BOONSTRA, P.J.
Plaintiff appeals the trial court's grant of summary disposition to defendants on the grounds of governmental immunity. Plaintiff only challenges the trial court's ruling with respect to defendant A.J. Palmerton, and only insofar as the trial court held that Palmerton was acting "in the course of employment" when plaintiff was injured and therefore was entitled to qualified governmental immunity pursuant to MCL 691.1407(2). For the reasons stated in this opinion, we affirm.
This case arises out of an accident that occurred on February 20, 2010, on the frozen surface of Higgins Lake in Roscommon County. Plaintiff was out on the ice of the lake with a small group of people with snowmobiles during the "Winterfest" festival, which they had attended earlier. Plaintiff recalled observing an "airboat" on the ice when they first arrived at the festival, although he did not pay much attention to it.
During Winterfest, the Roscommon County Sheriff's Department provided rides in the airboat to the general public. Defendant Randall Stevenson, the Roscommon County Sheriff, had previously asked deputies who were trained in the airboat's operation and who would be off duty that day whether they would be willing to provide airboat rides at the festival; however, all the off-duty deputies had declined. Palmerton was one of those deputies; he declined because he had plans to visit family that day. Eventually Deputy Jeff Grieser, an on-duty officer, was chosen to provide the rides.
Palmerton's plans to visit relatives fell through, so he decided to take his family to Winterfest. Palmerton was not on duty that day. Palmerton and his family attended some activities at the festival. At some point, Palmerton stated that he went over to the airboat "to see if Deputy Grieser would need any assistance with" the airboat rides. Palmerton specifically testified that he "showed up to help out anyway." Palmerton brought his wife and son with him. Palmerton stated that he asked Grieser, "Hey, do you need any help?" and
The airboat in question was gas-powered and propelled forward by a large rearfacing fan; the airboat does not have brakes. The responsiveness of the controls depends on numerous factors, including the type of terrain.
At the time Palmerton took his group out for an airboat ride, plaintiff and members of his group were standing on the ice around their snowmobiles about a quarter-mile away from Winterfest. Plaintiff stated that he had allowed his friend's daughter, Megan, to take his snowmobile for a ride. Plaintiff stated that Megan rode off in a westward direction on the snowmobile and that he noted that the airboat came between Megan and him. Plaintiff noticed that the airboat began to turn back around, but he did not pay a great deal of attention to it.
Palmerton testified that he took the airboat in a generally southwest direction for about 10 to 15 minutes before deciding to head back. Palmerton began to turn the airboat when he was about 150 feet past plaintiff's group; he stated that this distance was "well past what would normally be safe...." As he made the turn, Palmerton stated that the snow "kind of grabbed" the airboat, and it ended up pointed directly at the group. Palmerton stated that he tried to turn the airboat in either direction with no success. As the airboat was still heading toward the group, Palmerton decided to take his foot off the accelerator so that if there was a collision, it would be at a slow speed.
Plaintiff noticed that the airboat was coming closer, but did not feel that he was in any danger. The airboat struck a snowmobile and slid towards plaintiff, pinning his leg between the boat and a snowmobile. Plaintiff stated that the airboat was going no more than five miles per hour; Palmerton estimates that it was no more than four miles per hour. Plaintiff suffered a severe injury to his right knee that required two surgeries and resulted in total disability from his job as a sheriff's deputy for Crawford County.
Plaintiff filed suit against Palmerton, Roscommon County, and Stevenson. Plaintiff asserted a gross negligence claim against Palmerton and ordinary negligence claims against all the defendants. Plaintiff also asserted that his ordinary negligence claim was in avoidance of governmental immunity under the motor vehicle exception to governmental immunity, MCL 691.1405, and further that Roscommon County was not engaged in a governmental function.
Defendants responded by moving for summary disposition on the grounds of governmental immunity. Defendants principally argued that the airboat was not a motor vehicle, that Stevenson was entitled to absolute immunity as a high-ranking elected official, and that Palmerton had not been grossly negligent. In responding to defendants' motion, plaintiff argued in part that Palmerton was not acting in the course of his employment at the time of the accident.
This Court reviews de novo a trial court's grant of summary disposition under MCR 2.116(C)(7). Oliver v. Smith, 290 Mich.App. 678, 683, 810 N.W.2d 57 (2010). In reviewing a motion for summary disposition under MCR 2.116(C)(7), a court considers the affidavits, pleadings, and other documentary evidence presented by the parties and accepts the plaintiff's well-pleaded allegations, except those contradicted by documentary evidence, as true. Id. "[T]he substance or content of the supporting proofs must be admissible in evidence." Maiden v. Rozwood, 461 Mich. 109, 119, 597 N.W.2d 817 (1999). The evidence submitted must be considered "in the light most favorable to the opposing party." MEEMIC Ins. Co. v. DTE Energy Co., 292 Mich.App. 278, 280, 807 N.W.2d 407 (2011).
The governmental immunity act, MCL 691.1401 et seq., generally provides immunity from tort claims to governmental agencies engaged in a governmental function, as well as governmental officers, agents, or employees. The relevant statutory provision, MCL 691.1407(2), provides:
Although there was some discussion before the trial court about whether Palmerton was a volunteer under the statute, neither party argues on appeal that Palmerton was a volunteer for purposes of governmental immunity.
This Court and our Supreme Court have often conflated the "course of employment" and "scope of his or her authority" requirements of MCL 691.1407(2). Backus v. Kauffman (On Rehearing), 238 Mich.App. 402, 406, 605 N.W.2d 690 (1999). However, this "does not mean ... that our courts have concluded that the `course of employment' and `scope of his or her authority' requirements are coextensive." Id. at 407, 605 N.W.2d 690. Such a conclusion would, in fact, violate the rule of statutory construction that cautions courts to avoid construing statutory provisions so as to render portions of the statute surplusage. Id. Rather, courts tend to follow this approach when "the question whether the two requirements have been satisfied is easily disposed of." Id.
Plaintiff specifically limits his claim of error to the trial court's finding that Palmerton was acting in the course of his employment, not whether he was acting or reasonably believed he was acting within the scope of his authority. Plaintiff is correct that, absent a finding of "course of employment," a court would have no need to reach MCL 691.1407(2)(a). The plain language of the statute applies subdivisions (a) through (c) only to an "officer, employee, or member while in the course of employment or service" or a "volunteer while acting on behalf of a governmental agency." MCL 691.1407(2). Clear statutory language must be enforced as written. Velez v. Tuma, 492 Mich. 1, 16-17, 821 N.W.2d 432 (2012).
The necessary considerations for a course of employment are (1) the existence of an employment relationship, (2) the circumstances of the work environment created by the employment relationship, including the "temporal and spatial boundaries established," and (3) "the notion that the act in question was undertaken in furtherance of the employer's purpose." Backus, 238 Mich.App. at 407-408, 605 N.W.2d 690, citing, among other authorities, 2 Restatement Agency, 2d., §§ 228(1)(b) and (c), 233-235, pp. 504, 516, 518, 520, and Black's Law Dictionary (7th ed.), p. 356.
We conclude that defendant was acting in the course of his employment at the time of the accident. It is undisputed that an employment relationship existed between the Roscommon County Sheriff's Department — a governmental agency — and Palmerton.
Further, the circumstances of the work environment created by the employment relationship encompassed Palmerton's act of giving airboat rides at Winterfest. Although Winterfest was perhaps not within the typical "temporal and spatial boundaries" of Palmerton's employment, it is undisputed that his employer requested that qualified deputies provide airboat rides to the public that day as part of the public relations activities of the sheriff's department. Relevant to this factor is whether the employee is "performing work assigned by the employer or engaging in a course of conduct subject to the employer's control." See 2 Restatement Agency, 3d., § 7.07(2), p. 198. We conclude that Palmerton was. Further, had Palmerton not been in an employment relationship with the sheriff's department, he would not have been driving the airboat at the time of the accident. "An injury arises out of the course of employment when it occurs as a circumstance of or incident to the employment relationship." Calovecchi v. Michigan, 223 Mich.App. 349, 352, 566 N.W.2d 40 (1997), aff'd 461 Mich. 616, 611 N.W.2d 300 (2000). For these reasons, we hold that Palmerton's operation of the airboat to give rides to members of the public was within the circumstances of the work environment created by his employment relationship.
We do not find it dispositive that Palmerton was not specifically instructed by his employer to provide airboat rides that day. Indeed, even if an act is contrary to an employer's instructions, it may be within the course of employment if "the employee accomplished the act in furtherance, or [in] the interest, of the employer's business." Hamed v. Wayne Co., 490 Mich. 1, 11, 803 N.W.2d 237 (2011). Further, it is not dispositive that Palmerton was not compensated for his service, as an employee's gratuitous work may still be within the course of his employment. See 2 Restatement Agency, 3d., § 7.07(3)(b), p. 198. We therefore hold that Palmerton's operation of the airboat was in furtherance of his employer's purpose.
In so holding, we find plaintiff's citation of Saily v. 500 Bushel Club, 332 Mich. 286, 50 N.W.2d 781 (1952), unpersuasive. In Saily, the employee in question was explicitly not acting in furtherance of her employer's purpose when she was attacked by a deer; in addition to being off duty, she was also "not engaged in anything for the benefit of the employer or incident to the employment" and was not, by virtue of her employment, "exposed to greater hazards of attacks by the deer than was common to any one happening in that locality for whatever purpose." Id. at 288-290, 50 N.W.2d 781. As stated, Palmerton's activity was in furtherance of his employer's purpose, and he would not have been involved in the accident had he not been in an employment relationship with the sheriff's department. Similarly, plaintiff's comparison to the unpublished case of Bukowski v. Mich. Twp Participating Plan, unpublished opinion per curiam of the Court of Appeals, decided October 18, 2005 (Docket No. 262564), p. 3, 2005 WL 2656096, is unpersuasive
The basis of plaintiff's analogy to Saily and Bukowski is that Palmerton was merely "giving his family a ride" and was not acting in furtherance of his employer's
Because all the factors elucidated in Backus were met here, we hold that the trial court correctly determined that Palmerton was acting in the course of his employment when the accident occurred.
Affirmed.
SAAD and HOEKSTRA, JJ., concurred with BOONSTRA, P.J.