Opinion
Docket No. 62351.
Decided March 10, 1983. Leave to appeal applied for.
Becker Van Cleef (by Frank G. Becker), for plaintiffs.
Berry, Puleo Noeske (by Nazar Berry), for defendant.
Before: R.M. MAHER, P.J., and BRONSON and CYNAR, JJ.
In December, 1977, defendant McIntyre was a teacher at Clinton Middle School in Oak Park. Plaintiff Robin Pope, then a young woman of 13 years, was a student in defendant's physical education class. According to her, on December 5, 1977, Richardo Wordlaw, a classmate, attacked and injured her while attending defendant's class.
Robin Pope, through her mother, Carolyn Pope, and Carolyn Pope, individually, brought suit against defendant and Wordlaw on September 27, 1979. On July 7, 1981, defendant moved for summary judgment pursuant to GCR 1963, 117.2(1) on the ground that she was protected from plaintiffs' suit by governmental immunity. The trial court granted the motion. Plaintiffs appeal from the trial court's order granting defendant's motion for summary judgment.
Shortly thereafter, plaintiffs secured a default judgment against Wordlaw. Wordlaw is not a party to this appeal.
The sole issue on appeal is whether the trial court erred in granting defendant's motion for summary judgment. We must consider, therefore, whether defendant was sheltered by governmental immunity from liability for plaintiffs' damages.
This Court is split on the correct standard to apply in deciding when a public employee enjoys governmental immunity. Some panels have held that a public employee is immune if his allegedly tortious conduct involved discretionary rather than ministerial acts. See, e.g., Willis v Nienow, 113 Mich. App. 30; 317 N.W.2d 273 (1982); Fuhrmann v Hattaway, 109 Mich. App. 429; 311 N.W.2d 379 (1981); Cook v Bennett, 94 Mich. App. 93; 288 N.W.2d 609 (1979). Other panels have found that a public employee is immune when his act falls within the scope of his employment. See, e.g., Pomilee v Detroit, 121 Mich. App. 121; 328 N.W.2d 595 (1982); Shwary v Cranetrol Corp, 119 Mich. App. 736; 326 N.W.2d 627 (1982); Lewis v Beecher School System, 118 Mich. App. 105; 324 N.W.2d 779 (1982); Gaston v Becker, 111 Mich. App. 692; 314 N.W.2d 728 (1981); Everhart v Roseville Bd of Ed, 108 Mich. App. 218; 310 N.W.2d 338 (1981). The Supreme Court has not yet stated definitively which test is to be applied. However, where the Court has most recently considered the issue, Bush v Oscoda Area Schools, 405 Mich. 716; 275 N.W.2d 268 (1979); Lockaby v Wayne County, 406 Mich. 65; 276 N.W.2d 1 (1979), a majority of the justices, in separate opinions, applied the scope of employment test. See Lewis v Beecher School System, supra, p 111. We hold, therefore, that a public employee is immune from suit where his allegedly tortious conduct falls within the scope of his employment.
In their complaint, plaintiffs allege that the defendant negligently breached her "duty to exercise reasonable care and precautions for the safety of the school children", including Robin Pope. A public employee's negligent act falls within the scope of her employment only if the duty alleged to have been breached is imposed upon her because of her public employment. See Galli v Kirkeby, 398 Mich. 527; 248 N.W.2d 149 (1976) (COLEMAN, J., dissenting); Lovitt v Concord School Dist, 58 Mich. App. 593; 228 N.W.2d 479 (1975), overruled in part by Galli v Kirkeby, supra, p 536; Wynn v Cole, 68 Mich. App. 706; 243 N.W.2d 923 (1976); Tocco v Piersante, 69 Mich. App. 616; 245 N.W.2d 356 (1976), lv den 399 Mich. 882 (1977); Cole v Rife, 77 Mich. App. 545; 258 N.W.2d 555 (1977). Essentially plaintiffs allege that defendant was negligent in controlling Wordlaw. This duty is imposed upon defendant, if at all, because she is a teacher in a public school Everhart v Roseville Bd of Ed, supra, p 223. Thus, she is immune from plaintiffs' suit. Accordingly, the trial court did not err in granting defendant's motion for summary judgment.
Affirmed. Defendant may tax costs.
Although I authored the opinion in Gaston v Becker, 111 Mich. App. 692; 314 N.W.2d 728 (1981), I believe that the adoption (at least by most panels of this Court) of the "scope of employment" test has produced arbitrary results and is often unrelated to either the commonlaw reasons for the immunity doctrine or the Legislature's apparent purposes in enacting the immunity statute. Because the examination of this issue is one of the Supreme Court's most urgent priorities, I will not attempt to reassess my position here. I only wish to register my objection to the continued use of the "scope of employment" test and the accompanying expansion of the definition of what is a "governmental function". The trial court properly applied the "scope of employment" test here.
I concur in the result.