Madison v. City of Detroit

• Decision Date: 17 January 1995
• Docket Number: Docket No. 157204
• Citation: 527 N.W.2d 71,208 Mich.App. 356
• Parties: Valerie MADISON, Plaintiff-Appellant, v. CITY OF DETROIT and Department of Accounting, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 71

527 N.W.2d 71

208 Mich.App. 356

Valerie MADISON, Plaintiff-Appellant, v. CITY OF DETROIT and Department of Accounting, Defendants-Appellants.

Docket No. 157204.

Court of Appeals of Michigan.

Submitted May 10, 1994, at Detroit.

Decided Jan. 17, 1995, at 9:40 a.m.

Released For Publication Feb. 21, 1995.

William Pultusker, Southfield, for plaintiff.

Sharon D. Blackmon, Asst. Corp. Counsel, for defendant.

Before MARILYN J. KELLY, P.J., and SHEPHERD and BORRELLO, ^* JJ.

MARILYN J. KELLY, Presiding Judge.

Plaintiff appeals as of right from a grant of summary disposition for defendant ¹ and dismissal of her intentional tort claim on the basis of governmental immunity. Plaintiff asserts that the trial court erred in failing to find an intentional tort exception to governmental immunity in worker's compensation cases. We agree and reverse.

I

Plaintiff was employed by defendant's transportation department in 1988. Her assignment was to collect money from bus fare collection boxes. Defendant provided a truck with a crane to lift the large metal boxes, which held thousands of coins. When the truck malfunctioned, defendant replaced it with one not equipped with a crane. Plaintiff asserts that she was then required to lift the metal boxes without mechanical aid and, in so doing, injured her back on the job in February, 1989. Unable to work, she collected worker's compensation benefits.

Plaintiff sued her employer, alleging a right to recovery under the intentional tort exception to the exclusive remedy provision of the Worker's Disability Compensation Act (WDCA), M.C.L. § 418.131; M.S.A. § 17.237(131). In response, defendant moved for summary disposition, alleging it was immune from tort liability pursuant to § 17 of the governmental immunity act, M.C.L. § 691.1407; M.S.A. § 3.996(107). The trial court agreed with defendant's position and dismissed plaintiff's tort claim.

II

A

The central issue in this case is the interpretation and reconciliation of § 131(1) of the WDCA and § 7(1) of the governmental immunity act, being M.C.L. § 418.131(1); M.S.A. § 17.237(131)(1) and M.C.L. § 691.1407(1); M.S.A. § 3.996(107)(1), respectively. As this is a matter of statutory interpretation, appellate review is de novo. In re Lafayette Towers, 200 Mich.App. 269, 273, 503 N.W.2d 740 (1993).

Section 131(1) of the WDCA provides:

The right to the recovery of benefits as provided in this act shall be the employee's exclusive remedy against the employer for a personal injury or occupational disease. The only exception to this exclusive remedy is an intentional tort. An intentional tort shall exist only when an employee is injured as a result of a deliberate act of the employer and the employer specifically intended an injury. An employer shall be deemed to have intended to injure if the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge. The issue of whether an act was an intentional tort shall be a question of law for the court. This subsection shall not enlarge or reduce rights under law. [M.C.L. § 418.131(1); M.S.A. § 17.237(131)(1).]

Section 7(1) of the governmental immunity act states:

Except as otherwise provided in this act, 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(1); M.S.A. § 3.996(107)(1).]

Plaintiff contends that there is a statutory conflict between M.C.L. § 418.131(1); M.S.A. § 17.237(131)(1) and M.C.L. § 691.1407(1); M.S.A. § 3.996(107)(1). Plaintiff argues that the statutes should be construed in pari materia to permit an intentional tort exception to governmental immunity in worker's compensation cases. She bases her argument on the fact that § 131 was enacted after § 7(1) of the governmental immunity act. In response, defendant asserts that governmental immunity bars plaintiff's claim. In particular, defendant argues that § 131(1) of the WDCA did not create an intentional tort exception to governmental immunity in worker's compensation cases. Defendant argues that, merely because § 131(1) of the WDCA was amended more recently, does not alter the Legislature's intent to provide government agencies with a broad grant of immunity.

B

Generally, government agencies are immune from tort liability for injuries arising out of the exercise or discharge of a governmental function. M.C.L. § 691.1407(1); M.S.A. § 3.996(107)(1), Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 591, 363 N.W.2d 641 (1984). More specifically, our Supreme Court has concluded that there is no intentional tort exception to governmental immunity where the tort was committed within the scope of a governmental function. Smith v. Dep't of Public Health, 428 Mich. 540, 544, 410 N.W.2d 749 (1987), aff'd sub nom. Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989).

A governmental function has been defined as "any activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law." Ross, supra, 420 Mich., p. 591, 363 N.W.2d 641. Here, defendant was authorized to own, construct and operate a transportation department. M.C.L. § 117.4f; M.S.A. § 5.2079. Ignoring momentarily the potential impact of the WDCA, were plaintiff an ordinary citizen claiming an intentional tort against a governmental entity engaged in a governmental function, her claim would fail.

However, when the government is the plaintiff's employer, the governmental immunity statute must be read in pari materia with the WDCA. M.C.L. § 691.1401 et seq.; M.S.A. § 3.996(101) et seq., M.C.L. § 418.101 et seq.; M.S.A. § 17.237(101) et seq. First, we are unable to call to mind even one governmental function which does not require that employees carry out necessary everyday tasks in the course of employment. The WDCA, not the governmental immunity act, defines the duties of the government, acting as an employer, to an injured employee.

Second, the governmental immunity act takes great pains to protect government employees who might be subject to tort liability from an outside source when their actions are not grossly negligent. The protection is broad and extends to employees at all levels, not simply to those in the highest positions of authority. It was made broad to enable common government employees to enjoy a certain degree of security as they go about performing their jobs. See Pavlov v. Community EMS, 195 Mich.App. 711, 722, 491 N.W.2d 874 (1992). Extending fair and legitimately enacted remedies to them under the WDCA when injured on government jobs is consistent with protection afforded them against third parties by the governmental immunity act.

Finally, the WDCA contains no language freeing the government from its requirements, regulations and restraints in other areas, but generally treats it as any other employer.

C

We do not believe that the Legislature intended to shield any employer, particularly the government, when its agent intentionally orders an employee to commit...