Opinion
No. 104372.
September 27, 1996.
Leave to Appeal Denied September 27, 1996:
Court of Appeals No. 146284.
I would grant leave to appeal.
Reconsideration denied February 4, 1997, there being no majority of the Court in favor of granting reconsideration.
We would grant reconsideration and, on reconsideration, would grant leave to appeal.
I would grant leave to appeal.
Plaintiff was attacked and raped in the public high school she worked at as a voluntary teaching assistant. The school had hired a security guard to protect the staff and students, and this guard had not properly secured the building, either by failing to clear the building of all people who were not on staff or by failing to secure all the doors to the school. A jury determined that the guard's negligence allowed the attacker to enter the building and was a proximate cause of the plaintiff's injuries. The jury awarded the plaintiff $700,000 (offset by ten percent for comparative negligence), but the Court of Appeals reversed, one judge dissenting.
In White v Beasley, 453 Mich. 308 (1996), this Court announced that Michigan recognizes the public-duty doctrine, at least for police officers. The defendant is neither a public employee nor a police officer protecting the public at large, but rather a contracted security guard who has a specific, identifiable group of charges — the staff and students of the school. His duty is thus circumscribed in an easily identifiable way, eliminating one of the larger problems the public-duty doctrine supposedly addresses. There is thus no uncertainty concerning who might be injured by his negligence.
When the assault occurred, the security guard's duty was to an even smaller group: the students had left the building; his only responsibility was to protect the staff. The present case can thus be seen as one where the public-duty analysis should not apply at all because the guard's duty was not to everyone, but only to a limited number of people.
If the public-duty doctrine does apply, however, a special relationship should be deemed to exist between the security guard and the few people he is charged with protecting. Additionally, the guard's work environment, while not risk-free, is not as continually fraught with danger as that which faces police officers.
The jury found that the guard acted negligently on the basis of his failure to properly clear the building and lock the doors, an action more ministerial than an arguably discretionary call of a police officer in responding to a crime scene. These are all factors mentioned by the opinions in White as relevant to application of the public-duty doctrine. The absence of these factors calls for a closer examination of whether the public-duty doctrine should be applied in a particular case and what its limits should be. If these factors are not relevant, the Court should grant leave to explain if it is providing de facto immunity to almost all government employees no matter what their duties are, thereby providing the Legislature and the public with a clear statement of this Court's position. By simply denying leave to appeal, the Court is shirking its duty to clarify its holding regarding the public-duty doctrine.