Governmental immunity; The proprietary-function exception (MCL 691.1413); Herman v Detroit; Dextrom v Wexford Cnty; Gross negligence; MCL 691.1407(8)(a); Bellinger v Kram; “The proximate cause;” MCL 691.1407(2); Ray v Swager (Ray I); Detroit Animal Care & Control (DACC)

The court held that plaintiff sufficiently pled the proprietary-function exception to governmental immunity as to defendants-city and DACC. Further, as to the gross negligence claims against defendants-individual employees, plaintiff properly alleged that they “were both a factual cause and the proximate cause of the fatal dog attack” that gave rise to this case. Thus, the court affirmed the trial court’s denial of defendants’ summary disposition motion on the basis it was premature. The court found that, “taken as true and construed in a light most favorable to plaintiff,” the allegations in the complaint “set forth sufficient facts to justify the application [of] the proprietary-function exception to governmental immunity.” Plaintiff essentially “alleged that DACC conducted its animal-control functions ‘primarily for the purpose of producing a pecuniary profit,’ prioritizing the agenda and interests of private donors to increase its revenues at the expense of public health and safety.” The court rejected defendants’ broad arguments in their summary disposition motion, concluding “the mere fact that animal care and control, writ large, may be a governmental function does not mean that the proprietary-function exception cannot apply to how that function is—or is not—being performed in this case.” Considering their reply brief in support of their motion, the court agreed with the trial court that the evidence they presented was “insufficient to entitle defendants to summary disposition at this time.” It noted that “whether DACC actually generates a profit or instead operates at a loss may well be relevant to whether the proprietary-function exception applies, but it is not alone dispositive.” The court concluded that defendants “failed to show that they are, at this juncture, entitled to judgment as a matter of law” as to the proprietary-function exception. As to the individual employees, it held that plaintiff “sufficiently pleaded the gross-negligence exception in the complaint, and the trial court did not err in deeming summary disposition premature as to this exception.” The court rejected their argument that plaintiff did not sufficiently plead “that they were ‘the proximate cause’ of [the decedent’s] fatal injuries, as required by MCL 691.1407(2).”