Cassani v. City of Detroit , 156 Mich. App. 573 ( 1985 )

156 Mich. App. 573 (1985) 402 N.W.2d 1

CASSANI
v.
CITY OF DETROIT

Docket No. 72785.

Michigan Court of Appeals.

Decided October 1, 1985.

Kelman, Loria, Downing, Schneider & Simpson (by Michael L. Pitt) for plaintiffs.

Laurel McGiffert, Assistant Corporation Counsel, for defendant.

Before: J.H. GILLIS, P.J., and HOOD and R.M. DANIELS,^[*] JJ.

PER CURIAM.

Defendant appeals, by leave granted, from orders of the trial court denying its motion for accelerated judgment, granting plaintiffs a default judgment, and denying defendant's motion to set aside the default judgment.

Because we find that defendant was entitled to accelerated judgment, we reverse.

Plaintiffs' complaint alleged that plaintiff James Cassani, hereafter referred to singularly as plaintiff, in his capacity as a Detroit police officer, while in pursuit of a felon, entered a lot owned by defendant city and was severely injured when he struck a wire cable strung between two metal poles on that lot.

Defendant moved for accelerated judgment claiming the Workers' Disability Compensation Act provided plaintiff's exclusive remedy because his injuries arose out of his employment. MCL 418.131, 418.301(1); MSA 17.237(131), 17.137(301)(1). Plaintiff argued below, as he argues here, that his claim is not barred by the exclusive remedy provision of the act because his injuries did not arise out of the employment relationship, but arose out of a separate relationship between himself and defendant city. The trial court denied defendant city's motion, reasoning that the "dualcapacity" doctrine asserted by plaintiff permitted plaintiff to bring his action in tort against defendant city.

The dual-capacity doctrine recognizes that an employer can, under certain circumstances, occupy a status in addition to that of employer with respect to his employee. See, e.g., Mathis v Interstate Motor Freight System, 408 Mich. 164, 184; 289 NW2d 708 (1980). However, the doctrine is applicable only in those situations where the employer has a second identity which is completely distinct and removed from his status as employer. Wells v Firestone Tire & Rubber Co, 421 Mich. 641, 653; 364 NW2d 670 (1984). In Wells, the Court quoted from 2A Larson, Workmen's Compensation Law, § 72.81, p 14-229, for the fundamental requirement needed in order to apply the dual-capacity doctrine:

"An employer may become a third person, vulnerable to tort suit by an employee, if — and only if — he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person." [421 Mich. 653.]

The great majority of American jurisdictions have held that an employer's status as a landowner does not endow the employer with a second legal persona where the injury to the employee occurs in the course of employment. Larson, supra, § 72.82, p 14-238. See, e.g., Jansen v Harmon, 164 NW2d 323 (Iowa, 1969), and Royster v Montanez, 134 Cal App 3d 362; 184 Cal Rptr 560 (1982), where those courts held that injury in the course of employment due to hazards on the employer's property did not confer the employer with a separate legal status even where the property on which the injury occurred was not used by the employer as a workplace in the course of its business. See also Holody v Detroit, 117 Mich. App. 76; 323 NW2d 599 (1982), lv den 417 Mich. 931 (1983) (Detroit police officer on duty injured in collision with a fire truck running a stop sign not entitled to an action in tort against the city), and Bross v Detroit, 262 Mich. 447; 247 N.W. 714 (1933) (Detroit police officer on duty injured in collision with city-owned street car operated on proprietary basis by city held not entitled to action in tort against the city). We find Fletcher v Harafajee, 100 Mich. App. 400; 299 NW2d 53 (1980), lv den 411 Mich. 971 (1981), cited by plaintiff, distinguishable because the injuries which the plaintiff was allowed to recover for in tort did not occur during the course of employment. See Holody, supra, p 81, n 4.

Because we hold that defendant was entitled to accelerated judgment, we need not address defendant's contention that the trial court abused its discretion in refusing to set aside the default judgment. Had we addressed that issue, we would have found no abuse of discretion.

Reversed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.