Is a school counsellor guilty of theft?
my daughter took her ?300 ipod to school and it was confiscated by a counsellor, now it is missing. is that person guilty of theft? are they legally responsible for returning or replacing it?
The operation of public schools is a government function. The school counselor is an agent of the school, which is a governmental agency and would be liable under a theory of respondeat superior. Normally, government agencies and their employees are protected from certain kinds of law suits under a theory of governmental immunity. This defense protects the school and its agents, as long as the agent was acting within the scope of his duties. However, governmental immunity does not apply to intentional torts.
Depending on the facts in your case, the school may state that the ipod was taken in accordance with its school policy to kep classrooms free from interference and therefore lawful. However, if you can prove the ipod was taken under different circumstances or if it was stolen by a school employee after it was lawfully taken, you may be well on your way to a successful lawsuit.
The act of taking the ipod would be classified as conversion. Conversion is any distinct act of dominion wrongfully exerted over another's personal property. It occurs at the point that such wrongful dominion is asserted. Thoma v. Tracy Motor Sales, Inc., 360 Mich. 434, 438, 104 N.W.2d 360 (1960); Wronski v. Sun Oil Co., 89 Mich.App. 11, 20-21, 279 N.W.2d 564 (1979); Gum v. Fitzgerald, 80 Mich.App. 234, 238, 262 N.W.2d 924 (1977); Embrey v. Weissman, 74 Mich.App. 138, 143, 253 N.W.2d 687 (1977).
Conversion is an intentional tort. The commission of an intentional tort is not a governmental function. If not a governmental function, then defendant is not protected by governmental immunity. McCann v. State of Michigan, 398 Mich. 65, 247 N.W.2d 521 (1976); Galli v. Kirkeby, 398 Mich. 527, 248 N.W.2d 149 (1976).
Posted about 9 years ago
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