Plaintiff Marsha Christopher was attacked by a dog while delivering mail in the City
We first consider whether the city’s activities in enforcing its animal control ordinance are governmental functions. Plaintiffs argue that the activities of the pound master in enforcing the animal control ordinances are not of the essence of governing.
Parker v City of Highland Park,
We next consider whether Robert Baynton, the pound master, is also protected by governmental immunity. Plaintiffs argue that Mr. Baynton’s activities are ministerial and, therefore, he is not protected by governmental immunity. Lower level government officials, such as Mr. Baynton, are immune when they are performing discretionary decisional acts within the scope of their employment. Ross, supra.
We feel that Mr. Baynton’s activities are discretionary and, therefore, he is protected by governmental immunity. Plaintiffs basically claim that Mr. Baynton was negligent in failing to properly dispose of the animal pursuant to the animal control ordinance. While Taylor’s animal control ordinance provides some guidance as to how Mr.
We next consider whether the lower court properly dismissed plaintiffs’ allegations of an intentional tort. Plaintiffs alleged that Mr. Baynton recieved several complaints regarding the dog which attacked plaintiff and wilfully failed to comply with the animal control ordinance by impounding and destroying the dog. For legal support to this allegation, plaintiffs rely on
Shunk v Michigan,
In the instant case, the lower court considered
Shunk
and found that it was distinguishable, relying on
Disappearing Lakes Ass’n v Dep’t of Natural Resources,
"Plaintiffs’ sole claim is that defendants acted intentionally and wilfully in refusing to take action under MCL 408.1031; MSA 17.50(31). However, as this Court has recently explained, negligence does not become an intentional tort merely because the government acted wilfully or intentionally in doing or failing to do a particular act, since such a rule would virtually eliminate the doctrine of governmental immunity. Elliott v Dep’t of Social Services, 124 Mich App 124 , 128-129;333 NW2d 603 (1983). Instead, the government’s tortious activity must fall outside the exercise or discharge of a governmental function. Elliott v Dep’t of Social Services, supra, p 129; Smith v Michigan,122 Mich App 340 , 345;333 NW2d 50 (1983). Generally, the intentional tort exception to the governmental immunity doctrine has been limited to traditional intentional torts, Randall v Delta Charter Twp,121 Mich App 26 , 34;328 NW2d 562 (1982), and acts of omission rather than commission are not generally characterized as intentional torts. Elliott v Dep’t of Social Services, supra, p 130, citing Randall v Delta Charter Twp, supra, p 34.”132 Mich App 636 .
This Court concluded that summary judgment was properly granted on plaintiffs’ allegation of intentional tort since plaintiffs failed to present any factual evidence in support of their claim. In the instant case, plaintiffs’ claim is similarly flawed. The trial court therefore did not err in granting summary judgment as to plaintiffs’ claim of intentional tort.
Plaintiffs finally claim that the lower court erred in granting summary judgment as to her allegation of intentional nuisance. In Randall, supra, pp 34-35, this Court stated:
"Plaintiff next claims that the township’s failure to enforce its ordinance constituted a common-law nuisance. Although we agree that a properly pled claim of nuisance may serve to avoid the immunity provisions of the statute, Rosario v City of Lansing,403 Mich 124 ;268 NW2d 230 (1978), plaintiffs complaint does not allege such a claim. Plaintiff has failed to allege that the township participated in the creation of the inlet or that it had any interest in or right of control over the property. See Radloff v State of Michigan,116 Mich App 745 ;323 NW2d 541 (1982); Rosario, supra. Therefore, plaintiff has failed to state a claim. Steman v Coffman,92 Mich App 595 , 598;285 NW2d 305 (1979); Coburn v Public Service Comm,104 Mich App 322 , 327;304 NW2d 570 (1981).”
In the instant case, plaintiffs have failed to allege that the City of Taylor participated in the creation of the nuisance or had any interest in or right of control over it. The facts of the instant case are insufficient to support a claim of intentional nuisance. The lower court, therefore, did not err in granting summary judgment.
Affirmed.