Grahovac v. Munising Township

689 N.W.2d 498, 263 Mich. App. 589

• Court: Michigan Court of Appeals
• Decided: September 21, 2004
• Docket: Docket 248352
• Status: Published

Opinions

BORRELLO, J.

In this wrongful death action, defendant Harold Anderson,¹ the chief of the Munising Township volunteer fire department, appeals as of right the trial court’s order denying his motion for summary disposition under MCR 2.116(C)(7). Because we agree with the trial court that a township fire chief² is not sheltered by the absolute immunity provisions of MCL 691.1407(5), we affirm.

This Court reviews de novo a trial court’s ruling on a motion for summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). “MCR 2.116(C)(7) tests whether a claim is barred because of immunity granted by law, and requires consideration of all documentary evidence filed or submitted by the parties.” Wade v Dep’t of Corrections, 439 Mich 158, 162; 483 NW2d 26 (1992). This Court must consider all well-pleaded allegations as true and construe them in favor of the nonmoving party. Id. at 162-163. “If the facts are not in dispute and reasonable minds could not differ concerning the legal effect of those facts, whether a claim is barred by immunity is a question for the court to decide as a matter of law.” Poppen v Tovey, 256 Mich App 351, 354; 664 NW2d 269 (2003).

On September 15, 2001, plaintiffs decedent, Paul Grahovac, a volunteer emergency medical technician for Alger County, responded to an accident at the intersection of M-28 and M-94 in Munising Township. While Grahovac was assisting an accident victim, a fire truck owned by Munising Township and operated by Richard Fromm struck Grahovac and killed him when the fire truck’s brakes failed. Plaintiff, the personal representative of Grahovac’s estate, filed suit against Munising Township, Richard Fromm, and Harold Anderson. With respect to defendant, plaintiff alleged that defendant was grossly negligent in failing to ensure that the fire truck was properly inspected and maintained. Defendant moved for summary disposition pursuant to MCR 2.116(C)(7), alleging that he was entitled to absolute governmental immunity under MCL 691.1407(5).

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.

The trial court denied defendant’s motion for summary disposition by concluding that as the chief of a volunteer fire department, defendant was not the highest elected or highest appointed executive official of Munising Township. The trial court determined that the highest executive officer of a department within a township was not absolutely immune under MCL 691.1407(5) because the township supervisor who hired the fire chief was actually the highest elected or highest appointed executive official in the level of government within which the fire department was organized—the township. Denying defendant’s motion for summary disposition, the trial court ruled in part:

Although the Court would find for purposes of appeal that, at least for the record at this point, that he is the highest executive officer of the—of the township volunteer fire department, that does not entitle him to the absolute immunity under paragraph 5 since he’s not the highest executive appointive office—officer, such as the supervisor of that township. And on that basis the Court denies the motion for summary judgment.

Implicit in the trial court’s reasoning was the concept that a fire department itself is not a “level of government,” so the highest official of the department could not be absolutely immune under the relevant statute.

Thus, the primary question presented on appeal is one of first impression in our state: whether a volunteer fire chief, assuming that the chief is acting in the scope of his or her executive authority,³ is the highest appointed executive official of “a level of government” under MCL 691.1407(5).

To determine whether defendant is entitled to absolute immunity, we must first decide whether a township fire department is a level of government. See Nalepa v Plymouth-Canton Community School Dist, 207 Mich App 580, 587; 525 NW2d 897 (1994), affirmed in result only 450 Mich 934 (1995). To answer that question, our decision in Nalepa suggests that we examine whether the entity shares aspects of governance with other political subdivisions, such as the power to levy taxes, the power to make decisions having a wide effect on members of the community, or the power of eminent domain. Nalepa, supra at 587. Other decisions addressing the term “level of government” employ the concept of “broad-based jurisdiction or extensive authority similar to that of a judge or legislator.” Chivas v Koehler, 182 Mich App 467, 471; 453 NW2d 264 (1990). See also Harrison v Dep’t of Corrections, 194 Mich App 446, 451; 487 NW2d 799 (1992).

Like the trial court, we can find no basis for concluding that defendant in this case is the highest elected or appointed executive in a level of government. The parties have presented no evidence that defendant has any powers of governance. Defendant lacks the power to levy taxes, the power to make decisions having a wide effect on members of the community, and the power of eminent domain, as well as broadly based jurisdiction or extensive authority similar to that of a judge or legislator. In fact, the Legislature specifically granted those powers to the township board or other government agencies. See MCL 41.801 (granting the power to levy taxes to the township board); MCL 213.111 et seq. (granting the power of eminent domain for public utilities to cities with populations over 25,000); MCL 213.151 et seq. and 213.171 et seq. (granting the power of eminent domain for highways to the state highway commissioner and county road commission); MCL 213.221 et seq. (granting the power of eminent domain for streets to a municipality); MCL 213.361 et seq. (granting the power of eminent domain for public purposes to cities, villages, townships, drainage districts, counties, boards of county road commissioners, and the state highway commission); MCL 41.805 and 41.806(1) (granting the power to make decisions that have a wide effect on the community to the township board); and MCL 41.181 (granting the power to legislate to the township board).

Plaintiff presented no proof—and we can find none —that a township fire department has legislative powers or shares any attributes of other political subdivisions. Rather, a township fire department is at the complete disposal of the township board and can neither exist nor act without the board’s authorization. MCL 41.181. Thus, we conclude that defendant is not the highest appointed or elected official in a level of government.

Our conclusion comports with the purpose behind absolute immunity and recognizes the reason for granting some government officials absolute immunity while bestowing others with only qualified immunity:

“It is assumed through the broad grant of immunity to certain public employees that these officials and, therefore, their governmental agencies, will not be intimidated nor timid in the discharge of their public duties. Although absolute immunity may be necessary for unfettered governmental decision-making, courts have been reluctant, understandably, to extend its protection beyond select public employees who are delegated policy-making powers.

“* * * The policy which only provides a limited immunity to lower level executive officials, unlike the justifications for absolute immunity, reflects a recognition that official immunity should not shield malicious or intentionally unlawful behavior when the actor is not engaged in broad, essential governmental decision-making. Holding these public servants liable does not hamper or intimidate them in the faithful discharge of their duties since they are responding to established administrative guidelines, regulations and informal policy. It is assumed, therefore, that an unreasonable burden does not fall on an administrative system when courts hold lower level executive employees liable for their acts performed in bad faith.” [Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 632-633; 363 NW2d 641 (1984), quoting Littlejohn & DeMars, Governmental immunity after Parker and Perry: The king can do some wrong, 1982 Det CLR1, 25-27.]

Here, where the township board, rather than defendant, has been legislatively charged with broad, essential governmental decision-making, it is the township board, rather than defendant, that requires the broad protection of absolute immunity. We cannot conclude that the Legislature intended to shelter lower-level employees having no delegated policy-making powers with such a broad grant of immunity. Rather, the qualified immunity set forth in MCL 691.1407(2) sufficiently protects those who are merely responding to— but not making—established administrative guidelines, regulations, and informal policy. In the present case, defendant has produced nothing from which we can conclude that he is engaged in the broad, essential governmental decision-making necessary to invoke the absolute immunity protections of MCL 691.1407(5).

Defendant points to Stewart v White Lake Twp, unpublished opinion per curiam of the Court of Appeals, issued June 9, 1998 (Docket No. 202660), in support of his argument that he is absolutely immune from tort liability. Although Stewart did conclude that the fire chief in that case was entitled to absolute immunity, unpublished opinions have no precedential value, and we are not bound by them. MCR 7.215(C)(1). Further, careful examination of the Stewart decision reveals no compelling justification for its result: the opinion merely cites other opinions that have held different executives absolutely immune and states that because the defendant fire chief was the “highest executive officer of the fire department,” he was absolutely immune. Stewart, slip op at 5 (emphasis added). But the test is not whether someone is the highest executive of a department. To be absolutely immune, the person must be the highest appointed or elected executive of a level of government.

Defendant last asserts that because this Court has found certain police chiefs absolutely immune, citing Payton v Detroit, 211 Mich App 375; 536 NW2d 233 (1995), Washington v Starke, 173 Mich App 230; 433 NW2d 834 (1988), and Meadows v Detroit, 164 Mich ; 418 NW2d 100 (1987), so must a fire chief be found similarly. We disagree. In each of the three cases, the executive official at issue was the city chief of police. Further, in Meadows, the parties submitted the city charter, which granted powers to the police chief above and beyond those granted by the Legislature. Id. at 427. As discussed, cities and townships are governed by different statutory schemes. Our decision today is premised solely on the legislative provisions governing townships, MCL 41.1a et seq., and we are without the benefit of knowledge of any local law that might have otherwise borne on the result. From the record presented, we find no basis for concluding that the Munising Township volunteer fire department is a level of government.

Last, we note that plaintiff implores us to find that defendant is not absolutely immune because he is a volunteer fire chief and because of his part-time employment status. We find nothing in MCL 691.1407(5) to support that line of reasoning. The plain language of the statute does not limit absolute immunity to either paid or full-time positions. Although the qualified immunity provision of MCL 691.1407(2) encompasses volunteers, that provision applies only in the absence of other applicable statutory provisions. Id. Thus, we caution that our holding today that defendant is not absolutely immune from tort liability is premised not on his volunteer or part-time employment status but on the fact that he is not the highest elected or appointed executive official of a level of government. As such, we conclude that the trial court did not err by denying defendant’s motion for summary disposition.

Affirmed. We do not retain jurisdiction.

WHITBECK, C.J., concurred.

1 Defendants Munising Township and Richard Allan Fromm are not parties to this appeal. Thus, “defendant” refers to Harold Anderson only.

2 For purposes of this appeal we limit our discussion solely to the position of township fire chief.

3 Plaintiff does not appear to have developed the initial allegation that defendant had the duty to maintain the fire truck at issue. Defendant denied having that duty in his answer to plaintiffs complaint, but later agreed he did have the duty. (Defendant cited MCL 109.4, which applies to fourth-class cities, but neither party has presented evidence that Munising Township is subject to the rules governing fourth-class cities, rather than those governing townships.) The trial court did not address that area of the analysis at all. As such, we limit our analysis only to whether the fire chief is the highest appointed official in a level of government. We note, however, that MCL 41.806, governing townships, obligates the township board of a township—not the fire chief—to “care and manage the motor vehicles, apparatus, equipment, property, and buildings pertaining to the police and fire departments ....” MCL 41.806(1).