Berger v. City of Berkley

275 N.W.2d 2, 87 Mich. App. 361, 1978 Mich. App. LEXIS 2682

• Court: Michigan Court of Appeals
• Decided: December 5, 1978
• Docket: Docket 31382, 77-716
• Status: Published

Opinions

Allen, J.

This author and Judge Bronson, who writes separately, concur in the opinion of Judge T. M. Burns except that portion thereof holding that the defense of "governmental immunity” does not apply to the municipal defendants themselves. We simply cannot agree that the police training exercise being conducted when plaintiff was struck in the face by rice pellets was not a governmental function. Therefore, we would affirm the grant of summary judgment in favor of those municipalities and police departments not in default. In all other respects we agree with Judge Burns’s opinion.¹

The pertinent section of Michigan’s governmental immunity act, MCL 691.1401 et seq.; MSA 3.996(101) et seq., reads:

"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function.” MCL 691.1407; MSA 3.996(107). (Emphasis supplied.)

While our courts have frequently disagreed as to whether a specific negligent act was committed "in the exercise or discharge of a governmental function” nothing seems clearer or more settled than the doctrine that the management, operation and control of a police department is a municipal function, and tort actions directed against such department are defeated on the grounds of governmental immunity. McPherson v Fitzpatrick, 63 Mich App 461, 463; 234 NW2d 566 (1975), Anderson v Detroit, 54 Mich App 496; 221 NW2d 168 (1974), Walkowski v Macomb County Sheriff, 64 Mich App 460, 463; 236 NW2d 516 (1975). The only difference between those cases and the instant case is that in the cited cases the officers’ actions were committed while on routine police duty whereas in the case before us the wrongful action took place during a training exercise. We find the difference inconsequential. Training is part of the operation of a police department, and participation in a police training exercise is therefore a governmental function. As was stated in Dionne v City of Trenton, 79 Mich App 239, 246; 261 NW2d 273 (1977), an opinion released subsequent to oral argument in the instant case:

" * * * [W]e would have little hesitation in finding that the training of police officers, including the establishment and operation of a shooting range to accomplish that purpose, is of a public nature, for the public good, and the exercise of a governmental function. If the injury had occurred as the result of a shot negligently ñred by a policeman or by an instructor in the course of police training, there would be a basis for holding that immunity from liability existed.” (Emphasis supplied.)

Plaintiffs acknowledge the McPherson-Walkowski rule that "the operations of police departments are governmental functions” but claim that pursuant to Thomas v Dept of State Highways, 398 Mich 1; 247 NW2d 530 (1976), such case law no longer has force. To support this contention, plaintiffs cite footnote 4 at page 17 of Thomas. However, that footnote appeared in the dissenting opinion in Thomas. The Thomas majority approach looks to existing case law to determine what is and what is not a governmental function. Under existing case law the operation of a police department is a governmental function.

Subsequent to oral argument in the instant case our Supreme Court issued its opinion in Pichette v Manistique Public Schools, 403 Mich 268; 269 NW2d 143 (1978). In that opinion the justices divided evenly on the question of whether or not the conduct complained of was in the exercise or discharge of a governmental function. Three justices opted to adopt the policy making/policy implementing test as set forth in the minority opinion in Thomas, supra. Three justices would follow the majority in Thomas and look to the common law for guidance in deciding whether a specific activity was in the discharge of a governmental function. One justice felt it unnecessary to reach that decision. It is this author’s opinion that even if a majority of the justices had adopted the policy making/policy implementing test, it would not follow that the training exercise in the present case would not be a governmental function.² On this issue, this author and Judge Bronson disagree. But since that test did not command a majority of the justices, both Judge Bronson and I agree that given the current state of the law, governmental immunity is a defense in the case before us.

Lastly, we address an issue which Judge Burns found it unnecessary to touch upon.³ Plaintiffs claim that even if participation in a police training exercise is a governmental function, § 5 of the Michigan governmental immunity act, MCL 691.1405; MSA 3.996(105), permits recovery. That section provides:

"Governmental agencies shall be liable for bodily injury and property damage resulting from the negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner, as defined in Act No. 300 of the Public Acts of 1949, as amended, being sections 257.1 to 257.923 of the Compiled Laws of 1948.” 1964 PA 170, § 5, eff. July 1, 1965. (Emphasis supplied.)

Under this section liability attaches only to the single governmental unit owning the vehicle. Plaintiffs argue that the vehicle from which the injured officer was "escaping” was in a "state of being at work” in that it was being used as a mobile jail. However, the statute clearly required that the injury result from the operation of the vehicle. In the instant case the injury resulted from the discharge of a firearm. The firearm discharge was in no way caused by or a result of the operation of the vehicle. It was the negligence of the other officers participating in the training exercise and not the negligence of the driver of the vehicle, which caused the injury. The trial court did not err in finding that the § 5 exception to governmental immunity did not apply.

In summary, the grant of accelerated judgment in favor of the individual defendants is therefore reversed. The issue of individual negligence is remanded for trial. Before reaching this issue, however, the trial court will first have to determine whether the South Oakland Tactical Support Unit was a joint venture and whether plaintiffs are therefore barred from proceeding against the individual defendants by the exclusive remedy provision of the worker’s compensation act. MCL 418.131; MSA 17.237(131). The grant of accelerated judgment in favor of defendants who have not moved to set aside the entry of default is also reversed. The grant of accelerated judgment in favor of those municipalities and police departments not in default is affirmed.

No costs, a public question being involved.

1 Compatible with Judge Burns’s opinion we would: (as to Issue I)— -reverse the judgments entered against those defendants who were defaulted, and remand to allow plaintiffs to move for entry of a default judgment or other appropriate relief; (as to Issue II) — remand to the trial court for determination by the trier of fact whether plaintiff was an employee of defendant; (as to Issue III) — reverse judgment in favor of the individual defendant and allow discovery and consideration of individual motions for summary judgment.

2 "The mere fact that a governmental agency is doing a certain act does not make such act a 'governmental function’ if a private person or corporation may undertake the same act. Thus, 'governmental function’ is not delineated by questions of the broad scope of an activity undertaken or by financial or insurance considerations which may be indicative of a governmental undertaking, but rather by viewing the precise action allegedly giving rise to liability, and determining whether such action is sui generis governmental — of essence to governing. Supervision of road construction (as opposed to the making of decisions as to whether to build a road), operation of hospitals and schools (as opposed to planning or deciding what health services to offer or what subject to teach), operation and supervision of playgrounds and swimming pools (as opposed to deciding whether to operate such playgrounds or pools) are not governmental functions within this definition. On the other hand, certain aspects of the exercise of the executive, legislative, or judicial powers are by their very nature governmental functions and necessarily removed from the undertakings of the private sector." Thomas, supra, at 21-22. (Emphasis supplied.)

This author believes that the underscored words would preclude police operations from being considered nongovernmental. Unlike road building, the operation of hospitals or the construction of swimming pools, the operation of a police department does not have a counterpart in the private sector.

3 Having found in plaintiffs’ favor on the issue of "governmental function” it was unnecessary to reach this issue.