Allen v. Department of Mental Health , 79 Mich. App. 170 ( 1977 )

79 Mich. App. 170 (1977) 261 N.W.2d 247

ALLEN
v.
DEPARTMENT OF MENTAL HEALTH

Docket No. 29950.

Michigan Court of Appeals.

Decided October 11, 1977.

Bookholder & Storchan, for plaintiffs.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Norbert G. Jaworski, Assistant Attorney General, for defendants.

Before: DANHOF, C.J., and T.M. BURNS and A.E. KEYES,^[*] JJ.

PER CURIAM.

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 NW2d 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 NW2d 572 (1977), and Snow v Freeman, 55 Mich App 84; 222 NW2d 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 NW2d 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 NW2d 512 (1976). We decline as well.

Affirmed. No costs, a public question.

T.M. BURNS, J. (concurring).

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 NW2d 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 NW2d 572 (1977) (T.M. BURNS, dissenting), Duncan v Detroit, 78 Mich App 632; 261 NW2d 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.

NOTES

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