NORMA MACKERSIE V PETER DIMMER
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STATE OF MICHIGAN
COURT OF APPEALS
NORMAN MACKERSIE,
UNPUBLISHED
Plaintiff-Appellant,
v
No. 164599
LC No. 91-17071-CL
PETER DIMMER and MARY KUULA,
Defendants-Appellees.
Before: Marilyn Kelly, P.J., and O’Connell and D.A. Teeple,* JJ.
MARILYN KELLY, P.J. (concurring in part and dissenting in part).
I agree with the majority that the trial judge erred in dismissing plaintiff’s claim premised on 42
USC 1983. See Hafer v Melo, 502 US 21; 112 S Ct 358; 116 L Ed 2d 301 (1991). However, I
respectfully disagree with the majority’s decision affirming the grant of summary disposition with respect
to plaintiff’s other claims.
MCL 691.1407; MSA 3.996(107) provides in pertinent part:
(2) [E]ach officer and employee of a governmental agency, each volunteer
acting on behalf of a governmental agency, and each member of a board, council,
commission, or statutorily created task force of a governmental agency shall be immune
from tort liability for injuries to persons or damages to property caused by the officer,
employee, or member while acting on behalf of a governmental agency if all of the
following are met:
(a) The officer, employee, member or volunteer is acting or reasonably believes
he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a
governmental function.
* Circuit judge, sitting on the Court of Appeals by assignment.
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(c) The officer’s, employee’s, member’s or volunteer’s conduct does not
amount to gross negligence that is the proximate cause of the injury or damage. As
used in this subdivision, “gross negligence” means conduct so reckless as to
demonstrate a substantial lack of concern for whether an injury results.
At issue here is whether defendants were acting within the scope of their authority when they
fired plaintiff and whether the agency was engaged in the exercise or discharge of a governmental
function.
In Smith v Dep't of Public Health,1 the Michigan Supreme Court held that there is no
intentional tort exception to governmental immunity. However, Justice Brickley reasoned that
[I]ntentional torts are immune from liability if committed within the scope of a
governmental function; however, the intentional use or misuse of a badge of
governmental authority for a purpose unauthorized by law is not the exercise of a
governmental function. [Smith at 611.]
In Marrocco v Randlett,2 the Supreme Court, citing Smith, applied this concept to high
ranking government officials to determine whether they acted within their executive authority. Our Court
followed this principle in Gracey v Wayne County Clerk, 213 Mich App 412; 540 NW2d 710
(1995).
It is true that both Marrocco and Gracey dealt with high ranking officials, normally entitled to
absolute immunity. However, unlike the majority, I do not believe that these cases should be readily
dismissed as failing to provide authority for plaintiff’s position. The idea advanced by Justice Brickley
originated in a case where the defendants were not individuals, but government departments. Smith,
supra. Marrocco expanded this idea and applied it to high ranking government officials.
Likewise, I believe that it can apply to the lower ranking government officials in this case. In
Smith, Justice Brickley commented that, if it was the intent of a defendant to accomplish illegally what it
could not accomplish legally, immunity would be lost. Smith, supra at 610. Here, if the facts as alleged
by plaintiff are true, defendants used their positions to fire plaintiff and cover illegal activities taking place
in their department. Therefore, I would reverse the trial court’s grant of summary disposition with
respect to plaintiff’s remaining claims.
/s/ Marilyn Kelly
1
Smith v Dep’t of Public Health, 428 Mich 540, 544; 410 NW2d 749 (1987), aff’d on other
grounds sub nom Will v Dep’t of State Police, 491 US 58; 109 S Ct 2304; 105 L Ed 2d 45 (1989).
2
431 Mich 700; 433 NW2d 68 (1988).
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