A New Exception To Governmental Immunity In The State Of Michigan

 

FACTS AND PROCEDURAL HISTORY

     On July 19, 2008, the Village of Port Sanilac hosted an event in a park that included a number of musical acts and a beer tent for the purpose of raising funds for the volunteer fire department. Petipren and his band were scheduled to perform at the event. Prior to Petipren’s band playing, complaints regarding the style of music being played had been voiced to volunteers working at the beer tent. Words were exchanged between individuals listening to the band and individuals patronizing the beer tent. Brown City Police Chief Ron Brown reported to the park after receiving a “call from individuals” requesting that he stop at the park “because the band that was performing was playing offensive music.” The organizer of the event also returned to the event after being contacted by a volunteer at the beer tent. Upon his arrival, Brown was approached by several citizens who found the music “offensive, disturbing, and not appropriate for the crowd.” Brown then contacted Village of Port Sanilac Police Chief Ronald Jaskowski and requested that Jaskowski come to the park because trouble appeared to be brewing between those who wanted the band to play and those that did not. By the time Jaskowski arrived, the organizer of the event was resolving the situation. At some point, a decision was made that the bands would no longer play.
      From here, the parties’ portrayals of the facts sharply diverge. Petipren testified that he had been busy assembling his drum set on stage and did not know that the concert had been called off. Petipren was in the midst of playing his usual warm-up routine when he observed Jaskowski for the first time. Jaskowski appeared to be very angry, so Petipren stopped playing to find out what Jaskowski wanted. Petipren held his drumsticks in his lap and did not say anything. According to Petipren, Jaskowski barged through Petipren’s drum set, knocked over a cymbal, grabbed Petipren’s drumsticks, and flung them away. Jaskowski then grabbed Petipren by the collar and pushed him backward off of his seat and into a pole. Petipren testified that nob words were exchanged and that he put his arms straight up in the air to be completely clear that he was not resisting. Petipren stated that he began asking, “What did I do?” Jaskowski then pushed him off the stage and shoved him down onto the grass. Jaskowski yelled at Petipren to stop resisting, and Petipren again responded that he was not resisting. When a bass player from another band asked Jaskowski why Petipren was being arrested, Jaskowski had him arrested as well. The prosecutor declined to press any charges against Petipren.
 Procedural History
     Jaskowski filed his own suit against Petipren alleging assault, intentional infliction of emotional distress, negligence, and negligent infliction of emotional distress. Petipren filed a counter-complaint in that case alleging intentional and negligent infliction of emotional distress and negligence against Jaskowski. Jaskowski moved for summary disposition of the claims against him in each case. The trial court denied both motions.Odom v Wayne County, 482 Mich 459, 466; 760 NW2d 217. A trial court properly grants summary disposition under MCR 2.116(C)(7) where a claim is barred because of immunity granted by law. Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). “When reviewing a motion under MCR 2.116(C)(7), this Court must accept all well-pleadedDextrom v Wexford Co, 287 Mich App 406, 429; 789 NW2d 211 (2010). IfZwiers v, 286 Mich App 38, 42; 778 NW2d 81 (2009). “If no facts are in dispute, and ifDextrom, 287 Mich App at 430.Id.Griffith v State Farm Mut Auto Ins Co, 472 Mich 521, 526; 697 NW2dSotelo v Grant Twp, 470 Mich 95, 100; 680 NW2d 381 (2004). “The first step in thatIn re MCI Telecom Complaint, 460House Speaker v State Admin Bd, 441 Mich 547,Robertson v DaimlerChrysler Corp, 4652000 Baum Family Trust v Babel, 488 Mich 136, 175; 793 NW2d 633 (2010). We mayHalloran v, 470 Mich 572, 578; 683 NW2d 129 (2004). When given their common and ordinaryVeenstra v Washtenaw Country Club, 466 Mich 155, 160; 645 NW2d 643 (2002), Klooster v City of Charlevoix 488 Mich 289, 296; 795 NW2d 578 (2011), quoting United States, 452 US 576, 593; 101 S Ct 2524; 69 L Ed 2d 246 (1981).
     Jaskowski argues that he is absolutely immune from plaintiff’s claims because he is the highest appointive official at the pertinent level of government and his actions were taken within the scope of his authority. Governmental immunity from tort liability is governed by MCL 691.1407(5)
 
  GOVERNMENTAL IMMUNITY
     The governmental tort liability act (GTLA) shields a governmental agency from tort liability “if the governmental agency is engaged in the exercise or discharge of a governmental function.” MCL 691.1407(1). The existence and scope of governmental immunity was solely a creation of the courts until the Legislature enacted the GTLA in 1964, which codified several exceptions to governmental immunity that permit a plaintiff to pursue a claim against a governmental agency.___ (2011), slip op p 5. The statutory exceptions must be narrowly construed.of Michigan Bd of Regentsagainst the government must plead in avoidance of governmental immunity.478-479. However, the immunity of an individual government employee is an affirmative defense that the employee must raise and prove. 691.1407.
     Of particular relevance in this case, MCL 691.1407(5) provides: A judge, legislator, and the elective or highest appointive executive official of all levels of government are immune 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, legislative, or executive authority. A police chief is generally recognized as the highest appointive official in the police department. See the highest executive officials of a level of government are not immune from tort liability unless their acts fall within the scope of their executive authority. MCL 691.1407(5); Transmissions, Inc v Attorney General Randlett local government was acting within his authority depends on a number of factors, including the nature of the acts, the position held by the official, the local law defining his authority, and the structure and allocation of powers at that particular level of government. Detroit Police Chief irrelevant.  Petipren also filed suit against the Village of Port Sanilac.
     The trial court dismissed the claimsDuffy v Michigan Dep’t of Natural Resources, ___ Mich ___; __ NW2dMaskery v Univ, 468 Mich 609, 614; 664 NW2d 165 (2003). A plaintiff bringing suitOdom, 482 Mich atId. at 479.Payton v Detroit, 211 Mich App 375, 394; 536 NW2d 233 (1995). However,American, 454 Mich 135, 144; 560 NW2d 50 (1997); Marrocco v, 431 Mich 700, 711; 433 NW2d 68 (1988). Whether the highest executive official ofId. at 141; Bennett v, 274 Mich App 307, 312; 732 NW2d 164 (2006). The official’s motive is2 American Transmissions, 454 Mich at 143-144; Brown v Detroit Mayor, 271 Mich 
     When the Legislature was considering amendments of the governmental immunity statute in 1985 and 1986, it always provided for immunity for judges, legislators, elective officials, and the highest appointive executive officials when they are acting within the scope of their judicial, legislative, or executive authority. See House Legislative Analysis, HB 5163 Substitute H-2, November 19, 1985, Senate Analysis, HB 5163 (S-3), March 20, 1986; House Legislative App 692, 722; 723 NW2d 464 (2006), aff’d in part, vacated in part on other grounds 478 Mich 589; 734 NW2d 514 (2007).
     The Port Sanilac Village Council set forth the “Essential Duties and Responsibilities” of the police chief in the job description for the position: Coordinates activities by scheduling work assignments, setting priorities, Plan, develop, and monitor work schedules to ensure efficient use of Makes decisions and takes necessary actions. Identifies and solves Communicates effectively with others. Identify staff development and training needs and ensures that training is Oversees communication and public relations practices, and directly the Maintains records, prepares reports, and composes correspondenceId. Ultimately, however, theAmerican Transmissions,, 216 Mich App 125, n 3 (emphasis deleted).] Prepares and presents a monthly report to council at regular council Reviews request for service, determines feasibility of requests according Provides input into the development of long-range budget and planning Issues various licenses and permits handled by the police department (ie., Prepares time sheets and presents to bookkeeper in a timely manner in Maintains and updates policies and procedures within the police Maintains complete inventory and requisitions of materials and supplies. Vehicle fleet maintenance. Maintains records of all vehicles to establish repair/replacement. Maintains inventory of department of vehicles. Provide leadership and mentoring to subordinate employees while Record and secure all evidence.3
 The Duties Of The Officer Involved
 
      A review of the duties assigned to the police chief reveals that the chief’s duties generallyinvolve policy, procedure, administration, and personnel matters. Generally, opinionsinterpreting MCL 691.1407(5) have involved either defamation lawsuits that arose from public
comments made by the highest executive official of a level of government, or lawsuits that arose from personnel or employment decisions made by the highest executive official of a level of government. Such cases have concluded that acts such as commenting on an official government matter and making personnel or employment decisions clearly fall within the scope of executive authority of the highest executive officials of local government. For example, in Mich App 307, a suspended police officer brought an action for wrongful discharge against the chief of police and the mayor.
This Court concluded that the chief had express legal authority to suspend police officers from duty and, therefore, was entitled to governmental immunity for Bennett, 274 suspending the police officer for operating an Internet website in violation of police department rules and regulations. This Court also concluded that the mayor, who had authority to terminate or suspend employees, was immune from the plaintiff’s tort allegations. In 173 Mich App 230; 433 NW2d 834 (1988), the personal representative of a fleeing burglar shot by a Benton Harbor police officer brought a wrongful death action against the city’s public safety director. The public safety director is the highest executive official in Benton Harbor’s police department.
 
      The specific job duties of the police chief say nothing of making arrests.Washington v Stark,Id. at 241. In Meadows v Detroit, 164Id. at 427. The Court also concluded that the police chief was entitled toId. at 428.Lewkowicz v Poe, unpublished opinion per curiam ofLewkowicz, this in his official capacity as police chief granted him by law as a police officer when he arrested and detained plaintiff, and was entitled to absolute immunity under MCL 691.1407(5) . . . by virtue of his status as the highest law enforcement official for the city of Romulus.”v Clare chief was not entitled to absolute immunity under MCL 691.1407(5) from an assault and battery claim brought by the estate of a deceased victim of a police shooting because the chief “appears to have been acting in his capacity of an officer on patrol, rather than performing any tasks particular to his position as the ‘highest appointive official.’” We find that the words of MCL 691.1407(5). statute and recognizes that the statute refers to immunity for acts taken by the highest executive official of a level of government when the official is acting within the scope of his , found that the police chief “acted within the authorityId. at 2 [emphasis added]. However, in Scozzari, 723 F Supp 2d 945 (ED Mich, 2010), the federal district court concluded that a policeId. at 967.Scozzari reasoning best reflects the legislative intent expressed in theScozzari is more faithful in construing the plain language of the executive authority.
      When a police chief acts as an ordinary police officer – that is, when the nature of the act is outside the scope of his executive duties – he is not entitled to absolute immunity simply because he is also the police chief. Indeed, the essential duties of the police chief as set forth in the job description for the police chief for the Village of Port Sanilac are administrative in nature and are clearly distinct from the nature of the duties of an ordinary police officer. police chief may occasionally perform the duties of an ordinary police officer, he is not acting within the scope of his department when doing so. an ordinary police officer, he would be entitled to the immunity provided to government employees under MCL 691.1407(2) if all statutory requirements are satisfied. lead to an illogical result to limit a plaintiff’s intentional tort claims arising from the conduct of a police officer in those cases where the police officer is also the police chief who was acting as an ordinary police officer at the time he allegedly committed the tortious act.
Affirmed.

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