Berger v. City of Berkley

• Decision Date: 05 December 1978
• Docket Number: Docket Nos. 31382,77-716
• Citation: 87 Mich.App. 361,275 N.W.2d 2
• Parties: Ford Douglas BERGER and Peggy Berger, Plaintiffs-Appellants, v. CITY OF BERKLEY et al., Defendants-Appellees. 87 Mich.App. 361, 275 N.W.2d 2
• Court: Court of Appeal of Michigan — District of US

Page 2

275 N.W.2d 2

Ford Douglas BERGER and Peggy Berger Plaintiffs-Appellants, v. CITY OF BERKLEY et al., Defendants-Appellees.

Docket Nos. 31382, 77-716

87 Mich.App. 361, 275 N.W.2d 2

Court of Appeals of Michigan.

Dec. 5, 1978.

Released for Publication Feb. 9, 1979.

[87 MICHAPP 365] Lacey & Jones by John Hayes and John N. Salter, Detroit, Harold J. Robinson, Royal Oak, of counsel, for plaintiffs-appellants.

Joseph V. Walker, Southfield, for City of Berkley and Police, City of Birmingham and Police.

[87 MICHAPP 366] Bernard Girard, Bloomfield Hills, for Bloomfield City and Police.

J. J. Maloney, Southfield, for Clawson, City and Police, Lathrup Village and Police, Cities of Farmington and Novi and Novi Police.

Ronald L. Cornell, Sterling Heights, for Ferndale City and Police, Officer Kellogg.

John N. Highland, Birmingham, for Bloomfield Township and Police.

[87 MICHAPP 367] Wayne D. Gardner, Farmington Hills, for Bingham Farms Village.

[87 MICHAPP 366] William P. Jamieson, Southfield, for Hazel Park, City and Police.

Ronald E. Westen and Michael F. Schmidt, Detroit, for Huntington Woods City, Police and Public Safety, Village of Beverly Hills and Police, Officer Danaher.

Jon Feikens, Troy, for Madison Heights City and Police.

Sanford N. Lakin, Southfield, for Oak Park, City and Police and Public Safety and Richard Howell.

Maurice A. Merritt, Bloomfield Hills, for Royal Oak Township and Police.

John M. Heaphy, Detroit, for Southfield City and Police and James Gutenburr.

Bernard N. Portnoy, Bloomfield Hills, for Farmington, City and Police, Farmington Township and Police, and Raymond Marchewitz.

Thomas J. Dillon, Jr., Pontiac, for Larry Brown.

Sidney J. Suo, Southfield, for Village of Franklin, Franklin Police Dept.

Reginald S. Johnson, Detroit, for Troy, City and Police.

[87 MICHAPP 367] Before BRONSON, P. J., and ALLEN, and T. M. BURNS, JJ.

ALLEN, Judge.

This author and Judge Bronson, who writs 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 Burn's opinion. ¹

The pertinent section of Michigan's governmental immunity act, M.C.L. § 691.1401 Et seq.; M.S.A. § 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." (M.C.L. § 691.1407; M.S.A. § 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"[87 MICHAPP 368] 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 N.W.2d 566 (1975), Anderson v. Detroit, 54 Mich.App. 496, 221 N.W.2d 168 (1974), Walkowski v. Macomb County Sheriff, 64 Mich.App. 460, 463, 236 N.W.2d 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 N.W.2d 273, 276 (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 fired 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. Department of State Highways, 398 Mich. 1, 247 N.W.2d 530 (1976), such case law no [87 MICHAPP 369] 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 N.W.2d 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 [87 MICHAPP 370] 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, M.C.L. § 691.1405; M.S.A. § 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 P.A. 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 [87 MICHAPP 371] 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. M.C.L. § 418.131; M.S.A. § 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.

BRONSON, Presiding Judge, concurring.

With reluctance, I concur in the decision. I do so not because I agree with the policy announced in the opinion, but because I feel that the Supreme Court of this State has not yet embraced a position which would allow the decision to go the other way. It is for this reason that I write separately.

Plaintiff police officer was horribly injured while engaging in a police training exercise when another[87 MICHAPP 372] officer fired a rice pellet loaded shotgun directly into his face at a distance of about three feet. As a result of the blast plaintiff suffered total and permanent blindness and severe facial disfigurement. Due to the Present state of the law, however, plaintiff is left without a suitable remedy. The reason for this is the rigid application of the doctrine of governmental immunity, a concept which as presently interpreted has outlived its usefulness. ¹

The doctrine of governmental immunity is a carry-over from days when it was thought that "it is better that an individual should sustain an injury than that the public should suffer an inconvenience". Russell v. Men of Devon, 2 Durnford & East Term Rep. 667,673; 100...