Antkiewicz v. Motorists Mut. Ins. Co.

Decision Date23 July 1979
Docket NumberDocket No. 78-1421
Citation91 Mich.App. 389,283 N.W.2d 749
PartiesVincent ANTKIEWICZ and Roger Antkiewicz, Plaintiffs-Appellants, v. MOTORISTS MUTUAL INSURANCE COMPANY, a Foreign Corporation, Gino's Inc., a Maryland Corporation, City of Roseville, a Michigan Municipal Corporation, Donald Salatka, Ralph Junga, Raymond Jensenius, Defendants-Appellees. 91 Mich.App. 389, 283 N.W.2d 749
CourtCourt of Appeal of Michigan — District of US

[91 MICHAPP 391] Paul R. Jackman, Detroit, for plaintiffs-appellants.

George F. Clark, Detroit, for Motorists Mutual.

Edward F. Kickham, Detroit, for Ginos.

Ronald L. Cornell, Sterling Heights, for City of Roseville.

Before RILEY, P. J., and J. H. GILLIS and MacKENZIE, JJ.

[91 MICHAPP 392] MacKENZIE, Judge.

The plaintiffs, Vincent Antkiewicz and his brother, Roger Antkiewicz, appeal from a summary judgment granted on November 9, 1977, by the Macomb County Circuit Court in favor of the defendants, City of Roseville, Detective Donald Salatka of the Roseville Police Department, and Sergeants Ralph Junga and Raymond Jensenius of the Roseville Fire Department.

The plaintiffs operated the Ambassador Restaurant in a building located in the City of Roseville which was owned by defendant Gino's, Inc. After several months of operation of the restaurant, a fire occurred on February 9, 1975, resulting in extensive damage.

An investigation of possible arson was initiated by the Police Department and Fire Department of Roseville. The plaintiffs were advised to remain off the premises and not to remove any items during the investigation.

On April 15, 1976, 14 months after the arson investigation had commenced, the plaintiffs were charged with the burning of insured property with intent to defraud, M.C.L. § 750.75; M.S.A. § 28.270. On the sixth day of that criminal trial, a directed verdict was entered in favor of the plaintiffs.

The plaintiffs filed a four-count civil complaint in this case on June 23, 1977, the third count alleging liability of the City of Roseville and its agents, Salatka, Junga, and Jensenius, arising out of the conduct of the arson investigation and the decision to bring charges. The fourth count of the complaint alleged a civil conspiracy among all of the defendants to deprive the plaintiffs of rights and property, resulting in humiliation and anxiety, and a loss of reputation and good will.

The City of Roseville and the three named agents filed a motion for summary judgment or [91 MICHAPP 393] alternatively, accelerated judgment, on the grounds of governmental immunity. The motion was granted. The plaintiffs filed a motion to set aside the order granting summary judgment, which was denied on January 3, 1978.

I

Our first determination is whether or not the lower court erred in granting summary judgment. When reviewing the granting of a motion for summary judgment under GCR 1963, 117.2(1), we regard as true the factual allegations of the plaintiffs as well as any conclusions reasonably drawn therefrom. Armstrong v. Ross Township, 82 Mich.App. 77, 81-82, 266 N.W.2d 674 (1978). We then determine "whether the plaintiff(s') claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery". Crowther v. Ross Chemical & Manufacturing Co., 42 Mich.App. 426, 431, 202 N.W.2d 577, 580 (1972). Tort liability of a governmental agency is dealt with in M.C.L. § 691.1407; M.S.A. § 3.996(107), which provides:

"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. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed."

None of the exceptions set forth in the act is applicable to this case. See M.C.L.

§§ 691.1402, 691.1405, 691.1406; M.S.A. §§ 3.996(102), 3.996(105), 3.996(106).

Thus, the essential question is whether the investigation[91 MICHAPP 394] and subsequent prosecution for arson is a "governmental function" for purposes of the governmental immunity statute. The Michigan Supreme Court recently dealt with the construction of the term "governmental function" in Parker v. Highland Park, 404 Mich. 183, 273 N.W.2d 413 (1978). In Parker, Justices Fitzgerald, Kavanagh, and Levin stated that they would limit the term to activities that are "of essence to governing". They were unable to find that the operation of a hospital was a governmental function, for it is not "an activity of a peculiar nature such that the activity can only be done by (the) government." Id. 194, 273 N.W.2d 416.

Justice Moody, in a separate opinion, declined to embrace such a limited construction of "governmental function". Instead, he reached the following conclusion:

"To delineate a complete and balanced definition of governmental function within a simplistic format would be presumptuous. However, as a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be Effectively accomplished only by the government. Unless liability would be an unacceptable interference with government's ability to govern, activities that fall outside this parameter, although performed by a government agency, are not governmental functions and therefore not immune. (Emphasis supplied.) 404 Mich. at 200, 273 N.W.2d at 419.

Justice Moody's construction, employing the qualifier "effectively", encompasses the "can only be done by (the) government" construction set forth by Justices Fitzgerald, Levin, and Kavanagh, and we, therefore, regard it as the dispositive test. Thus, our inquiry when determining whether an [91 MICHAPP 395] activity is a governmental function is whether the activity is one that can be effectively accomplished only by the government.

Turning to the facts of the instant case, we have little difficulty in concluding that a police and fire department investigation of arson, having as an aim possible criminal prosecution, and the subsequent prosecution are governmental functions.

The determination of whether the underlying activity is a governmental function is only the first step in deciding the immunity question. We must next determine whether the specific acts complained of were in the exercise or discharge of that function. See Cronin v. Hazel Park, 88 Mich.App. 488, 276 N.W.2d 922 (1979); Duncan v. Detroit, 78 Mich.App. 632, 261 N.W.2d 26 (1977).

A recent Michigan Supreme Court decision, Lockaby v. Wayne County, 406 Mich. 65, 276 N.W.2d 1 (1979), appears to set forth a majority Court position that intentional torts committed by public officers are not activities "in the exercise or discharge of a governmental function". In Lockaby, the plaintiff brought an action for injuries allegedly inflicted by agents of the Wayne County Sheriff's Department while the plaintiff was in the custody of that department. In separate opinions, a majority of the justices reached a consensus that the intentional nature of the injuries inflicted rendered permissible a cause of action against Wayne County. 1

In the instant case, the counts in the plaintiffs' complaint allege the commission of the intentional tort of trespass. 2 In Michigan, trespass has been defined to be any unauthorized intrusion or invasion of the private premises or lands of another. Giddings v. Rogalewski, 192 Mich. 319, 158 N.W. 951 (1916); Douglas v. Bergland, 216 Mich. 380, 185 N.W. 819 (1921). An initially authorized presence on one's premises may become a trespass if, for some reason, the authorization becomes invalid. 87 C.J.S. Trespass § 14. Normally, a public officer who is on the premises of another pursuant to legal authorization is not liable for trespass. Such officer becomes liable, however, where he acts in excess of his authority. See Clark v. Wiles, 54 Mich. 323, 20 N.W. 63 (1884); 87 C.J.S. Trespass § 54. An examination of the plaintiffs' complaint reveals the allegations that "the investigation was kept open an inordinate length of time" and that it was "unduly prolonged". Based on these assertions, we conclude that an unauthorized or wrongful intrusion, constituting a trespass, was sufficiently alleged. Since under the Michigan Supreme Court decision in Lockaby, an intentional tort is not an activity within the exercise or discharge of a governmental...

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