Rosacrans v. Kingon

154 Mich. App. 381 (1986) 397 N.W.2d 317

ROSACRANS
v.
KINGON

Docket No. 87766.

Michigan Court of Appeals.

Decided September 8, 1986.

Chambers, Steiner, Mazur, Ornstein & Amlin, P.C. (by Angela J. Nicita), for plaintiff.

Miller, Canfield, Paddock & Stone (by Richard J. Seryak and Beverly Hall Burns), for defendants.

Before: SULLIVAN, P.J., and ALLEN and J.T. KALLMAN,^[*] JJ.

ALLEN, J.

In this personal injury action arising out of alleged sexual assaults upon a minor by his school teacher on off-school premises, plaintiff, as next friend of Gregory Keebler, a minor, appeals from an order filed on September 19, 1985, granting summary disposition to defendants Wayne Kaiser, Donald Berkley and Robert Duhan pursuant to MCR 2.116(C)(7), (8) and (10).

Judy Rosacrans, mother of Gregory Keebler, a student in the seventh grade at Tecumseh Junior High, filed this action on January 23, 1985, alleging that James Kingon, a teacher at Tecumseh Junior High, assaulted and sexually molested Gregory in a shopping center parking lot in Adrian in October, 1983, and from November 5 through November 13, 1983, further assaulted and sexually molested Gregory at Kingon's home in Tecumseh after going motorcycle-riding with Gregory and other school children. The action was filed against James Kingon, the Tecumseh Board of Education, the Tecumseh School District, and the three named school administrators. Defendant Wayne Kaiser was the principal of the elementary school where Kingon was employed; defendant Donald Berkley was the principal of the junior high school, and defendant Robert Duhan was the superintendent for the Tecumseh School District.

Plaintiff's complaint contained four counts. Count I alleged that Kingon's conduct constituted assault and battery and occurred as a result of the failure of defendants to properly supervise, monitor, and observe Kingon's conduct. Plaintiff further alleged that the assaults and batteries were committed in the scope of Kingon's employment as a school teacher. Count II alleged violations of the Child Protection Law, MCL 722.621 et seq., MSA 25.248(1) et seq., and that the three named school officials had reason to suspect that Kingon had sexually molested Gregory Keebler and other Tecumseh school children. The school officials' alleged failure to report Kingon's conduct to the Department of Social Services exposed them to civil liability. Count III alleged that the individual defendants were negligent in their screening, hiring, and supervision of Kingon. Count IV alleged that Kingon's conduct constituted intentional infliction of emotional distress and that defendant school officials were liable as Kingon's employers.

Defendants, with the exception of Kingon who has pled guilty to attempted second-degree criminal sexual conduct and is now incarcerated, filed a motion for summary disposition pursuant to MCR 2.116(C)(7), (8) and (10) on May 8, 1985. In plaintiff's response, she conceded that her claims against defendants Tecumseh Board of Education and Tecumseh School District were precluded by our Supreme Court's decision in Ross v Consumers Power Co (On Rehearing), 420 Mich. 567; 363 NW2d 641 (1984). Therefore, the plaintiff only responded to the motion as it applied to the three named defendant school administrators. The trial judge heard oral arguments on defendants' motion on June 24, 1985, and filed his written opinion on September 6, 1985, granting defendants' motion on all counts.

The court based its determination upon a finding that the individual defendants were engaged in discretionary-decisional activities and, thus, under Ross, supra, were immune from liability. The claim for violation of the Child Protection Law was dismissed on grounds that, based upon defendants' affidavits, defendants had no reason to suspect that Kingon was engaged in sexually molesting Gregory Keebler and, based upon the information produced by plaintiff in response to defendants' motion, defendants had no reason to know that Kingon had abused other children.

On appeal, plaintiff does not take issue with the trial court's dismissal of all claims against the Tecumseh Board of Education and School District. Plaintiff's sole claim on appeal is that the trial court erred in dismissing the negligence claim (Count III) and the claim for violation of the Child Protection Law (Count II) against the three named individual defendants.

CLAIM OF NEGLIGENT SUPERVISION

(COUNT III)

Relying primarily on Regulski v Murphy, 420 Mich. 567; 363 NW2d 641 (1984), one of nine cases decided with Ross, plaintiff argues that the trial court erred in assessing the allegations against defendant school administrators (Kaiser, Berkley and Duhan) as discretionary-decisional activities. According to plaintiff, supervision of teachers and the enforcement of rules and regulations concerning student-teacher relationships are ministerial-operational activities which under Ross are not protected by governmental immunity. Plaintiff misreads Regulski.

Regulski involved an eye injury incurred in a class where the student was not wearing protective glasses as required by MCL 380.1288; MSA 15.41288. The Supreme Court held that the director of the vocational arts and the instructor of the class could be held liable for violating the statute because the actual provision of the protective glasses was a "ministerial-operational" act. 420 Mich. 651. The Legislature had decided that protective glasses were necessary in such classes. Implementing the Legislature's decision by providing the glasses was "ministerial-operational." Therefore, the defendants could be held liable. In the instant case, no statute or school policy exists that governs the screening, hiring, and supervision of school employees to protect students from sustaining personal injuries at the employees' hands.

Further, unlike in Regulski, all of the wrongful acts committed in the instant case occurred off school premises. This is not a situation involving supervision in a classroom. Instead, it involves supervision in the teacher's home in the summertime.

Directly on point and holding contrary to plaintiff's position is Willoughby v Lehrbass, 150 Mich. App. 319; 388 NW2d 688 (1986). There, the plaintiff filed a complaint against the school district, the school superintendent and the school principal charging a teacher with the use of excessive force in disciplining a student and the superintendent and principal with negligent hiring and supervision of the teacher involved. Prior to trial the district and individual defendants moved for partial summary judgment on the count involving negligent hiring and supervision. The trial court granted the motion on governmental immunity grounds and plaintiff appealed arguing, inter alia, that pursuant to Ross governmental immunity was not a defense to a claim of negligent hiring and supervision by the school superintendent and school principal. This Court flatly rejected that argument, saying:

In addition, plaintiffs' second amended complaint merely alleges that defendants wilfully, recklessly, negligently and/or grossly negligently failed to supervise, train and discipline defendant Lehrbass. However, in order to establish bad faith under Ross, it would seem that based upon the policy of the qualified immunity doctrine a plaintiff would have to establish that the governmental actor engaged in malicious or intentionally unlawful behavior. Ross, supra, pp 632-633. Plaintiffs' mere conclusory allegations that these two defendants wilfully or recklessly negligently failed to supervise Lehrbass simply are not sufficient to establish bad faith on the part of these defendants. Therefore, the second prong of the Ross analysis was satisfied.

Finally, because the superintendent and principal of a school are vested with broad powers and authority regarding the employment of teachers under the School Code of 1976, e.g., §§ 247, 248, 346, we hold that the principal and superintendent were engaged in discretionary acts in hiring and retaining defendant Lehrbass because they had the power of personal deliberation, decision and judgment. Ross, p 634. Therefore, summary judgment with regard to these two defendants was also appropriately entered pursuant to the doctrine of governmental immunity. [150 Mich. App. 347-348. Emphasis supplied.]

Accordingly, we hold that the trial court's grant of summary disposition as to plaintiff's count for negligent supervision should be affirmed.^[1]

CLAIM OF VIOLATION OF MICHIGAN CHILD PROTECTION LAW

(COUNT II)

In Count II, plaintiff alleges violation of Michigan's Child Protection Law, MCL 722.621 et seq.; MSA 25.248(1) et seq., which requires persons who have reasonable cause to suspect child abuse or neglect to immediately make an oral report of such suspected abuse or neglect to the Michigan Department of Social Services. Failure to do so can result in civil liability. MCL 722.633; MSA 25.248(13). Defendants brought this part of their motion under MCR 2.116(C)(8) and (10), and the court granted the motion under subsection (10). Therefore, under MCR 2.116(G)(5), the court was required to consider the pleadings, affidavits, and other documentary evidence submitted by the parties.

Defendants supported their motion for summary disposition with their own affidavits and excerpts of Gregory Keebler's testimony at Kingon's preliminary examination. Keebler testified that he had not told anyone of Kingon's conduct until mid-November, 1983. When he told his mother, she called the police and a few days later Kingon was arrested. Defendant Superintendent Duhan stated in his affidavit that he did not suspect nor did he have reason to suspect that Keebler had been abused prior to Kingon's arrest. Defendant Principal Berkley stated the same in his affidavit. Defendant Principal Kaiser stated that he did not know Keebler because Keebler was never a student in his school. All defendants stated that they had dealt with the Lenawee County Department of Social Services on other matters of suspected child abuse.

Plaintiff did not offer any affidavits or other documents showing that defendants had reasonable cause to suspect Keebler had been abused. Therefore, because no genuine issue as to any material fact was raised regarding whether defendants had violated the Child Protection Law, the trial judge properly granted defendants' motion for summary disposition. Allowing plaintiff to amend her complaint under MCR 2.116(I)(5) would not have been justified based on the evidence presented to the trial court. Accordingly, the trial court's dismissal of plaintiff's claim that defendants had violated the Michigan Child Protection Law is affirmed.

Affirmed. No costs.

NOTES

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

[1] But see 1986 PA 175, effective July 1, 1986, which substantially changes the law regarding governmental immunity for employees and officers of a governmental agency.