ALEX C TATE V CITY OF GRAND RAPIDS
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STATE OF MICHIGAN
COURT OF APPEALS
ALEX C. TATE,
FOR PUBLICATION
May 29, 2003
9:00 a.m.
Plaintiff-Appellant,
v
No. 236251
Kent Circuit Court
LC No. 00-009969-NO
CITY OF GRAND RAPIDS,
Defendant-Appellee.
Updated Copy
July 7, 2003
Before: Whitbeck, C.J., and Cavanagh and Bandstra, JJ.
PER CURIAM.
Plaintiff Alex C. Tate appeals as of right the trial court's grant of summary disposition in
defendant city of Grand Rapids' favor on the ground that the governmental tort liability act
(GTLA), MCL 691.1401 et seq., barred plaintiff 's claim for injuries sustained when he was
bitten by a police dog. We affirm.
On October 1, 1999, police responded to a reported felonious assault at a bowling alley.
After being advised by witnesses that two suspects had fled the scene, a police dog was being
prepared to track the suspects when plaintiff arrived on the scene. Police officers yelling at
plaintiff to "stop" alerted the police dog, which ran toward plaintiff. The police dog's handler
repeatedly and loudly ordered the dog to heel and return, but the dog did not obey. Apparently,
when plaintiff dropped to his knees and put his arms over his head, the dog proceeded to bite
plaintiff on his shoulder. On October 5, 2000, plaintiff asserted this claim, pursuant to the
common law and MCL 287.351, for the dog-bite injuries. The trial court granted defendant's
motion for summary disposition on the ground that plaintiff failed to plead a claim avoiding
defendant's governmental immunity, MCL 691.1407(1).
On appeal, plaintiff first argues that the trial court erred in concluding that defendant was
immune from liability under MCL 691.1407(1) because, pursuant to MCL 287.351, defendant is
strictly liable for plaintiff 's injuries. We disagree. Decisions on summary disposition motions
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and questions of statutory interpretation are reviewed de novo. Stanton v Battle Creek, 466 Mich
611, 614; 647 NW2d 508 (2002).
MCL 287.351, the dog-bite statute, provides:
(1) If a dog bites a person, without provocation while the person is on
public property, or lawfully on private property, including the property of the
owner of the dog, the owner of the dog shall be liable for any damages suffered by
the person bitten, regardless of the former viciousness of the dog or the owner's
knowledge of such viciousness.
This statute has consistently been interpreted as creating "an almost absolute liability" in the dog
owner, except in instances of provocation. Nicholes v Lorenz, 396 Mich 53, 59-60; 237 NW2d
468 (1976); Bradacs v Jiacobone, 244 Mich App 263, 267; 625 NW2d 108 (2001); Thelen v
Thelen, 174 Mich App 380, 385-386; 435 NW2d 495 (1989). Here, it is uncontested that
plaintiff did not provoke the attack. However, in the trial court defendant successfully argued
that, because it is a governmental agency, defendant was immune from tort liability arising from
the discharge of its law enforcement duties, including any liability resulting from plaintiff being
bitten by a police dog during the course of an investigation.
Defendant's argument is premised on the GTLA, MCL 691.1401 et seq., in particular
MCL 691.1407(1), which provides, in part:
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.
This statute grants broad immunity to governmental agencies, extending immunity "to all
governmental agencies for all tort liability whenever they are engaged in the exercise or
discharge of a governmental function." Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 156;
615 NW2d 702 (2000) (emphasis in original). By the plain language of § 7, only tort claims
brought pursuant to one of the five exceptions1 provided by the GTLA itself, and those that arise
from the exercise or discharge of a nongovernmental function, survive the grant of immunity.
See Mack v Detroit, 467 Mich 186, 201; 649 NW2d 47 (2002); Pohutski v Allen Park, 465 Mich
675, 689-690; 641 NW2d 219 (2002); Nawrocki, supra at 157.
1
The five statutory exceptions are: the highway exception, MCL 691.1402; the motor vehicle
exception, MCL 691.1405; the public building exception, MCL 691.1406; the proprietary
function exception, MCL 691.1413; and the governmental hospital exception, MCL 691.1407(4).
Nawrocki, supra at 156, n 14.
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Plaintiff argues that his cause of action is not one of "tort liability" but rather "strict
liability" and, thus, is not within the reach of the GTLA. Plaintiff fails to support the alleged
dispositive nature of this title distinction with any legal authority. Nevertheless, in our attempt to
give effect to the Legislature's intent, we first consider the plain and ordinary meaning of
statutory language. See Charboneau v Beverly Enterprises, Inc, 244 Mich App 33, 40; 625
NW2d 75 (2000); Ypsilanti Housing Comm v O'Day, 240 Mich App 621, 624; 618 NW2d 18
(2000). The GTLA provides governmental agencies immunity from "tort liability." At issue is
whether the dog-bite statute, which imposes "strict liability,"2 is outside the reach of the "tort
liability" provision of the GTLA. We conclude that it is not.
A "tort" is broadly defined as "[a] civil wrong for which a remedy may be obtained," and
"tort law" is the branch of law applicable to such claims. See Black's Law Dictionary (7th ed);
Prosser & Keeton, Torts (5th ed), § 1, pp 2, 5-6. Just as products liability, and premises liability
claims are based on tort law and, thus, may result in tort liability, strict liability is based on tort
law and may result in tort liability, i.e., civil liability for wrongful conduct. See id., § 75, pp 534538. In this context, the primary characteristic that distinguishes a strict liability claim from
other tort-based claims is the principle of fault. Id. In typical tort actions, before liability will be
imposed, the plaintiff must establish the defendant's fault, e.g., intentional or negligent conduct.
To the contrary, in a strict liability tort action, liability is not fault-based—it is not dependent, for
example, on whether negligent, intentional, or accidental conduct caused the harm; rather, civil
liability is imposed for the wrongful conduct irrespective of fault. Id.; see, also, Dobbs, Law of
Torts, § 342, pp 941-942. Nevertheless, it is still a tort action seeking to impose tort liability.
Consistent with these general concepts, MCL 287.351 does not itself establish liability for dog
bites; rather, it merely replaces the negligence standard applicable to the existing common law
tort (liability imposed regarding an animal known to be vicious) with a strict liability standard
(liability imposed regardless of such knowledge). See Nicholes, supra at 59.
The GTLA unambiguously grants immunity from all tort liability, i.e., all civil wrongs for
which legal responsibility is recognized, regardless of how the legal responsibility is determined,
except as otherwise provided in the GTLA. Consequently, plaintiff 's argument that his claim is
exempt from the GTLA because it is not one of tort liability is without merit. Accordingly, the
trial court properly dismissed plaintiff 's strict liability claim on the ground that it was barred by
governmental immunity.
Plaintiff also argues that the trial court erred in dismissing his claim because, when he
was bitten by the police dog, the police department was not "engaged in the exercise or discharge
of a governmental function" as required by the GTLA. We disagree.
2
Michigan courts have considered the dog-bite statute a strict liability statute. See Bradacs,
supra at 275; Spikes v Banks, 231 Mich App 341, 352-353; 586 NW2d 106 (1998).
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Pursuant to MCL 691.1401(f), a "'[g]overnmental function' is an activity that is expressly
or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other
law." Plaintiff argues that, because the police dog bit him against his handler's orders, "the attack
had nothing whatsoever to do with the proper exercise of the governmental function of policing."
However, "[t]o determine whether a governmental agency is engaged in a governmental function,
the focus must be on the general activity, not the specific conduct involved at the time of the
tort." Pardon v Finkel, 213 Mich App 643, 649; 540 NW2d 774 (1995); see, also, Ross v
Consumers Power Co (On Rehearing), 420 Mich 567, 625, 635; 363 NW2d 641 (1984). Here, it
is undisputed that, at the time of the incident, defendant's police officers were investigating a
reported felonious assault, a crime; thus, they were engaged in police activity—a governmental
function—within the contemplation of the GTLA when the incident occurred. Accordingly, the
trial court properly held that defendant was entitled to immunity.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Richard A. Bandstra
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