Oscar Goodwin v. City of Detroit ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
OSCAR GOODWIN, UNPUBLISHED
December 27, 2018
Plaintiff-Appellant,
v No. 341239
Wayne Circuit Court
CITY OF DETROIT and GREGORY TURNER, LC No. 16-012815-CZ
Defendants-Appellees,
and
STEVEN LEE, MELVIN HUGHES, BRIAN
FARKAS, KEVIN KORTAS, and JOHNA
EARLISHA JOHNSON,
Defendants.
Before: CAVANAGH, P.J., and SERVITTO and CAMERON, JJ.
PER CURIAM.
Plaintiff, Oscar Goodwin, appeals the trial court’s final order entered on November 22,
2017. On appeal, plaintiff challenges the trial court’s October 17, 2017 opinion and order
denying plaintiff’s motion for summary disposition pursuant to MCR 2.116(C)(8) and (C)(10),
and granting defendant Gregory Turner’s motion for summary disposition pursuant to MCR
2.116(I)(2). We affirm.
I. FACTUAL BACKGROUND
On June 10, 2016, defendant Johna Johnson lost control of her vehicle and collided into
the southwest corner of plaintiff’s commercial building located in Detroit. Johnson told police
officers that her car’s brakes had failed, and in order to avoid rear-ending the vehicles in front of
her, she swerved right and drove into the building. Paramedics, the Detroit Fire Department, and
DTE Energy responded to the scene. Captain Steven Lee of the Detroit Fire Department was the
commanding fireman on scene. According to Lee, he called Turner, Detroit’s appointed Fire
Marshal, and discussed the damage to the building. Lee expressed his concern about the
structural integrity of the building and then sent pictures to Turner via text message. Turner
ordered Lee to demolish the building. Within a few hours, Lee had contacted a demolition
company and the building was demolished. That night, after the demolition of the building,
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Turner sent a follow-up email to the building official, authorizing the building’s demolition.
Turner also signed a Notice of Emergency Demolition dated June 10, 2016. According to the
notice, the demolition was ordered pursuant to MCL 29.7a(2) and Detroit City Ordinance, § 19-
1-22, Chapter 1-4.5.
On October 7, 2016, plaintiff filed a complaint against the City of Detroit and John Doe,
alleging statutory conversion, common-law conversion, gross negligence, violation of due
process, negligence, and violation of Detroit Ordinances, § 9-1-45. On December 9, 2016,
plaintiff filed a motion for leave to amend the complaint to add the individual defendants, and
plaintiff was able to amend the complaint on January 30, 2017, to add Turner, Johnson, and Lee,
as well as defendants Brian Farkas, Kevin Kortas, and Melvin Hughes. On February 24, 2017,
the trial court dismissed the City of Detroit. On June 9, 2017, plaintiff filed a motion for partial
summary disposition against Turner, claiming he was grossly negligent, liable for statutory and
common-law conversion, violated plaintiff’s due process rights, and violated city ordinances.
Turner opposed the motion, arguing that all claims against him should be dismissed because he is
entitled to governmental immunity, he was not grossly negligent, the conversion claims failed as
a matter of law, a due process claim could not survive, and monetary damages were not available
for a city official’s violation of an ordinance.
On October 17, 2017, the trial court issued an opinion and order, denying plaintiff’s
motion for summary disposition under MCR 2.116(C)(8) and (C)(10), and granting Turner’s
request for summary disposition under MCR 2.116(I)(2).1 After restating the governmental
immunity standard for gross negligence and intentional torts, the trial court addressed each of
plaintiff’s claims. The trial court held that Turner was entitled to governmental immunity, that
plaintiff failed to prove an intentional tort, and that the claims for a due process violation and a
violation of the city ordinance also failed. On appeal, plaintiff argues that Turner is not entitled
to governmental immunity because he did not act within the scope of his authority, and even if
he did, his conduct was grossly negligent. Moreover, plaintiff claims that defendant is liable for
conversion and violating plaintiff’s constitutional right to due process.
II. STANDARD OF REVIEW
This Court reviews rulings on a motion for summary disposition under MCR
2.116(C)(10) de novo. Johnson v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). Summary
disposition is proper under MCR 2.116(C)(10) if “there is no genuine issue regarding any
material fact and the moving party is entitled to judgment as a matter of law.” West v Gen
Motors Corp, 469 Mich 177, 183; 665 NW2d 469 (2003). In ruling on a motion under MCR
2.116(C)(10), a trial court may “consider the affidavits, pleadings, depositions, admissions, and
other documentary evidence submitted by the parties in the light most favorable to the party
opposing the motion.” Liparoto Const, Inc v Gen Shale Brick, Inc, 284 Mich App 25, 29; 772
NW2d 801 (2009). “A genuine issue of material fact exists when the record, giving the benefit
1
With the exception of the driver of the vehicle, plaintiff stipulated to the dismissal of the
remaining defendants in the case, acknowledging that Turner was the official who ordered
demolition of the building.
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of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds
might differ.” West, 469 Mich at 183.
This Court also reviews de novo a motion for summary disposition pursuant to MCR
2.116(C)(8) or (C)(7). Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich 378, 386;
738 NW2d 664 (2007). In reviewing a (C)(8) motion, this Court accepts as true all factual
allegations in the claim “to determine whether the claim is so clearly unenforceable as a matter
of law that no factual development could establish the claim and justify recovery.” Smith v
Stolberg, 231 Mich App 256, 258; 586 NW2d 103 (1998). “Under MCR 2.116(C)(7), the
moving party is entitled to summary disposition if the plaintiff's claims are barred because of
immunity granted by law[.]” Odom v Wayne County, 482 Mich 459, 466; 760 NW2d 217 (2008)
(quotation marks and citation omitted). To survive a (C)(7) motion based on governmental
immunity, “the plaintiff must allege facts justifying the application of an exception to
governmental immunity.” Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678
(2001). “The applicability of governmental immunity and its statutory exceptions are reviewed
de novo,” Russell v City of Detroit, 321 Mich App 628, 631; 909 NW2d 507 (2017), as are
questions of statutory interpretation, Rowland v Washtenaw Co Road Comm, 477 Mich 197, 202;
731 NW2d 41 (2007).
III. ANALYSIS
A. GOVERNMENTAL IMMUNITY
Plaintiff argues the trial court erred when it dismissed his claims against Turner on the
basis of governmental immunity. We disagree.
The Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq., grants immunity
from tort liability for governmental employees acting within the course of employment, subject
to limited enumerated exceptions. See MCL 691.1407(2). The test for individual governmental
immunity is set forth in MCL 691.1407(2):
(2) Except as otherwise provided in this section, and without regard to the
discretionary or ministerial nature of the conduct in question, each officer and
employee of a governmental agency . . . is immune from tort liability for an injury
to a person or damage to property caused by the officer, employee, or member
while in the course of employment or service . . . if all of the following are met:
(a) The officer, employee, member, or volunteer is acting or reasonably believes
he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a
governmental function.
(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not amount
to gross negligence that is the proximate cause of the injury or damage. [MCL
691.1407(2)(a), (2)(b), and (2)(c).]
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“Gross negligence” is defined as “conduct so reckless as to demonstrate a substantial lack of
concern for whether an injury results.” MCL 691.1407(8)(a).
In this case, Turner is immune from tort liability if he was acting in the course of his
employment, and (1) he acted or reasonably believed he was acting within the scope of his
authority, (2) the agency he works under—the fire department—was engaged in the exercise or
discharge of a governmental function, and (3) his conduct did not amount to gross negligence,
i.e., conduct so reckless it demonstrates a substantial lack of concern for whether an injury
results.
The first question at issue is whether Turner was acting while in the course of his
employment. MCL 691.1407(2). “[A]bsent a finding of ‘course of employment,’ a court would
have no need to reach MCL 691.1407(2)(a).” Niederhouse v Palmerton, 300 Mich App 625,
633; 836 NW2d 176 (2013). “The necessary considerations for a course of employment are (1)
the existence of an employment relationship, (2) the circumstances of the work environment
created by the employment relationship, including the ‘temporal and spatial boundaries
established,’ and (3) ‘the notion that the act in question was undertaken in furtherance of the
employer's purpose.’ ” Id. (citations omitted).
There is no dispute that Turner is the fire marshal for the City of Detroit and therefore an
employee of the Detroit Fire Department. In that role, Turner’s duties include the inspection of
buildings and other places necessary to enforce the City’s fire prevention ordinances. See
Detroit Charter, art VII, ch V, § 7-504. This necessarily includes issuing orders for the
abatement of hazardous conditions in violation of the City’s ordinances. See Detroit Ordinances,
§ 19-1-22, ch 1-4.5; see also MCL 29.7a (granting authority to abate emergency conditions
dangerous to persons or property). Lastly, Turner’s actions were clearly in furtherance of the fire
department’s purpose—to protect life and property from fire and other dangerous conditions.
See Detroit Charter, art VII, ch V, § 7-503 (providing that “[t]he Fire Department shall protect
life and property from fire and other dangerous conditions requiring their expertise . . .”).
Upon finding that the governmental actor proceeded while in the course of employment,
the question turns on whether Turner was acting within the scope of his authority in pursuit of a
governmental function. Plaintiff first argues that Turner did not act, and could not have
reasonably believed he was acting, within the scope of his authority as the fire marshal because
the relevant ordinance and statute did not grant Turner the authority to demolish the building at
issue. This argument fails.
MCL 691.1401(b) defines “[g]overnmental function” as “an activity that is expressly or
impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other
law.” According to plaintiff, Turner was not acting in the scope of his authority because neither
Detroit Ordinances, § 19-11-22, nor MCL 29.7a, granted him the authority to order the
demolition of plaintiff’s building. Therefore, Turner could not have acted within the scope of his
authority.
Arguably, the relevant provision under Detroit’s ordinance would not have vested Turner,
as fire marshal, with the authority to demolish plaintiff’s building. Under Detroit’s ordinance,
the Detroit Fire Marshal has the following power: “Where conditions exist, and are deemed
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hazardous to life and property by the authority having jurisdiction, the authority having
jurisdiction shall have the authority under his or her police powers to summarily abate such
hazardous conditions that are in violation of this Code at the expense of the responsible party.”
Detroit Ordinances, § 19-11-22, ch 1-4.5. The term “summarily abate” is further defined as “[t]o
immediately judge a condition to be a fire hazard to life or property and to order immediate
correction of such condition.” Detroit Ordinances, § 19-11-22, ch 2-1.160. And a “fire hazard”
is “[a]ny situation, process, material, or condition that, on the basis of applicable data, may cause
a fire or explosion or provide a ready fuel supply to augment the spread or intensity of the fire or
explosion and that poses a threat to life or property.” Detroit Ordinances, § 19-11-22, ch 2-1.65.
In this case, plaintiff’s building may have posed a threat of collapse, but there is no evidence the
building was a “fire hazard” that the fire marshal could “summarily abate” under the applicable
ordinance.
With that said, Turner had the power to demolish plaintiff’s building under MCL 29.7a.
Under MCL 29.7a(1) and (2):
(1) If the state fire marshal or the commanding officer of the fire department of a
city, village, township, or county, or a fire fighter in uniform acting under the
orders and directions of the commanding officer determines a dangerous
condition exists, the state fire marshal, the commanding officer of the fire
department of a city, village, township, or county, or the fire fighter in uniform
acting under the orders and direction of the commanding officer upon finding an
emergency condition dangerous to persons or property, may take all necessary
steps and prescribe all necessary restrictions and requirements to protect persons
and property until the dangerous condition is abated.
(2) The state fire marshal, the commanding officer of the fire department of a
city, village, township, or county, or a fire fighter in uniform acting under the
orders and directions of the commanding officer, responding to a fire or
emergency call, who, upon arriving at the scene of a fire or emergency, finds a
condition dangerous to persons or property, may take all necessary steps and
requirements to protect persons and property until the dangerous condition is
abated.
Plaintiff argues that Turner, as Detroit’s appointed fire marshal, was not “the commanding
officer of the fire department.”
“A court does not construe the meaning of statutory terms in a vacuum.” South Dearborn
Environmental Improvement Association, Inc v Dep’t of Environmental Quality, 502 Mich 349,
376; 917 NW2d 603 (2018) (quotation marks and citation omitted). Instead, terms are reviewed
in context, “with a view to their place in the overall statutory scheme,” and “such words or
phrases used . . . must be assigned such meanings as are in harmony with the whole of the
statute, construed in the light of history and common sense.” Id. (quotation marks and citations
omitted).
Unfortunately, the Fire Prevention Code, MCL 29.1 et seq., does not define
“commanding officer.” The central word at issue is “commanding,” and to “command” means
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“to direct authoritatively” or “to overlook or dominate from or as if from a strategic position.”
Merriam-Webster’s Collegiate Dictionary (11th ed). With that said, the Fire Prevention Code
does define a “fire chief” as “the chief operating officer of an organized fire department,” MCL
29.1(p), which is a far more specific role in the fire department. A “commanding officer” in
contrast is a broader role than the person acting as “chief operating officer” of the fire
department, who is often the person occupying the highest position of authority.
Indeed, a commanding officer of a city fire department may certainly hold a different title
than the commanding officer of a village or township fire department. The pertinent question
turns on who, as commanding officer, would have the authority to make the requisite inspections
and determinations necessary under MCL 29.7a. The Detroit City Charter states that “[t]he Fire
Department is headed by the Fire Commissioner.” Detroit Charter, art VII, ch V, § 7-501. The
fire chief and the fire marshal are appointed by the fire commissioner and lead divisions of the
fire department. Detroit Charter, art VII, ch V, § 7-502. According to the city charter, the fire
chief serves “as the Director of Operations for the Fire Fighting Division.” Id. On the other
hand, “[t]he Fire Marshal shall inquire into the origin of all fires resulting in property loss and
shall make a written report concerning every such fire to the Fire Commissioner” and “shall also
make such inspection of buildings and other places as is necessary for enforcement of the fire
prevention ordinances of the City.” Detroit Charter, art VII, ch V, § 7-504. Thus, the Detroit
Charter clearly designates the fire commissioner as the head of the Detroit Fire Department, the
fire chief as the head of the Fire Fighting Division, and the fire marshal as the head of the fire
department’s investigations, which includes investigating buildings that pose a danger to the
public.
At first glance, it would appear that “the commanding officer” of the Detroit Fire
Department is the fire commissioner, who is appointed by the mayor. Detroit Charter, art VII, ch
V, § 7-501. However, to suggest that the fire commissioner would be the only “commanding
officer of the fire department” for purposes of MCL 29.7a is impracticable. This provision
should not be read in a vacuum; rather it must be interpreted in light of the entire statutory
scheme and in light of history and common sense. South Dearborn, 502 Mich at 376. In
pertinent part, MCL 29.7a(1) states that the commanding officer of the fire department of a city,
“upon finding an emergency condition dangerous to persons or property,” may abate the
dangerous condition. Similarly, MCL 29.7a(2) states that the commanding officer, “upon
arriving at the scene of a fire or emergency,” may abate the dangerous condition. To suggest
that, in the context of this case, the Detroit Fire Commissioner—an appointee of the mayor—is
the only “commanding officer” envisioned under the statute is inconsistent with the statutory
language. The statute suggests that the person involved with directing the response to
emergencies and overseeing the inspection of the premises is not necessarily the highest
appointed official in the department—rather it would be the person in the highest position
responsible for issuing the commands necessary to control the situation, i.e., the officer “finding
an emergency condition” or “arriving at the scene of a fire or emergency.” The Fire
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Commissioner delegates his or her authority for the efficient administration of the fire
department, and the statutory language takes such delegations into consideration.2
Importantly, the Detroit Fire Commissioner appoints the fire chief and fire marshal to
lead the two divisions of the Detroit Fire department. Turner is expressly in charge of all
investigations of buildings and other places for purposes of enforcing the fire prevention
ordinances of the City of Detroit. Turner testified that he had ordered approximately 50
emergency demolitions under the authority of MCL 29.7a alone since his appointment to the
position. MCL 29.7a grants authority not only to the commanding officer, but “a fire fighter in
uniform acting under the orders and direction of the commanding officer.” If the Fire
Commissioner would not be responding to the scene of an emergency, he or she would certainly
not be the officer in charge of commanding fire fighters at the scene. Instead, the most logical
decision makers would be the fire chief or fire marshal or those officers under their command.
On closer reading of the provisions under MCL 29.7a, Turner was the commanding officer for
purposes of ordering the abatement of the dangerous condition at issue in this case. Turner had
the authority to “take all necessary steps and requirements to protect persons and property until
the dangerous condition is abated.” Therefore, Turner acted in the scope of his authority when
he ordered the demolition of the building, as he had done concerning numerous buildings before.
Even if the Fire Prevention Code does not grant Turner express authority to abate the
hazard at issue in this case, he reasonably believed he had such authority. Under MCL
691.1407(2)(a), immunity is afforded to a governmental employee who “reasonably believes he
or she is acting within the scope of his or her authority.” Turner reasonably believed that he was
the “commanding officer” in charge of the fire department at issue, given that he was appointed
by and served at the pleasure of the Fire Commissioner. See Detroit Charter, art VII, ch V, § 7-
502. Moreover, Turner’s responsibility as the fire marshal was to “make such inspection of
buildings and other places as is necessary.” Detroit Charter, art VII, ch V, § 7-504. This is
clearly evidenced by the fact that he had ordered the abatement of approximately 50 other
buildings since he was appointed to the position. Therefore, the trial court did not err when it
concluded that Turner acted within the scope of his authority.
The next element for individual immunity is whether the agency, i.e., the fire department,
had been engaged in a governmental function. As elaborated above, the fire department has the
authority to inspect and determine whether a building qualifies as a dangerous building requiring
immediate abatement. Therefore, this element has been established.
Finally, the analysis turns on whether Turner’s actions in ordering demolition of the
building constituted gross negligence. Plaintiff argues that, even if Turner has the authority to
order demolition of dangerous buildings, doing so in this case involved “conduct so reckless as
2
If a fire marshal of a city was responding to a building full of highly flammable materials
posing an immediate threat to all persons in the near vicinity, it would be unreasonable to require
such a fire marshal to seek approval from the head of the fire department before taking any
necessary steps to abate the hazardous condition.
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to demonstrate a substantial lack of concern for whether an injury results.” MCL
691.1407(8)(a). We disagree.
Captain Lee responded to the accident. Lee, who was under the command of Turner,
believed the condition of plaintiff’s building was hazardous to the public, and he contacted
Turner by phone to describe its condition and the dangers he believed it posed. Lee then sent
pictures to Turner of the damaged building. Based on that information, Turner ordered
demolition of the building to protect the public from dangers associated with its possible
collapse. Even if we were to conclude that Turner’s decision-making constituted ordinary
negligence, it was not so reckless as to demonstrate a substantial lack of concern for whether an
injury results. Turner’s concern was the safety of the public. On reviewing the photographs and
speaking with Lee, Turner was concerned that the corner of plaintiff’s building had a high risk of
collapse and was therefore dangerous to the public. Given these considerations and the
deliberate decision-making on the part of the Fire Marshal, Turner’s conduct was not so reckless
as to constitute gross negligence.
Plaintiff contends that his building should have been inspected by a qualified structural
engineer, and because Turner was not so credentialed, his actions were grossly negligent.
However, plaintiff has not provided any support in the law that requires such an inspection under
emergency circumstances where the building poses a danger to the public. Instead, plaintiff cites
two cases, Oxenrider v Gvoic, 340 Mich 591; 66 NW2d 80 (1954) and Orion Charter Twp v
Burnac Corp, 171 Mich App 450; 431 NW2d 225 (1988), for the proposition that a structural
engineer should have first inspected the building before ordering demolition. However, the issue
in those cases turned on whether building officials properly ordered demolition of buildings that
constituted a nuisance. Those cases did not involve the fire department responding to an
emergency situation, specifically one where a car drove into a building. Therefore, those cases
are inapplicable to the facts in this case and plaintiff’s arguments are without merit.
B. CONVERSION CLAIMS
Plaintiff also argues that Turner is liable on statutory and common-law conversion
theories. We disagree.
Under MCL 691.1407(3) of the GTLA, governmental employees may be granted
immunity from intentional-tort liability under certain circumstances. Odom, 482 Mich at 461. If
the plaintiff pleaded an intentional tort, the question is whether the defendant established that he
is entitled to individual governmental immunity by showing the following:
(a) The acts were undertaken during the course of employment and the employee
was acting, or reasonably believed that he was acting, within the scope of his
authority,
(b) the acts were undertaken in good faith, or were not undertaken with malice,
and
(c) the acts were discretionary, as opposed to ministerial. [Id. at 479-480.]
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In this case and as stated previously, Turner was acting in the course of his employment,
within the scope of his authority, and his actions did not constitute gross negligence, let alone
malice or bad faith. The last requirement is determining whether the actions were discretionary
rather than ministerial. Clearly, determining whether a building is so dangerous that it
necessitates demolition is a discretionary act falling within the parameters of the governmental-
immunity test for intentional torts.
Regardless of whether Turner is afforded immunity for his actions, plaintiff failed to
show the requisite criteria for a conversion claim. To prove statutory conversion, plaintiff had to
show that Turner converted the property “to [his] own use.” Aroma Wines & Equip, Inc v
Columbian Distrib Servs, Inc, 497 Mich 337, 357-359; 871 NW2d 136 (2015). In no way did
Turner order demolition of the building as a way to convert the property to his own use.
Plaintiff’s common-law conversion claim also fails. Common-law conversion occurs when “a
party properly in possession of property uses it in an improper way, for an improper purpose, or
by delivering it without authorization to a third party.” Dep’t of Agriculture v Appletree
Marketing, LLC, 485 Mich 1, 14; 779 NW2d 237 (2010). As discussed above, Turner’s actions
were not improper, and therefore, he cannot be responsible on a conversion theory.
C. DUE PROCESS CLAIM
Finally, plaintiff claims a violation of due process because Turner failed to provide
proper notice before ordering demolition of plaintiff’s building. We disagree.
“As a general rule, ‘governmental immunity is not available in a state court action where
it is alleged that the state violated a right conferred by the state constitution.’ ” LM v State, 307
Mich App 685, 694; 862 NW2d 246 (2014), quoting Jones v Powell, 227 Mich App 662, 673;
577 NW2d 130 (1998), aff’d 462 Mich 329 (2000). However, “our Supreme Court has clearly
held that no inferred damages remedy for a violation of a state constitutional right exists against
individual government employees.” Lavey v Mills, 248 Mich App 244, 250; 639 NW2d 261
(2001), citing Jones v Powell, 462 Mich 329, 335; 612 NW2d 423 (2000). As the trial court
correctly held, plaintiff’s due process claim cannot succeed for it fails to state a claim upon
which relief can be granted.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
/s/ Thomas C. Cameron
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