680 N.W.2d 71 (Mich.App. 2004), 243107, Herman v. City of Detroit

Docket Nº:243107.
Citation:680 N.W.2d 71, 261 Mich.App. 141
Opinion Judge:PER CURIAM.
Party Name:Kathleen HERMAN, Personal Representative of the Estate of James Francis Herman, Plaintiff-Appellee, v. CITY OF DETROIT, Defendant-Appellant.
Attorney:[261 Mich.App. 142] Ruth C. Carter, Corporation Counsel, and Sheri L. Whyte, Assistant Corporation Counsel, for the defendant. Bendure & Thomas (by Mark R. Bendure), Detroit, for the plaintiff.
Judge Panel:Before: OWENS, P.J., and SCHUETTE and BORRELLO, JJ.
Case Date:January 29, 2004
Court:Court of Appeals of Michigan
 
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680 N.W.2d 71 (Mich.App. 2004)

261 Mich.App. 141

Kathleen HERMAN, Personal Representative of the Estate of James Francis Herman, Plaintiff-Appellee,

v.

CITY OF DETROIT, Defendant-Appellant.

No. 243107.

Court of Appeals of Michigan

January 29, 2004.

Submitted Jan. 6, 2004, at Detroit

Approved for Publication March 9, 2004.

Released for Publication May 26, 2004.

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[Copyrighted Material Omitted]

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[261 Mich.App. 142] Ruth C. Carter, Corporation Counsel, and Sheri L. Whyte, Assistant Corporation Counsel, for the defendant.

Bendure & Thomas (by Mark R. Bendure), Detroit, for the plaintiff.

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Before: OWENS, P.J., and SCHUETTE and BORRELLO, JJ.

PER CURIAM.

Defendant appeals by leave granted from an order denying its motion for summary disposition, brought pursuant to MCR 2.116(C)(7), (8), and (10), in this wrongful death action. We reverse.

[261 Mich.App. 143] Plaintiff's decedent, an electrician employed by defendant for twenty years, was killed on October 15, 1999, when he was struck by an arc of electricity at the Mistersky Power Plant. Plaintiff, decedent's widow, filed suit as personal representative of his estate. Defendant asserts that the trial court erred in finding that the operation of the public lighting department constituted a proprietary function, and by rejecting defendant's defense of governmental immunity on this basis. We agree.

The applicability of governmental immunity is a question of law that is reviewed de novo on appeal. Baker v. Waste Mgt. of Michigan, Inc., 208 Mich.App. 602, 605, 528 N.W.2d 835 (1995). Also, the decision to grant or deny a motion for summary disposition is reviewed de novo. Maiden v. Rozwood, 461 Mich. 109, 118-119, 597 N.W.2d 817 (1999). We review the record in the same manner as the trial court to determine whether the movant was entitled to judgment as a matter of law. Morales v. Auto-Owners Ins. Co., 458 Mich. 288, 294, 582 N.W.2d 776 (1998); Michigan Ed. Employees Mut. Ins. Co. v. Turow, 242 Mich.App. 112, 114-115, 617 N.W.2d 725 (2000).

"The purpose of summary disposition is to avoid extensive discovery and an evidentiary hearing when a case can be quickly resolved on an issue of law." Shepherd Montessori Center Milan v. Ann Arbor Twp., 259 Mich.App. 315, 324, 675 N.W.2d 271 (2003). "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." Glancy v. City of Roseville, 457 Mich. 580, 583, 577 N.W.2d 897 (1998). When deciding a motion for summary disposition under MCR 2.116(C)(7) or (10), a court must consider the pleadings, affidavits, depositions, [261 Mich.App. 144] admissions, and other documentary evidence submitted in the light most favorable to the nonmoving party. Ritchie-Gamester v. City of Berkley, 461 Mich. 73, 76, 597 N.W.2d 517 (1999); Maiden, supra at 119-121, 597 N.W.2d 817.

Tort immunity is broadly granted to governmental agencies in MCL 691.1407(1), which provides:

Except as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act does not modify or restrict the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed.

"A governmental function is 'an activity that is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law.' " Maskery v. Univ. of Michigan Bd. of Regents, 468 Mich. 609, 613-614, 664 N.W.2d 165 (2003), quoting MCL 691.1401(f). This definition is to be broadly applied. Maskery, supra at 614, 664 N.W.2d 165. It "only requires that there be some constitutional, statutory, or other legal basis for the activity in which the governmental agency was engaged." Hyde v. Univ. of Michigan Bd. of Regents, 426 Mich. 223, 253, 393 N.W.2d 847 (1986). "Tort liability may be imposed only if the agency was engaged in ultra vires activity." Adam v. Sylvan Glynn Golf Course, 197 Mich.App. 95, 97, 494 N.W.2d 791 (1992) ,

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citing Hyde, supra at 252-253, 393 N.W.2d 847. A determination of whether an activity was a governmental function must focus on the general activity and not the specific conduct involved at the time of the tort. Tate v. Grand Rapids, 256 Mich.App. 656, 661, 671 N.W.2d 84 (2003). However, a governmental agency can be liable for damages for bodily injury or property damage caused by the performance of a proprietary function. MCL 691.1413.

The [261 Mich.App. 145] proprietary function exception to governmental immunity is set forth in MCL 691.1413...

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