In this сontempt action, petitioner Nancy Mick, in her capacity as personal representative of the estate of Stephen Bradley, appeals by leave granted the circuit court order reversing a probate cоurt order denying the motion of respondent Kent County Sheriffs Department (KCSD) for summary disposition of Mick’s claim for compensatory damages
On August 12, 2004, Mick obtained an order from the probate court requiring that Bradley be taken into custody for a psychiatric evaluation. KCSD failed to execute this pick-up order in the days following its issuance, and on August 21, 2004, Bradley fatally shot himself. Mick requested that KCSD conduct an internal investigation into its failure to execute the pick-up order. That investigation determined that KCSD’s handling of the pick-up order was negligent. Mick filed a wrongful-death action against KCSD, alleging that its negligence and breach of duty caused Bradley’s death; however, that action was summarily dismissed by the circuit court on the basis of governmental immunity because Mick could not establish gross negligence or that KCSD’s negligence was “the” proximate cause of Bradley’s death.
After her wrongful-death action was dismissed, Mick filed a petition in thе probate court alleging civil contempt. The petition asserted that KCSD failed and refused to execute the probate court order and as a result of that failure, Mick “suffered and continues to suffer damages, including, but not limited to, all of thоse damages set forth in the Michigan Wrongful Death Statute, MCL 600.2922, et seq.” Mick asked the probate court to enter an order finding KCSD in civil contempt and award her “damages in an amount the Court deems appropriate.”
In lieu of filing an answer, KCSD moved for summаry disposition pursuant to MCR 2.116(C)(10). It argued
KCSD appealed the probate court’s ruling in the circuit сourt, which concluded that Mick’s claim for
Mick appealed the circuit court’s order dismissing Mick’s claim against KCSD for contempt damages on the basis that they are barred by the GTLA, and this
We review de novo a trial court’s decision on a motion for summary disposition. Hoffman v Boonsiri,
Issues of statutory interpretation are also questions of law that we review de novo. Driver v Naini,
MCL 600.1721 provides:
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 arе imposed upon the*37 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.
The GTLA provides in pertinent part that “a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.” MCL 691.1407(1). In Tate v Grand Rapids,
In this case, KCSD does not dispute that the compensatory damages that may be awarded pursuant to MCL 600.1721 for contemptuous conduct that results in a loss of life could be assessed pursuant to the wrongful-death statute, MCL 600.2922, as requested by Mick in her petition filed in the probate court. Rather, KCSD argues that the wrongful-death damages sought by Mick in this case pursuant to MCL 600.1721 would actually be tort liability damages that are barred by the GTLA. Relying on the language of the governmental immunity statute and the broad application of the GTLA set forth in Tate, KCSD argues that regardless of how Mick’s claim against it is stated, because the facts giving rise to the damages could also establish a tort cause of аction, the damages are barred by the GTLA. We disagree.
In Tate, this Court addressed whether the GTLA applied to bar a claim against a governmental entity when the claim was based on a statute that imposed strict liability for dog bites. Tate,
Similarly, in Ross v Consumers Power Co (On Rehearing),
We recognize that plaintiffs have and will attempt to avoid § 7 [MCL 691.1407] 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, § 7 will not bar recovery simply because the underlying facts could have also established a tort cause of action. [Id.]
Consistent with the holdings in Tate and Ross, whether Mick’s contempt claim can survive a governmental immunity challenge is controlled not by the nature оf the damages sought, but by whether Mick’s
In this case, there is no doubt that Mick’s contempt action is an attempt to avoid application of the GTLA. Indeed, Mick initially brought a tort action that was summarily dismissed because it was barred by the GTLA; however, Mick recast her complaint as one for contempt. In accord with the Ross Court’s holding that the GTLA will not bar recovery 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. Id. 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.
Reversed and remanded to the probate court for further proceedings consistent with this opinion. We do not retain jurisdiction. Plaintiff, being the prevailing party, may tax costs pursuant to MCR 7.219.
Notes
In its motion for summary disposition in the prohate court, KCSD also argued that Mick’s petition was procedurally defective because she did not submit a sworn affidavit as required by MCR 3.606(A) and because KCSD is not а legal entity that can be sued. KCSD further argued that Mick had failed to demonstrate a genuine issue of material fact in regard to willfulness, which was required because Mick had to demonstrate that KCSD willfully disobeyed a court order, and that Mick had also failеd to demonstrate a genuine issue of material fact in regard to causation, which was required because MCL 600.1721 requires a showing that any misconduct caused an actual loss or injury. In its decision issued on the record, the probate court did not exрlicitly address KCSD’s arguments regarding willfulness or causation. However, because it denied KCSD’s summary disposition motion, it must have implicitly determined that Mick had demonstrated a genuine issue of material fact. In its ruling, the probate court discussed only its inherent power to punish for contempt and its conclusion that the action is not barred by the GTLA. It briefly mentioned Mick’s failure to file a sworn affidavit and stated that the defect did not bar the action because it was clear that KCSD had notice. It did not mention KCSD’s argument thаt KCSD is not a legal entity capable of being sued.
On appeal to the circuit court, KCSD again argued that the GTLA barred Mick’s claim for compensatory damages. KCSD also argued that the Legislature can circumscribe the probate cоurt’s authority to award compensatory damages for contempt, that Mick cannot demonstrate willfulness, and that there is no genuine issue of material fact regarding causation. Because the circuit court concluded that Mick’s claims for compensatory damages are barred by the GTLA, it did not address the other issues raised by KCSD.