THE ABOMINABLE SNOWMAN,
THE EASTER BUNNY, AND
"THE INTENTIONAL TORT EXCEPTION"
TO GOVERNMENTAL IMMUNITY
Why Sudul v Hamtramck Was Wrongly Decided
By David M. Saperstein
In Sudul v Hamtramck, 221 Mich
App 455; 562 NW2d 478 (1997), the
Court of Appeals held that there is
an intentional tort exception to
Michigan's governmental tort liability act (GTLA), MCL 691.1401 et seq.;
MSA 3.996(101) et seq. Accordingly,
the Court held that when an intentional tort under Michigan law is
shown against a governmental employee, it is unnecessary for a plaintiff to satisfy the elements of the gross
negligence exception to governmental immunity found in MCL
691.1407(2); MSA 3.996(107)(2). This
article traces the development of governmental immunity under Michigan law as it pertains to intentional
torts. It concludes that, like the
Abominable Snowman, the Easter
Bunny, Santa Claus, and unicorns,
the intentional tort exception to governmental immunity is simply a
myth.
The governmental tort liability act,
MCL691.1401 etseq.; MSA3.996(101)
et seq., was enacted in 1964. Prior to
that time, legislation waiving immunity was found in diverse sections of
Michigan statutory law. See generally Baylor, Governmental Immunity
in Michigan (ICLE, 1991), pI-I. The
enactment of the GTLA in 1964, intended to reduce confusion in the
subject, hardly accomplished its task.
To the contrary, the Court of Appeals stated that the "recent history
of the law regarding the tort liability
of police is sai'a to be characterized
by shifting sands and obscured pathways." Blackman v Cooper, 89 Mich
App 639; 280 NW2d 620 (1979). Similarly, Ross v Consumers Power Co (On
Rehearing), 420 Mich 567, 610; 363
NW2d 641 (1984), described the state
of immunity law as a "conflicting
morass."
The Ross decision and subsequent
1986 amendments to the GTLA clarified many of the questions surrounding the status of governmental
immunity. Baylor, supra at 1-2. In
Ross, nine cases were consolidated in
order to reexamine the extent of immunity under the GTLA and the common law. Ross affected virtually
every area of governmental immunity, including the scope of a governmental function, liability under
the various statutory exceptions,
immunity for a governmental
agency, and absolute immunity for
executives. As to lower level officials, Ross held that they are immune
from tort liability only wh~n they
are:
a) acting during the course of
their employment and are acting, or reasonably believe they
are acting, within the scope of
their authority;
Legislature's approach to governmental immunity in the 1986 amendments diverged from Ross is the area
of individual immunity. In Ross, the
Court held that lower level officials
lacked immunity for ministerial acts,
regardless of good faith. Ross, supra
at 632. In the 1986 amendments, the
Legislature explicitly rejected the
distinction between ministerial and
discretionary acts. MCL 691.1407(2);
MSA 3.996(107)(2). Rather, the Legislature adopted a gross negligence
standard:
Except as otherwise provided in this section, and without regard to the discretionary
or ministerial nature of the conduct in question, each ... employee of a governmental
agency . . . shall be immune
from tort liability for injuries to
persons or damages to property caused by the ... employee
... while in the course of employment or service ... if all of
the following are met:
b) acting in good faith;
(a) The ... employee ... is acting
or reasonably believes he or
she is acting within the scope of
his or her authority.
c) performing discretionary-decisional, as opposed to ministerial-operational, acts. [Id. at
592.]
(b) The
governmental
agency is engaged in the exercise or discharge of a governmental function.
The 1986 amendments to the GTLA
acted, in many ways, as a legislative
endorsement of the Ross opinion.
However, one area where the
(c) The ... employee's ...
conduct does not amount to
gross negligence that is the
Continued on page 8
7
THE ABOMINABLE SNOWMAN, THE EASTER BUNNY, AND "THE INTENTIONAL TORT
EXCEPTION" TO GOVERNMENTAL IMMUNITY
Continued from page 7
proximate cause of the injury
or damage. As used in this
subdivision, "gross negligence" means conduct so reckless as to demonstrate a
substantial lack of concern for
whether an injury results.
[MCL 691.1407(2); MSA
3.996(107)(2).]
It is clear that the gross negligence
standard was meant to replace the
common law standard under Ross.
In Dedes v Asch, 446 Mich 99, 113; 521
NW2d 488 (1994), the Court stated
that the history of the 1986 amendments "demonstrates a desire by the
Legislature to remedy the perceived
vulnerability of government employees by elevating the level of negligence required to defeat immunity."
In support of this statement, the
Court cited the following Senate
Analysis favoring the proposed legislation:
The bill would extend immunity to governmental employees, however, who are
rightfully angered and fearful
of the ruling in Ross [v Consumers Power Co (On Rehearing), 420
Mich567; 363 NW2d 641 (1984)]
that protects the highest level
of officials while leaving the
backbone of government- the
worker - vulnerable. By creating a loophole through which
plaintiffs' attorneys can slip,
Ross actually threatens to subject governmental entities to increased
liability,
by
indemnification of liable em-
ployees. At the same time, the
ruling threatens to inhibit employees in effectively performing their lawful duties. Thus,
the bill would close the loophole and protect these employees as long as they acted within
the scope of their authority and
their actions did not amount to
gross negligence. and the bill
would make it clear that the
Ross discretionary I ministerial
test no longer applied. [Senate
Legislative Analysis, SB 4654671 , October 14,1985; emphasis added.]
The Dedes Court concluded that
the "Legislature intended to limit
governmental employee liability to
those situations in which the conduct at issue was substantially more
than negligent." Id. at 118.
Although the statutory gross negligence standard appears to be an
entirely new standard, it mirrors the
common law standard that applied
to determine when discretionary acts
by lower level officials could give
rise to liability. Under Ross, supra at
592, good faith was one of the elements for the immunity test. In order to establish bad faith, a plaintiff
had to show that the governmental
actor engaged in malicious or intentionally unlawful behavior. Gillam v
Lloyd, 172 Mich App 563, 577; 432
NW2d 356 (1988); Willoughby v
Lehrbass, 150 Mich App 319, 348; 388
NW2d 688 (1986). As will be explained infra, the statutory gross negligence definition in the GTLA adopts
plunged back into the "conf/.ictingtnorass. "
_
the common- law definition of wilful, wanton, or reckless misconduct.
Dedes, supra at 110. Accordingly, the
Legislature's adoption of the gross
negligence standard was not itself a
meaningful change to the law.
Rather, the meaningful change was
the elimination of the distinction
between ministerial and discretionary acts, and the application of the
former good fai th / bad fai th test, now
dubbed"gross negligence," to all acts
by lower level officials.
In the decade following the 1986
amendments, multiple decisions
from the Michigan Supreme Court
and Court of Appeals confirmed that
there was no intentional tort exception to governmental immunity, either for governmental agencies or
for individual defendants. In Smith
v Dep't ofPublic Health, 428 Mich 540;
410 NW2d 749 (1987),2 the plaintiff
alleged that the Department of Mental Health intentionally failed to use
the proper procedure for involuntary confinement, and sued for false
imprisonment. The Court specifically held that there was no intentional tort exception to governmental
immunity. Id. at 544. Justice Brickley
wrote that intentional torts are immune if committed within the scope
of a governmental function. However, if the governmental official used
governmental authority for a purpose unauthorized by law, such as
by committing a wrongful act in order to accomplish illegally what it
could not accomplish legally, then
the activity would not be in the exercise of a governmental function. Id.
at 610-611. Justice Brickley'S analysis of the intentional tort issue was
joined by a majority of justices. Id. at
637,652.
In Montgomery v Detroit, 181 Mich
App 298, 307; 448 NW2d 822 (1989),
although not determinative of the
outcome of the case (this was a pre1986 incident), the Court of Appeals
wro~e that in enacting the 1986
amendments, the Legislature "essentially institut[ed] a gross negligence
'exclusion' to immunity for lower
level employees."
THE ABOMINABLE SNOWMAN, THE EASTER BUNNY, AND "THE INTENTIONAL TORT
EXCEPTION" TO GOVERNMENTAL IMMUNITY
Later, this observation solidified
into a holding. In Bell v Fox, 206 Mich
App 522; 522 NW2d 869 (1994), the
Court considered the case of the defendants' mistaken arrest of the
plaintiff on charges pending against
a woman who apparently had stolen
plaintiff's identification. In affirming summary judgment of the
plaintiff's false arrest claim against
the individual, nonsupervisory defendants, the Court of Appeals held
that the conduct of the officers was
not grossly negligent. Id. at 525.
Accordingly, the officers were immune from suit. Id. Citing Smith,
supra, the Court directly held that
there was no intentional tort exception to governmental immunity. Bell,
supra at 525.
In Johnson v Wayne Co, 213 Mich
App 143; 540 NW2d 66 (1995), the
plaintiff brought a claim for intentional infliction of emotional distress
against various jail personnel. The
Court first analyzed the facts to determine if there was gross negligence.
Id. at 159-160. It was only after concluding that there was sufficient evidence of gross negligence that the
Court looked to the elements of the
intentional tort. The Court stated
that only if there are "sufficient facts
justifying application of the gross
negligence exception to governmental immunity" may the plaintiff
"maintain her [intentional] tort
claim." Id. at 160. Similarly, in Martin v Stine, 214 Mich App 403; 542
NW2d 884 (1995), the plaintiff sought
leave to add a count of intentional
infliction of emotional distress. The
Court stated in a footnote that such a
claim against the individual defendants would be barred by immunity
unless the plaintiff proved gross negligence. Id. at 420 n 14.
With the release in 1997 of Sudul v
Hamtramck, 221 Mich App 455; 562
NW2d 478 (1997), the clarity that had
been achieved in the decade following the amend~ent of § 107(2) was
uprooted and Michigan law plunged
back into the "conflicting morass."
In Sudul, the majority reached the
opposite conclusion from Bell and
Johnson. Sudul held that because intentional torts are themselves an exception to governmental immunity,
it is unnecessary for a plaintiff to
first satisfy the gross negligence exception:
We specifically agree with the
discussion in the dissent/ concurrence regarding the nonexistence of a tort called "assault
and battery by gross negligence." We especially also hold
that an individual employee's
intentional torts are not
shielded by our governmental
immunity statute, a proposition thattoo frequently is mired
in confusion. [Sudul, supra at
458.]
Sudul recognized that the Supreme
Court in Smith had stated that no
such exceptiqn existed. Sudul distinguished and limited Smith by stating
that the Smith holding was only applicable to governmental agencies,
and not to individual governmental
employees. Sudul, supra at 486.
Sudul has been criticized since its
release. George E. Ward, the Chief
Assistant Prosecutor for Wayne
County, traced the problem in Sudul
to "a self-inflicted semantic difficulty" in Smith, namely Justice
Brickley's statement that a tortious
act cannot be a justified act. Ward,
"Justification- Analysis" Should Be
Restored to Intentional-Tort Immunity
Cases, Mich BJ, September 1997, p
975. Ward cogently argues that the
standard that should be used is one
borrowed from the qualified immunity analysis in Anderson v Creighton,
483 US 635, 638; 107 S Ct 3034; 97 L
Ed 2d 523 (1987): "In light of the
observations about plaintiff made by
defendants and clearly established
law, could a reasonable officer have
believed that the force which defendants used was reasonable?"
Ward is right. A justification
analysis must be restored to intentional tort cases. However, qualified
immunity analysis need not be im-
9
_
ported from federal cases. The Legislature has already provided a justification analysis through the gross
negligence exception. 3 The practical
effect of the gross negligence standard is that the justification analysis
shifts from the officer's actions to the
officer's intent. Rather than asking if
the officer intentionally or recklessly
acted, a question that is pointless
and always answered in the affirmative under a "tort" or Sudul analysis,
the question under the gross negligence standard becomes whether the
officer intentionally or recklessly
broke the law. The focus shifts from
illegality of the action (which will be
addressed by the tort elements) to
knowledge or recklessness as to that
illegality. Only if the officer knew
that his or her action was illegal, or if
the officer was reckless as to such
knowledge, will immunity be withdrawn by the gross negligence exception. Although the case will then
proceed to analysis of the elements
of the intentional tort, it will be a rare
case that a plaintiff who can prove
gross negligence can not prove the
elements of the intentional tort.
Ward's reference to the qualified
immunity standard under federal
law illustrates the difficulty with the
Sudul decision. There is an inherent
theoretical difficulty in envisioning
intentional torts in the police context. As a general rule, the rules of
civil liability define any unwanted
touching as tortious. 4 However,
police officers rely on intentional,
unwelcome touchings all the time in
subduing, detaining, and arresting
criminal suspects. Accordingly, in
virtually every hostile police interaction, the prima facie elements of
an intentional tort are satisfied. Without immunity, every police action
can reach a jury.
The~problem with Sudul can be
seen through analysis of the recent
case of Daughenbaugh v Tiffin, 150
F3d 594 (CA 6, 1998), decided under
federal law. In Daughenbaugh, the
Sixth Circuit held that the officer's
Continued on page 18
THE ABOMINABLE SNOWMAN, THE EASTER BUNNY, AND "THE INTENTIONAL TORT
EXCEPTION" TO GOVERNMENTAL IMMUNITY
Continued from page 9
warrantless search of the plaintiff's
unattached garage and backyard was
illegal and violated the plaintiff's
Fourth Amendment rights. Nevertheless, the Sixth Circuit held that
the qualified immunity doctrine protected that officer from civil liability
because the law was not clear at the
time.
Had Daughenbaugh been decided
under Michigan law, the result would
depend on whether the Court followed the Bell/Johnson analysis or the
Sudul analysis. Under Bell and
Johnson, the first inquiry would have
been to determine whether any defendant committed gross negligence.
The Sixth Circuit stated that the officers had a subjective belief that their
search was permissible under the circumstances. Accordingly, even
though that belief turned out to be
erroneous, a Court following the
Bell / Johnson analysis would presumably find a lack of evidence as to
gross negligence and hold the officers immune from tort liability.
The result would be different under a Sudulanalysis. Under Sudul,
gross negligence is taken out of the
equation. The only question is
whether there was an intentional tort.
If the only question is the legality of
the search, the Sixth Circuit ruled
that the search was illegal. Accordingly, under the Sudul analysis, the
officers would be subject to civil liability for their mere mistake in judgment.
This is the precise problem which
the 1986 amendments to the GTLA
were designed to correct. Under the
former law, a police officer who made
a simple error in judgment could be
sanctioned not only by the seized
evidence being unavailable in a prosecution of the criminal wrongdoer,
but also by the possibility of unlimited personal liability, subject only
to the whimsl.and vagaries of a jury.
Judge Learned Hand expressed the
policy implications of this problem
more eloquently in an oft-cited pas-
_
sage from Gregoire v Biddle, 177 F2d
case, the answer must be found
in a balance between the evils
579,581 (CA 2, 1949):
inevitable in either alternative.
It does indeed go without sayIn this instance it has been
ing that an official, who is in
thought in the end better to
fact guilty of using his powers
unredressed the wrongs
leave
to vent his spleen upon others,
done
by
dishonest officers than
or for any other personal moto
subject
those who try to do
tive not connected with the
their
duty
to
the constant dread
public good, should not escape
of
retaliation.
[Emphasis
liability for the injuries he may
added.]
so cause; and, if it were posThe practitioner who is troubled
sible in practice to confine such
complaints to the guilty, it
by the policy aspects of Sudul is still
would be monstrous to deny
confronted with its reality. Outlined
recovery. The justification for
below are four challenges, one prodoing so is that it is impossible
cedural and three substantive, that
to know whether the claim is
the practitioner can use to challenge
well founded until the case has
the applicability of Sudul. First, probeen tried, and that to submit
cedurally, Sudul's holding that Smith
all officials, the innocent as well
applies only to governmental agenas the guilty, to the burden of a
cies conflicts with opinions published
trial and to the inevitable danafter November 1, 1990, and before
ger of its outcome,· would
Sudul. Second, Sudul was concerned
dampen the ardor of all but the
with the incongruity between allowmost resolute, or the most irreing a suit to proceed based on "intensponsible, in the unflinching
tional" conduct, but barring one that
discharge of their duties ..
is based on the lesser standard of
Again and again the public in"grossly negligent" conduct. Such
terest calls for action which may
an incongruity is lessened (but not
turn out to be founded on a
eliminated) by the realization that
mistake, in the face of which an
"gross negligence" as defined in the
official may later find himself
GTLA is not common-law neglihard put to it to satisfy a jury of
gence, but rather is the equivalent of
his good faith. There must inwilful or wanton misconduct. Third,
deed by means of punishing
the incongruity is eliminated altopublic officers who have been
gether when one demarcates between
truant to their duties; but that
the immunity issue and the elements
is quite another matter from
of the cause of action. Requiring a
exposing such as have been
plaintiff to show gross negligence
honestly mistaken to suit by
does not mean that one can commit
anyone who has suffered from
reckless battery. Rather, the cause of
their errors. As is so often the
action, i.e., the intentional tort, re-
·in1!i~i:1</allyeveryhostile police interaction, the
.·priir/afac{eelernents ofan intentional tort are
sati.sfied~ Without immunity, every police action
can reach a jury.
18
THE ABOMINABLE SNOWMAN, THE EASTER BUNNY, AND "THE INTENTIONAL TORT
EXCEPTION" TO GOVERNMENTAL IMMUNITY - - - - - - - - - _
tains its elements. Finally, the Sudul
opinion fails to recognize that subsection (3) was intended to clarify
that the absolute immunity afforded
to executive officials included immunity for intentional torts.
Procedurally, Sudul violates the
conflict principle.
Prior to Sudul, the Supreme Court
had held explicitly that there was no
intentional tort exception to governmental immunity. Smith, supra at
544. Sudul purportedly avoided this
problem by limiting the holding of
Smith to governmental agencies, and
not to individual governmental employees. However, in at least three
cases, published opinions of the
Court of Appeals applied the Smith
holding to individual defendants. In
these cases, the Courts held that a
plaintiff suing an individual defendant must first satisfy the gross negligence exception before moving on
to the elements of the intentional tort
in question. Martin, supra; Johnson,
supra; Bell, supra.
Under MCR 2.715(H) and the administrative orders that preceded it,
a "panel of the Court of Appeals
must follow the rule of law established by a prior published decision
of the Court of Appeals issued on or
after November 1, 1990." Here, the
Sudul approach is in direct conflict
with the Bell/Johnson approach. What
the Sudul Court should have done is
follow Bell/Johnson, but indicate its
disagreement as provided by MCR
7.215(H)(2). The Chief Judge would
have then polled the entire bench of
the Court of Appeals to determine if
the judges wished to convene a special panel to resolve the issue. MCR
7.215(H)(3).
The fact that Sudul did not follow
this procedure does not mean that it
controls over the earlier decisions.
To the contrary, the opposite is true.
Under the conflict principle, when
there is a conflict between two opinions published after November 1,
1990, the earlier opinion is binding.
See Auto-Owners Ins Co v Harvey, 219
Mich App 466, 473; 566 NW2d 517
(1996).
The statutory gross negligence
standard is akin to wilful or
wanton misconduct.
The Court in Sudul, agreeing with
a recent federal district court opinion, found it absurd that a suit charging intentional misconduct would be
barred by governmental immunity
whereas a suit charging reckless misconduct would not:
The court [in Burns v Malak, 897
F Supp 985 (ED Mich, 1995)]
noted that it is expected that
police officers may perform
intentional acts that are intended to cause harm and for
which there is no liability; for
example, a police officer may
use substantial but necessary
force to subdue a suspect, resulting in injury to the suspect.
The court determined that in
such situations there would be
no liability on the part of the
police officer, not because of
the defense of immunity, but
because there was no wrongful
conduct, Le. no "tort." The
court further noted that, conversely, if a governmental employee acting in the course of
employment negligently injured another, there would be
liability, but for the immunity
provided by MCL 691.1407;
MSA3.996(107). The court concluded that
it would be an absurd
result to hold that a governmental employee, e.g.
a police officer, who
causes injury to another
as a result of his or her
"grossly negligent" conduct shall be deprived of
the defense of governmental immunity and
held liable, while a fellow officer who deliberately and intentionally
causes injury during the
19
same arrest would be
"immune" from liability,
because § 691.1407(2)
does not expressly refer
to "intentional" conduct
in its immunity provisions.
I agree with the court's sentiments in Burns. I further agree
with the court's conclusion that
because police officers had no
common-law immunity for assault and battery, subsection 3
of § 7 of the governmental liability statute provided that
they were not immune from
liability for such conduct.
[Sudul, supra at 485-486 (citations omitted) (Murphy, J., concurring in part); see, id. at 458
(endorsed by majority).]
The premise of the alleged absurdity in Burns is incorrect. Certainly,
a result that immunized intentional
but not unintentional misconduct,
would be absurd. However, it is
simply untrue that "a fellow officer
who deliberately and intentionally
causes injury during the same arrest
would be 'immune' from liability,
because § 691.1407(2) does not expressly refer to 'intentional' conduct
in its immunity provisions." To the
contrary, the statutory definition of
"gross negligence" encompasses not
only reckless conduct, but also intentional conduct.
The definition of gross negligence
provided by the GTLA does not follow the common-law definition of
"gross negligence." Rather, the
GTLA's definition of "gross negligence" relies on the common law
definition of "wilful and wanton
misconduct:"
. .. The new definition [of
gross negligence in the GTLA]
seems to imply a rejection of
the subsequent negligence requirement of common-law
gross negligence and an adoption of what in the past has
Continued on page 20
THE ABOMINABLE SNOWMAN, THE EASTER BUNNY, AND "THE INTENTIONAL TORT
EXCEPTION" TO GOVERNMENTAL IMMUNITY
_
Continued from page 19
been confusingly called gross
negligence, but is instead more
akin to wilful, wanton or reckless misconduct.
Wilful, wanton, or reckless misconduct does not rely
on the subsequent negligence
justification of the Michigan's
common-law gross negligence
to avoid the contributory negligence bar. Wilful, wanton, or
reckless misconduct is different in kind, not in time. [Dedes
v Asch, 446 Mich 99, 110; 521
NW2d 488 (1994); emphasis
added.]
has been resolved. In Jennings v negligence is satisfied by a
Southwood, 446 Mich 125, 141; 521 defendant's recklessness, the eleNW2d 230 (1994), the Court stated ments of the intentional tort must be
that it is impossible for one person to satisfied.
The Michigan Supreme Court has
simultaneously have two inconsistent states of mind. Accordingly, it repeatedly distinguished between
held that "willful and wanton mis- immunity and negligence issues.
conduct" means "wilful or wanton Tort actions against governmental
This result was predicted in 1991
agencies generally raise two sepamisconduct." Id.
by Baylor's treatise on governmenApplying these holdings to the in- rate issues: 1) whether the plaintiff
tal immunity:
tentional tort context, the absurdity has pleaded a cause of action in
... [T]he statutory definimentioned by Judge Murphy disap- avoidance of governmental immution ofgross negligence appears
pears. An o-fficer who intentionally nity; and 2) whether the plaintiff can
to be more akin to the comviolates the law has committed statu- establish the elements of a negligence
mon-law definition of willful
tory gross negligence. Although this action. Glancy v Roseville, 457 Mich
and wanton misconduct. Unsolves the problem of the purported 580, 588; 577 NW2d 897 (1998). In
der common law, willful and
absurdity, it leaves open the ques- Ross, the Court indicated its underwanton misconduct arises from
tion of whether a police officer who standing that the statutory excep(1) knowledge that a situation
is being sued under the gross negli- tions do not create causes of action,
requires the exercise of ordigence exception may be sued for reck- but rather indicate the types of govnary care and diligence to avert
less battery. This is addressed in the ernmental activity that would supanother's injury, (2) a
port a finding of liability despite the
following section.
defendant's ability to avoid the
activity's character as a governmenThere is a distinction between
injury by exercising such care
tal function:
and diligence, and (3) intent to
immunity issues and the
[The governmental] agency
harm or indifference to harm
elements of the cause of action.
will be held directly liable for
tantamount to a willingness
its torts if the activity in which
A separate problem that Sudul disthat it occur. Consequently,
it
was engaged constituted a
cussed is the problem of whether the
willful and wanton misconduct
or proprinon-governmental
gross negligence exception would
need not necessarily imply a
etary
function,
or
fell
within
allow a police officer to be liable for
high degree of carelessness. Inthe
statutory
"highway,"
"mo"reckless battery." The Court's constead, willful and wanton mistor
vehicle,"
or
"public
buildclusion that it did reveals a misunconduct is made out only if the
ing" exceptions. [Ross v Conderstanding
of the difference beconduct alleged shows an insumers Power Co, 420 Mich 567,
tween immunity issues and the eletent to harm or an indifference
621; 363 NW2d 641 (1984).]
ments of the causes of action. In the
to whether harm will result that
Bell/Johnson
cases,
the
Court
underCourts should take care not to conis the equivalent of a willingstood this distinction. Accordingly, fuse the separate inquiries into imness that itdoes. [Baylor, GovinJohnson, after concluding that there munity and liability. Canon v
ernmental Immunity in Michiwas evidence to support a finding of Thumudo, 430 Mich 326, 335; 422
gan, pp 5-15 to 5-16; citations
gross
negligence, the Court then de- NW2d 688 (1988). Thus, in Johnson v
omitted; eInf'hasis supplied.]
termined whether there was evidence Detroit, 457 Mich 695,710; 579 NW2d
The discussion in Sudul regarding as to the intentional tort. The Sudul
895 (1998), Justice Mallett wrote:
the impossibility of a state of mind Court merged these two distinct
I note that merely because a
that is both intentional and reckless analyses. However, even if gross
plaintiff is able to plead a claim
20
THE ABOMINABLE SNOWMAN, THE EASTER BUNNY, AND "THE INTENTIONAL TORT
EXCEPTION" TO GOVERNMENTAL IMMUNITY
to avoid governmental immunity, in this case on the basis of
the public building exception,
does not necessarily mean that
the defendants are liable. Our
conclusion that the public
building exception applies to
plaintiff's claim merely establishes that the city undertook a
duty to maintain this suicidedeterrent cell in good repair.
The fact that the city has this
general duty does not necessarily establish a duty owed to
this particular plaintiff in the
facts of this case. Establishing a
building- defect claim circumventing governmental immunity does not negate traditional
tort law principles. Perhaps a
statement of the obvious, plaintiff still must demonstrate the
elements of her negligence
claim. [Emphasis supplied; see
also id. at 713-714 (Taylor, J.,
concurring in part, dissenting
in part).]
The Sudul opinion is not the only
opinion to ignore the distinction between immunity issues and the elements of the cause of action. In a case
involving the defective highway exception, Haas v City ofIonia, 214 Mich
App 361; 543 NW2d 21 (1995), the
Court held that because there is no
common-law duty on the part of an
ordinary landowner that corresponds to that of a municipality under the highway exception, the common-law open and obvious rule did
not apply to defective highway
claims. This directly contradicts the
reasoning of the Supreme Court in
Woods v City ofWarren, 439 Mich 186,
192-193; 482 NW2d 696 (1992), which
held that the common-law fireman's
rule defense applied to claims under
the defective highway exception.
Similarly, in the trespass-nuisance
context, the <:;,ourt of Appeals in Citizens Ins Co v Bloomfield Twp, 209 Mich
App 484, 487-489; 532 NW2d 183
(1995), used the correct structural
_
approach when after finding that the begs the question, why not choose
elements of the exception to govern- the Ross standard for discretionary
mental immunity existed, the Court acts? As such, application of subsecremanded to the trial court for deter- tion (3) to claims against lower level
mination of whether the elements of officials does not make sense. The
the cause of action could be satisfied. standard for their liability had alThis structural approach apparently ready been established.
A panel of the Court of Appeals
was ignored, however, in CS & P v
prior
to Sudul recognized this. In
Midland, 229 Mich App 141; 580
Bischoff
v Calhoun Co Prosecutor, 173
NW2d 468 (1998), where the Court
Mich
App
802, 807; 434 NW2d 249
stated that negligence is not necesthe
Court of Appeals indi(1988),
sary to establish liability under the
cated
that
subsection
(3) was directed
trespass-nuisance exception.
at
the
absolute
immunity
of judges,
Sudul suffers from the same error
legislators,
and
the
elective
or highas Haas and CS & P. There is no such
est
appointive
executive
officials.
creature as reckless battery. Rather,
if a plaintiff can avoid the strictures The Court held that subsection (3)
of governmental immunity by show- indicates that the Legislature ining reckless misconduct, then the case tended to immunize such officials
proceeds as would an intentional tort from all torts, including intentional
claim against any nongovernmental torts. Id.
defendant"Le. according to the ele- Conclusion
ments of the tort.
The question of what standard
MCL 691.1407(3) applies to
governs suits for intentional torts
intentional torts by executive
against lower level governmental
employees is one that has been a
officialS.
source of much confusion. In Ross,
Sudul based its reasoning, in part, the Court settled the confusion by
on MCL 691.1407(3); MSA
holding that there was no immunity
3.996(107)(3), which provides:
for ministerial acts whereas discreSubsection (2) [the gross neglitionary acts would be immune ungence exception] shall not be
less the acts constituted malicious or
construed as altering the law of
intentional misconduct. Soon thereintentional torts as it existed
after, the Legislature rejected the
prior to the effective date of
ministerial! discretionary act distincsubsection (2).
tion, and replaced it with a gross
negligence
standard for all acts by
The Sudul Court reasoned that belower
level
employees. The statucause intentional, ministerial acts by
tory
definition
of gross negligence
lower level officials were not proessentially
mirrored
the standard
tected by immunity under the comthat
had
previously
been
used for
mon law, they were also not prodiscretionary
acts
only.
tected after the 1986 amendments.
For the first decade after the 1986
Sudul's reading of this subsection,
amendments,
Michigan Courts unwhich would apply subsection (2)
derstood
that
in
order for a plaintiff
only to claims of negligence, results
to
prevail
in
an
intentional
tort suit
in an absurdity and! or nullity. Subagainst
a
lower
level
governmental
section (2) specifically eliminated the
distinction between ministerial! dis- employee, the plaintiff had to first
cretionary acts. The Sudul reading show that the employee committed
would have courts apply the Ross statutory gross negligence. Sudul v
standard for ministerial acts to claims Hamtramck has upset this underalleging intentional torts. But, this standing. However, Sudul suffers
Continued all page 22
21
THE ABOMINABLE SNOWMAN, THE EASTER BUNNY, AND "THE INTENTIONAL TORT
EXCEPTION" TO GOVERNMENTAL IMMUNITY
_
Continued from page 21
Footnotes
from both procedural and substantive errors. Accordingly, Sudul can
and should be challenged as having
limited precedential value.
DA VID M. SAPERSTEIN practices
civil litigation with Caran, Lucow,
Miller & Seward, P.e. He received his
B.A. from the University of California,
Berkeley and his J.D. from the University of Michigan. He served as a law
clerk to the late Hon. Myron H. Wahls.
The bill that was eventually enacted into law was HB 5163, not SB
465-467. The relevant legislative analysis is identical. House Legislative
Analysis, HB 5163, January 16, 1986.
Affirmed on other grounds sub
nom Will v Michigan Dep't of State Police, 491 US 58; 109 S Ct 2304; 105 L Ed
2d 45 (1989).
3
The difference between this view
and Ward's view really is semantic. As
developed elsewhere in this article, the
statutory gross negligence standard
incorporated the "bad faith" standard
that was used for only discretionary
acts in Ross and before. This bad faith
standard was equivalent to the "deliberate indifference" standard under §
1983. Flones v Dalman, 199 Mich App
396,402; 502 NW2d 725 (1993).
The tort of battery is defined as
"the wilful and harmful or offensive
touching of another person which results from an act intended to cause
such contact." Smith v Stolberg, 231
Mich App 256; 586 NW2d 103 (1998).
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Volume 16, No.2