and Plaintiff-Minor from remaining in the same home as Arthur Baskin II and Gloria Baskin;

g. By failing to report to the Michigan Department of Social Services and/or the Wayne County Probate Court, Juvenile Division, all suspected or known instances of abuse of Plaintiff's decedent and/or Plaintiff-Minor; and

h. By recommending to the Wayne County Probate Court, Juvenile Division, that the temporary wardship of Plaintiff's decedent and Plaintiff-Minor be ended.

Defendants filed responsive pleadings and thereafter moved for summary judgment. The circuit court granted summary judgment in favor of defendants on three different grounds. The court held that defendants were entitled to summary judgment because: (1) defendants were entitled to governmental immunity; (2) no physician-patient relationship existed between defendants and the children; and (3) defendants were provided with immunity by JCR 1969, 7.2(E)(4).

Plaintiff now appeals as of right from the grant of summary judgment. Plaintiff argues that the allegations contained in the complaint were sufficient to withstand summary judgment. Contrarily, defendants argue that plaintiff has failed to allege facts sufficient to withstand a motion for summary judgment. We agree with plaintiff and find that summary judgment was improperly granted.

In reviewing a grant of summary judgment under GCR 1963, 117.2(1), now MCR 2.116(C)(8), for failure to state a claim upon which relief can be granted, this Court is obligated to accept as true all well-pled facts and to determine whether plaintiff's claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Abel v Eli Lilly & Co, 418 Mich. 311, 323-324; 343 NW2d 164 (1984), cert den sub nom E R Squibb & Sons v Abel, ___ US ___; 105 S. Ct. 123; 83 L. Ed. 2d 65 (1984). A motion for summary judgment under GCR 1963, 117.2(1) seeks to test the genuineness of a claim or defense by challenging the legal, not factual, adequacy of the pleadings. Id.

GOVERNMENTAL IMMUNITY

Persons who are not judges, legislators, or high executive officials, but rather are lower level officials, employees, or agents of governmental entities are immune from tort liability only when they are: (1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority; (2) acting in good faith; and (3) performing discretionary-decisional, as opposed to ministerial-operational, acts. Ross v Consumers Power Co (On Rehearing), 420 Mich. 567, 592, 633-634; 363 NW2d 641 (1984).

We find that plaintiff alleged facts sufficient to avoid summary judgment on the ground of governmental immunity. On the basis of the allegations, we cannot conclude that defendants were performing discretionary-decisional acts, as opposed to ministerial-operational acts. Plaintiff alleged that defendants did not properly and adequately inspect, interview, and investigate. Plaintiff also alleged that defendants failed to adequately and properly investigate and review both parents' medical and psychiatric histories and records.^[1]

In determining that these allegations are sufficient to withstand summary judgment, we find the reasoning of this Court in Davis v Lhim (On Remand), 147 Mich. App. 8; 382 NW2d 195 (1985), lv gtd 425 Mich. 851 (1986), and Vitale v Reddy, 150 Mich. App. 492; 389 NW2d 456 (1986), to be persuasive. In those cases, this Court stated: "A professional, otherwise liable because he or she has deviated from the appropriate standard of care, cannot contend that he or she has discretion to violate that standard." We believe that this is true of professionals and nonprofessionals alike. Defendants had the duty to gather enough relevant and reliable information on which to make an informed recommendation. Once either defendant chose to inspect, interview, or investigate, such inspection, interview, or investigation should have been conducted properly. While each defendant could choose the best method for carrying out his duties, the actual performance of those duties was required to be done in a conscientious and appropriate manner.

Thus, summary judgment was inappropriate on this ground.

ABSENCE OF PHYSICIAN-PATIENT RELATIONSHIP

The trial court's second basis for the grant of summary judgment was that there was an absence of a physician-patient relationship. Technically, this ground would apply only to defendant Jones. However, the real question in this regard is whether either defendant owed a duty to the children to use reasonable care to prevent them from receiving harm from a third person. We hold that defendants owed a duty of care to the children in this case.

First, the trial court's reliance on the absence of a physician-patient relationship was misplaced. In addition to malpractice, plaintiff's complaint asserted a claim of negligence. While the trial court may have correctly granted summary judgment in regard to the malpractice claim, summary judgment was improperly granted in regard to plaintiff's claim of negligence. In Rogers v Horvath, 65 Mich. App. 644, 646-647; 237 NW2d 595 (1975), lv den 396 Mich. 845 (1976), this Court stated:

The term "malpractice" denotes a breach of the duty owed by one in rendering professional services to a person who has contracted for such services; in physician-malpractice cases, the duty owed by the physician arises from the physician-patient relationship. No such relationship existed in the case at bar. Defendant was employed by General Motors to examine one of its employees in preparation for a workmen's compensation hearing. Plaintiff did not employ the defendant, nor did she seek or receive medical advice or treatment. Under such circumstances, the defendant did not owe plaintiff any duty arising from a physician-patient relationship. This is not to say that a physician who examines a person for reasons other than diagnosis or treatment and for the benefit of some one other than the examinee owes no duty of due care to that person. Rather, we hold that the physician in such a case does not owe such a duty of care as will subject him to liability for malpractice.

Because plaintiff asserted a claim of negligence, the absence of the physician-patient relationship is not an adequate ground for a complete grant of summary judgment in this case. While the psychiatrist may not have owed such a duty of care as would subject him to liability for malpractice, that is not to say that he owes no duty of care to the children.

Therefore, we must also determine whether a psychiatrist or a social worker who is employed in connection with child abuse cases owes a duty of care to children who are injured by the person or persons suspected of abuse. A review of analogous Michigan case law convinces us that under certain circumstances, a psychiatrist or a social worker may owe a duty of due care to such children. We find the policies expressed in Davis v Lhim, 124 Mich. App. 291, 298-307; 335 NW2d 481 (1983), remanded for reconsideration on other grounds 422 Mich. 875 (1985), lv gtd after decision on remand 425 Mich. 851 (1986), Duvall v Goldin, 139 Mich. App. 342; 362 NW2d 275 (1984), lv den 422 Mich. 976 (1985), and Welke v Kuzilla, 144 Mich. App. 245; 375 NW2d 403 (1985), lv to appeal applied for, to be convincing on this issue.

In Davis v Lhim, 124 Mich. App. 291, 299, this Court noted that, as a general principle, a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous. However, the Davis Court also noted that under general common law, no one owes any duty to protect an individual who is endangered by a third person unless he has some special relationship with either the dangerous person or the potential victim. 124 Mich. App. 299. On the other hand, the Court further noted that where a third person causes harm, Michigan law may hold the defendant liable for that person's act even if the defendant bears a special relationship to neither the third person nor the victim. 124 Mich. App. 300. All three cases, Davis, Duvall and Welke, relied to some extent on the degree of foreseeability that the defendants' conduct would create a risk of harm to the victims. See also McKnight v Carter, 144 Mich. App. 623, 632; 376 NW2d 170 (1985), lv den 424 Mich. 859 (1985), and Moning v Alfono, 400 Mich. 425, 438-439; 254 NW2d 759 (1977). The children in this case were extremely foreseeable plaintiffs. Defendants' services were requested by the court for the protection and benefit of these two children. Defendants' inspections, interviews, and investigations were undertaken for the purposes of assessing the situation and providing recommendations as to whether the home would be a safe and fit place for the children to live and whether placement with their parents would be in their best interests. These children are readily identifiable as persons who would be foreseeably endangered by either defendant's negligent performance of his obligations to the probate court. The duty owed to these children is readily recognizable. This is not a case where a duty is owed to members of the general public to protect them from the harmful conduct of a third person. The duty here is much closer.

Because plaintiff's allegations in this case indicate that a relationship existed between the defendants and the children which is sufficient to support a conclusion that defendants owed the children a duty of due care, summary judgment was improperly granted on this ground.

JUVENILE COURT RULE 7.2(E)(4)

Finally, the trial court relied on JCR 1969, 7.2(E)(4), now MCR 5.907(B)(6), as providing a third ground for the grant of summary judgment. The trial court held that defendants were granted immunity from suit under the court rule. We disagree. The court rule provides absolute immunity with respect to defamatory statements only. The court rule does not provide immunity for negligent acts.

JCR 1969, 7.2(E)(4) stated:

Testimony, reports or other information furnished at the request of the court following authorization of a petition, shall, with respect to the person or agency furnishing such information or results of examination, be considered absolutely privileged provided they are pertinent and material to the proceedings. Persons or agencies providing such testimony, reports, or information shall be immune from any subsequent legal action with respect to furnishing such testimony, reports, or other information to the court. Such absolute privilege shall extend to any person or agency who shall, upon request of the court, furnish such testimony, report, or information with respect to any child regarding whom a petition has been authorized, or any other person, party, or agency who is alleged to have caused or tended to cause the child to come within, or to remain under, the provisions of the Juvenile Code. Nothing herein shall preclude opportunity for cross-examination or other proper procedure for testing such proffered testimony, reports or other information.

Several considerations lead us to the conclusion that the court rule is applicable only to defamation claims. First, the rule refers to "testimony, reports or other information," i.e., spoken or written words. The court rule does not purport to apply to the performance or nonperformance of acts. Second, in regard to such testimony, reports, or other information, the court rule indicates that such communications are to be considered "absolutely privileged." "Privileged" is a term consistently employed in the law of defamation. See Lawrence v Fox, 357 Mich. 134, 136-137; 97 NW2d 719 (1959). So also is the term "absolute privilege," or "absolutely privileged." See Timmis v Bennett, 352 Mich. 355; 89 NW2d 748 (1959). Third, the notes which accompanied the court rule when it was adopted by the Supreme Court indicate that the rule was intended to provide an absolute exemption from liability in actions for defamatory words. See 381 Mich cxxvii-cxxviii.

In the present case, plaintiff has not asserted a defamation claim. Therefore, JCR 1969, 7.3(E)(4) is inapplicable and the trial court erred in granting summary judgment to defendants on this ground.

CONCLUSION

None of the grounds asserted by the trial court support the grant of summary judgment in favor of defendants. The case is therefore remanded to the trial court for further proceedings.

Reversed and remanded.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] We note that defendants did not move for a more definite statement in accord with GCR 1963, 115.1 and that they do not allege that the pleading failed to conform to the requirements of the court rules.