RHONDA DAVIS V CITY OF DETROIT
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STATE OF MICHIGAN
COURT OF APPEALS
RHONDA DAVIS, Individually and as Personal
Representative of the Estates of RAYSHONDA
NICOLE PUGH, Deceased, and RAYMONDA
NICHELLE PUGH Deceased,
UNPUBLISHED
November 29, 2005
FOR PUBLICATION
January 10, 2006
9:05 a.m.
Plaintiff-Appellee,
v
CITY OF DETROIT, VICTOR MERCADO,
BOARD OF WATER COMMISSIONERS for the
CITY OF DETROIT, and TYRONE SCOTT,
Defendants-Appellants,
No. 254368
Wayne Circuit Court
LC No. 03-310042-NO
Official Reported Version
and
Unidentified JOHN DOES, FIREFIGHTERS
Defendant.
Before: Hoekstra, P.J., and Gage and Wilder, JJ.
PER CURIAM.
Defendants appeal an order denying summary disposition on the grounds of
governmental immunity. The case arose out of a fire at plaintiff 's residence that injured her and
killed her children. Allegedly, the first two fire hydrants the fire department attempted to use did
not work and a third hydrant could not provide enough water. Plaintiff alleges that defendantsappellants are liable for failing to maintain the hydrants, for failing to train the firefighters, and
for gross negligence in the execution of their duties. Defendants argued that they were
absolutely protected by governmental immunity, but the trial court denied summary disposition,
finding a question of fact regarding gross negligence. We reverse and remand.
A grant or denial of summary disposition pursuant to MCR 2.116(C)(7) is reviewed de
novo on the basis of the entire record to determine if the moving party is entitled to judgment as
a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Under MCR
2.116(C)(7), the trial court must accept as true the contents of the complaint, unless they are
contradicted by documentary evidence submitted by the moving party. Id. at 119. Any
documentary evidence so submitted must be considered. Glancy v Roseville, 457 Mich 580, 583;
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577 NW2d 897 (1998). However, under MCR 2.116(C)(8), which tests the legal sufficiency of
the pleadings, only the pleadings may be considered, and "[a]ll well-pleaded factual allegations
are accepted as true and construed in a light most favorable to the nonmovant." Maiden, supra at
119; MCR 2.116(G)(5). "The applicability of governmental immunity is a question of law that is
reviewed de novo on appeal." Herman v Detroit, 261 Mich App 141, 143; 680 NW2d 71 (2004).
Under MCL 691.1407(1), in general, "a governmental agency is immune from tort
liability if the governmental agency is engaged in the exercise or discharge of a governmental
function." A "governmental agency" can be a "political subdivision," which may be a
"municipal corporation." MCL 691.1401(b), (d). There is no dispute that the city is a municipal
corporation. The complaint alleges that the suit "is based on a failure to maintain fire hydrants,"
i.e., a governmental function. See Citizens Ins Co v Bloomfield Twp, 209 Mich App 484, 487;
532 NW2d 183 (1995). The city is therefore immune from tort liability unless an exception
applies.
Defendants contend that plaintiff erroneously argues that the city was engaged in a
proprietary function because it commercially sells water to other cities pursuant to MCL
123.141. We agree. Under MCL 691.1413, governmental immunity does not extend to
activities "conducted primarily for the purpose of producing a pecuniary profit for the
governmental agency, excluding, however, any activity normally supported by taxes or fees."
The first part of this test—whether the activity was intended to generate profit—requires
consideration of whether there actually is profit and of how any revenue generated is spent.
Coleman v Kootsillas, 456 Mich 615, 621-622; 575 NW2d 527 (1998). However, MCL
123.141(2) requires the price of any water sold to be based on, and forbids the price to exceed,
"the actual cost of service as determined under the utility basis of rate-making." Furthermore,
the Detroit city charter forbids the city from profiting from the sale of water and requires that all
revenues therefrom be used only to fund the activity itself. Detroit Charter § 7-1503. Therefore,
operation of the water department is not a proprietary activity.1 See Coleman, supra at 621-624.
Plaintiff argues that summary disposition would be inappropriate because discovery has
not been completed. Although a motion for summary disposition is generally premature if
granted before completing discovery regarding a disputed issue, "[i]f a party opposes a motion
for summary disposition on the ground that discovery is incomplete, the party must at least assert
that a dispute does indeed exist and support that allegation by some independent evidence."
Bellows v Delaware McDonald's Corp, 206 Mich App 555, 561; 522 NW2d 707 (1994). Mere
conjecture does not entitle a party to discovery, because such discovery would be no more than a
fishing expedition. Pauley v Hall, 124 Mich App 255, 263; 335 NW2d 197 (1983). Here,
plaintiff merely states that, without discovery, "it cannot be proven that there is no possible
factual development that could provide a basis for recovery." Plaintiff provides no further
indication of what that basis might be, thus failing to satisfy even the minimal independent
1
Plaintiff 's reliance on her allegation in her complaint that the city was engaged in a proprietary
activity is unwarranted because only factual allegations, not legal conclusions, are to be taken as
true under MCR 2.116(C)(7) and (8). Maiden, supra at 119-120.
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evidentiary support required by Bellows, supra at 561. Thus, in the absence of any other
allegation in avoidance of governmental immunity, the city is absolutely immune to suit.
Defendants argue that Mercado and Scott are absolutely immune because each is the
highest executive official of a level of government under MCL 691.1407(5). In Grahovac v
Munising Twp, 263 Mich App 589, 592-597; 689 NW2d 498 (2004), we concluded that the chief
of the Munising Township volunteer fire department was "not the highest appointed or elected
official in a level of government," id. at 594, because, under "the legislative provisions governing
townships," id. at 597, the "township fire department is at the complete disposal of the township
board and can neither exist nor act without the board's authorization," id. at 594 (emphasis in
original). As such, we concluded that it was the township board, not the fire department, that
was "a level of government" entitled to absolute immunity. However, Grahovac was explicitly
"premised solely on the legislative provisions governing townships, MCL 41.1a et seq."
Grahovac, supra at 597. Indeed, the Grahovac Court specifically noted that Grahovac was
significantly distinguishable from other cases in which parties had submitted city charters
showing powers granted to departments "beyond those granted by the Legislature." Id. We find
Grahovac significantly distinguishable from the present case, in which the Detroit city charter
and the Detroit city code grant the fire commissioner and the board of water commissioners
autonomous authority that was not alleged in Grahovac. See Detroit Charter §§ 7-801, 7-802, 7804, 7-806, 7-1501, and 7-1502. Thus, Detroit's fire department and water and sewerage
department are "levels of government," and plaintiff does not dispute that Mercado and Scott are
the highest appointed officials thereof. Accordingly, they are absolutely immune from tort
liability under MCL 691.1407(5).
Defendants finally argue that the Board of Water Commissioners is not an independent
entity amenable to suit. We find it unnecessary to decide the issue. Presuming the board is a
separate entity as plaintiff argues, it falls within the definition of a "political subdivision" under
MCL 691.1401(b). Therefore, for the reasons discussed above, it would be immune from tort
liability on the same basis as the city. Furthermore, also as discussed, the board or department
may only collect money for the provision of services and at the cost of providing those services.
The board is therefore not amenable to suit because "it has no legal means of raising funds for
payment." O'Leary v Bd of Fire & Water Comm'rs of Marquette, 79 Mich 281, 286; 44 NW 608
(1890).
We finally note that plaintiff named "several unidentified firefighters, hereinafter
identified as John Does, in their individual and official capacities" as defendants. They were not
parties to the motion for summary disposition or to the present appeal, so we do not now address
the claims against them or any defenses they might have. We only hold that summary
disposition based on governmental immunity should have been granted in favor of defendants
Detroit, Mercado, Scott, and the Board of Water Commissioners.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Joel P. Hoekstra
/s/ Hilda R. Gage
/s/ Kurtis T. Wilder
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