FITZGERALD, J.
In Docket No. 298088, plaintiff, Thomas Petipren, alleged that defendant Rodney Jaskowski, the police chief for the village of Port Sanilac, assaulted him without
On July 19, 2008, the village of Port Sanilac hosted a fundraising event in a park that included a number of musical acts and a beer tent; Petipren and his band were scheduled to perform at the event. Complaints regarding the style of music being played at the event had been voiced to volunteers working at the beer tent before Petipren's band played. Words were exchanged between individuals listening to the prior band and those patronizing the beer tent. Brown City Police Chief Ron Smith reported to the park after receiving a "call from individuals" requesting that he stop by the park "because the band that was performing was playing offensive music." The organizer of the event also returned to the event after being contacted by a volunteer at the beer tent. Upon his arrival, Smith was approached by several citizens who found the music "offensive, disturbing, and not appropriate for the crowd." Smith then contacted Village of Port Sanilac Police Chief Ronald Jaskowski and requested that Jaskowski come to the park because trouble appeared to be brewing between those who wanted the band to play and those who did not. By the time Jaskowski arrived, the organizer of the event was resolving the situation. At some point, a decision was made that the bands would no longer play.
From here, the parties' portrayals of the facts sharply diverge. Petipren testified that he had been busy assembling his drum set on stage and did not know that the concert had been canceled. Petipren was in the midst of playing his usual warmup routine when he observed Jaskowski for the first time. Jaskowski appeared to be very angry, so Petipren stopped playing to determine what Jaskowski wanted. Petipren asserted that he held his drumsticks in his lap and did not say anything. According to Petipren, Jaskowski barged through Petipren's drum set, knocked over a cymbal, grabbed Petipren's drumsticks, and flung them away. Jaskowski then grabbed Petipren by the collar and pushed him backward off of his seat and into a pole. Petipren testified that no words were exchanged and that he put his arms straight up in the air to be completely clear that he was not resisting. Petipren stated that he began asking, "What did I do?" and Jaskowski then pushed him off the stage and shoved him down onto the grass. Jaskowski yelled at Petipren to stop resisting, and Petipren again responded that he was not resisting. When a bass player from another band asked Jaskowski why Petipren was being arrested, Jaskowski had him arrested as well. The prosecutor declined to press any charges against Petipren.
Testimony from the organizer of the event and the statements of other witnesses generally corroborated Petipren's account of the incident. Jaskowski, on the other hand, reported that when he told Petipren to stop playing, Petipren refused, swore at him, and punched him in the jaw when he tried to take Petipren's drumsticks. Jaskowski stated that Petipren continued to resist while Jaskowski attempted to handcuff him.
We review de novo a trial court's determination regarding a motion for summary disposition. Odom v. Wayne Co., 482 Mich. 459, 466, 760 N.W.2d 217 (2008). A trial court properly grants summary disposition under MCR 2.116(C)(7) when a claim is barred because of immunity granted by law. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). "When reviewing a motion under MCR 2.116(C)(7), this Court must accept all well-pleaded factual allegations as true and construe them in favor of the plaintiff, unless other evidence contradicts them." Dextrom v. Wexford Co., 287 Mich.App. 406, 428, 789 N.W.2d 211 (2010). If any documentary evidence is submitted, we must view it in the light most favorable to the nonmoving party to determine whether there is a genuine issue of material fact. Zwiers v. Growney, 286 Mich.App. 38, 42, 778 N.W.2d 81 (2009). "If no facts are in dispute, and if reasonable minds could not differ regarding the legal effect of the facts, the question whether the claim is barred is an issue of law for the court." Dextrom, 287 Mich.App. at 431, 789 N.W.2d 211. Conversely, if a factual dispute exists regarding whether immunity applies, summary disposition is not appropriate. Id.
This appeal involves, in part, an issue of statutory construction. The primary goal of statutory interpretation is to "ascertain the legislative intent that may reasonably be inferred from the statutory language itself." Griffith v. State Farm Mut. Auto. Ins. Co., 472 Mich. 521, 526, 697 N.W.2d 895 (2005), citing Sotelo v. Grant Twp., 470 Mich. 95, 100, 680 N.W.2d 381 (2004). "The first step in that determination is to review the language of the statute itself." In re MCI Telecom. Complaint, 460 Mich. 396, 411, 596 N.W.2d 164 (1999), citing House Speaker v. State Admin Bd., 441 Mich. 547, 567, 495 N.W.2d 539 (1993). Unless statutorily defined, every word or phrase of a statute should be accorded its plain and ordinary meaning, MCL 8.3a; Robertson v. DaimlerChrysler Corp., 465 Mich. 732, 748, 641 N.W.2d 567 (2002), taking into account the context in which the words are used, 2000 Baum Family Trust v. Babel, 488 Mich. 136, 175, 793 N.W.2d 633 (2010). We may consult dictionary definitions to give words their common and ordinary meaning. Halloran v. Bhan, 470 Mich. 572, 578, 683 N.W.2d 129 (2004). When given their common and ordinary meaning, Veenstra v. Washtenaw Country Club, 466 Mich. 155, 160, 645 N.W.2d 643 (2002), citing MCL 8.3a, "[t]he words of a statute provide `the most reliable evidence of its intent,'" Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236, 596 N.W.2d 119 (1999), quoting United States v. Turkette, 452 U.S. 576, 593, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981).
The governmental tort liability act (GTLA), MCL 691.1401 et seq., shields a governmental agency from tort liability "if the governmental agency is engaged in the exercise or discharge of a governmental function." MCL 691.1407(1). "The existence and scope of governmental immunity was solely a creation of the courts until the Legislature enacted the GTLA in 1964, which codified several exceptions to governmental immunity that permit a plaintiff to pursue a claim against a governmental agency." Duffy v. Dep't of Natural Resources, 490 Mich. 198, 204, 805 N.W.2d 399 (2011). The statutory exceptions must be narrowly construed. Maskery v. Univ. of Mich. Bd. of Regents, 468 Mich. 609, 614, 664 N.W.2d 165 (2003). A plaintiff bringing suit against the government must plead in avoidance of governmental immunity. Odom, 482 Mich. at 478-479, 760 N.W.2d 217. However, the immunity of an individual governmental employee is an affirmative defense that the employee must raise and prove. Id. at 479, 760 N.W.2d 217.
Jaskowski argues that he is absolutely immune from plaintiff's claims because he holds the highest appointive office at the pertinent level of government and his actions were taken within the scope of his authority. Governmental immunity from tort liability is governed by MCL 691.1407. Of particular relevance in this case, MCL 691.1407(5) provides:
The Port Sanilac Village Council set forth the "Essential Duties and Responsibilities" of the police chief in the job description for the position:
A review of the duties assigned to the chief of police reveals that the chief's duties generally involve policy, procedure, administration, and personnel matters. Generally, opinions interpreting MCL 691.1407(5) have involved either defamation lawsuits that arose from public comments made by the highest executive official of a level of government or lawsuits that arose from personnel or employment decisions made by the highest executive official of a level of government. Those cases have concluded that acts such as commenting on an official governmental matter and making personnel or employment decisions clearly fall within the scope of the executive authority of the highest executive officials of local government. For example, in Bennett, a suspended police officer brought an action for wrongful discharge against the chief of police and the mayor. This Court concluded that the chief had express legal authority to suspend police officers from duty and, therefore, was entitled to governmental immunity for suspending the police officer for operating an Internet website in violation of police department rules and regulations. Bennett, 274 Mich.App. at 313-315, 732 N.W.2d 164. This Court also concluded that the mayor, who had authority to terminate or suspend employees, was immune from the plaintiff's tort allegations. Id. at 319, 732 N.W.2d 164.
In Washington v. Starke, 173 Mich.App. 230, 433 N.W.2d 834 (1988), the personal representative of a fleeing burglar shot by a Benton Harbor police officer brought a wrongful death action against the city's public safety director, who is the highest executive official in Benton Harbor's police department. The plaintiff alleged that the public safety director had failed to properly supervise the officer who used deadly force in shooting the burglar. This Court concluded that the public safety director's "supervision of departmental employees is conduct within his executive authority, and therefore immune from suit." Id. at 241, 433 N.W.2d 834.
In Meadows v. Detroit, 164 Mich.App. 418, 418 N.W.2d 100 (1987), a police officer brought suit against the police chief
None of the published decisions in this state have considered a situation involving conduct by a police chief that occurred when the chief was acting as an ordinary police officer rather than within his or her capacity as the highest executive official of a level of government. Jaskowski relies on an unpublished and thus nonbinding decision in which a panel of this Court concluded "that a police chief's `executive authority' includes his duties as a high ranking executive as well as his ordinary duties as a police officer." Lewkowicz v. Poe, unpublished opinion per curiam of the Court of Appeals, issued May 15, 2001 (Docket No. 216307), p. 2, 2001 WL 672147. After specifically noting that the police chief was directed to attend a city council meeting in his official capacity as police chief, this Court found that the police chief "acted within the authority granted him by law as a police officer when he arrested and detained plaintiff, and was entitled to absolute immunity under MCL 691.1407(5) . . . by virtue of his status as the highest law enforcement official for the city of Romulus." Id. at 2-3 (emphasis added). However, in Scozzari v. City of Clare, 723 F.Supp.2d 945, 967 (E.D.Mich., 2010), the federal district court concluded that a police chief was not entitled to absolute immunity under MCL 691.1407(5) from an assault-and-battery claim brought by the estate of a deceased victim of a police shooting because the chief "appears to have been acting in his capacity as an officer on patrol, rather than performing any tasks particular to his position as the `highest appointive official.'"
We find that the Scozzari reasoning best reflects the legislative intent expressed in the words of MCL 691.1407(5). Scozzari was more faithful in construing the plain language of the statute and recognized that it refers to immunity for acts taken by the highest executive official of a level of government when the official is acting within the scope of his or her executive authority. When a police chief acts as an ordinary police officer—that is, when the nature of the act is outside the scope of his or her executive duties—the chief is not entitled to absolute immunity simply because he or she is also the police chief. Indeed, the essential duties of the police chief as set forth in the job description for the police chief of the village of Port Sanilac are administrative in nature and are clearly distinct from the nature of the duties of an ordinary police officer.
Affirmed.
RONAYNE KRAUSE, J., concurred with FITZGERALD, J.
MURRAY, P.J. (dissenting).
The trial court held that defendant Rodney Jaskowski was not entitled to absolute governmental immunity under MCL 691.1407(5) because (1) Jaskowski acted outside the scope of his executive authority as chief of police and (2) Jaskowski was motivated by a "personal vendetta" against plaintiff. Because Michigan law provides no support for such a conclusion under the undisputed material facts presented to the trial court, I respectfully dissent from the majority's decision to affirm the trial court's order denying Jaskowski's motion for summary disposition.
As acknowledged by the majority, MCL 691.1407(5) provides that judges, legislators, "and the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority." Bennett v. Detroit Police Chief, 274 Mich.App. 307, 311, 732 N.W.2d 164 (2006). Thus, the test for whether a chief of police is entitled to absolute immunity is whether the official (1) is "the highest appointed or elected executive of a level of government," Grahovac v. Munising Twp., 263 Mich.App. 589, 596, 689 N.W.2d 498 (2004), and if he is, (2) whether the chief's acts at issue in this case were within his executive authority, Payton v. Detroit, 211 Mich.App. 375, 394, 536 N.W.2d 233 (1995). As the majority correctly recognizes, Jaskowski, as the Chief of Police for the village of Port Sanilac, is the highest executive official of a level of government. See Payton, 211 Mich.App. at 394, 536 N.W.2d 233 (MCL 691.1407(5) applies to a municipal police chief because he is the highest level official within a political subdivision).
Jaskowski submitted an affidavit in which he attested that his executive authority as the chief of police included, amongst many other things, the duty to "arrest offenders." This testimony was based in part on the job description for the chief of police (which was also submitted to the trial court), which sets forth both the "functional responsibilities of the Police Department" as well as the "essential duties and responsibilities" of the position. The majority has quoted the "essential duties" but ignores the "functional responsibilities," which, according to the chief's affidavit, included the general aspects of the job he actually performed while serving as chief. And as noted, Jaskowski testified that some of the tasks he was expected to, and did perform, were to "control public gatherings and perform miscellaneous services relative to public health and safety including . . . [t]o arrest offenders." Importantly, plaintiff failed to submit any evidence to contradict Jaskowski's affidavit and documentary evidence, so the material facts about what Jaskowski was expected to do (and actually did) as chief of police were undisputed before the trial court.
Furthermore, the Legislature has given all police officers the authority to pursue, arrest, and detain persons suspected of committing a crime. See Payton, 211 Mich.App. at 392, 536 N.W.2d 233, citing MCL 117.34 ("The authority of the city's police officers to `pursue, arrest and detain' those suspected of violating the laws of Michigan is expressly granted."); see also MCL 70.16 (granting village police officers power to preserve quiet and good order). Because Jaskowski was the highest executive official within the police department and the authority granted to that executive position included the ability to arrest offenders, he acted within the scope of his executive authority when he arrested plaintiff.
Plaintiff spends a significant amount of time arguing that Jaskowski was not entitled to absolute immunity because he was motivated by a "personal vendetta" against plaintiff and because Jaskowski "was acting upon his personal biases against individuals
Based on the foregoing, Jaskowski was entitled to absolute immunity under MCL 691.1407(5), and I would reverse and remand for entry of an order granting Jaskowski's motion for summary disposition.
