KATHLEEN HERMAN V CITY OF DETROIT
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STATE OF MICHIGAN
COURT OF APPEALS
KATHLEEN HERMAN, Personal Representative
of the Estate of JAMES FRANCIS HERMAN,
Plaintiff-Appellee,
v
UNPUBLISHED
January 29, 2004
APPROVED FOR
PUBLICATION
March 9, 2004
9:05 a.m.
No. 243107
Wayne Circuit Court
LC No. 00-041243-NO
CITY OF DETROIT,
Defendant-Appellant.
Updated Copy
May 21, 2004
Before: Owens, P.J., and Schuette and Borrello, JJ.
PER CURIAM.
Defendant appeals by leave granted from an order denying its motion for summary
disposition, brought pursuant to MCR 2.116(C)(7), (8), and (10), in this wrongful death action.
We reverse.
Plaintiff 's decedent, an electrician employed by defendant for twenty years, was killed on
October 15, 1999, when he was struck by an arc of electricity at the Mistersky Power Plant.
Plaintiff, decedent's widow, filed suit as personal representative of his estate. Defendant asserts
that the trial court erred in finding that the operation of the public lighting department constituted
a proprietary function, and by rejecting defendant's defense of governmental immunity on this
basis. We agree.
The applicability of governmental immunity is a question of law that is reviewed de novo
on appeal. Baker v Waste Mgt of Michigan, Inc, 208 Mich App 602, 605; 528 NW2d 835
(1995). Also, the decision to grant or deny a motion for summary disposition is reviewed de
novo. Maiden v Rozwood, 461 Mich 109, 118-119; 597 NW2d 817 (1999). We review the
record in the same manner as the trial court to determine whether the movant was entitled to
judgment as a matter of law. Morales v Auto-Owners Ins Co, 458 Mich 288, 294; 582 NW2d
776 (1998); Michigan Ed Employees Mut Ins Co v Turow, 242 Mich App 112, 114-115; 617
NW2d 725 (2000).
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"The purpose of summary disposition is to avoid extensive discovery and an evidentiary
hearing when a case can be quickly resolved on an issue of law." Shepherd Montessori Center
Milan v Ann Arbor Twp, 259 Mich App 315, 324; 675 NW2d 271 (2003). "MCR 2.116(C)(7)
tests whether a claim is barred because of immunity granted by law, and requires consideration
of all documentary evidence filed or submitted by the parties." Glancy v City of Roseville, 457
Mich 580, 583; 577 NW2d 897 (1998). When deciding a motion for summary disposition under
MCR 2.116(C)(7) or (10), a court must consider the pleadings, affidavits, depositions,
admissions, and other documentary evidence submitted in the light most favorable to the
nonmoving party. Ritchie-Gamester v City of Berkley, 461 Mich 73, 76; 597 NW2d 517 (1999);
Maiden, supra at 119-121.
Tort immunity is broadly granted to governmental agencies in MCL 691.1407(1), which
provides:
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. Except as otherwise provided in this
act, this act does not modify or restrict the immunity of the state from tort liability
as it existed before July 1, 1965, which immunity is affirmed.
"A governmental function is 'an activity that is expressly or impliedly mandated or authorized by
constitution, statute, local charter or ordinance, or other law.'" Maskery v Univ of Michigan Bd
of Regents, 468 Mich 609, 613-614; 664 NW2d 165 (2003), quoting MCL 691.1401(f). This
definition is to be broadly applied. Maskery, supra at 614. It "only requires that there be some
constitutional, statutory, or other legal basis for the activity in which the governmental agency
was engaged." Hyde v Univ of Michigan Bd of Regents, 426 Mich 223, 253; 393 NW2d 847
(1986). "Tort liability may be imposed only if the agency was engaged in ultra vires activity."
Adam v Sylvan Glynn Golf Course, 197 Mich App 95, 97; 494 NW2d 791 (1992), citing Hyde,
supra at 252-253. A determination of whether an activity was a governmental function must
focus on the general activity and not the specific conduct involved at the time of the tort. Tate v
Grand Rapids, 256 Mich App 656, 661; 671 NW2d 84 (2003). However, a governmental
agency can be liable for damages for bodily injury or property damage caused by the
performance of a proprietary function. MCL 691.1413.
The proprietary function exception to governmental immunity is set forth in MCL
691.1413, which provides:
The immunity of the governmental agency shall not apply to actions to
recover for bodily injury or property damage arising out of the performance of a
proprietary function as denied in this section. Proprietary function shall mean any
activity which is conducted primarily for the purpose of producing a pecuniary
profit for the governmental agency, excluding, however, any activity normally
supported by taxes or fees. No action shall be brought against the governmental
agency for injury or property damage arising out of the operation of proprietary
function, except for injury or loss suffered on or after July 1, 1965.
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Therefore, to be a proprietary function, an activity: "(1) must be conducted primarily for the
purpose of producing a pecuniary profit; and (2) it cannot be normally supported by taxes and
fees." Coleman v Kootsillas, 456 Mich 615, 621; 575 NW2d 527 (1998).
The first prong of the proprietary function test has two relevant considerations. First,
whether an activity actually generates a profit is not dispositive, but the existence of profit is
relevant to the governmental agency's intent. Id. An agency may conduct an activity on a selfsustaining basis without being subject to the proprietary function exemption. Hyde, supra at
258-259; Codd v Wayne Co, 210 Mich App 133, 136; 537 NW2d 453 (1995). Second, where the
profit is deposited and where it is spent indicate intent. If profit is deposited in the general fund
or used on unrelated events, the use indicates a pecuniary motive, but use to defray expenses of
the activity indicates a nonpecuniary purpose. Coleman, supra at 621-622. To be excluded from
the proprietary function exception to immunity, an activity need not actually be supported by
taxes or fees if it is a kind normally supported by taxes or fees. Hyde, supra at 260 n 32.
However, immunity for an activity that is a governmental function can still be forfeited if
conducted for profit in such a scope as to render it a private profit-making enterprise. Kootsillas
v City of Riverview, 214 Mich App 570, 573; 543 NW2d 356 (1995), aff 'd sub nom Coleman v
Kootsillas, supra.
The operation of the public lighting department is a governmental, and not a proprietary,
function. First, this Court has already considered this question in Taylor v Detroit, 182 Mich
App 583, 587-588; 452 NW2d 826 (1989), and concluded that, because the lighting department
of the city of Detroit was not involved in a commercial business serving the general population,
and because there was nothing in the record to indicate that the lighting department's primary
purpose was to make a profit, the operations constituted a governmental function.
In this case, the budget documents submitted by defendant state that the mission of the
lighting department is to "provide reliable, economic, high quality lighting and energy services
that light the streets for safety and are responsive to the needs of the citizens, business and
visitors of the City of Detroit." The budget documents further indicate that expenditures for the
lighting department exceeded revenues from 1998 through 2000. The budget documents also
indicated that the lighting department was a general fund agency. Because the general fund's
primary revenue sources are the general tax levy, and because the lighting department's
expenditures come out of the general fund, the operation of the lighting department is supported
by taxes. This fact, together with the uncontradicted evidence that the lighting department
operates at a loss, establishes the governmental nature of the lighting department's functions.
Defendant was therefore entitled to summary disposition on this issue.
Defendant also contends that plaintiff failed to present facts establishing that decedent's
injuries were the result of an intentional tort; therefore, the exclusive remedy provision of the
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Worker's Disability Compensation Act (WDCA),1 MCL 418.101 et seq., applies, MCL
418.131(1);2 and plaintiff is barred from bringing suit against defendant. We agree.
"[W]hether the facts alleged by plaintiff are sufficient to constitute an intentional tort is a
question of law for the trial court, while the issue of whether the facts are as plaintiff alleges is a
jury question." Gray v Morley (After Remand), 460 Mich 738, 743; 596 NW2d 922 (1999). A
trial court's grant or denial of summary disposition is reviewed de novo. Spiek v Dep't of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).3
To avoid the exclusive remedy provision through the intentional tort exception, there
must be a deliberate act by the employer and a specific intent that there be an injury. Travis v
Dreis & Krump Mfg Co, 453 Mich 149, 169 (Boyle, J.), 191 (Riley, J.); 551 NW2d 132 (1996);
Palazzola v Karmazin Products Corp, 223 Mich App 141, 149; 565 NW2d 868 (1997). A
deliberate act may be one of commission or one of omission, and a specific intent exists if an
1
Under the WDCA, the disability benefits provided by the act are the exclusive remedy of an
employee for a work-related injury unless the injury was the result of an intentional tort.
Beauchamp v Dow Chemical Co, 427 Mich 1, 11; 398 NW2d 882 (1986); Palazzola v Karmazin
Products Corp, 223 Mich App 141, 147; 565 NW2d 868 (1997).
2
MCL 418.131(1) provides, in part:
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.
3
Plaintiff asserts in her brief on appeal that defendant did not present a motion based on MCR
2.116(C)(10) on the "intentional tort issue" to the court, and hence is restricted to arguing the
merits of the denial of the motion for summary disposition under MCR 2.116(C)(7) and (C)(8).
However, defendant's motion for summary disposition specifically states, "pursuant to MCR
2.116(C)(7)(8) and (10) moves for Summary Disposition in its favor based on the following facts
and law." Further, plaintiff 's counsel conceded that defendant's motion for summary disposition
was being evaluated upon the facts of the case and not simply upon the pleadings. According to
the holding in Blair v Checker Cab Co, 219 Mich App 667, 670-671; 558 NW2d 439 (1996),
even if a motion for summary disposition is brought under the wrong subrule, i.e., MCR
2.116(C)(8) when it should have been MCR 2.116(C)(10), where both parties submitted and
relied on documentary evidence, the trial court may proceed under the correct subrule as long as
neither party is misled. Here, plaintiff submitted and relied on documentary evidence in
opposing defendant's motion for summary disposition, hence this Court may properly analyze the
denial of the motion for summary disposition according to the standards applicable to a C(10)
motion.
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employer has a purpose to bring about certain consequences. Travis, supra at 169, 171. Specific
intent is also established if the employer had actual knowledge that an injury was certain to occur
and willfully disregarded that knowledge. MCL 418.131(1). "To support such conclusions, a
plaintiff must be able to allege a specific danger known to the employer that was certain to result
in an injury and must allege that the employer required the plaintiff to work in the face of that
danger." Golec v Metal Exchange Corp, 208 Mich App 380, 383; 528 NW2d 756 (1995), aff 'd
sub nom Travis v Dreis & Krump Mfg Co, supra at 191. An injury is certain to occur if there is
no doubt that it will occur, and an employer is deemed to have possessed the requisite state of
mind when it disregards actual knowledge that an injury is certain to occur. Travis, supra at 174,
179; Bock v General Motors Corp, 247 Mich App 705, 711; 637 NW2d 825 (2001).
"Knowledge must be actual; constructive, implied or imputed knowledge is not sufficient."
McNees v Cedar Springs Stamping Co (After Remand), 219 Mich App 217, 224; 555 NW2d 481
(1996), citing Travis, supra at 173. An employer's knowledge of general risks is insufficient to
establish an intentional tort. Cf. Bock, supra at 711-712; Agee v Ford Motor Co, 208 Mich App
363, 366-367; 528 NW2d 768 (1995).
A thorough review of the deposition testimony and all other documentary evidence
submitted by the parties makes it clear that defendant's actions did not constitute an intentional
tort. There was no evidence submitted by plaintiff to counter the deposition testimony of the
witnesses to the accident and the events leading up to it that indicated that there was no
deliberate act by defendant and no specific intent to injure decedent. The relevant and
dispositive testimony came from decedent's coworker who was with decedent when he was
electrocuted. The coworker testified that decedent climbed up a fiberglass ladder until he was
within two feet of a 24,000 volt line, that decedent took one foot off the fiberglass ladder, which
was not grounded, and placed it on the transformer, which was grounded. Then, decedent
flicked dust from his rag and electricity arced from the line to decedent, going to ground through
the transformer. The coworker testified that if a person gets within two feet of a 24,000 volt line
and grounds himself, he will die. The coworker further testified that an electrician of decedent's
long experience would not normally take his foot off an ungrounded ladder in these
circumstances and that it was inappropriate for decedent to have done so. The coworker testified
that as electricians, he and decedent understood the difference between the way an electrical
current runs, flows, and feeds, and if it is conductive or grounded. Plaintiff offers no testimony
that the placement of decedent's foot on the transformer was the result of an act or omission by
defendant, i.e., incorrect or incomplete training of decedent or under an order by his supervisor.
The facts demonstrate that decedent's death was the result of decedent's momentary and tragic
lapse in judgment, not the result of an intentional act by defendant.
Plaintiff argues that defendant committed a series of deliberate acts that resulted in
decedent's death and that these acts evidenced an intent to injure decedent, removing the incident
from the exclusive remedy provision of the WDCA. The acts alleged by plaintiff are as follows:
(1) adoption of a procedure whereby the least experienced people were assigned to the most
hazardous location; (2) denial of decedent's request to transfer; (3) placing decedent's supervisor
in charge of Mistersky; (4) refusal to comply with Michigan Occupational Safety and Health
Administration requirements; (5) no maintenance or training program; (6) requiring employees
to work around the clock without sleep under threat of firing; (7) the decision not to de-energize
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the bus; and (8) requiring decedent to work within two feet of the bus, where he would be struck
by arcing electricity.
With respect to the allegations that defendant required decedent to work around the clock
under threat of firing, the evidence was that decedent volunteered to work long hours before the
accident that caused his death. Additionally, the testimony established that the decedent was an
experienced electrician, not one of the "least experienced" employees. The remaining
"deliberate acts" cited by plaintiff to illustrate defendant's specific intent to injure decedent do
not demonstrate that defendant had actual knowledge that an injury was certain to occur to
decedent and that defendant disregarded that knowledge. The trial court erred in denying
defendant's motion for summary disposition on the basis that there was an intentional tort that
removed plaintiff 's claim from the exclusive remedy provision of the WDCA.
Reversed.
/s/ Donald S. Owens
/s/ Bill Schuette
/s/ Stephen L. Borrello
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