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Michigan Supreme Court Lansing, Michigan

Opinion
AMANDA JEAN ODOM, Plaintiff-Appellee, v WAYNE COUNTY and CITY OF DETROIT, Defendants, and CHRISTINE KELLY, Defendant-Appellant. ____________________________________ BEFORE THE ENTIRE BENCH YOUNG, J.

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED DECEMBER 30, 2008

No. 133433

In this case, we are asked to determine when a governmental employee is immune from liability for an intentional tort. We hold that MCL 691.1407(3) of the governmental tort liability act (GTLA), which explicitly maintains "the law of intentional torts as it existed before July 7, 1986," grants immunity to governmental employees from intentional-tort liability to the extent allowed by the common law before July 7, 1986. We therefore reaffirm and apply the test concerning intentional-tort immunity outlined in

Ross v Consumers Power Co (On Rehearing).1

Under the Ross test, governmental

employees enjoy qualified immunity for intentional torts. A governmental employee must raise governmental immunity as an affirmative defense and establish that (1) the employee's challenged acts were undertaken during the course of employment and that the employee was acting, or reasonably believed he was acting, within the scope of his authority, (2) the acts were undertaken in good faith, and (3) the acts were discretionary, rather than ministerial, in nature. Neither the trial court nor the Court of Appeals

considered whether the governmental employee was entitled to governmental immunity under the test provided in Ross. Accordingly, we vacate the trial court's order with respect to defendant, vacate the judgment of the Court of Appeals and remand to the trial court to apply the proper test. I. FACTS AND PROCEDURAL HISTORY Wayne County Sheriff's Deputy Christine Kelly (defendant) investigated prostitution and controlled substances offenses in the department's "morality unit." At the time of the incident giving rise to the present case, she had 10 years' experience and had made more than 500 prostitution-related arrests. On February 11, 2004, she was conducting surveillance near the intersection of Woodward Avenue and Burlingame Street in the city of Detroit. Defendant claimed that plaintiff, Amanda Jean Odom, walked back and forth along Woodward while making eye contact with the drivers of cars passing by, a method used by prostitutes to attract the attention of potential customers. She observed plaintiff approach the driver's side window of a car parked in a liquor store parking lot and then enter the back seat. The car drove to a nearby grocery
1

420 Mich 567; 363 NW2d 641 (1984). 2


store; plaintiff went inside for approximately five minutes and returned to the car,2 which then drove away. After contacting her supervisor and calling for backup, defendant followed the car down Woodward Avenue and into a residential area. Detroit police officers stopped the car at a point that, as it turned out, was only two blocks from plaintiff's home. The officers drew their guns and ordered plaintiff and the two female passengers out of the vehicle.3 The women were all handcuffed and questioned.4 Upon being stopped, plaintiff asserted her innocence. She explained that her friend had driven her home from her place of employment and showed that she was still wearing her work identification badge. She further explained that her friend had dropped her off at a bank and driven around the block. However, plaintiff explained that she could not enter the bank because the police were apparently stopping a robbery in progress. She looked north and south before sighting her friend's car in a nearby parking lot. Plaintiff walked to the car, entered the back seat, and was driven to a grocery store, where she used the ATM and purchased some groceries. After relating her version of events to the officers, plaintiff overheard one officer tell defendant, "Well it's your call." Defendant issued plaintiff a criminal citation for "Disorderly Conduct (Flagging) Impeding the Flow of Vehicular and Pedestrian Defendant asserted that it is not uncommon for a prostitute to go into a store for a short time to purchase alcohol or condoms and return to the customer's car.
3 4 2

There was also a three-year-old child in the car.

Defendant claimed that her suspicions of plaintiff were not alleviated by the fact that the vehicle's occupants were all female. Defendant testified in her deposition that prostitutes often work in teams from a car and drive each other to and from "work." Defendant also explained that females may solicit a prostitute to purchase controlled substances on their behalf. 3


Traffic"--an offense frequently associated with prostitution. Plaintiff claims that, when she objected to the citation, defendant became angry and told her to "fight it." Plaintiff was ordered to appear for arraignment one week later. When she

appeared, however, the district court had no record of the citation. Plaintiff contacted both the Detroit Police Department and the Wayne County Sheriff's Department to determine the status of the charges against her. Upon learning that the record of

plaintiff's citation had been lost, defendant issued a new citation and had the charges reinstated. When plaintiff appeared for arraignment a second time in June 2004, the court required her to attend an AIDS awareness class for sex offenders. The case was

postponed several times between June and December 2004. The prosecution finally dismissed the charges on December 6, 2004, because of insufficient evidence. The dismissal order indicated that the parties stipulated to the existence of probable cause. Neither plaintiff nor her counsel signed the dismissal form, and plaintiff denies that she made such a stipulation. Plaintiff filed suit against defendant, Wayne County, and the city of Detroit, alleging false imprisonment and malicious prosecution. The parties stipulated to the dismissal of the city of Detroit early in the proceedings. In their answer to plaintiff's complaint, defendant and Wayne County raised "individual immunity" and "governmental immunity," respectively, as affirmative defenses. Following discovery, defendant and Wayne County also filed a joint motion for summary disposition based on governmental immunity, MCR 2.116(C)(7), and failure to create a genuine issue of

4


material fact, MCR 2.116(C)(10).5

The trial court granted the county summary

disposition on the basis of the governmental immunity conferred by MCL 691.1407(1).6 The trial court denied defendant summary disposition. Although plaintiff alleged that defendant had committed the intentional torts of false imprisonment and malicious prosecution, the trial court concluded that plaintiff was proceeding under a gross negligence theory because she had not alleged "an intentional act" such as excessive force. The trial court presumably considered whether defendant was entitled to the immunity conferred by MCL 691.1407(2); however, it did not explicitly cite the statute. The court found that there remained factual questions regarding whether defendant had probable cause to arrest and prosecute plaintiff. The trial court indicated that these factual questions prevented it from determining whether defendant was entitled to immunity as a matter of law. The court thereby treated governmental immunity as an affirmative defense that could be proved at trial. The Court of Appeals affirmed on other grounds. The Court of Appeals panel made no mention of subsection 3, analyzing only the requirements of subsection 2.7 The panel held that plaintiff had indeed alleged intentional torts. Therefore, to be protected by governmental immunity, the challenged acts undertaken by defendant had to be
5

The motion for summary disposition also refers to MCR 2.116(C)(8); however, defendant made no arguments based on that rule. Moreover, in a subsequent motion for clarification of the trial court's order, defendant asserted that she sought summary disposition under (C)(7) and (10) and did not mention (C)(8).

Subsection 1 provides immunity to governmental agencies when conducting governmental functions. It is well established that "the management, operation, and control of a police department is a governmental function." Mack v Detroit, 467 Mich 186, 204; 649 NW2d 47 (2002). Odom v Wayne Co, unpublished opinion per curiam of the Court of Appeals, issued February 1, 2007 (Docket No. 270501), p 2. 5

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"justified" or "objectively reasonable under the circumstances," rather than not grossly negligent.8 The panel held that, given the conflicting evidence, whether defendant's conduct was justified could not be decided as a matter of law.9 Initially, this Court denied defendant's application for leave to appeal.10 However, upon reconsideration, we determined that this area of the law had fallen into disarray and required clarification. We granted defendant's application for leave to appeal and

directed the parties to address the following issues: (1) what is the proper interpretation of MCL 691.1407(3) ("[MCL 691.1407(2)] does not alter the law of intentional torts as it existed before July 7, 1986."); (2) can intentional torts claims be brought under MCL 691.1407(2); and (3) for an intentional tort claim, what must a plaintiff plead to avoid governmental immunity?[11]

II. STANDARD OF REVIEW We review de novo a trial court's determination regarding a motion for summary disposition. 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 . . . .'"12 The moving party may support its motion for summary disposition under

8

Id. at 2-3, citing VanVorous v Burmeister, 262 Mich App 467, 480; 687 NW2d 132 (2004), Sudul v Hamtramck, 221 Mich App 455, 458; 562 NW2d 478 (1997), and Brewer v Perrin, 132 Mich App 520, 528; 349 NW2d 198 (1984). Odom, unpublished opinion per curiam at 3. Odom v Wayne Co, 480 Mich 1015 (2008). Odom v Wayne Co, 480 Mich 1184 (2008).

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10 11 12

Glancy v City of Roseville, 457 Mich 580, 583; 577 NW2d 897 (1998) (citation omitted). 6


MCR 2.116(C)(7) with "affidavits, depositions, admissions, or other documentary evidence," the substance of which would be admissible at trial.13 "The contents of the complaint are accepted as true unless contradicted" by the evidence provided.14 In relation to a motion under MCR 2.116(C)(10), we similarly review "the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. Summary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law."15 This decision also requires us to interpret the provisions of

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