Grace Alexander v. City of Detroit ( 2022 )


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  •             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
    revision until final publication in the Michigan Appeals Reports.
    STATE OF MICHIGAN
    COURT OF APPEALS
    GRACE ALEXANDER,                                                    UNPUBLISHED
    February 17, 2022
    Plaintiff-Appellee,
    V                                                                   No. 356962
    Wayne Circuit Court
    CITY OF DETROIT and DETROIT ANIMAL                                  LC No. 20-015658-NO
    CARE AND CONTROL,
    Defendants-Appellants.
    Before: RICK, P.J., and MURRAY and SHAPIRO, JJ.
    PER CURIAM.
    In this dog-bite case, defendants moved for summary disposition on the basis of
    governmental immunity. The trial court denied the motion without prejudice and ordered limited
    discovery on whether the proprietary-function exception to governmental immunity applies.
    Defendants appeal by right, and we affirm.
    I. BACKGROUND
    Detroit Animal Care and Control (DACC) provides animal care and control services for
    the city of Detroit (the City). Relevant here, DACC operates a program in conjunction with a
    volunteer-run organization to place dogs under DACC’s care with foster families as a temporary
    housing and care option intended to facilitate the dog’s adoptability. This case arises out of
    DACC’s capture and impoundment of a three-year-old stray pit bull, which was found roaming a
    city block. A volunteer foster caregiver agreed to provide temporary care and took possession of
    the dog. While plaintiff was visiting the caregiver’s home, the dog bit her face, causing her to
    suffer injuries requiring surgery. The dog was returned to DACC and euthanized.
    Plaintiff filed this lawsuit, claiming that defendants, as the dog’s owners, were strictly
    liable for her injuries under the dog-bite statute, MCL 287.351(1). Plaintiff also alleged that
    defendants were liable in ordinary negligence because they allowed the dog to be placed in a foster
    home when they knew, or should have known, that the dog was vicious and prone to attack.
    Plaintiff alleged that defendants were not engaged in the discharge of a governmental function
    when the attack occurred, or at any time with respect to fostering the dog.
    -1-
    In lieu of filing an answer, defendants moved for summary disposition under MCR
    2.116(C)(7), arguing that as governmental agencies they were entitled to immunity under the
    governmental tort liability act (GTLA), MCL 691.1401 et seq. Defendants argued that DACC, by
    impounding and placing the dog with a foster-care provider as an alternative to sheltering or
    euthanizing it, was exercising a governmental function of caring for and controlling the City’s
    stray animals, as authorized by the City’s animal-control ordinance.
    In response, plaintiff argued that defendants were not exercising a governmental function
    because they were not “in the course of capturing or otherwise handling the dog” when it bit her.
    Plaintiff alternatively argued that discovery was needed to determine whether the proprietary-
    function exception to governmental immunity, MCL 691.1413, applied on the grounds that
    defendants intended to sell the dog. Plaintiff also alternatively argued that the GTLA did not bar
    her claim under the dog-bite statute because that statute had necessarily abrogated governmental
    immunity for damages resulting from an unprovoked bite. In reply, defendants argued that
    plaintiff failed to plead the proprietary-function exception and did not offer any factual support in
    support of that claim.
    The trial court denied defendants’ motion without prejudice and ordered that the “parties
    will be allowed limited discovery for 60 days on the proprietary-function exception.” This appeal
    followed.1
    II. DISCUSSION
    1
    We review de novo a trial court’s decision regarding a motion for summary disposition. Eplee v
    Lansing, 
    327 Mich App 635
    , 644; 935 NW2d 104 (2019). When considering a motion under MCR
    2.116(C)(7), we accept the factual pleadings as true unless evidence contradicts them. Dextrom v
    Wexford Co, 
    287 Mich App 406
    , 428; 789 NW2d 211 (2010). We consider the affidavits,
    pleadings, depositions, and other documentary evidence and determine whether a genuine issue of
    material fact exists. Id. at 429. If there are no questions of fact, whether the claim is barred is a
    matter of law, but “if a question of fact exists as to the extent that factual development could
    provide a basis for recovery, dismissal is inappropriate.” Id. We also review de novo questions
    of statutory interpretation. Glasker-Davis v Auvenshine, 
    333 Mich App 222
    , 229; 964 NW2d 809
    (2020).
    In addition to contesting the denial of summary disposition on the basis of governmental
    immunity, defendants argue that DACC does not have the legal capacity to be sued. This distinct
    claim lies outside the scope of this Court’s limited jurisdiction to hear defendants’ appeal by right
    of the trial court’s denial of their motion for summary disposition under MCR 2.116(C)(7) on the
    basis of governmental immunity. See Pierce v Lansing, 
    265 Mich App 174
    , 182; 694 NW2d 65
    (2005) (“[I]n an appeal by right from an order denying a defendant’s claim of governmental
    immunity, such as this one, this Court does not have the authority to consider issues beyond the
    portion of the trial court’s order denying the defendant’s claim of governmental immunity.”).
    Accordingly, we do not address that issue.
    -2-
    A. GOVERNMENTAL FUNCTION
    The parties first dispute whether defendants were engaged in a governmental function
    when operating the dog foster-care program such that they are generally entitled to tort immunity.
    See MCL 691.1407(1) (“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.”).
    The GTLA defines “governmental function” as “activity that is expressly or impliedly
    mandated or authorized by constitution, statute, local charter or ordinance, or other law.” MCL
    691.1401(b). This definition is interpreted broadly and “requires only that there be
    some constitutional, statutory or other legal basis for the activity in which the governmental agency
    was engaged.” Genesee Co Drain Comm’r v Genesee Co, 
    309 Mich App 317
    , 327; 869 NW2d
    635 (2015) (quotation marks and citation omitted). To determine if an act constitutes a
    governmental function, we consider the government’s general rather than specific conduct.
    Pardon v Finkel, 
    213 Mich App 643
    , 649; 540 NW2d 774 (1995). Governmental immunity does
    not provide a shield for ultra vires activity, which is “defined as activity not expressly or impliedly
    mandated or authorized by law.” Richardson v Jackson Co, 
    432 Mich 377
    , 381; 443 NW2d 105
    (1989) (emphasis removed).
    DACC’s authority regarding the care and control of the City’s animals is derived from the
    City’s animal-control ordinance,2 which grants broad authority in that area. See 2019 Detroit City
    Code, § 6-1-1 et seq.3 The ordinance specifically authorizes DACC to “impound any animal which
    is stray, loose, running at large,” id., § 6-1-9(a), “to seize and impound any stray dog that is on
    public or private property . . . and to return, sell, transfer, or euthanize any such animal in
    accordance with this chapter,” id., § 6-2-3(a), and to control the operation of, and maintain, the
    City’s animal-control shelter “in the interest of the health and welfare of any animals captured or
    entrusted to its custody or care,” id., § 6-4-1, which “shall seize, capture, impound, and harbor all
    stray animals,” id., § 6-4-3. The ordinance also expressly permits DACC to “contract with any
    non-profit corporation that is organized for the purpose of sheltering animals to assist in the care,
    impoundment, release, or adoption of stray animals not determined to be dangerous by the Animal
    Care and Control Division.” Id., § 6-1-9(c). No provisions expressly authorize the placement of
    unclaimed impounded animals with foster-care providers.
    DACC’s capture and impoundment of the subject pit bull clearly constituted a govern-
    mental function as expressly authorized under the animal-control ordinance. 2019 Detroit City
    Ordinance, §§ 6-2-3(a) and 6-4-3. DACC was also acting within its express authority in making
    a determination regarding the dog’s dangerousness, or lack thereof. See id., §§ 6-1-9(c) and 6-3-
    1. The activity in question, however, is DACC’s operation of a foster-care program. It is
    undisputed that the subject dog bit plaintiff while in the home, and under the care, of a volunteer
    foster-care provider, pursuant to an agreement with DACC, while DACC retained rights and
    2
    The City has statutory authority to adopt an animal-control ordinance. MCL 287.290.
    3
    We refer to the version of the 2019 Detroit City Code in effect when the subject dog bite occurred
    on July 13, 2020.
    -3-
    responsibilities with respect to the dog’s care, control, and disposition. Thus, at issue is whether
    the ordinance impliedly authorizes DACC to place impounded dogs with foster-care providers for
    care and housing outside of the City’s shelter.
    As noted, the ordinance grants DACC broad authority to enforce its provisions, including
    the care, control, and disposition of the City’s animals, and to operate and maintain the City’s
    animal shelter. See 2019 Detroit City Code, § 6-1-4(a). DACC is authorized to impound, id., § 6-
    1-2, and harbor, id., § 6-4-3, the City’s stray animals, but it is also permitted to “sell” or “transfer”
    unclaimed stray dogs, id., § 6-2-3(a). The governmental activity in “transferring” a stray dog
    encompasses the adoption of stray dogs by the public, or the conveyance of ownership of such
    dogs to other shelters or rescue organizations for adoption. The ordinance explicitly permits
    DACC to “contract with any non-profit corporation that is organized for the purpose of sheltering
    animals to assist in the care, impoundment, release, or adoption of stray animals not determined
    to be dangerous” by DACC. Id., § 6-1-9(c) (emphasis added). Thus, DACC’s fostering activity
    performed in conjunction with a nonprofit organization in temporarily placing stray, impounded
    dogs with foster-care providers to ready such dogs for adoption is closely related to and supports
    its governmental activities in the adoption, transfer, and release of such dogs, as well as in
    maintaining “the health and welfare of animals of any animals captured or entrusted to its custody
    or care.” Detroit City Code, § 6-4-1. We therefore conclude that the fostering activity was
    impliedly authorized under the ordinance. Because defendants were engaged in a governmental
    function, they are immune from tort liability under the GTLA unless the activity falls within one
    of the enumerated statutory exceptions. Snead v John Carlo, Inc, 
    294 Mich App 343
    , 356; 813
    NW2d 294 (2011).
    B. DOG-BITE STATUTE
    Next, the parties dispute whether governmental immunity bars plaintiff’s claim under
    Michigan’s dog-bite statute, which imposes strict liability on dog owners for unprovoked bites:
    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. [MCL 287.351(1).]
    Plaintiff asserts that defendants are absolutely liable under that statute, whereas defendants argue
    that they are immune under the GTLA from the liability imposed by the dog-bite statute.
    The dog-bite statute “has consistently been interpreted as creating an almost absolute
    liability in the dog owner, except in instances of provocation.” Tate v Grand Rapids, 
    256 Mich App 656
    , 658; 671 NW2d 84 (2003) (quotation marks and citations omitted). However, this Court
    has recognized that claims under the dog-bite statute are subject to governmental immunity:
    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. . . . The GTLA
    provides governmental agencies immunity from “tort liability.” At issue is whether
    the dog-bite statute is outside the reach of the “tort liability” provision of the GTLA.
    We conclude that it is not. [Id. at 659 (footnote omitted).]
    -4-
    This Court elaborated as follows:
    The GTLA unambiguously grants immunity from all tort liability, i.e., civil
    wrongs for which legal responsibility is recognized, regardless of how the legal
    responsibility is determined, except as otherwise provided in the GTLA. Conse-
    quently, 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. [Id. at 660-661.]
    Thus, under Tate, plaintiff’s claim under the dog-bite statute is subject to governmental immunity.
    Moreover, we disagree with plaintiff’s argument that the Legislature intended to abrogate
    governmental immunity in connection with the dog-bite statute. “A central tenant of . . .
    governmental immunity is that the state may be held liable in a court of law only when the state
    has expressly permitted a suit against it.” Odom v Wayne Co, 
    482 Mich 459
    , 477; 760 NW2d 217
    (2008). In enacting the GTLA, the Legislature did not include matters relating to animal care or
    control among its listed exceptions. And, in enacting the dog-bite statute, the Legislature did not
    specify that governmental agencies came under the strict liability imposed for injuries resulting
    from dog bites. Indeed, MCL 287.351 neither defines “owner of the dog” nor mentions the state
    or its political subdivisions. See Ballard v Ypsilanti Twp, 
    457 Mich 564
    , 575-576; 577 NW2d 890
    (1998) (“There is no express waiver of governmental immunity from liability under the
    [Recreational Land Use Act], because the act does not define the persons to whom it applies to
    include either the state or its political subdivisions.”). If the Legislature meant to limit
    governmental immunity in such circumstances it could have expressly done so, but it did not.
    For these reasons, we reject plaintiff’s argument that governmental immunity under the
    GTLA does not apply to a claim brought under the dog-bite statute.
    C. PROPRIETARY-FUNCTION EXCEPTION
    Finally, defendants argue that the trial court should have granted summary disposition
    because plaintiff failed to plead the proprietary-function exception to governmental immunity in
    her complaint. We disagree.
    The exceptions to governmental immunity are narrowly construed. Nawrocki v Macomb
    Co Rd Comm, 
    463 Mich 143
    , 158; 615 NW2d 702 (2000). The proprietary-function exception,
    MCL 691.1413, provides as follows:
    The immunity of the governmental agency shall not apply to actions to
    recover for bodily injury or property damage arising out of the performance of a
    proprietary function as defined in this section. Proprietary function shall mean any
    activity which is conducted primarily for the purpose of producing a pecuniary
    profit for the governmental agency, excluding, however, any activity normally
    supported by taxes or fees.
    In this case, plaintiff did not plead the proprietary-function exception in her complaint, but
    rather maintained generally that defendants were not engaged in a governmental function with
    -5-
    respect to their fostering activity. Plaintiff then invoked the proprietary-function exception in
    response to defendants’ motion for summary disposition. At that early stage of the litigation,
    plaintiff still had the right to amend her complaint, as a matter of course, under MCR 2.118(A)(1),
    which permits a party to “amend a pleading once as a matter of course within 14 days after being
    served with a responsive pleading by an adverse party.” Because defendants’ motion for summary
    disposition did not constitute a responsive pleading, see MCR 2.110(A); Huntington Woods v Ajax
    Paving Indus, Inc, 
    179 Mich App 600
    , 601; 446 NW2d 331 (1989), plaintiff’s right to amend her
    complaint has not expired.
    Defendants further argue that they are entitled to summary disposition because plaintiff’s
    argument that they intended to sell the dog for a pecuniary benefit was “unsubstantiated” and
    “demonstrably false.” In effect, defendants are challenging the trial court’s decision to defer ruling
    on the applicability of the proprietary-function exception until pertinent discovery has been
    completed. “Generally, a motion for summary disposition is premature if granted before discovery
    on a disputed issue is complete,” but “summary disposition may nevertheless be appropriate if
    further discovery does not stand a reasonable chance of uncovering factual support for the
    opposing party’s position.” Peterson Novelties, Inc v City of Berkley, 
    259 Mich App 1
    , 24-25, 672
    NW2d 351 (2003).
    DACC’s director submitted an affidavit attesting that DACC does not currently charge a
    fee for adopted dogs and that its activities are supported by taxes, not profits. Although these
    assertions tend to refute plaintiff’s claim that the proprietary-function exception to governmental
    immunity applies, plaintiff is not in position to challenge these statements until she obtains
    discovery. Further, the facts are largely undeveloped regarding whether DACC’s nonprofit partner
    in operating the foster program charges for adoptions, or how that nonprofit’s fostering activities
    are supported by donations, grants, or otherwise, and whether DACC receives any pecuniary
    benefit from the partnership. Because further evidentiary development of such issues could shed
    light on whether plaintiff can maintain her claim that the proprietary-function exception applies to
    preclude governmental immunity, we conclude that the trial court did not abuse its discretion in
    allowing discovery in that regard.
    In sum, we find no error in the trial court’s denial of defendants’ motion for summary
    disposition predicated on governmental immunity pending discovery in connection with the
    proprietary-function exception. Affirmed.
    /s/ Michelle M. Rick
    /s/ Christopher M. Murray
    /s/ Douglas B. Shapiro
    -6-
    

Document Info

Docket Number: 356962

Filed Date: 2/17/2022

Precedential Status: Non-Precedential

Modified Date: 3/5/2022