Civil and Criminal Immunity Under Michigan Law

2.8Civil and Criminal Immunity Under Michigan Law

This section provides a general overview of civil and criminal immunity under Michigan law in the context of a child abuse or neglect case. Immunity of state and local agencies and their agents under 42 USC 1983 is beyond the scope of this benchbook.

A.Immunity Under the Child Protection Law

MCL 722.625, in part, provides for immunity under the Child Protection Law in certain circumstances:

“A person acting in good faith who makes a report,^[¹] cooperates in an investigation, or assists in any other requirement of [the Child Protection Law] is immune from civil or criminal liability that might otherwise be incurred by that action. A person making a report or assisting in any other requirement of [the Child Protection Law] is presumed to have acted in good faith. This immunity from civil or criminal liability extends only to acts done according to [the Child Protection Law] and does not extend to a negligent act that causes personal injury or death or to the malpractice of a physician that results in personal injury or death.”

“[MCL 722.625] clearly and unambiguously provides immunity to persons who file a child abuse report in good faith.” Awkerman v Tri-County Orthopedic Group, PC, 143 Mich App 722, 726-727 (1985) (where a child abuse report was not made in bad faith, MCL 722.625 precluded a mother and child from recovering damages against the child’s physicians when the child’s physicians misdiagnosed the cause of his frequent bone fractures and erroneously filed a child abuse report against his mother).

“[I]mmunity extends to reports of ‘suspected’ child abuse regardless of the outcome of a subsequent investigation.” Warner v Mitts, 211 Mich App 557, 559 (1995). Specifically, the Court of Appeals held:

“Reading [MCL 722.624 ² and MCL 722.625] together, it is apparent a person who has ‘reasonable cause to suspect child abuse’ is by definition ‘acting in good faith’ when reporting the suspicions. Thus, immunity extends to reports of ‘suspected’ child abuse regardless of the outcome of a subsequent investigation. The purpose of the immunity is to facilitate the public policy behind the act, which is to encourage reporting of suspected child abuse.

Here, whether [the] defendant[-reporter] learned of [the plaintiff-father’s] sexual abuse of his daughter from her husband or from [the plaintiff-father] himself is irrelevant to the question of [the] defendant[-reporter’s] ‘reasonable cause to suspect child abuse.’ Either source of the information would be sufficient to constitute reasonable cause. [The Court of Appeals] agree[d] with the trial court that [the] defendant[-reporter’s] alleged animosity toward [the] plaintiff[-father] did not render [the] defendant[-reporter’s] reporting one of bad faith. . . . ‘[G]ood faith’ pertains to the existence of a reasonable suspicion, not the motive behind the decision to report.” Warner, 211 Mich App at 559-560.

“Immunity [under MCL 722.625] extends not only to the making of [a] report [of child abuse or neglect,] but also to a party’s cooperation in [the] investigation.” Warner, 211 Mich App at 560. See also Lavey v Mills, 248 Mich App 244, 252-254 (2001) (despite no charges being filed against the child’s parents, the school principal was entitled to immunity under MCL 722.625 where she, in good faith, reported her suspicions that one of her students was being sexually abused to the police and county prosecutor, and then at the direction of the police, the school principal transported the student to a doctor’s office for a gynecological examination without first obtaining the child’s parent’s consent).

However, immunity under MCL 722.625 does not extend to good-faith acts that violate other requirements set out under the Child Protection Law. Lavey, 248 Mich App at 255-257 (police officer and CPS worker were not entitled to immunity under MCL 722.625 where they violated MCL 722.626(3)³ by taking a child to a doctor’s office and authorizing a gynecological examination without a court order and without evidence that the child’s health was seriously endangered).

B.Immunity under the Safe Delivery of Newborns Law

An employee or agent of a hospital or child placing agency, and an employee or contractor of a fire department or police station is immune from damages arising in a civil action for an act or omission in accepting or transferring a newborn under the Safe Delivery of Newborns Law.⁴ MCL 712.2(4).

Note: To the extent the Governmental Liability for Negligence Act, MCL 691.1401 et seq., does not protect a fire department’s or police station’s employee or contractor, MCL 712.2(4) extends the same immunity to them that a hospital’s or child placing agency’s employee or agent receives.

However, an employee, agent, or contractor is not immune from damages when the act or omission constitutes “gross negligence or willful or wanton misconduct.” MCL 712.2(4).

Note: Gross negligence is “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results,” MCL 712.1(2)(h), whereas, willful misconduct is “conduct or a failure to act that was intended to harm the plaintiff” and wanton misconduct is “conduct or a failure to act that shows such indifference to whether harm will result as to be equal to a willingness that harm will result.” M Civ JI 14.11; M Civ JI 14.12.

C.Governmental Immunity Act

MCL 691.1407(5) grants a judge immunity “from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial . . . authority.”

“A guardian ad litem is immune from civil liability for an injury to a person or damage to property if he or she is acting within the scope of his or her authority as guardian ad litem.” MCL 691.1407(6). The governmental immunity protections under MCL 691.1407(6) extend to lawyer-guardian ad litems (LGALs), as well. Farris v McKaig, 324 Mich App 337, 353 (2018).

“Except as otherwise provided in [the Governmental Liability for Negligence Act], a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.” MCL 691.1407(1). “[E]ach officer and employee of a governmental agency, each volunteer acting on behalf of a governmental agency, and each member of a board, council, commission, or statutorily created task force of a governmental agency is immune from tort liability for an injury to a person or damage to property caused by the officer, employee, or member while in the course of employment or service or caused by the volunteer while acting on behalf of a governmental agency if all of the following are met:

(a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority.

(b) The governmental agency is engaged in the exercise or discharge of a governmental function.

(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not amount to gross negligence that is the proximate cause^[⁵] of the injury or damage.”⁶ MCL 691.1407(2).

MCL 691.1407(2) does not apply to intentional torts committed by an individual government employee. Lavey, 248 Mich App at 257, citing Sudul v Hamtramck, 221 Mich App 455, 458, 481 (1997).

Social workers and private organizations contracting with the DHHS to provide child protective services are entitled to absolute immunity in initiating and monitoring court-supervised child placements. Martin v Children’s Aid Society, 215 Mich App 88, 95-98 (1996). See also Beauford v Lewis, 269 Mich App 295, 298-302 (2005) (social worker was entitled to absolute immunity after she investigated allegations of child abuse and recommended that the child’s mother’s parental rights be terminated); Spikes v Banks, 231 Mich App 341, 343-344, 346-347 (1998) (child care organization was entitled to absolute immunity for its placement and supervision of a 15-year-old child placed in a foster care home where the child became pregnant by the foster parent’s 23-year-old nephew who lived in the home without the organization’s permission and had pending criminal sexual conduct charges).

D.Immunity for Persons Providing Information in Response to a Court’s Request

MCR 3.924 provides immunity to persons or agencies who provide information to the court in response to a request from the court:

“Persons or agencies providing testimony, reports, or other information at the request of the court, including otherwise confidential information, records, or reports that are relevant and material to the proceedings following authorization of a petition, are immune from any subsequent legal action with respect to furnishing the information to the court.”

E.Immunity for Foster Parent and Legal Guardian

MCL 722.163 bars a negligence action against a foster parent or legal guardian under certain circumstances. MCL 722.163 specifically allows “[a] foster child [to] maintain an action against his or her [licensed] foster parent . . . , and a child [to] maintain an action against his or her legal guardian^[⁷^] for injuries suffered as a result of the alleged ordinary negligence of the foster parent or legal guardian[,]” unless “the alleged negligent act involves an exercise of reasonable parental authority over the child[ or] [] the alleged negligent act involves an exercise of reasonable parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.”

To determine whether a foster parent or legal guardian is entitled to immunity from a negligence action, “the question to be answered is not whether the defendant acted negligently, but whether the alleged act reasonably fell within one of the [MCL 722.163] exceptions.” Spikes, 231 Mich App at 348-349, 350-354 (15-year-old foster child’s allegations that the child’s foster parent permitted her 23-year-old nephew, who had pending criminal sexual assault charges, to reside in the foster home without the child care organization’s permission, and that the nephew committed repeated criminal sexual conduct with the foster child resulting in the foster child’s pregnancy, of which the foster parent should have known, sounded in child neglect rather than negligent supervision, “which as a matter of law is not a reasonable exercise of parental discretion[,]” and thus, provision of foster parent immunity statute which protects reasonable exercises of parental authority did not provide the child’s foster parent with immunity with respect to the foster child’s claims).

¹ By providing immunity under the Child Protection Law for persons who report suspected child abuse or neglect in good faith, “the Legislature intended to abrogate established immunity rules of the common law related to persons required to report abuse and neglect.” Williams v Coleman, 194 Mich App 606, 615-616 (1992).

² MCL 722.624 provides that any person with “reasonable cause to suspect child abuse or neglect may report the matter to the [DHHS] or a law enforcement agency.” See Section 2.2(C) for a discussion of “reasonable cause to suspect child abuse or neglect.”

³ MCL 722.626(3) permits a child’s medical evaluation by court order or without a court order if “[t]he child’s health is seriously endangered and a court order cannot be obtained[ or] [t]he child is displaying symptoms suspected to be the result of exposure to or contact with methamphetamine production.”

⁴ MCL 712.5(2) requires a physician to report to the DHHS, as required by MCL 722.623, if he or she “examines [a] newborn [and] determines that there is reason to suspect the newborn has experienced child abuse or neglect, other than being surrendered to an emergency service provider under [MCL 712.3], or comes to a reasonable belief that the child is not a newborn[.]” See MCL 722.623(1), which specifically requires the physician to immediately report suspected child abuse or child neglect to centralized intake (the DHHS’s “statewide centralized processing center for reports of suspected child abuse and child neglect[,]” MCL 722.622(e)). See Section 2.2 for a detailed discussion of reporting suspected child abuse or child neglect.

⁵ “The Michigan Supreme Court has held that the phrase, ‘the proximate cause,’ in [MCL 691.1407(2)] does not mean ‘a proximate cause,’ as is usually the case in tort law, but rather ‘the one most immediate, efficient, and direct cause of the injury or damage.’” Jasinski v Tyler, 729 F3d 531, 544-545 (CA 6, 2013) (“CPS employees’ [mishandling of a child protective case that left a minor child with his father after confirming the father had abused the minor child’s two older siblings] cannot be said to be the ‘most, immediate, efficient, and direct cause’” of the minor child’s death where the father caused the minor child’s death through murder-suicide), quoting Robinson v City of Detroit, 462 Mich 439, 461-462 (2000).

⁶ This provision applies unless otherwise provided and “without regard to the discretionary or ministerial nature of the conduct in question[.]” MCL 691.1407(2).

⁷ MCL 722.163(2) defines a legal guardian as “a person appointed by a court of competent jurisdiction to exercise care and custody decisions over a minor.”