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.
WHITBECK, C.J. (concurring).
I concur in the result reached by the majority. I write separately to express a somewhat
different method of analysis, leading to the same result.
I. Basic Facts And Procedural History
As set out in the majority opinion, this case involves plaintiff Alex C. Tate's suit against
defendant city of Grand Rapids for injuries he sustained when a police dog, owned by the city
through its police department, bit him. As the majority opinion states, it is uncontested that Tate
did not provoke the attack by the police dog. Thus, the issue is whether MCL 287.351 (the dogbite statute) prevails over MCL 691.1401 (the governmental tort liability act or the GTLA). The
trial court held that the dog-bite statute did not take precedence over the GTLA and granted
summary disposition to the city on the basis of the governmental immunity granted by the
GTLA.
II. Standard Of Review
We review de novo a trial court's grant of summary disposition to determine whether the
moving party was entitled to judgment as a matter of law.1 Similarly, we review de novo the
determination of whether governmental immunity applies under the dog-bite statute as a question
of law.2
1
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
2
Baker v Waste Mgt of Michigan, Inc, 208 Mich App 602, 605; 528 NW2d 835 (1995).
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III. A "Necessary Inference"
Tate's arguments in this case—and to some extent the majority opinion—focus on the
language of the GTLA in determining which statute takes precedence. In my view, the primary
inquiry should be directed at the language of the dog-bite statute. In Ballard v Ypsilanti Twp,3
the Michigan Supreme Court held that the GTLA may only be waived or abrogated "'by an
express statutory enactment or by necessary inference from a statute.'"4
The dog-bite statute contains no reference to the government or its employees; this rules
out an express abrogation. Accordingly, the question becomes whether the dog-bite statute by
"necessary inference" abrogated the general doctrine of governmental immunity. There is some
support for the view that the dog-bite statute abrogates the doctrine of governmental immunity
contained in the GTLA in that provocation is the only defense to a claim under the dog-bite
statute. Arguably, therefore, this would render the defense of governmental immunity
inapplicable. However, the cases that have followed this line of reasoning have done so in the
context of parental immunity, not governmental immunity, and they have reached this
conclusion, in part, because of the general trend toward abrogating the doctrine of parental
immunity.5
I also note that the dog-bite statute does not define "owner of the dog" to exclude the
government. However, when faced with a somewhat similar situation with respect to the
Whistleblowers' Protection Act (WPA), MCL 15.361 et seq., the Supreme Court held that there
was effective abrogation because the WPA governs "employers" and defines "employer" to
include the state.6 Here, the converse is true; the definition of "owner of the dog" does not
include the government. Reasoning by reverse analogy, I would, therefore, conclude that there is
no "necessary inference" to be drawn from the fact that the definition of "owner of the dog" does
not expressly exclude the government.
For these reasons, I see nothing in the dog-bite statute that would lead to the "necessary
inference" that it abrogated the general doctrine of governmental immunity contained in the
GTLA. Accordingly, I would affirm on this ground.
/s/ William C. Whitbeck
3
Ballard v Ypsilanti Twp, 457 Mich 564, 574; 577 NW2d 890 (1998).
4
Id. at 574, quoting Mead v Pub Service Comm, 303 Mich 168, 173; 5 NW2d 740 (1942).
5
See, e.g., Thelen v Thelen, 174 Mich App 380, 386; 435 NW2d 495 (1989).
6
Anzaldua v Band, 457 Mich 530; 578 NW2d 306 (1998).
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