Lee v. City of Utica

269 N.W.2d 267, 83 Mich. App. 679, 1978 Mich. App. LEXIS 2360

• Court: Michigan Court of Appeals
• Decided: June 5, 1978
• Docket: Docket 77-915
• Status: Published

Opinions

D. F. Walsh, J.

The relevant facts of this case are ably reported in our colleague’s dissenting opinion and are adopted here. We find no error, however, in the trial court’s entry of accelerated judgment, GCR 1963, 116.1, dismissing plaintiffs’ suit against the City of Utica on the grounds of governmental immunity.

The act of a policeman in making an arrest is an activity "in the exercise or discharge of a governmental function”. MCL 691.1407; MSA 3.996(107). The suggestion that it might not be was expressly rejected by the majority in Thomas v Department of State Highways, 398 Mich 1, 13-14; 247 NW2d 530 (1976):

"Under the guise of 'judicial refinement’, the Kavanagh/Fitzgerald opinion has sought to impose rather novel standards for governmental immunity. For example, the opinion suggests that if a police commission plans a particular type of war on crime, that is a governmental function, but if a police officer under that plan performs the traditional police function of arresting a criminal, that is not a governmental function. This certainly does not in any way correspond to the meaning the Legislature intended.” (Emphasis added, footnote omitted.)

Moreover we find the case before us to be distinguishable from Kriger v South Oakland County Mutual Aid Pact, 399 Mich 835; 250 NW2d 67 (1977), relied upon in the dissenting opinion. In Kriger the police officer assailants were not involved in the governmental function of making an arrest but were engaged in an unprovoked assault.¹

The judgment of the trial court is affirmed. No costs, a public question.

A. C. Miller, J., concurred.

1 In the Court of Appeals opinion in Kriger v South Oakland County Mutual Aid Pact, 49 Mich App 7, 9; 211 NW2d 228 (1973) the facts were stated to be as follows:

"On August 25, 1970, a disturbance took place at Memorial Park in Royal Oak, Michigan. Police were ordered to the scene to restore order. Plaintiff, a 17-year-old amateur photographer, had been observing the altercation from a vantage point across the street. Suddenly and without provocation, three police officers assaulted and beat him, causing severe and lasting injuries. The assailants were not attempting to arrest plaintiff. The incident was recorded by newspaper photographers and TV cameramen and later published and broadcast. The officers involved could not be identified.” (Emphasis added.)