Opinion
Docket No. 85071.
Decided October 22, 1985.
J. Thomas McGovern, for plaintiffs.
McKay, Murphy Guerre, P.C. (by Libby Altman Berngard), for Robert Troy.
Before: R.M. MAHER, P.J., and MacKENZIE and T.M. BURNS, JJ.
ON REMAND
When this case was originally before this Court, Landsfield v R J Smith Contractors, Inc, 128 Mich. App. 704; 341 N.W.2d 184 (1983), we held (Judge MacKENZIE dissenting) that defendant Robert Troy was immune from liability under the "scope of employment" test, in that the duty allegedly breached was imposed because of the public nature of his employment. Plaintiffs sought leave to appeal to the Supreme Court. In lieu of granting leave to appeal, the Supreme Court vacated our decision and remanded for further consideration in light of its opinion in Ross v Consumers Power Co (On Rehearing), 420 Mich. 567; 363 N.W.2d 641 (1984).
In Ross, supra, the Supreme Court rejected the "scope of employment" test in favor of a "discretionary-decisional versus ministerial-operational" test. The Supreme Court explained the distinction as follows:
"`Discretionary' acts have been defined as those which require personal deliberation, decision and judgment. Prosser, supra, 132, p 988. This definition encompasses more than quasi-judicial or policy-making authority, which typically is granted only to members of administrative tribunals, prosecutors, and higher level executives. However, it does not encompass every trivial decision, such as `the driving of a nail,' which may be involved in performing an activity. For clarity, we would add the word `decisional' so the operative term would be `discretionary-decisional' acts.
"`Ministerial' acts have been defined as those which constitute merely an obedience to orders or the performance of a duty in which the individual has little or no choice. Id. We believe that this definition is not sufficiently broad. An individual who decides whether to engage in a particular activity and how best to carry it out engages in discretionary activity. However, the actual execution of this decision by the same individual is a ministerial act, which must be performed in a nontortious manner. In a nutshell, the distinction between `discretionary' and `ministerial' acts is that the former involves significant decision-making, while the latter involves the execution of a decision and might entail some minor decision-making. Here too, for clarity, we would add the word `operational' so the operative term would be `ministerial-operational' acts." (Footnotes omitted.) Ross, supra, 420 Mich. 634-635.
As noted in Judge MacKENZIE'S original dissenting opinion, defendant Troy's negligent act "involved a simple determination of whether the construction met the specifications set forth in the building code". Using the Ross terminology, the act was ministerial-operational in nature. Therefore, we affirm the trial court's denial of defendant Troy's motion for summary judgment based on individual immunity.
Having so decided, it is necessary to determine whether the trial court properly granted defendant Troy's motion for accelerated judgment based on the statute of limitations. For the reasons expressed in Judge MacKENZIE'S original dissenting opinion, 128 Mich. App. 708-709, we conclude that the trial court correctly granted the motion.
Affirmed. No costs.