Mary Massaron Ross (P43885) | Plunkett & Cooney, PC. | 535 Griswold, Suite 2400 | Detroit, MI 48226 | 313-983-4801

Michigan Municipal League Liability and Property Pool (Pool)

Police officers engaged in the exercise or discharge of a governmental function based on justifiable actions are not engaged in tortious or wrongful conduct. Michigan’s Governmental Tort Liability Act does not allow intentional tort claims against government actors when their conduct is justified, a determination made by applying the histroical test adopted by the Legislature in MCL 691.1407(3). Intentional tort claims may not be brought under MCL 691.1407(2); it creates a narrow exception to governmental immunity for individuals
acting on behalf of governmental agencies when specified criteria have been satisfied. These criteria may be traced to concepts long employed by common law courts to
differentiate conduct, on the one hand, engaged in by the government or by govelnment actors to accomplish government functions, and, on the other, ultra vires conduct or conduct engaged in by those working for the government but acting on a lark of their own, unauthorized and unrelated to their government responsibilities. After approximately a decade of debate about the nature and proper test for common law
immunity and the passage of several statutes attempting to codify some form of immunity for public entities and those who act for them, the Legislature enacted the present statute, MCL 691. 1401 et seq. The statute was carefully designed to provide broad protection to public entities of all types, to abolish many of the old distinctions, and to replace them with a new statutory test that would be easier to apply and more predictable in outcome. Thus, the Legislature replaced the old government-function test with a new broadly worded statutory test. It abolished the use of the distinction between ministerial and discretionary as a basis for imposing liability onto individuals. And it made other changes, all intended to facilitate a broad protection for governmental entities and those acting on their behalf, while providing clear tests for the limited exceptions to immunity. The law of intentional torts as it existed before July 7, 1986 supports the notion that a
government actor’s tortious conduct is not actionable when the conduct is justified. Michigan courts have long-recognized that government actors, acting on behalf of the sovereign, must often engage in conduct that would be tortious if done by
a private actor, but that is justified when done on behalf of a governnlent by an individual acting in good faith and with a reasonable belief that his or her conduct is justified. The law permits a police officer to use the amount of force reasonably necessary to make an arrest. Consequently, the use of force by an officer is not an assault and battery if the force used was objectively reasonable under the circumstances. What this means is that no tort occurred, not that a tort occurred but is shielded by immunity. There simply is no wrongful conduct. If the conduct is justified, it is not tortious and therefore
does not amount to an intentional tort.

In an opinion by Justice YOUNG, joined by Chief Justice TAYLOR and Justices WEAVER, CORRIGAN, and MARKMAN, the Supreme Court held:
Trial court order vacated with respect to Kelly, Court of Appeals judgment vacated, and case remanded to trial court for further proceedings.
CAVANAGH and KELLY, JJ., concurred in the result only.

Amanda J. Odom brought an action against Wayne County,
Christine Kelly, and the city of Detroit after Kelly, a Wayne County sheriff’s deputy, cited Odom for a prostitution-related offense and the prosecution dismissed the charges. Odom alleged false imprisonment and malicious prosecution. The city was dismissed from the lawsuit. Kelly and the county asserted affirmative defenses of governmental immunity and subsequently moved for summary disposition on that ground. The court granted the county summary disposition, but denied the motion with respect to Kelly. Despite the allegations of
intentional torts, the trial court concluded that Odom was proceeding under a theory of gross negligence and found that a factual question remained concerning probable cause for Odom’s arrest. The Court of Appeals affirmed on other grounds in an unpublished opinion per curiam issued February 1, 2007 (Docket No. 270501), holding that, for Kelly to be protected by governmental immunity, her intentional acts had to be justified or objectively reasonable under the circumstances, rather than not grossly negligent. The Supreme Court initially denied Kelly’s application for leave to appeal, 480 Mich 1015 (2008), but granted the application on reconsideration, 480 Mich 1184 (2008).