*1 Berger City of 1978] BERKLEY
BERGER v OF CITY 31382, 15, 1978, Docket Nos. 77-716. Submitted November at Detroit. 5, 1978. December Decided wife, Peggy Berger, brought Ford and his tort action in against City Berkley Oakland Court Circuit and 57 other municipalities, police departments and individuals to recover personal Berger, employee Royal for to Ford Department, totally Oak Police was who blinded and suffered disfigurement severe facial when he was struck in the face shotgun by rice kernels fired from a a fellow officer while they participating police training were in a exercise of the support County Municipal tactical unit of the South Oakland Roberts, J., complaint Aid Pact. Farrell E. dismissed the (1) against holding plaintiffs’ all defendants exclusive remedy Act, Disability Compensation under the Worker’s [16] [14] [4] [3] [12] [13] [10, 11, [8, [1] [5-7] [2] What is Municipal immunity Municipal immunity Municipal immunity 57 Am Jur Municipal immunity 57 Am 57 Am Jur 57 Am Jur 9] 243. 250. 82 Am 73 Am Jur 81 Am Jur 28. 120. Political Subdivisions 46 Am Jur mental §§ 57 Am Jur Am Jur 56 Am Jur 85, 89. Jur "motor Jur Workmen’s 57 Am Jur 2d, Municipal, School, 2d, 2d, 2d, 2d, 2d, 2d, 2d, Summary Judgment 2d, References 2d, Minicipal, vehicle” Municipal, Municipal, Judgments Workmen’s 2d, Municipal, Municipal, as to from 2d, from from Municipal §§ Municipal, or the like within statute for liability liability liability School, 199, School, School, §§ Compensation School, School, Compensation Points 770, 775, 200. Corporations, and State Tort and State Tort for torts. 60 for for torts. 60 of such and State Tort School, and State Tort 4.§ torts. ALR2d torts. 60 ALR2d State Tort 776, Headnotes State Tort vehicles. 77 §§ §§ and State 780. 50, Counties, ALR2d ALR2d Liability Liability 51. 635. Liability Liability Liability waiving govern- Liability Tort 1198. 1198. 1198. 1198. ALR2d 945. and Other 27.§ §§ Liability 30.§ §§ §§ 31, 32, §§ 243, 118- 27, App (2) were the defendants entitled immunity. appeal. Held: Plaintiffs personal granted acts to an individual 1. No employee; negligence solely he is because *2 therefore, grant judgment in the favor of the of accelerated negli- improper police was and the issue of individual officers gence for trial. the individual officers should be remanded of by coemployee Injury the in a to a act of a 2. Compensation Disability Act Worker’s situation covered the remand, reaching recovery. of tort before the issue bars On liability, the the trial court must determine whether individual police creating coemployer-coem- joint venture a exercise a relationship plaintiffs ployee and whether are therefore barred against proceeding the individual defendants the exclu- provision compensation remedy the act. sive of applies immunity in all cases wherein a Governmental 3. govern- governmental engaged agency in the exercise of a is management, operation and control of a mental function. The function, police department governmental and since officer is a part operation police department, partici- training of is of the function; pation police training in a exercise is therefore, against police department the tort directed actions governmental immunity. grounds on the of are defeated liability of and on the issue of individual Reversed remanded grant as to the of accelerated officers. Affirmed municipalities police departments judgment in favor and of in default. not Bronson, J., Judge Allen, concurred with not so much because agrees with an- he Judge opinion, he nounced in but because feels Allen’s position Supreme yet not embraced a Court has go way.
would allow the decision to the other J., gov- part. hold that T. M. dissented He would until after the facts ernmental cannot be established developed relationship are of the various defendants plaintiffs each other and to the can determined. He would proceedings. further reverse remand for
Opinion Allen, Immunity— Agencies 1. Torts —Governmental —Governmental Statutes. agencies liability in all Governmental are immune from tort engaged governmental agency is cases wherein the (MCL discharge exercise of a function 691.1407; 3.996[107j). Municipal Corporations Departments 2. —Police —Torts—Govern- Immunity. mental management, operation police department and control of a is municipal against function and tort actions directed such departments grounds are on the defeated immunity. Training 3. Municipal Corporations —Police —Governmental Function. part police department Officer participation police training in a exercise therefore a governmental function. Agencies 4. Statutes —Torts—Governmental —Governmental Im- Discharge munity Operation — Vehicle — of Firearm. provides governmental agencies A statute shall be liable for bodily injury resulting negligent operation from the of an agency agency; owned motor vehicle officer of the clearly requires opera- statute result from the *3 apply injury tion of vehicle and a does not where results from discharge way by, of the a firearm which was in no caused or of, (MCL 691.1405; the the the result of vehicle 3.996[105]). by Bronson, Concurrence Injury Immunity 5. Torts —Governmental — to Individual. governmental immunity of carryover days doctrine is a from thought when it was is that "it better that an individual should public sustain an than that the should suffer an inconve- nience”; prevailing such today an idea is not the and mood a concept imposes government’s which the entire burden of wrongful injured single acts on the abhorrent individual is to philosophy. our social Immunity 6. Torts —Governmental —Societal Interests —Inter- ests of Individual. govern- examining A balance should be struck in the doctrine immunity society longer automatically mental so that is no superior necessarily viewed as the individual as the inferior; rights instead the be individual should consid- paramount government justify ered and the must be able to interfering rights. with those Immunity Liability—Policy for Immu- — 7. Torts —Governmental nity. merely immunity not be a should invoked because Governmental government agency performed activity which official only injury, be invoked when there are caused an but should exempting government policy sound reasons behind immunity exception governmental liability; tort should not the norm. Immunity Activities.
8. Torts —Governmental —Governmental activities, purposes analyzing application Government for generally governmental immunity, divided into two can be 1) 2) policy making, policy implementing. categories: Immunity Policy-Making Activities. 9. Torts —Governmental — uniquely Policy making in nature activities are function; society to be insulated from for should invoking govern- justification is for the doctrine of thus there making policy for activities. mental Immunity Officials —Pol- 10. Torts —Governmental —Government icy Implementing Activities. as a to not be available defense Governmental should damages injuries offi- caused actions activities; imple- engaged implementing policy in cials counterparts private menting activities have numerous justifiable denying recovery sector and there reason in persons injured during merely the course of these activities injured they enough were to be a because unfortunate counterpart negligent official his instead of private sector. Immunity Policy Making 11. Decisions— Torts —Governmental — Policy Training Balancing Police Exercises — Considera- tions. clearly policy
A decision to conduct exercise body making subject decision should not however, person by liability; shooting *4 the actual negligent simply act of a official involved the exercise is government balancing policy official consid- and involves no concerns, public negligent imple- merely erations and it is previously deci- mentation or determined liability by the sion and as such should not be shielded from governmental immunity. defense of City T. M. in Part Judgment Judgment —Default 12. —Court Rule. entered, any party duly Once a default has been hied or party proceed case shall not with his until his default has been aside; proceed party set since a case cannot with his until the aside, improper grant default is set it for the court (GCR 520.1). judgment in his favor Remedy Compensation 13. Workmen’s —Torts—Exclusive Provi- sion —Statutes. remedy provision A tort suit is barred the exclusive Disability Compensation plaintiff Worker’s Act where a was injured by coemployee the act of a in a situation covered (MCL418.131; statute MSA 17.237[131]X Compensation Employment—Evidence— 14. Torts —Workmen’s — Jury. employee The issue of whether a defendant suit, opposed compensation hearing, in a tort as to a worker’s instructions, proper jury, should be submitted to a under for a determination based on all the evidence. Municipal Corporations Negligence—Gov- 15. —Police Officers — Immunity. ernmental duty Police officers have an individual common-law to exercise performance duties; due care in the of their granted personal negligence solely to an individual acts of governmental employee. because he is Judgment Summary Judgment Torts—Duty 16. — — of Care —Mate- rial Fact —Court Rules. Summary judgment may proper for a defendant in a tort question concerning action where there is no of material fact is, duty plaintiff, breach of the defendant’s if the (GCR 1963,117.2[3]X defendant is not involved with the
Lacey Salter), & Jones (by John L. plaintiffs. Worsham, Lakin & P.C., for defendants Oak Park R. Howell. Highland,
John N. for defendants Bloomfield Township and Township Depart- Bloomfield Police ment. *5 City of Bloom- Girard, for defendants Bernard Department. Hills Police and Bloomfield
field Hills City Maloney, for of Claw- & defendants Conklin Village, Lathrup Department, son, Lathrup Police Clawson Farmington, Department, Village Police City Department, Farmington Novi, and of Police Department. City of Novi Police Heaphy, Garzia, Tonkin, & Vandeveer, Kerr City Southfield, P.C., Southfield of for defendants Department, Gu- Mead and James Daniel Police tenburr. Campbell Moesta, for defendants
Johnson, & Department. City Troy Troy Police of and Harvey, Westen, P.C., for defendants Kruse & Huntington City Huntington Po- Woods, Woods of Department Huntington Department, Woods lice Beverly Village Beverly Safety, Hills, of Public Department Danaher. Hills and Officer Police Sweeney, Feikens, P.C., Dice, & Sullivan Heights City and Madison defendants of Madison Heights Department. Police O’Reilly, Donovan, &
Stewart, Cornell, Lascoe City Ferndale, Rancilio, P.C., for defendants Kellogg. Department Ferndale Police Officer Stanczyk Cooney, Waters, Ped- Plunkett, Rutt, & (by Joseph A. Jeannette ersen V. Walker Berkley Berkley, Paskin), City of for defendants Birmingham Department, City Bir- Police mingham Department. Police Wardle, Secrest,
Davidson, Gotshall, Kohl, Opinion of the Court Lynch (by Gardner), Wayne & Clark C. for defend- Village Bingham ant Farms. P.J., Before: and Allen and T. M. Bronson, JJ. *6 Judge J. This author and Bronson, who Allen, separately, opinion Judge
writes concur in the except portion holding T. M. Burns thereof "governmental immunity” that the defense of does apply municipal not defendants themselves. simply agree police training We cannot being plaintiff exercise conducted when was struck pellets in the face rice was not a grant Therefore, function. summary judgment we would affirm the municipali- in favor of those police departments ties and other not in default. In all respects agree Judge opin- we with Burns’s ion.1 pertinent Michigan’s governmen- section of seq.; tal act, MCL 691.1401 et MSA 3.996(101) seq., et reads: "Except as in provided, this act govern- otherwise all agencies shall be immune from tort mental in all government cases wherein the agency engaged in discharge exercise or of a function.” 3.996(107). 691.1407; MCL (Emphasis supplied.) disagreed frequently While our courts have as to specific negligent whether a act was committed "in discharge the exercise or of a func- 1 Compatible (as I)— Judge opinion with we would: to Issue Burns’s judgments against -reverse the entered those defendants who were defaulted, plaintiffs and remand to entry allow to move for of a judgment (as II) appropriate relief; default or other to Issue —remand to the trial court for determination the trier of fact whether (as III) employee defendant; was an to Issue —reverse judgment in favor of the discovery individual defendant and allow summary judgment. consideration of individual motions for App 361 87 Mich op Opinion the Court than more settled clearer or nothing tion” seems management, operation the doctrine municipal department is a police control of against such function, actions directed and tort govern- grounds on the are defeated department Fitzpatrick, McPherson immunity. mental (1975), Ander 461, 463; 234 NW2d App Mich Detroit, 496; 221 NW2d App 54 Mich son v Sheriff, 64 (1974), County v Macomb Walkowski (1975). The 460, 463; only App case and the instant difference those cases between actions were the officers’ is that the cited cases whereas police duty on routine committed while place action took wrongful us the the case before We find the difference during exercise. Training part inconsequential. in a participation department, police governmen- is therefore training exercise in Dionne v stated
tal function. As was 239, 246; Trenton, 261 NW2d to oral subsequent released opinion *7 in the instant case: argument " * * * finding in have little hesitation would [W]e officers, including police the estab- training the that shooting range to accom- operation lishment and of a nature, public the purpose, public of a plish that is If function. good, governmental of a and the exercise negli- as the result of a shot the had occurred by an policeman or instructor gently ñred a police training, a course of there would be basis holding (Empha- existed.” supplied.) sis McPherson-Walkow acknowledge
Plaintiffs the departments operations police rule that "the ski pursu governmental are functions” but claim Highways, of State Dept ant to Thomas case law 1; 247 such NW2d op Berkley Opinion of the Court longer support plain contention, force. To this has page cite footnote at 17 of Thomas. How tiffs appeared dissenting ever, opinion in footnote the ap majority in Thomas. Thomas proach existing to looks case law to determine governmental what and what is not a function. existing Under department case law the of a
is a function. Subsequent argument to in the instant oral case Supreme opinion in our Court issued its Pichette v Manistique Schools, Public opinion justices In that question evenly divided on the of whether or not complained of was in the exercise or the conduct discharge jus- of a function. Three opted adopt policy making/policy tices plementing to im- opin- minority
test as set forth in the supra. justices Thomas, ion in Three follow would majority in Thomas and look to the common guidance deciding specific law for activity whether a discharge
inwas unnecessary justice function. felt it to reach One opinion that decision. It is this author’s that even majority justices adopted if a had making/policy implementing test, it not would present follow that exercise case would not be a function.2 On governmental agency doing "The mere fact that a act certain 'governmental private person does not make such act or if function’ Thus, corporation may 'governmental undertake the same act. by questions scope function’ is not delineated of the broad of an activity undertaken or financial or insurance considerations governmental undertaking, may be but rather indicative of a viewing precise allegedly giving liability, action rise to determining generis governmental whether such action is sui —of (as opposed governing. Supervision essence to the of road construction road), operation making of decisions as to whether to build a (as hospitals opposed planning deciding health and schools what *8 teach), supervision subject operation services to offer or what of to and (as deciding playgrounds swimming pools opposed whether and operate playgrounds pools) governmental functions such or are not op Opinion the Court Judge dis- issue, this author
this agree. Bronson not command test did But since Judge I justices, majority both of the Bronson law, agree given of the the current state governmental case in the is a defense before us. Judge
Lastly, address issue we Burns upon.3 unnecessary Plaintiffs to touch it found participation in if that even claim governmental function, § of the exercise is a Michigan act, MCL recovery. permits That 691.1405; 3.996(105), provides: section bodily liable for agencies shall be "Governmental negli- damage resulting from the property officer, employee of the agent, or by any
gent operation of which the motor vehicle agency, of a owner, in Act No. as defined agency is 1949, amended, being as Acts of 300 of the Public 1948.” Compiled Laws of to 257.923 of the sections 257.1 5, 1, supplied.) July (Emphasis 1965. PA eff. § only attaches Under this section owning single governmental the vehicle. unit argue from which the vehicle Plaintiffs "escaping” injured in a "state of officer was being being as a it was used at in that work” required clearly jail. However, the statute mobile hand, aspects of the certain this definition. On the other within executive, powers legislative, judicial their are or exercise of necessarily from removed very functions and nature Thomas, supra, 21-22. undertakings private at sector." supplied.) (Emphasis preclude would believes that the underscored words This author being nongovernmental. Unlike police operations considered operation hospitals swim- building, the construction of road ming pools, counterpart police department not have does private sector. "governmental Having plaintiffs’ favor on the issue found in unnecessary issue. it was to reach this function” *9 by Bronson, Concurrence P.J. injury operation result from the In vehicle. the instant case the resulted discharge from the of a firearm. The firearm dis- charge way inwas caused or a result of the negligence of the vehicle. It was the participating the other officers negligence exercise and not the of the driver of the injury. vehicle, which caused the The trial court finding exception did not err in governmental § apply. did not grant summary, judgment In of accelerated in favor of the individual defendants is therefore negligence reversed. The issue of individual reaching issue, remanded for trial. Before this however, the trial court will first have to deter- Support mine whether the South Oakland Tactical Unit was a joint plaintiffs venture and whether proceeding against are therefore barred from remedy individual defendants the exclusive provision compensation of the worker’s act. MCL 17.237(131). grant 418.131; MSA of accelerated judgment in favor of defendants who have not entry moved to set aside the of default is also grant judgment reversed. The accelerated municipalities police depart- favor of those ments not in default is affirmed. public question being costs,
No involved. (concurring). reluctance, P.J. With I Bronson, agree concur in the I decision. do so not I because opinion, with the announced in but Supreme I because feel Court of this state yet position has not embraced a which would allow go way. the decision to the other It is for this separately. reason that I write horribly injured Plaintiff officer was while engaging police training in a exercise when an- Bronson, P.J. Concurrence pellet shotgun other officer fired a rice loaded into his face at a distance of three directly about feet. As a result of blast suffered total permanent disfig- blindness and severe facial present law, urement. Due to the state of the however, plaintiff is left without rem- suitable rigid application The reason for this is the edy. concept doctrine of immunity, interpreted which as has presently outlived its usefulness.1 *10 „
The doctrine of governmental
is a
immunity
carryover
from
when it
days
thought
that "it
is better
an individual
should sustain
than that
public should suffer an incon
Devon,
venience”. Russell v Men of
Durnford &
667,
359,
Rep
673;
East Term
100 Eng Rep
(1788). One can state with
assuredness
such
an idea is not
mood
prevailing
today. The
social climate which fostered the creation of the
doctrine of sovereign immunity
long
"has
since
tempered
been
with the warm winds of humanitar
* * *
freedom[2]
ianism and individual
a con
[and
cept
imposes]
govern
entire burden of
ment’s wrongful
single
acts on the
injured individ
ual
is abhorrent
to our social philosophy”. Brown
Wichita State University,
2,
39-40;
219 Kan
(1976)
1015,
(Fatzer,
P2d
C.J., concurring and
dissenting), appeal
dismissed 429 US
97 S Ct
41;
This social climate the time sovereign immunity when was established should change way perceive also cause a courts striking In doctrine.3 rights the balance between the society rights and the of the individ- longer automatically society ual, we no view as the superior necessarily and the individual as the rights inferior. Instead the of the individual are paramount, government considered must be justify interfering rights. able to with tfrose This same balance should ^so be struck in examining the doctrine of immu- nity. excep- Governmental should be the Immunity tion not the norm. should not be in- merely government voked because a official or performed agency activity which caused the injury, only policy but when there are sound rea- exempting government sons behind ity. from liabil- Cooperrider, Legislature See Court, Immunity Michigan, and Governmental Tort Mich L Rev 282-283 generally
Government activities can
be divided
categories, policy making
into two
im-
plementing. Policy making
uniquely
activities are
*11
governmental
counterpart
in nature and have no
private
corporation
in the
sector. An individual or
may make decisions which affect themselves or
they
affect others but
are not entrusted with the
statute,
By
government agencies
only
are
immune from suit when
"engaged
function”,
discharge
in the exercise or
3.996(107).
691.1407;
phrase
assigned
MCL
legislative definition,
Since this
was not
"presumably subject
judicial
it is
to
refinement”.
Dept
1,
Highways,
18;
Thomas v
of State
Mich
Policy implementing however, activities, are Although entirely there is some different matter. thing uniquely on in the decision road, or a the need and the location of a school nothing uniquely governmental about there is building laying construction of the or the pavement. Manistique Public See Pichette (1978) (Fitz Schools, J., J., C.J., with Levin, gerald, Kavanagh, concurring). numerous These latter have activities counterparts private sector, and there is recovery persons justifiable denying reason in merely injured during the course of these activities enough they in to be unfortunate because were government jured by negligent instead official *12 375 of v Bronson, Concurrence P.J. counterpart private his the sector. Since there invoking justification no the doctrine in governmental situations, these should not be available as a defense.
Application policy making/policy imple- of this menting present test4 to the case a would call for rejection of the defense of immu- nity. police training The decision conduct a clearly policy exercise was decision which would subject not liability. various the bodies to shooting
However, the actual
simply
negligent
government
act of a
way making
policy
official.
He was
no
deci-
balancing
policy
sion. There was no
considera-
public
negli-
merely
concerns;
tions
it was
gent implementation
previously
policy
determined
decision. As
there
such
should
immunity.5
defense of
policy making/policy implementing
adopted
This
test has been
See,
jurisdictions.
e.g.,
under various names in numerous
Driscoll
(CA
States,
9, 1975), construing
United
525 F2d 136
28 USC 2680
(planning/operational),
State,
782;
Rptr
Johnson v
2dCal
73 Cal
(1968)
240;
(discretionary/ministerial)
But majority writing of the slate, a and on a clean yet, Supreme this has, as not embraced Court6 willingly join Except position. fact, I would for this my by brother learned reached in the decision I feel now stand matters but as Burns, Thomas Judge decision. in to concur constrained Allen’s part). (dissenting in Plaintiff J. T. M. Burns, against Berger1 58 munici- this tort suit filed Ford departments palities, police re- and individuals to totally personal injury. Plaintiff was cover disfigurement facial suffered severe blinded and by kernels in the face rice he was struck when police shotgun by officer a fellow from a fired training participating they in a exer- were while support of the South unit tactical cise of the County Aid Pact. Mutual Oakland Royal employee of the Oak Plaintiff was injury. Department Dur- of the at the time Police acting sniper ing as a he was exercise police "captured” by officers. The other and was "escape” attempted to when he occurred function, nary police would the defense applicable test. not under the above-mentioned Schools, 268; Manistique 403 Mich Public See Pichette Dept Highways, Thomas v of State NW2d 530 7Although espoused my colleague learned Thomas the test adopted likely yield test most results as the would the same Burns making/ here, policy implementing terminology opinion my it is test, Judge preferable. test Under is Burns’ accepted theory, governmental immunity but elimi is doctrine of nated in activity complained of practice. specific is This so because negligence always negligence, func is never is tion. Therefore there is never a immunity. defense of however, legiti here, acknowledges adopted that there The test mate specifically applicable sphere then doctrine sphere. limits the doctrine to Peggy complaint action Mrs. also included a derivative & Berger. Mr. of both Plaintiff will be used to describe claims Berger throughout opinion. Mrs. T. M. shotgun from a vehicle loaded with discharged rice was at his face from a distance less than five feet. complaint against
The lower court dismissed the (1) on all defendants two bases: all defendants plain- coemployees employer either were or the remedy and, therefore, tiff his exclusive was under Disability Compensation Act, the Worker’s MCL (2) 17.237(131), 418.131; MSA the defendants were entitled under 3.996(107). appeals 691.1407; MCL Plaintiff by right challenge findings. these
I granted The trial court blanket relief to all Perhaps defendants. large this was the result of the of number defendants as noted above. We sympathetic judge’s response are with the problem, having pages received several hundred of appeal briefs and on documents ourselves. How- granting ever, relief, the blanket the court granted judgment in favor a of number of defend- appeared against ants2 who had never and whom defaults had been entered. Plaintiff claims this improper agree. was and we provides part 1963, GCR that, 520.1 "[0]nce any party duly default entered, has been filed or party proceed shall not with his until his case 2Plaintiff claims that there were ten defendants in default at the judgments time the were entered. Our review the record shows against outstanding City were there defaults of Pleasant Ridge police department, Sterling Township and its and its department, Stevenson, Mahoney, Mike Officer the Chiefs of Police Support Association and the South at Oakland Tactical Unit the time judgments Sterling Heights, were entered. The which was Sterling Township, successor to set had moved to have its default passed aside. trial The court has never on this motion and motion judgment to set aside should decided before a default is entered against Sterling Heights. by T. M. by the court in accord- has set aside default been pro- party If cannot 520.4.” sub-rule ance with aside, it until the default is set his case ceed with grant judgment improper in his the court to had been de- to those who favor. As defendants judgments entered, time the were faulted at the judgments remanded case are reversed entry of a default to move to allow appropriate judgment note 2. other action. See or
II who did answer below Several of the defendants summary eventually or accelerated moved for 116.1(2) 117.2(1) judgment under GCR remedy pro- the exclusive based those motions on Compensation Disability of the Worker’s vision 17.237(131).3 Act, 418.131; de- These MCL pact the mutual aid that under fendants reasoned signed by type joint cities, a venture the various and, therefore, into the cities had entered all been police departments coemployers and all were plaintiff. coemployees were individuals pact joint construction of aid venture adopted by now the circuit court and has been adopted by substantially defendants all of the *15 participating appeal. injured by plaintiff
If
the act of
coem-
ployee
in a
the worker’s
situation covered
act,
compensation
tort suit would be barred
this
Ayers
remedy provision
v
the
the
act.
exclusive
(1962). The
Genter,
parties
675; 117
38
367 Mich
assumed
trial
to have
the
court seem
3
Ferndale, Huntington
Only
police departments
the
and Cities of
1Woods,
Heights, Troy
Beverly
individu
Madison
Hills and several
ground
als relied on this
below.
by T. M.
joint
both the existence of
venture and
all
party
employees of
to
coem-
one
the venture were
parties
ployees of all other
to the venture. The
assumption
Michigan
supported by
second
is not
Supreme
specifically
Court
law. Our
refused to
question
Healy Co,
the
v A
answer
Goodwin S
(1970), rev’g,
300, 313;
Mich
NW2d 755
App 514;
Mich
necessary
The is who was employer? question The answer deter- by applying reality” mined the "economic test. Martindale, 81 Smith v 266 NW2d (1978),4 only It cases cited therein. where it can determined this be under test plaintiff’s employers coemploy- defendants were remedy provision ees this suit. exclusive bar would present record is insufficient to make that Certainly, referring only determination. agreement municipalities, between the im- while portant, completely question. will not answer the opposed compensa- suit, In a tort as to a worker’s hearing, tion issue whether was an employee of the defendants should submitted jury, proper instructions, under for determina- tion on based all the A evidence.5 Goodwin v S Healy Co, Mich at 311. basing judgment The trial court erred in on this
ground.
Ill
granted
judgment
blanket
The trial court also
Billot,
(1977),
App 263;
gtd,
In
Nichol
NW2d 345
lv
panel
380 App Burns, by M. J. T. Dissent govern- of on the basis in favor of all defendants mental In Section improper 3.996(107).6 immunity. 691.1407; MSA MCL opinion I of we held this The in default. as to those defendants immunity be consid- defendants must of other they although may separately, be classified ered groups. three
(a)
municipal
departments
Liability
of
departments
public safety.
of
police departments
de-
Plaintiff made the
public safety
partments
of
munici-
the various
Many
palities separate
de-
of these
defendants.
appeal
argue
on
claimed below
fendants
separate entity, apart
they
as a
cannot be sued
municipality.
parent
from their
Early
development
of the doctrine
inability
immunity the
raise
through
funds,
otherwise,
or
was one
taxation
finding
justification given
immunity. O’Leary v
Marquette
Commissioners,
&
Board of Fire Water
608;
170; 19 Am St R
281;
79 Mich
7 LRA
NW
(1890).
Some later cases have referred
independent ground
inability to raise funds as an
analysis.
nonliability
See, Mc
critical
without
Fitzpatrick,
461;
Pherson v
(1975),
den,
Mich 830
NW2d 566
lv
nothing
inability
However, funds was
to raise
justifications for the
more than one of the stated
n
immunity for the
With
the demise
common-law
agencies
City
Taylor,
398 Mich
state and its
NW2d 512
Pittman v
statutory.
present
govern
immunity
all
in this state is
provides: "Except
provided,
statute
in this act otherwise
all
as
liability
agencies
cases
mental
shall
immune from tort
in all
government agency
engaged
or dis
wherein the
in the exercise
provided
charge
herein,
Except
otherwise
function.
as
restricting
modifying
not
as
this act shall
be construed
heretofor,
it existed
of the state from tort
as
3.996(107).
691.1407;
affirmed.”
MCL
by M.
T.
immunity,
separate
doctrine of
not a
immunity.
Schools,
Bush v Oscoda Area
*17
(1976)
App
(Opinion
670, 685; 250
(1977).
J.),
gtd,
W. R.
lv
themselves.
is no
There
inability
funds,
because of their
to raise
it rests on
immunity
the same statute as the
of the munici
palities.
import
This is the clear
of Allen v Wom
(1977), reversing
ack,
833;
399 Mich
(b) Liability of the individual officers. granting judgment defendants, In for all trial court concluded that the individual officers were entitled to under the statute. This on incorrect these facts. The had an officers duty individual common-law to due exercise care dealing plaintiff. Rife, when with Cole v 77 Mich (1977).7 App grants 545; NW2d 555 The statute personal no to an for individual acts of negligence solely because he is a employee. complaint The in this case is sufficient summary judgment to 1963, avoid under GCR 117.2(1) and, toas the individual defendants there- judgments fore, the in favor of these defendants must be reversed. support District, Cole drew Lovitt Concord School 58 Mich
App 593;
Which defendants are negligent depends ble for these acts on facts which only developed by proceedings. can be further It is only developed after the are facts the rela- tionship of the various defendants to each other injured plaintiff and to the determined, can see opinion, upon section II of this and based those relationships which sponsible for the units re- were acts the individual officers. judgments of the circuit court are reversed proceedings and the case remanded for further not opinion. public inconsistent with costs, this No question. 10Application appeal for leave to in White and Duncan has been abeyance pending disposition
held in Highland of Parker v Park.