Tate v. City of Grand Rapids

671 N.W.2d 84 (2003) 256 Mich. App. 656 Alex C. TATE, Plaintiff-Appellant, v. CITY OF GRAND RAPIDS, Defendant-Appellee. Docket No. 236251. Court of Appeals of Michigan. Submitted March 4, 2003, at Grand Rapids. Decided May 29, 2003, at 9:00 a.m. Released for Publication July 14, 2003. *85 Robert J. Riley, Grand Rapids, for the plaintiff. Janice F. Bailey, Assistant City Attorney, Grand Rapids, for the defendant. Before WHITBECK, C.J., and CAVANAGH and BANDSTRA, JJ. PER CURIAM. Plaintiff Alex C. Tate appeals as of right the trial court's grant of summary disposition in defendant city of Grand Rapids' favor on the ground that the governmental tort liability act (GTLA), M.C.L. § 691.1401 et seq., barred plaintiff's claim for injuries sustained when he was bitten by a police dog. We affirm. On October 1, 1999, police responded to a reported felonious assault at a bowling alley. After being advised by witnesses that two suspects had fled the scene, a police dog was being prepared to track the suspects when plaintiff arrived on the scene. Police officers yelling at plaintiff to "stop" alerted the police dog, which ran toward plaintiff. The police dog's handler repeatedly and loudly ordered the dog to heel and return, but the dog did not obey. Apparently, when plaintiff dropped to his knees and put his arms over his head, the dog proceeded to bite plaintiff on his shoulder. On October 5, 2000, plaintiff asserted this claim, pursuant to the common law and M.C.L. § 287.351, for the dog-bite injuries. The trial court granted defendant's motion for summary disposition on the ground that plaintiff failed to plead a claim avoiding defendant's governmental immunity, M.C.L. § 691.1407(1). On appeal, plaintiff first argues that the trial court erred in concluding that defendant was immune from liability under M.C.L. § 691.1407(1) because, pursuant to M.C.L. § 287.351, defendant is strictly liable for plaintiff's injuries. We disagree. Decisions on summary disposition motions and questions of statutory interpretation are reviewed de novo. Stanton v. Battle Creek, 466 Mich. 611, 614, 647 N.W.2d 508 (2002). MCL 287.351, the dog-bite statute, provides: (1) If a dog bites a person, without provocation while the person is on public property, or lawfully on private property, including the property of the owner of the dog, the owner of the dog shall be liable for any damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness. This statute has consistently been interpreted as creating "an almost absolute liability" in the dog owner, except in instances of provocation. Nicholes v. Lorenz, 396 Mich. 53, 59-60, 237 N.W.2d 468 (1976); Bradacs v. Jiacobone, 244 Mich.App. 263, 267, 625 N.W.2d 108 (2001); Thelen v. *86 Thelen, 174 Mich.App. 380, 385-386, 435 N.W.2d 495 (1989). Here, it is uncontested that plaintiff did not provoke the attack. However, in the trial court defendant successfully argued that, because it is a governmental agency, defendant was immune from tort liability arising from the discharge of its law enforcement duties, including any liability resulting from plaintiff being bitten by a police dog during the course of an investigation. Defendant's argument is premised on the GTLA, M.C.L. § 691.1401 et seq., in particular M.C.L. § 691.1407(1), which provides, in part: Except as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function. This statute grants broad immunity to governmental agencies, extending immunity "to all governmental agencies for all tort liability whenever they are engaged in the exercise or discharge of a governmental function." Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 156, 615 N.W.2d 702 (2000) (emphasis in original). By the plain language of § 7, only tort claims brought pursuant to one of the five exceptions[1] provided by the GTLA itself, and those that arise from the exercise or discharge of a nongovernmental function, survive the grant of immunity. See Mack v. Detroit, 467 Mich. 186, 201, 649 N.W.2d 47 (2002); Pohutski v. Allen Park, 465 Mich. 675, 689-690, 641 N.W.2d 219 (2002); Nawrocki, supra at 157, 615 N.W.2d 702. Plaintiff argues that his cause of action is not one of "tort liability" but rather "strict liability" and, thus, is not within the reach of the GTLA. Plaintiff fails to support the alleged dispositive nature of this title distinction with any legal authority. Nevertheless, in our attempt to give effect to the Legislature's intent, we first consider the plain and ordinary meaning of statutory language. See Charboneau v. Beverly Enterprises, Inc., 244 Mich.App. 33, 40, 625 N.W.2d 75 (2000); Ypsilanti Housing Comm. v. O'Day, 240 Mich.App. 621, 624, 618 N.W.2d 18 (2000). The GTLA provides governmental agencies immunity from "tort liability." At issue is whether the dog-bite statute, which imposes "strict liability,"[2] is outside the reach of the "tort liability" provision of the GTLA. We conclude that it is not. A "tort" is broadly defined as "[a] civil wrong for which a remedy may be obtained," and "tort law" is the branch of law applicable to such claims. See Black's Law Dictionary (7th ed.); Prosser & Keeton, Torts (5th ed.), § 1, pp. 2, 5-6. Just as products liability, and premises liability claims are based on tort law and, thus, may result in tort liability, strict liability is based on tort law and may result in tort liability, i.e., civil liability for wrongful conduct. See id., § 75, pp. 534-538. In this context, the primary characteristic that distinguishes a strict liability claim from other tort-based claims is the principle of fault. Id. In typical tort actions, before liability will be imposed, the plaintiff must establish the defendant's fault, e.g., intentional or negligent conduct. To the contrary, *87 in a strict liability tort action, liability is not fault-based—it is not dependent, for example, on whether negligent, intentional, or accidental conduct caused the harm; rather, civil liability is imposed for the wrongful conduct irrespective of fault. Id.; see, also, Dobbs, Law of Torts, § 342, pp. 941-942. Nevertheless, it is still a tort action seeking to impose tort liability. Consistent with these general concepts, M.C.L. § 287.351 does not itself establish liability for dog bites; rather, it merely replaces the negligence standard applicable to the existing common law tort (liability imposed regarding an animal known to be vicious) with a strict liability standard (liability imposed regardless of such knowledge). See Nicholes, supra at 59, 237 N.W.2d 468. The GTLA unambiguously grants immunity from all tort liability, i.e., all civil wrongs for which legal responsibility is recognized, regardless of how the legal responsibility is determined, except as otherwise provided in the GTLA. Consequently, plaintiff's argument that his claim is exempt from the GTLA because it is not one of tort liability is without merit. Accordingly, the trial court properly dismissed plaintiff's strict liability claim on the ground that it was barred by governmental immunity. Plaintiff also argues that the trial court erred in dismissing his claim because, when he was bitten by the police dog, the police department was not "engaged in the exercise or discharge of a governmental function" as required by the GTLA. We disagree. Pursuant to M.C.L. § 691.1401(f), a "`[g]overnmental function' is an activity that is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law." Plaintiff argues that, because the police dog bit him against his handler's orders, "the attack had nothing whatsoever to do with the proper exercise of the governmental function of policing." However, "[t]o determine whether a governmental agency is engaged in a governmental function, the focus must be on the general activity, not the specific conduct involved at the time of the tort." Pardon v. Finkel, 213 Mich. App. 643, 649, 540 N.W.2d 774 (1995); see, also, Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 625, 635, 363 N.W.2d 641 (1984). Here, it is undisputed that, at the time of the incident, defendant's police officers were investigating a reported felonious assault, a crime; thus, they were engaged in police activity—a governmental function—within the contemplation of the GTLA when the incident occurred. Accordingly, the trial court properly held that defendant was entitled to immunity. Affirmed. WHITBECK, C.J., (concurring). I concur in the result reached by the majority. I write separately to express a somewhat different method of analysis, leading to the same result. I. Basic Facts And Procedural History As set out in the majority opinion, this case involves plaintiff Alex C. Tate's suit against defendant city of Grand Rapids for injuries he sustained when a police dog, owned by the city through its police department, bit him. As the majority opinion states, it is uncontested that Tate did not provoke the attack by the police dog. Thus, the issue is whether M.C.L. § 287.351 (the dog-bite statute) prevails over M.C.L. § 691.1401 (the governmental tort liability act or the GTLA). The trial court held that the dog-bite statute did not take precedence over the GTLA and granted summary disposition to the city on *88 the basis of the governmental immunity granted by the GTLA. II. Standard Of Review We review de novo a trial court's grant of summary disposition to determine whether the moving party was entitled to judgment as a matter of law.[1] Similarly, we review de novo the determination of whether governmental immunity applies under the dog-bite statute as a question of law.[2] III. A "Necessary Inference" Tate's arguments in this case—and to some extent the majority opinion—focus on the language of the GTLA in determining which statute takes precedence. In my view, the primary inquiry should be directed at the language of the dog-bite statute. In Ballard v. Ypsilanti Twp,[3] the Michigan Supreme Court held that the GTLA may only be waived or abrogated "`by an express statutory enactment or by necessary inference from a statute.'"[4] The dog-bite statute contains no reference to the government or its employees; this rules out an express abrogation. Accordingly, the question becomes whether the dog-bite statute by "necessary inference" abrogated the general doctrine of governmental immunity. There is some support for the view that the dog-bite statute abrogates the doctrine of governmental immunity contained in the GTLA in that provocation is the only defense to a claim under the dog-bite statute. Arguably, therefore, this would render the defense of governmental immunity inapplicable. However, the cases that have followed this line of reasoning have done so in the context of parental immunity, not governmental immunity, and they have reached this conclusion, in part, because of the general trend toward abrogating the doctrine of parental immunity.[5] I also note that the dog-bite statute does not define "owner of the dog" to exclude the government. However, when faced with a somewhat similar situation with respect to the Whistleblowers' Protection Act (WPA), M.C.L. § 15.361 et seq., the Supreme Court held that there was effective abrogation because the WPA governs "employers" and defines "employer" to include the state.[6] Here, the converse is true; the definition of "owner of the dog" does not include the government. Reasoning by reverse analogy, I would, therefore, conclude that there is no "necessary inference" to be drawn from the fact that the definition of "owner of the dog" does not expressly exclude the government. For these reasons, I see nothing in the dog-bite statute that would lead to the "necessary inference" that it abrogated the general doctrine of governmental immunity contained in the GTLA. Accordingly, I would affirm on this ground. NOTES [1] The five statutory exceptions are: the highway exception, M.C.L. § 691.1402; the motor vehicle exception, M.C.L. § 691.1405; the public building exception, M.C.L. § 691.1406; the proprietary function exception, M.C.L. § 691.1413; and the governmental hospital exception, M.C.L. § 691.1407(4). Nawrocki, supra at 156, n. 14, 615 N.W.2d 702. [2] Michigan courts have considered the dog-bite statute a strict liability statute. See Bradacs, supra at 275, 625 N.W.2d 108; Spikes v. Banks, 231 Mich.App. 341, 352-353, 586 N.W.2d 106 (1998). [1] Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). [2] Baker v. Waste Mgt. of Michigan, Inc., 208 Mich.App. 602, 605, 528 N.W.2d 835 (1995). [3] Ballard v. Ypsilanti Twp., 457 Mich. 564, 574, 577 N.W.2d 890 (1998). [4] Id. at 574, 577 N.W.2d 890, quoting Mead v. Pub. Service Comm., 303 Mich. 168, 173, 5 N.W.2d 740 (1942). [5] See, e.g., Thelen v. Thelen, 174 Mich.App. 380, 386, 435 N.W.2d 495 (1989). [6] Anzaldua v. Band, 457 Mich. 530, 578 N.W.2d 306 (1998).