Lead Opinion
In this сase, we decide whether a civil contempt petition that seeks indemnification damages under MCL 600.1721 imposes “tort liability” within the meaning of MCL 691.1407(1) of the governmental tort liability act (GTLA), MCL 691.1401 et seq. Given the Legislature’s use of the common-law term “tort,” we hold that “tort liability” as used in MCL 691.1407(1) of the GTLA encompasses all legal responsibility
I. FACTS AND PROCEDURAL HISTORY
In the summer of 2004, petitioner, Nancy Mick, became increasingly concerned about the mental health of her brother, Stephen Bradley. She noticed that Bradley had grown “more agitated and violent,” and he had admitted to her that he was suicidal. Petitioner feared that if Bradley did not receive help “he could kill himself and his family.” As a result, in August 2004, she petitioned the Kent County Probate Court for Bradley’s hospitalization, averring that Bradley was a danger to himself and his family. She accompanied her petition with a supplemental petition for examination and hospitalization, requesting a court order directing a peace officer to take Bradley into protective custody.
The probate court granted the petitions that same day and issued an order requiring that Bradley submit to psychiatric examination and requiring his hospitalization. Thе order specified that a “peace officer shall take [Bradley] into protective custody and transport him ... to [Cornerstone Community Mental Health or any community mental health contract facility].” Petitioner immediately submitted the order to respondent, the Kent County Sheriffs Department, for execution and provided additional details to the sergeant on duty concerning how petitioner expected Bradley to react to being taken into custody and the fact that Bradley possessed several firearms.
Respondent, however, did not timely execute the probate court’s order. In the days that followed, petitioner contacted respondent twice in regard to Bradley’s situation, and each time respondent assured her that the pickup would take place as soon as possible. Ultimately, respondent never attempted to take Bradley into protective custody and, nine days after the probate court entered its order, Bradley committed suicide.
After Bradley’s suicide, petitioner wrote to Kent County Sheriff Lawrence A. Stelma, requesting an internal investigation, which ultimately concluded that the failure to execute the order was “an obvious case of simple neglect in that this petition was not executed in the manner that mental health petitions normally are handled.”
More than two years later, petitioner, acting as personal representative of Bradley’s estate, filed a wrongful death suit against respondent and Stelma, alleging that they were grossly negligent in their failure to execute the probate court order and that their negligence was the proximate cause of Bradley’s death. The circuit court dismissed the case on governmental immunity grounds, opining that respondent was not a legal entity that could be sued and that Stelma was individually immune from suit under the GTLA.
Petitioner did not appeal the circuit court’s dismissal. Instead, she filed a petition for civil contempt in the probate court against respondent. The petition alleged that respondent’s violation of the probate court’s order constituted contempt of court, entitling her to indemnification damages pursuant to MCL 600.1721. The petition replicated the contents of petitioner’s wrongful death complaint and sought damages “including, but not limited to, all of those damages set forth in the Michigan Wrongful Death Statute, MCL 600.2922, et seq.”
Respondent moved for summary disposition, arguing that it was immune from liability under MCL 691.1407(1) of the GTLA because petitioner sought to impose tort liability in the guise of a civil contempt petition.
- Respondent appealed the probate court’s ruling to the circuit court, which reversed and remanded the case to the probate court for entry of an order granting summary disposition in favor of respondent. Relying on the definition of “tort liability” articulated in Tate v Grand Rapids,
In accord with the Ross Court’s holding that the GTLA will not bar recoveiy simply because the underlying facts could have also established a tort cause of action, we conclude that tort-like damages are recoverable in a contempt action assuming contempt can be proved. Thus, whether the GTLA implicates the viability of Mick’s contempt action rests on whether Mick can successfully plead and establish a contempt cause of action. The nature of the damages being requested has no role in determining whether the action is barred by [the] GTLA. Consequently, the circuit court erred when it dismissed this case merely because the damages sought were similar to tort damages.[10 ]
We grаnted respondent’s application for leave to appeal to consider whether “petitioner’s claim for civil contempt indemnification damages under MCL 600.1721 is barred by the [GTLA].”
II. STANDARD OF REVIEW
We review de novo a decision on a motion for summary disposition.
We also review de novo issues of statutory interpretation.
III. ANALYSIS
Since Michigan became a state in 1837, Michigan jurisprudence has recognized the preexisting common-law concept of sovereign immunity, which immunizes the “sovereign” state from all suits to which the state has not consented, including suits for tortious acts by the state.
Specifically, MCL 691.1407(1), which is at the center of this litigation, broadly provides that “a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.”
Whether a contempt order imposing indemnification damages imposes tort liability is not readily apparent; the GTLA does not define the phrase “tort liability” and our caselaw has not offered a definition of the phrase. Moreover, the contempt statutes under which petitioner brings suit include no express reference to the imposition of “tort liability.” The civil contempt petition in the instant case is based on the general contempt statute of MCL 600.1701, a provision of the Revised Judicature Act (RJA), MCL 600.101 et seq., that identifies potentially punishable contemptuous conduct. This provision, which is a codification of courts’ power at common law to punish contemptuous conduct,
The supreme court, circuit court, and all other courts of record, have power to punish by fine or imprisonment, or both, persons guilty of any neglect or violation of duty or misconduct in all of the following cases:
(c) All attorneys, counselors, clerks, registers, sheriffs, coroners, and all other persons in any manner elected or appointed to perform any judicial or ministerial services, for any misbehavior in their office or trust, or for any willful neglect or violation of duty, for disobedience of any process of the court, or anylawful order of the court, or any lawful order of a judge of the court or of any officer authorized to perform the duties of the judge.
(g) Parties to actions, attorneys, counselors, and all other persons for disobeying any lawful order, decree, or process of the court.[23 ]
By its plain terms, MCL 600.1701 аllows courts to exercise their inherent contempt powers for the purpose of either coercing a contemnor to comply with the court’s order (civil contempt) or punishing a contemnor for contemptuous conduct (criminal contempt) by imposing a “fine or imprisonment, or both . . . .”
In addition to the coercive and punitive sanctions permitted for civil and criminal contempt under MCL 600.1701, a court, in a civil contempt proceeding, may also order indemnification of those persons who have sustained losses as a result of contemptuous conduct under MCL 600.1721.
The contemptuous misconduct referred to in these contempt statutes, however, does not clearly constitute tortious action such that petitioner’s civil contempt petition would necessarily impose tort liability for purposes of the GTLA. Whether petitioner’s claim is barred by the GTLA thus requires two related inquires. First, we must determine the meaning of the phrase “tort liability” as used in MCL 691.1407(1) of the GTLA; and, second, we must decide whether a civil contempt petition seeking indemnification damages under MCL 600.1721 seeks to impose tort liability, such that the GTLA would prohibit petitioner’s claim.
A. TOET LIABILITY
As noted, the GTLA does not define the phrase “tort liability,” nor has this Court previously determined the meaning of that phrase. The lower courts applied the definition of “tort liability” articulated by the Court of Appeals in Tate, a case involving a statute that imposes strict liability on dog owners for injuries resulting from dog bites.
[I]f in order to make out a cause of action it is not necessary for the plaintiff to rely on a contract, the action is one founded on tort; but, on the other hand, if, in order successfully to maintain his action, it is necessary for him to rely upon and prove a contract, the action is one founded upon contract.[32 ]
The Queen’s Bench, then, recognized only two types of civil wrongs, those involving contractual wrongs and those involving the breach of some other legal duty, the latter of which is a tort and is remedied through an award of compensatory damages.
Our common law likewise incorporates the concept that a tort necessarily involves compensation to an injured party for the wrong committed by a tortfeasor.
Given the foregoing, it is clear that our common law has defined “tort” to be a civil wrong, other than a breach of contract, for which the court will provide a remedy in the form of compensatory damages. Accordingly, because the word “tort” has “acquired a peculiar and appropriate meaning” in our common law, and because the Legislature is presumed to be aware of the common law when enacting
Our analysis, however, requires more. MCL 691.1407(1) refers not merely to a “tort,” nor to a “tort claim” nor to a “tort action,” but to “tort liability.” The term “tort,” therefore, describes the type of liability from which a governmental agency is immune. As commonly understood, the word “liability,” refers to liаbleness, i.e., “the state or quality of being liable.”
In reaching this holding, we are cognizant of our decision in Ross, on which the Court of Appeals relied in concluding that “tort-like damages are recoverable in a contempt action” against a governmental entity.
We recognize that plaintiffs have and will attempt to avoid [MCL 691.1407(1)] of the governmental immunity act by basing their causes of action on theories other than tort. Trial and appellate courts are routinely faced with the task of determining whether the essential elements of a particular cause of action have been properly pleaded and proved. If a plaintiff successfully pleads and establishes a non-tort cause of action,[MCL 691.1407(1)] will not bar recovery simply because the underlying facts could have also established a tort cause of action.[ 46 ]
Petitioner and the Court of Appeals interpret this passage from Ross to mean that the label of the action controls in determining whethеr an action imposes tort liability and that, if the claim is not a traditional tort, then the GTLA is inapplicable and “tort-like” damages are recoverable. Ross, however, made no such pronouncement and did not consider the meaning of “tort liability,” which is the question that is now before this Court. Instead, consistent with our holding in this case, Ross merely recognized that the GTLA does not bar a properly pleaded contract claim.
In addition, our holding clarifies that Ross’s pronouncement, that “non-tort cause[s] of action” are not barred by the GTLA, should not be interpreted as limiting the GTLA’s application to only traditional tort claims.
In summary, several principles emerge from our explication of the phrase “tort liability” that will guide courts charged with the task of determining whether a cause of action imposes tort liability for purposes of the GTLA. Courts considering whether а claim involves tort liability should first focus on the nature of the duty that gives rise to the claim. If the wrong alleged is premised on the breach of a contractual duty, then no tort has occurred, and the GTLA is inapplicable.
B. CIVIL CONTEMPT INDEMNIFICATION DAMAGES
The civil contempt petition in this case alleges that respondent’s contemptuous misconduct, prohibited by MCL 600.1701, caused Bradley’s suicide and seeks indemnification damages under MCL 600.1721. Because petitioner’s civil contempt petition seeks indemnification under MCL 600.1721, we must construe the language of that provision to determine whether
If the alleged misconduct has caused an actual loss or injury to any person the court shall order the defendant to pay such person a sufficient sum to indemnify him, in addition to the other penalties which are imposed upon the defendant. The payment and acceptance of this sum is an absolute bar to any action by the aggrieved party to recover damages for the loss or injury.[55 ]
Although we have not previously considered whether this language imposes “tort liability,” this Court has implicitly recognized that the elements necessary to establish entitlement to relief under this provision are essentially the same elements necessary to establish a tort, i.e., a legal duty, breach of that duty, causation, and injury. In Holland v Weed,
authorizes this impоsition [of indemnification damages] in place of a fine, and it is for the purpose of protecting the civil rights and remedies of the party, and to compensate him for the injury or loss occasioned by the misconduct alleged-, and it is only when an actual loss or injury has been produced to the party by the misconduct alleged, and that is made to appear to the satisfaction of the court, and some sum sufficient to compensate the party or indemnify him is adjudged, that the court can impose the costs and expenses to be paid by such party.[57 ]
Stated differently, the plain language of MCL 600.1721 requires a showing of contemptuous misconduct that caused the person seeking indemnification to suffer a loss or injury and, if these elements are established, requires the court to order the contemnor to pay “a sufficient sum to indemnify” the person for the loss.
A closer examination of the statutory language confirms that it contains all the elements of a tort claim in the guise of a contempt claim. Under the first sentence of the statute, the “alleged misconduct,” which is a necessary element of any contempt claim, stems from the “neglect or violation of [a] duty” under MCL 600.1701 or the “omission to perform an act or duty” under MCL 600.1715. Thus, the “alleged misconduct” is synonymous with the legal duty and breach of that duty recognized in traditional tort law. Clearly, this misconduct, which arises from the relevant contempt statute — not a contractual relationship between the parties — is a non-contractual civil wrong.
Because the nature of the duty that gives rise to a civil contempt claim is clearly premised on a noncon-tractual civil wrong, we must further consider the nature of the liability imposed. The first sentence of MCL 600.1721 also requires that this misconduct “causeD” the petitioner’s “actual loss or injury,” thus paralleling the other two elements recognized in a traditional tort claim: causation
Additional support for this conclusion is found in the second sentence of MCL 600.1721, which provides that “[t]he payment and acceptance of this sum is an absolute bar to 'any action by the aggrieved party to recover damages for the loss or injury.” That is, the Legislature expressly recognized that a civil contempt claim seeking indemnification damages functions as a substitute for any underlying claim and, thus, bars monetary recovery that could have been achieved in a separate cause of action. As the Legislature acknowledged, the statutory remedy, then, is effectively a proxy for a tort claim.
Given that the statutory language of MCL 600.1721 clearly permits the payment of compensatory damages to a petitioner for a noncontractual civil wrong, we thus hold that a civil contempt petition seeking indemnification damages under
Our holding, however, should not be interpreted as constraining courts’ inherent contempt powers. While our holding does constrain a court’s statutory authority to оrder punishment, in the form of compensation in a civil contempt proceeding against a governmental entity,
C. APPLICATION
The civil contempt petition at issue here alleges that respondent negligently failed to execute the probate court’s order, constituting contemptuous misconduct under MCL 600.1701. The petition alleges that this misconduct caused Bradley’s suicide and seeks indemnification damages for his death under MCL 600.1721. Notably, the damages petitioner seeks in her contempt petition are exactly the same damages that petitioner sought under the wrongful death statute
Had petitioner sought to invoke the probate court’s inherent contempt powers, i.e., to fine or imprison a contemnor, or had petitioner otherwise established the applicability of an exception to governmental immunity, then petitioner’s claim might have survived summary disposition. However, petitioner’s civil contempt petition did not invoke the court’s inherent powers of contempt, and she concedes that none of the GTLA’s exceptions are applicable.
IV .CONCLUSION
Consistent with the Legislature’s intent, our decision clarifies that the phrase “tort liability” as used in MCL 691.1407(1) encompasses all legal responsibility arising from noncontractual civil wrongs for which a remedy may be obtained in the form of compensatory damages. We further recognize that the plain language of MCL 600.1721 authorizes an award of indemnification damages to remedy a noncontractual civil wrong and, thus, falls squarely within the meaning of “tort liability.” Because MCL 691.1407(1) immunizes governmental agencies from tort liability, governmental entities are immune from civil contempt petitions seeking indemnification damages. Petitioner has pleaded such a claim here and because she has not otherwise established the applicability of an exception to the GTLA, respondent is entitled to immunity under MCL 691.1407(1). We reverse the judgment of the Court of Appeals and remand this case to the probate court for entry of an order granting summary disposition in favor of respondent.
Notes
The investigation revealed that the sergeant who initially received the order could not execute it because she was on duty alone. She passed it onto the next sergeant who, in turn, assigned it to a deputy. The deputy, waylaid by other police business, passed the order to another officer who indicated that the order would be executed the following day. The order eventually came to rest at a police substation where it remained until the internal investigator found it on August 25, 2004. The investigation report indicated that “it appears as though [the officers] were all somewhat cognizant that the [order] was there; however, no one took initiative to either execute the [order] or access the computer to ascertain if the [order] had been served.”
Both the complaint and petition alleged that respondent “failed and refused to execute the Order issued by the Kent County Probate Court notwithstanding its mandate, delivery of the Order to [respondent], and the repeated inquiry regarding execution of the Order.”
Respondent also alleged that (1) petitioner failed to submit an affidavit from a person witnessing the contemptuous act as required by MCR 3.606(A), (2) respondent was not a legal entity capable of being sued, and (3) petitioner failed to show either a willful violation of the probate court order or the requisite causal link between the alleged contempt and Bradley’s suicide as required by MCL 600.1701. These arguments are not before this Court.
Tate v Grand Rapids,
In re Bradley Estate,
Id. at 38-39.
Tate,
Ross v Consumers Power Co (On Rehearing),
In re Bradley Estate,
Id. at 39 (citation omitted).
In re Bradley Estate,
Maiden v Rozwood,
Glancy v City of Roseville,
Odom v Wayne Co,
Driver v Naini,
Id. at 246-247.
MCL 8.3a.
Stone v Williamson,
Ross,
Emphasis added. Likewise, individual governmental officers and employees may be entitled to immunity from “tort liability.” See MCL 691.1407(2) and (5).
See Mack v Detroit,
In re Contempt of Dougherty,
MCL 600.1701 (emphasis added). See also MCL 600.1715(2) (providing punishment for contemptuous conduct consisting of “the omission to perform some act or duty....”).
See also MCL 600.1715(1), which generally limits the fine for contempt to not more than $7,500 and the term of imprisonment to no more than 93 days.
A contempt proceeding seeking indemnification damages is a civil contempt proceeding. In re Contempt of Dougherty,
MCL 600.1721.
Tate,
Id. at 659.
Id. at 660. Consistent with this definition, the Court of Appeals explained that “strict liability is based on tort law and may result in tort liability, i.e., civil liability for wrongful conduct.” Id.
As Sir Edward Coke explained, “wrong or injury is in French aptly called tort; because injury and wrong is wrested or crooked, being contrary to that which is right and straight.” I Coke, The First Part of the Institutes of the Laws of England (Butler’s 1st American ed, 1853), p 158b.
See Sinclair v Brougham, [1914] AC 398 (HL), 415 (1914) (Viscount Haldane, LC) (“[B]roadly speaking, so far as proceedings in personam are concerned, the common law of England really recognises (unlike the Roman law) only actions of two classes, those founded on contract and those founded on tort.”); id. at 432 (Lord Dunedin) (“The English common law has various actions which, under a classification which I understand to be really one of modern growth, are divided into actions in respect of contract and of tort.”); Bryant v Herbert, 3 CPD 389, 390 (1878) (Bramwell, LJ) (“One may observe there is no middle term; the statute supposes all actions are founded either on contract or on tort. So that it is tort, if not contract, contract if not tort.”). These English common-law cases are consistent with the understanding of tort espoused by Sir William Blackstone in his 1771 Commentaries, which make the same distinction:
Personal actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof: and, likewise, whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to be founded on contracts, the latter upon torts or wrongs .... Of the former nature are all actions upon debt or promises; of the latter all actions for trespasses, nuisances, assaults, defamatory words and the like. [3 Blackstone, Commentaries on the Laws of England (Jones ed., 1976), p *117.]
Turner v Stallibrass, 1 QB 56, 58 (1898) (A.L. Smith, LJ). See also id. at 59 (Rigby, LJ) (“The rule is that, if the plaintiff, in order to shew [sic] a cause of action, must rely on a contract, the action is one founded on contract; otherwise it is one of tort.”).
As noted, this understanding of a tort is reflected in Sir William Blackstone’s Commentaries. Aside from recognizing that only two types of civil wrongs exist, Blackstone’s Commentaries also repeatedly confirm that tort actions involve a particular type of compensation— compensatory damages. See 3 Blackstone, p *138 (stating that “[t]he satisfactory remedy for this injury of false imprisonment” is that “the party shall recover damages for the injury he has received”); 3 Blackstone, pp **145-146 (stating that the proper remedy for the wrongful taking of goods is “the restitution of the goods themselves so wrongfully taken, with damages for the loss sustained by such unjust invasion,” and that the law in this regard “contents itself in general with restoring, not the thing itself, but a pecuniary equivalent to the party injured; by giving him a satisfaction in damages”); 3 Blackstone, p *220 (stating that when a private person suffers damage by a public nuisance, the remedies by suit are “[b]y action on the case for damages; in which the party injured shall only recover satisfaction for the injury sustained; but cannot thereby remove the nuisance”).
As former Chief Justice of the Michigan Supreme Court Thomas M. Cooley recognized in Cooley, A Treatise on the Law of Torts (2d ed, 1888), p 2, “It is customary in the law to arrange the wrongs for which individuals may demand legal redress into two classes: the first embracing those which consist in a mere breach of contract, and the second those which arise independent of contract.”
Churchill v Howe,
Id. at 111, 114 (citation and quotation marks omitted).
See, e.g., O’Neill v James,
Stillson v Gibbs,
Wilson v Bowen,
MCL 8.3a; Ford Motor Co v City of Woodhaven,
Random House Webster’s College Dictionary (2001). Similarly, Black’s Law Dictionary (7th ed) defines “liability” as “[t]he quality or state of being legally obligated or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment” and as “a financial or pecuniary obligation^]”
Random House Webster’s College Dictionary (2001).
Petitioner argues that this understanding of tort liability is overly inclusive, but offers no alternative definition for the term “tort.” Moreover, while our definition of “tort” is stated in broad terms, it is consistent with the common-law understanding of that term as adopted by our Legislature in MCL 691.1407(1).
In re Bradley Estate,
Ross,
Id. at 647-648 (emphasis added).
Id. at 647-648; id. at 693-694 (opinion by Levin, J.) (“The language of [MCL 691.1407(1)], however, speaks only to immunity from tort liability; it does not grant immunity from contract claims.”).
Ross,
To follow petitioner’s suggestion, which Justice McCormack also appears to advocate, would exalt form over substance when, instead, we have long recognized that a party’s choice of label for a cause of action is not dispositive and “the gravamen of [a] plaintiffs action is determined by considering the entire claim.” Maiden,
In re Bradley Estate,
Indeed, to ignore the type of the damages sought would be to ignore the correlation between the wrong alleged and the available remedy. See Nat’l Copper Co v Minnesota Mining Co,
Justice McCormack pens an eloquent and engaging discussion of the sui generis nature of contempt, one that we do not necessarily disagree with regarding contempt. Where we do differ, however, is in our belief that this case presents a more nuanced issue, namely whether a petitioner can recast a wrongful death claim that is barred by the GTLA as a claim for civil contempt and obtain indemnification damages under MCL 600.1721, which are exactly the same as those damages sought under the wrongful death statute. We see the issue differently, but have not “confuse[d] legal categories” in the least.
In that instance, we emphasize that the plaintiff would be limited to the recovery of contract damages. If a plaintiff seeks the recovery of tort damages stemming from the breach of a contractual duly, then the plaintiffs claim would be insufficient as a matter of law under MCR 2.116(C)(8).
This step of the analysis is fundamental to determining whether an action involving a noncontractual civil wrong seeks to impose tort liability. This is because, in some instances, a noncontractual civil wrong might exist, but instead of seeking compensation to remedy the harm, the plaintiff elects some other remedy, thus rendering governmental immunity inapplicable. For example, a plaintiff may ask a court to enforce his or her rights under the law. See Lash v Traverse City,
MCL 600.1721 (emphasis added).
Holland v Weed,
Emphasis added. The statute was substantially similar when Holland was decided. It provided:
If an actual loss or injury has been produced to any party, by the misconduct alleged, the court shall order a sufficient sum to be paid by the defendant to such party to indemnify him, and to satisfy his costs and expenses, instead of imposing a fine upon such defendant; and in such case, the payment and acceptance of such sum shall be an absolute bar to any action by such aggrieved party, to recover damages for such injury or loss. [How Stat § 7277.]
“Indemnify” is commonly understood to mean “to compensate for damage or loss sustained, expense incurred[.]” Random House Webster’s College Dictionary (2001). And we have previously characterized the relief provided under MCL 600.1721 as compensatory. See In re Contempt of Dougherty,
Justice Cavanagh posits that a civil contempt petition seeking indemnification damages under MCL 600.1721 does not impose tort liability because the liability imposed arises, not from the breach of a “tort duty,” but from the breach of an “obligation owed to the court.” The Legislature, however, did not use the phrase “tort duty” in MCL 691.1407(1), but instead used the phrase “tort liability” thereby invoking consideration of all noncontractual civil wrongs consistent with the common-law meaning of “tort.” Moreover, while Justice Cavanagh agrees that the purpose of the relief sought is relevant to determining whether tort liability exists, he ignores that MCL 600.1721 expressly permits an award of compensatory damages to “any person” who suffered an injury as a result of the contemptuous act and does not award indemnification damages to the court, which is the party owed a duty under Justice Cavanagh’s analysis. Stated otherwise, a civil contempt petition seeking indemnification damages under MCL 600.1721 does not seek to redress the harm a court may have suffered as a result of the contemptuous act; rather, such a petition seeks to compensate the person who suffered injury from that civil wrong, and therefore the petition is squarely within the meaning of “tort liability.”
Justice McCormack does not analyze thе express statutory language of MCL 600.1721 and instead relies on a series of inferences to discern the meaning of the law. Specifically, Justice McCormack reads MCL 600.1701(c) as an express indication that the Legislature intended to waive any claim that government eontemnors are immune from liability for civil contempt indemnification damages. However, the express statutory language of MCL 600.1701 does not include “defendant,” as that term is used in MCL 600.1721, among the listed state actors, and we would draw no such inference. Compare MCL 600.1721 and MCL 600.1701 with other statutes expressly waiving governmental immunity, including the Elliot-Larsen Civil Rights Act, MCL 37.2103(g), MCL 37.2201(a), and MCL 37.2202 (defining “employer” to expressly include state actors who are in turn liable for certain discriminatory conduct); and the Persons with Disabilities Civil Rights Act, MCL 37.1103(g), MCL 37.1201(b), and MCL 37.1202 (same). Nor do we view MCL 691.1407(6), as Justice McCormack does, to inform the meaning of “tort liability” used in MCL 691.1407(1). MCL 691.1407(6), which grants immunity to guardian ad litems from “civil liability,” is simply not implicated in this case. We also do not believe the Legislature’s placement of the contempt statutes in the RJA has any relevance to the meaning of “tort liability.”
Contrary to our holding, petitioner asserts that her contempt petition cannot be classified as a tort because there is not “a hint anywhere” in Michigan jurisprudence suggesting that contempt is a tort. Our discussion in Holland,
The Legislature authorized the award of compensatory damages in the contempt context with the enactment of 1846 RS, ch 121, § 21, the original predecessor of MCL 600.1721.
See Const 1963, art 6, § 1; Langdon v Judges of Wayne Circuit Court,
As this Court explained in In re Huff,
There is inherent power in the courts, to the full extent that it existed in the courts of England at the common law,... to adjudge and punish for contempt.... Such power, being inherent and a part of the judicial power of constitutional courts, cannot be limited or taken away by act of the legislature nor is it dependent on legislative provision for its validity or procedures to effectuate it. [Citation omitted.]
See Nichols v Judge of Superior Court of Grand Rapids,
Having concluded that no Michigan court possesses inherent power to award compensatory damages relating to contempt, we need not address the parties’ disagreement whether the probate court, the powers of which are controlled by the Legislature, lacks the inherent power to punish contempt through fine or imprisonment.
By stating “[e]ven if Michigan did not recognize a wrongful death action, hypothetically, respondent here could still have been held in contempt,” Justice McCormack errs in insinuating that a Court’s inherent contempt powers include the ability to award compensatory damages to a third party for loss or injury. The fact that the Legislature added the ability to impose tort liability to the Court’s powers as a possible remedy for contempt does not resolve the issue whether that particular remedy may be used against governmental agencies in the face of the GTLA. If MCL 600.1721 did not exist, then Justice McCormack’s point would be valid.
MCL 600.2922.
We do not disagree with the concern that this Court must safeguard the power of the judicial branch, but note that this case did not involve the willful violation of a court order and the consequential offense to the issuing court, which is the very essence of contempt of court.
Dissenting Opinion
(dissenting). At issue in this case is whether an order imposing a compensatory contempt sanction under MCL 600.1721
I. OVERVIEW OF CONTEMPT PROCEEDINGS
In In re Contempt of Dougherty,
To aid courts in characterizing civil and criminal contempt proceedings, In re Contempt of Dougherty explained that the process is civil if the contemnor refuses to do an act ordered by the court, whereas the process is criminal if the contemnor commits a forbidden act. Id. at 94-96, quoting Gompers,
there are three sanctions which may be available to a court to remedy or redress contemptuous behavior: (1) criminal punishment to vindicate the court’s authority; (2) coercion, to force compliance with the order; and (3) compensatory relief to the complainant.
II. A COMPENSATORY CONTEMPT SANCTION IS NOT “TORT LIABILITY”
I agree with the majority that a proper analysis of this case should begin by defining “tort liability” for the purposes of MCL 691.1407(1), and, next, it must be determined whether a compensatory sanction for civil contempt constitutes tort liability. Further, I appreciate the majority’s thoughtful approach to providing a common-law definition of “tort” as “a civil wrong, other than a breach of contract, for which the court will provide a remedy in the form of compensatory damages.” Ante at 384. Most importantly, I agree with the majority that “our focus must be on the nature of the liability rather than the type of action pleaded,” ante at 387, and the first focus should be “on the nature of the duty that gives rise to the claim,” ante at 389.
Under MCL 600.1721, “any person” who suffers “actual loss or injury” caused by the defendant’s “alleged misconduct” may file a petition or motion seeking remedial relief in the form of a compensatory contempt
As a result, I disagree with the majority that the “alleged misconduct,” which serves as the basis for liability under MCL 600.1721, is “synonymous” with a traditional tort duty and its breach. Ante at 391. This is because, generally stated, liability arising from tortious conduct stems from a breach of one’s duty to another, not the breach of an obligation owed to the court.
Becausе the “alleged misconduct” under MCL 600.1721 is distinguishable from tortious conduct, the compensatory quality of tort damages and of a contempt sanction imposed under MCL 600.1721 is the only potentially relevant similarity shared by the two types of liability.
I also think that, in certain circumstances, characterizing a compensatory contempt sanction as serving a compensatory purpose to the exclusion of any other purpose may oversimplify the nature of the contempt proceeding itself. See Gompers,
To conclude, I would hold that the contemptuous act itself is an integral part of imposing liability under MCL 600.1721, and the duty one owes to a court is distinguishable from a tort duty. While the common-law definition of “tort” is admittedly broad, holding that a compensatory contempt sanction amounts to “tort liability” unreasonably stretches the traditionally understood concept of a “tort” claim by not appreciating that a tort duty is not simply any noncontractual civil duty imposed by the law. Thus, I would conclude that the Legislature, when granting immunity from tort liability under the GTLA, did not intend that governmental defendants would be immune from compensatory contempt sanctions.
MCL 600.1721 states:
If the alleged misconduct has caused an actual loss or injury to any person the court shall order the defendant to pay such person a sufficient sum to indemnify him, in addition to the other penalties which are imposed upon the defendant. The payment and acceptance of this sum is an absolute bar to any action by the aggrieved party to recover damages for the loss or injury.
See In re Contempt of Dougherty,
Compare Black’s Law Dictionary (9th ed), p 998 (defining “tortious liability” as “[l]iability that arises from the breach of a duty that (1) is fixed primarily by the law, (2) is owed to persons generally, and (3) when breached, is redressable by an action for unliquidated damages”) (emphasis added), and ante at 385 n 40 (stating that a “tort” is a “ ‘breach of a duty that the law imposes on persons who stand in particular relation to one another’ ”), quoting Black’s Law Dictionary (9th ed) (emphasis added), with Gompers,
In support of its conclusion that MCL 600.1721 imposes tort liability for the purposes of the GTLA, the majority also looks to the second sentence of MCL 600.1721, which states that “[t]he payment and acceptance of this sum is an absolute bar to any action by the aggrieved party to recover damages for the loss or injury.” I agree that MCL 600.1721 bars an action for damages that are caused by the contemptuous conduct; however, I do not see how that fact supports the majority’s holding that a compensatory contempt sanction imposes tort liability. The fact that a compensatory contempt sanction, referred to as a “sum” in the statute, bars a subsequent action at law does not mean that the Legislature likened the two forms of liability. Rather, in my view, the Legislature realized that a compensatory contempt sanction has a similar remedial purpose to tort liability and, thus, the Legislature decided to bar actions at law to avoid providing a windfall to a petitioner under MCL 600.1721.
Like the majority, I disagree with the Court of Appeals to the extent that it held that the nature of the damages sought in an action has “no role in determining whether the action is barred by the GTLA.” In re Bradley Estate,
See In re Contempt of Dougherty,
As the majority notes, governmental defendants are not typically immune from equitable suits. See ante at 389 n 54. As a result, I question whether it may be an unforeseen consequence of the majority’s holding to immunize governmental defendants from compensatory contempt sanctions when those defendants are not immune from the imposition of an equitable order. Indeed, the losses recovered under MCL 600.1721 typically arise from a violation of such an equitable order, not from a wrong that may be remedied with tort damages. Moreover, I think that the Legislature, through the enactment of MCL 600.1721, has recognized that it would be unjust to preclude the recovery of losses sustained simply because the contemnor is not under a present duty to comply with the court order. The majority asserts that because MCL 600.1721 allows “any person” to petition or move for a compensatory contempt sanction, the purpose of the statute is to compensate a private individual. That may be a purpose of the statute, but, in my view, the majority oversimplifies the context of when a petition or motion under MCL 600.1721 may be brought and ignores that any loss covered by the statute was sustained as a result of a violation of a court order. For that reason, I think that a motion or petition brought under MCL 600.1721 is simply too far removed from the common-law understanding of tort liability to conclude that the Legislature, when enacting the GTLA, thought of a compensatory contempt sanction as imposing tort liability.
Dissenting Opinion
(dissenting). The majority holds that the governmental tort liability act’s (GTLA)
I. CIVIL LIABILITY
A. AN ABBREVIATED TAXONOMY OF “CIVIL WRONGS”
Very generally speaking, there are two categories of legal wrongs that may result in civil liability. One category encompasses acts that violate a personal right, which includes the common-law subjects of property, tort, contract, trust, and restitution. A second category encompasses acts not against the person, but rather against the sovereign, or acts against interests the sovereign deems worthy of protection. These acts are the subject of environmental law, securities law, and consumer law, to name a few. These examples are hardly exhaustive. But they suffice to show that the legal system imposes liability in a wide variety of contexts, either to address harms committed against citizens or, instead, to enforce rules imposed by the state or its subdivisions.
The majority begins its analysis by examining case-law and legal dictionaries in search of a definition of the term “tort.” It ultimately articulates this one: “a civil wrong, other than a breach of contract, for which the court will provide a remedy in the form of compensatory damages.”
The English legal tradition recognized courts of “law,” the Court of Queen’s Bench, and “equity,” the Court of Chancery. Though complementary, the two operated separately and independently.
Our legal system imposes liability in many other contexts as well, even apart from the criminal justice system. A familiar example would be civil infractions. A parking ticket results in a legal obligation to pay money. But a parking infraction is not a tort, a breach of contract, or a crime. It is simply a municipal ordinance violation.
B. THE NATURE OF TORTS
William Prosser once observed that “a really satisfactory definition of a tort is yet to be found. The numerous attempts which have been made to define the term have succeeded only in achieving language so broad that it includes other matters than torts, or else so narrow that it leaves out some torts themselves.”
Moreover, compensatory damages are not unique to tort law. Compensatory damages are a common remedy in actions based in contract, for example, as expectation or consequential damages. Or for an example closer to contempt, our Legislature has even provided for compensatory damages for victims of crime in the Crime Victim’s Rights Act.
Rather, the sine qua non of a tort is the breach of a duty owed to a fellow citizen. And, although tort liability has been extended to some extent in recent decades with increased reliance on doctrines like public nui-sanee, classic tort liability is rooted in the common-law duties all citizens owe to one another.
C. CONTEMPT OF COURT
Contempt of court is altogether different. It stems from a violation of an obligation owed not to any person, but to the court itself. Contempt does not serve to protect private rights; it serves to protect the power of the courts. Contempt has been described as a “power of self-defense,” intended to sanction “those who
Implicit in the majority’s analysis is that all legal wrong fits neatly into one of three categories: criminal, contractual, or tortious. The law is not so neat. Modern Michigan cases have recognized contempt proceedings as “quasi-criminal” in nature.
As this discussion demonstrates, courts have often struggled to classify contempt as anything but sui generis. While modern cases label contempt as either “civil” or “criminal,” this distinction does not lead to the conclusion that civil contempt is a tort. The distinction between criminal and civil contempt has not always been clear,
D. A TORT BY ANY OTHER NAME?
A more apt comparison for contempt of court can be found not in tort law, but instead in the various legal sanctions provided by our court rules. Like the contempt power, these sanctions serve to enforce the orderliness of court proceedings. Sometimes, courts may impose the equivalent of compensatory damages for a violation of the court rules, such as when a party who files vexatious pleadings or makes vexatious discovery demands is sanctioned by having to pay the other party’s costs. But these are not tort damages, nor are they unavailable against municipal litigants under the GTLA.
The majority cites several cases in which courts have drawn analogies between civil contempt аnd tort in support of its conclusion that civil contempt is a tort.
Even assuming, purely for argument’s sake, that a similarity to tort were sufficient to subject civil contempt to the same immunity rules as tort, I believe that the Legislature has foreclosed that immunity here. For while I agree with the majority that contempt sanctions are not among the five statutory exceptions to the GTLA’s grant of immunity, the GTLA does not apply in cases in which a separate statute gives rise to direct evidence that the Legislature intended to waive the state’s immunity to liability.
II. STATUTORY INTENT
I believe the majority’s premise that contempt is a tort leads it to gloss over the relevant statutory texts too quickly. The express language of both the GTLA and the contempt statute undermines the majority’s conclusion that the GTLA is intended to grant governmental agencies immunity from compensatory contempt sanctions. The GTLA does not refer to contempt explicitly or implicitly, and, likewise, the contempt statute does not refer to governmental immunity in any way. Given that contempt remedies are not generally understood to be “tort” damages, surely the Legislature would have made its intentions clear if it had sought to include contempt remedies in the immunity statute. As previously noted, certain governmental actors are specifically included as within the scope of the contempt statute,
The GTLA itself demonstrates that the Legislature knew how to use different language when it intended to grant immunity beyond tort liability. MCL 691.1407(1), which the majority relies on, states that “a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.”
Further, refusing to apply the GTLA here will not negatively impact the functioning of governmental agencies because governmental actors, I believe, generally avoid behavior “directly tending to interrupt [court] proceedings,”
III. THE INHERENT POWER OF THE JUDICIARY
Finally, the majority’s analysis concludes that the GTLA’s immunity grant to contemnors is not an infringement on the court’s inherent contempt power because the GTLA only applies to the contempt remedies provided by the Revised Judicature Act,
IV CONCLUSION
I agree with the majority’s basic premise that “tort liability” refers to “legal responsibility arising from a tort.”
The practical import of this case is probably limited, given that civil contempt is fairly rare and that the facts of a case giving rise to the possibility of indemnification damages for civil contempt are rarer still. But the underlying principles are important. As a matter of good doctrinal bookkeeping, civil contempt is not the same as tort, and civil contempt penalties are not the same as tort liability. Although the majority is correct that, as it happens, petitioner seeks indemnification under the contempt statute after having been denied a claim for wrongful death, the majority’s holding will also apply to future cases in which, unlike here, a governmental actor’s contemptuous conduct has no obvious tort analogue simply because the sanction can be viewed as compensatory.
But even beyond getting the basic legal categories here correct, this Court should be hesitant to cede the judiciary’s power to impose exceptional remedies in those exceptional cases in which they may be warranted for failure to heed judicial orders. This Court should, instead, safeguard the power of the judicial branch. No other branch will.
I would affirm the Court of Appeals and remand this case to the probate court for further proceedings.
MCL 691.1401 et seq.
Ante at 384.
The majority’s historical analysis, attempting to illustrate that at common law all civil wrongs were either contract or tort, relies only on in personam actions brought in courts of law and therеby misses the larger point. See ante at 381-382 n 31, quoting Sinclair v Brougham, [1914] AC 398 (HL), 415 (1914) (Viscount Haldane, LC) (“[S]o far as proceedings in personam are concerned, the common law of England really recognizes . . . only actions of two classes, those founded on contract and those founded on tort.”) (emphasis added). As a result, the majority’s analysis misses an important point. Contempt is not a private wrong, but rather a wrong against the sovereign.
See 1963 Const, art 6, § 5 (“The supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state. The distinctions between law and equity proceedings shall, as far as practicable, be abolished. The office of master in chancery is prohibited.”); MCL 600.223(4) (stating that this Court has the authority to promulgate and amend general rules governing practices and procedure in this Court and all other courts of record, including but not limited to the authority “to abolish, as far as practicable, distinctions between law and equity”).
See 1 Restatement Trusts, 3rd, Introductory Note, p 3; Seipp, Trust and fiduciary duty in the early common law, 91 BU L R 1011 (2011).
See MCL 700.7901.
1 Restatement of Restitution and Unjust Enrichment, 3d, § 1, p 3; Sherwin, Restitution and equity: An analysis of the principle of unjust enrichment, 79 Tex L R 2083 (2001).
Banach v Lawera,
Mulcahy v Verhines,
See MCL 600.5821(1) and (2).
See MCL 600.8701 et seq.
But consider the Internal Revenue Code’s treatment of deductions for business expenses. 26 USC 162. The Code recognizes that “ordinary and necessary expenses” are, generally, deductible. 26 USC 162(a). These expenses include tort liabilities, if incurred in the ordinary course. See 26 USC 461(h)(2)(C) (discussing the timing these deductions). However, a “fine or similar penalty paid to a government for the violation of any law” is not deductible. 26 USC 162(f). The code treats tort liability distinctly from other civil penalties, recognizing the different policy rationales driving both. See Tank Truck Rentals, Inc. v Comm’r of Internal Revenue,
Prosser & Keeton, Torts (5th ed), § 1, pp 1-2. The majority’s definition of a tort — anything that cannot be classifiеd as either breach of contract or a crime — falls within the first class of error Prosser describes.
See Tinkler v Richter,
See Roberts v Auto-Owners Ins Co,
See Cedroni Assoc, Inc v Tomblinson, Harbum Assoc, Architects & Planners, Inc,
MCL 780.751 et seq.
See 2 Dobbs, The Law of Torts (2d ed), § 251, p 1 (“No defendant is liable for negligence unless he is under a legal duty to use care.”); see also Elbert v City of Saginaw,
Young v United States ex rel Vuitton et Fils SA,
See, e.g., Dobbs, The Law of Torts (2d ed); Prosser & Keeton, Torts (5th ed); Restatement Torts, 2d; Restatement Torts, 3d.
In Blackstone’s Commentaries on the Laws of England, contempt of court is discussed as a public wrong, or crime. See 4 Blackstone, Commentaries on the Laws of England (Jones ed., 1976), pp **286-287 (discussing contempt as a crime and unique in that it could be punished by summary conviction, without trial by jury).
See Gompers v Bucks Stove & Range Co,
Porter v Porter,
Myers v United States,
Gompers,
Id. (citation and quotation marks omitted).
For a thorough historical analysis, consider Dudley, Jr., Getting beyond the civil/criminal distinction: A new approach to the regulation of indirect contempts, 79 Va L R 1025 (1993).
Gompers,
Gompers,
An important distinction in criminal contempt is the right to tried hy jury before the sanction may be imposed. Bloom v Illinois,
Ante at 394 n 61, citing Dodson v Dodson, 380 Md 438, 453;
In particular, the majority insists that petitioner’s contempt of court claim in this case simply “recast[sj” her immunity-barred wrongful death action. This misses the core point. Neither a contempt of court petition nor a wrongful death suit is a disguise for the other. They are separate legal theories, serving separate purposes, predicated on different wrongs. That, under the faсts of this case, both may lead to a similar remedy does not make them the same. Even if Michigan did not recognize a wrongful death action, hypothetically, respondent here could still have been held in contempt for failing to carry out a lawful court order if petitioner could prove the elements of contempt.
The majority’s discussion of waiver is incomplete. It correctly notes the five statutory GTLA exceptions, but does not meaningfully address the other areas in which the Legislature has waived immunity. “[T]here are other areas outside the GTLA where the Legislature has allowed specific actions against the government to stand, such as the Civil Rights Act.” Mack v Detroit,
MCL 600.1701(c) (emphasis added).
Id.
See MCL 600.1721.
Emphasis added.
Emphasis added.
See 2A Singer & Singer, Sutherland Statutory Construction (7th ed), § 46:6, p 252 (“The use of different terms within similar statutes generally implies that different meanings were intended.”).
MCL 600.2901 et seq.
MCL 600.2912.
MCL 600.2911.
MCL 600.2919.
MCL 600.1701 et seq.
MCL 600.1701(a) and (b).
MCL 600.1701(c).
MCL 600.1701(g).
Indemnification damages under MCL 600.1721 require a causal link: “If the alleged misconduct has caused an actual loss or injury to any person the court shall order the defendant to pay such person a sufficient sum to indemnify him, in addition to the other penalties which are imposed upon the defendant.” (Emphasis added.)
MCL 600.1715 and MCL 600.1721.
See MCL 600.1721. But also codified are coercive civil contempt and criminal contempt. MCL 600.1715.
In re Chadwick,
Ante at 394 n 62.
See 1846 RS, ch 121, § 21, the original predecessor of MCL 600.1721.
In re Chadwick,
Id. at 600 (stating that if the Legislature could curtail the courts’ jurisdiction to hеar contempt cases “it might encroach upon both the judicial and executive departments, and draw to itself all the powers of government, and thereby destroy that admirable system of checks and balances to be found in the organic framework of both the Federal and State institutions, and a favorite theory in the governments of the American people”) (citation and quotation marks omitted).
The power to curtail the judiciary’s inherent contempt power is with this Court, not the Legislature. 1963 Const, art 6, § 4 (“The supreme court shall have general superintending control over all courts; power to issue, hear and determine prerogative and remedial writs; and appellate jurisdiction as provided by rules of the supreme court.”). The majority relies on Langdon v Judges of Wayne Circuit Court, 76 Mich 358, 367;
See In re Request for Advisory Opinion Regarding Constitutionality of
Ante at 385.