Trezzi v. City of Detroit ( 1982 )

Danhof, C.J.

Plaintiff appeals as of right from an order granting a summary judgment to the City of Detroit (hereinafter defendant) pursuant to GCR 1963, 117.2(1) on the basis of governmental immunity.

Plaintiff’s complaint arose out of defendant’s operation of an emergency call and dispatch system known as the "911” emergency system. Defendant employs operators to take 911 emergency calls from the public. These operators attach priority ratings to each call based upon its nature and police units are dispatched in accordance with the priority ratings.

The complaint avers that on April 23, 1978, several 911 calls were made to unidentified operators, requesting emergency assistance at the home of plaintiff’s decedents. Plaintiff alleges the 911 operators attached an unjustifiably low priority rating to these calls and passed them on to defendant Philip Torbit, the police dispatcher, who failed to dispatch police vehicles for approximately 1-1/2 hours after receiving the first call. Plaintiff’s complaint asserts that as a result, Rosa and Gino Brigolin sustained numerous injuries that resulted in their deaths.

When defendant filed its motion for summary judgment, contending that plaintiff’s claim is barred by the principle of governmental immunity, plaintiff responded with an amended complaint that re-alleged the defendant’s and its employees’ negligence. In addition, plaintiff charged that defendant’s intentional and wanton misconduct caused the death of plaintiff’s decedents. The trial court found that the 911 system is part of the Detroit Police Department, which is a governmental function immune from tort liability. It also ruled that plaintiff’s amended complaint did not plead sufficient facts to allege intentional wrongdoing by defendant or its employees. Defendant Tor-bit made a settlement with plaintiff and the claim against the unidentified 911 operators was dismissed. From the trial court’s order of summary judgment in favor of the defendant, plaintiff raises two issues on appeal.

Initially we note that the purpose of a motion for summary judgment based on GCR 1963, 117.2(1) is to test the complaint to determine whether a plaintiff has pled facts which support a cause of action. The scope of the examination is confined to the pleadings; factual allegations of the complaint are taken as true, along with any inferences and conclusions which may fairly be drawn from the facts alleged. Rubino v Sterling Heights, 94 Mich App 494; 290 NW2d 43 (1979). When governmental immunity forms the basis of the motion, a burden rests upon the plaintiff to plead facts in avoidance of immunity. Fuhrmann v Hathaway, 109 Mich App 429; 311 NW2d 379 (1981).

Plaintiff argues that the court erred in finding that the operation of a 911 system for police emergency calls constituted a governmental function. In analyzing this issue, we first determine whether defendant was engaged in a governmental function entitled to immunity from tort liability under MCL 691.1407; MSA 3.996(107). This statute provides:

"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.”

The term "governmental function” is not defined in the statute. Of necessity, the determination of which activities may be classified as governmental functions is a task left to the courts by the Legislature. Keenan v Secretary of State, 103 Mich App 82; 302 NW2d 602 (1981). The Supreme Court is split on the interpretation of this statutory term, usually deciding whether particular activities are governmental functions on a case-by-case basis. Since this case involves an operational aspect of the Detroit Police Department, as opposed to a decisional or planning aspect, Justices Kavanagh, Fitzgerald and Levin, using the "of essence to governing” test, would find that no governmental function was involved in the act alleged to have been negligently performed. See Thomas v Dep’t of State Highways, 398 Mich 1, 22; 247 NW2d 530 (1976) (dissenting opinion of Kavanagh, C.J., and Fitzgerald, J.). Conversely, using a common-law analysis, Chief Justice Coleman, and Justices Ryan and Williams would find that the operation of a police department is a governmental function. Berger v Berkley, 87 Mich App 361; 275 NW2d 2 (1978), lv den 406 Mich 969 (1979).

Therefore, Justice Moody’s position on governmental -immunity is the key to understanding how the Supreme Court would resolve this issue. On the basis of Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978), and Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978), we conclude that the operation of a police department presents factors that would make such activity governmental under Justice Moody’s broader statement of the governmental essence test.

The government plays a pervasive role in providing for the public peace and for the safety of persons and property. MCL 117.3(j); MSA 5.2073(j); Detroit Charter, art 7, ch 11, § 7-1101. Municipal budgets include substantial appropriations for police services. Police officers are exclusively vested with powers and duties, too numerous to list, essential for the protection of public peace and safety. In short, the police perform an essentially unique activity which can be effectively accomplished only by the government. It would be incongruous to find that the operational activities of a police department are other than governmental. Therefore, we find that the operation of a police department is a governmental function entitled to immunity. Berger, supra; McPherson v Fitzpatrick, 63 Mich App 461; 234 NW2d 566 (1975).

Since the police function is governmental, we must next determine whether the particular activity at issue is related to the governmental function. If it is, immunity is warranted. See, for example, Rouse v Michigan, 109 Mich App 21; 311 NW2d 144 (1981). Operation of an emergency dispatch system is an indispensable part of the operation of a police department. Furthermore, the operation of such a system necessarily involves decision-making concerning the seriousness of each call for police assistance and the order of priority for response which should be attached to those calls. None of these activities have a "common analogy in the private sector”. Parker, supra, p 200. The fact that the operation of a 911 system may also involve the performance of other services which are unrelated to the activities discussed above is irrelevant. We are only concerned with whether this particular activity constitutes a governmental function. Cobb v Fox, 113 Mich App 249, 255; 317 NW2d 583 (1982). Accordingly, we are of the opinion that the activity involved here is essentially a unique activity associated with the operation of a police department and that immunity must be extended.

Plaintiff’s reliance on Berkowski v Hall, 91 Mich App 1; 282 NW2d 813 (1979), is misplaced. In Berkowski, a panel of this Court ruled that a municipality’s operation of emergency medical services (EMS) units is not of essence to governing. Berkowski is distinguishable in that the government does not have sole responsibility for providing on-the-scene emergency medical service. Defendant rightfully points out that the government receives substantial competition in this area from private ambulance companies. There is no. common analogy to a police department in the private sector. The. trial court did not err in granting defendant’s motion for a summary judgment on plaintiff’s claim that the 911 system was operated negligently. The pleadings fail to state a claim in avoidance of immunity.

The second issue on appeal is whether the trial court erred when it granted defendant’s motion for a summary judgment as to plaintiffs claim that the 911 operators and the police dispatcher committed intentional torts. In Lockaby v Wayne County 406 Mich 65; 276 NW2d 1 (1979), in four opinions, the Supreme Court found that immunity does not extend to intentionally tortious acts committed by a defendant’s agents, since such acts are not within "the exercise or discharge of a governmental function”.¹

Plaintiff contends that the unnamed 911 operators committed an intentional tort by assigning the 911 calls an unduly low priority rating. Nowhere in the complaint or the amended complaint does it appear that the 911 operators intentionally gave the 911 calls a lower priority with the knowledge that harm would result to the subjects of the calls. Similarly, the amended complaint alleges only that the police dispatcher "failed to dispatch police vehicles for approximately 1-1/2 hours after receiving the first call for emergency assistance”. Each of these allegations claim, at best, negligence of the 911 operators and the dispatcher in failing to correctly interpret the 911 calls and failing to dispatch police vehicles quickly. Further, as a matter of law, neither the allegation against the 911 operators nor the allegation against the police dispatcher alleges sufficient facts to make out a claim for an intentional tort. Therefore, the operators and the dispatcher were engaged in activity that was in the exercise or discharge of a governmental function. Thus, defendant is immune. The trial court did not err in granting summary judgment on this issue.

Accordingly, we find that the City of Detroit is protected by the cloak of governmental immunity. The trial court did not err in ruling that the plaintiff had failed to allege sufficient facts in avoidance of governmental immunity.

Affirmed. No costs, a public question.

J. R. Ernst, J., concurred.

1 This statement is correct in explaining the ultimate holding as applied to the unique facts of Lockaby. However, Justice Williams would add a caveat:

"[Justice Levin’s] opinion, citing McCann v Michigan, 398 Mich 65; 247 NW2d 521 (1976), states that 'a majority of the Court agreed that an intentional tort was not in the exercise or discharge of a governmental function’. The statement is not incorrect as explaining the ultimate holding under the facts of McCann, but I do not read McCann as authority for the broad proposition that intended conduct which harms another is never protected by governmental immunity. A tort is a civil wrong and conduct which is wrong within one setting can be permissible within another. For example, a police officer may not intentionally strike a citizen peacefully walking down the street, but his duty may require the police officer to intentionally strike another citizen to prevent him from murdering a third peaceful citizen. Further, McCann clearly sets limits that the conduct must be without and not within the scope of the exercise and discharge of a governmental function.” 406 Mich 82-83.