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Diehl v. Danuloff8/4/2000
FOR PUBLICATION
9:00 a.m.
Updated Copy September 29, 2000
Plaintiff Cherie Diehl, as next friend of her two minor grandchildren, appeals as of right the trial court's grant of summary disposition to defendant Lyle Danuloff under MCR 2.116(C)(7) and (8). We affirm.
I. Facts and Proceedings
Bethany and David Waterstreet, the parents of the minor children, were involved in a divorce that began in 1991. In 1993, David filed a petition for custody against Cherie and Darwin Diehl, the maternal grandparents of the minor children. In connection with the custody proceeding, David filed a motion seeking a psychological evaluation of the children and family. The trial court granted David's motion and ordered defendant Lyle Danuloff, a licensed psychologist, to perform a full psychological evaluation on the children's familial unit and make a custody recommendation to the court. The trial court's order further provided that the parties were each to pay fifty percent of the costs and fees associated with defendant's evaluation. Defendant conducted multiple interviews of the family members, performed psychological testing of all the adults involved, and observed the children interact with the adults as part of his evaluation. Thereafter, defendant submitted a report to the trial court recommending that David be granted custody of the minor children. At the conclusion of the custody hearing, the trial court followed defendant's recommendation and granted custody of the minor children to David.
Plaintiff filed the instant lawsuit alleging professional negligence in the manner in which defendant performed the custody evaluation. Plaintiff alleged in her complaint that defendant was given information before he made his recommendation to the court that David had a history of sexual deviancy and had been sexually abusing the children. Plaintiff further alleged that after David was awarded custody of the children, he was charged with sexual abuse, pleaded guilty to a charge of indecent liberties with a child and other charges involving minors, and served a prison sentence for his convictions. The trial court granted summary disposition to defendant, finding that defendant was entitled to absolute immunity. The trial court also found that defendant did not owe a duty of care to plaintiff because, as a physician retained by the court to conduct an evaluation and make a recommendation, any duty owed was to the court. Finally, the trial court held that, despite the fact that plaintiff titled her cause of action as one alleging professional negligence, the claim was actually one alleging medical malpractice and, in the absence of a physician patient relationship, the claim must fail. Plaintiff appealed.
II. Standard of Review
We review a trial court's grant or denial of summary disposition de novo. Beaty v Hertzberg & Golden, PC, 456 Mich 247, 253; 571 NW2d 716 (1997). When reviewing a motion for summary disposition under MCR 2.116(C)(7), the court must accept the nonmoving party's well-pleaded allegations as true and construe the allegations in the non-movant's favor to determine whether any factual development could provide a basis for recovery. Amburgey v Sauder, 238 Mich App 228, 231; 605 NW2d 84 (1999). The court must consider any pleadings, affidavits, depositions, admissions, or other documentary evidence that has been submitted by the parties, id., however, the moving party is not required to file supportive material. Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). If there are no facts in dispute, whether the claim is statutorily barred by immunity is a question of law. Id.
A motion for summary di
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