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?


Asked over 8 years ago in South haven, Michigan
Categories: Criminal Law  Small Claims

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<br />yes for me

Posted over 8 years ago


Comment

<br />yes for me

Posted over 8 years ago


Matt Vititoe

Answer by Matt Vititoe

VerifiedMichigan lawyer


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 over 8 years ago

Matt Vititoe Law Office of Matt Vititoe 115 East Front Street Monroe, Michigan 48161 Phone (734) 693-9950 Fax (734) 240-3825 mvititoe@gmail.com

Please note that this is for informational purposes only and does not constitute legal advice to you. Legal advice pertaining to your particular situation can only be provided by a lawyer who has met with you to obtain all pertinent background information necessary to give you a formal legal opinion. For formal legal advice, hire a lawyer (many give a free first consultation). Contact Matt Vititoe, or search the Lawyer Directory.

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