            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



ESTATE OF KYLE MELVIN WHEELER, by                                  UNPUBLISHED
KENNETH WHEELER, Personal Representative,                          April 25, 2019

               Plaintiff-Appellee,

v                                                                  No. 342655
                                                                   Genesee Circuit Court
CITY OF FLINT,                                                     LC No. 17-108560-NO

               Defendant-Appellant.


Before: MURRAY, C.J., and SAWYER and REDFORD, JJ.

PER CURIAM.

       In this negligence case, defendant appeals as of right the trial court’s order denying its
motion for summary disposition under MCR 2.116(C)(7) on the ground that plaintiff’s claims
were barred by governmental immunity. We reverse.

                                           I. FACTS

       Kyle Wheeler attempted suicide on December 13, 2014, but officers of the Flint Police
Department thwarted that attempt and afterward the police seized personal property including
several firearms. Wheeler received treatment for mental health problems and sometime later
began requesting the return of his firearms. After receiving several requests, on January 5, 2016,
the police released to Wheeler his personal property including an unregistered handgun. Five
months later, on May 2, 2016, Wheeler committed suicide with that handgun.

         Wheeler’s father and personal representative sued defendant alleging that it negligently
returned the handgun to Wheeler in violation of city property and evidence management
guidelines which did not permit release of handguns if state or federal law prohibited possession
of the firearm and required owners to produce registration before obtaining the release of a
handgun. Plaintiff also alleged that defendant violated MCL 28.422(1), which requires persons
to obtain a permit to purchase, carry, possess, or transport a pistol in Michigan, by recklessly
allowing Wheeler to take possession of his unlicensed handgun. Defendant answered, denied
liability, and affirmatively defended on the ground that plaintiff’s claims were barred by
governmental immunity. Defendant later moved for summary disposition under MCR


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2.116(C)(7) based upon governmental immunity provided under MCL 691.1407 because
plaintiff’s claims arose in relation to the police department’s performance of a governmental
function and plaintiff could not establish that defendant’s conduct proximately caused Wheeler’s
death. Plaintiff opposed the motion on the grounds that defendant’s police department acted in
reckless disregard of whether an injury would result from its conduct by not following its
guidelines and state law. Plaintiff argued that MCL 28.434 required defendant to turn over the
handgun to the state police for disposal and failed to do so without regard for Wheeler’s well-
being. The trial court denied defendant’s motion because defendant did not submit an affidavit
with its motion and because it found that proximate cause issues existed.

                                 II. STANDARD OF REVIEW

        Summary disposition under MCR 2.116(C)(7) is appropriate when a claim is barred by
immunity granted by law. Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678
(2001). We review de novo a trial court’s decision concerning a motion for summary
disposition. Moraccini v Sterling Hts, 296 Mich App 387, 391; 822 NW2d 799 (2012). “The
applicability of governmental immunity and the statutory exceptions to immunity are also
reviewed de novo on appeal.” Id. (citation omitted). A motion under MCR 2.116(C)(7) may be
supported by affidavits, depositions, admissions, or other admissible evidence. Id. We accept
the allegations in the complaint as true and consider the evidence in a light most favorable to the
nonmoving party. Id. “[W]hether a plaintiff’s claim is barred under a principle set forth in MCR
2.116(C)(7) is a question of law for the court to decide.” Id. (citation omitted).

                                         III. ANALYSIS

        The governmental tort liability act (GTLA), MCL 691.1401 et seq., provides
governmental agencies immunity from tort liability. “There is one basic principle that must
guide our decision today: the immunity conferred upon governmental agencies is broad, and the
statutory exceptions thereto are to be narrowly construed.” Nawrocki v Macomb Co Rd Comm,
463 Mich 143, 158; 615 NW2d 702 (2000).

       Under MCL 691.1407(1), except as otherwise provided in the GTLA, a governmental
agency is immune from tort liability if the agency was engaged in the exercise or discharge of a
governmental function. In re Bradley Estate, 494 Mich 367, 378; 835 NW2d 545 (2013). MCL
691.1401(a) defines a governmental agency as this state or a political subdivision. Under MCL
691.1401(d), a municipal corporation means a city, and under MCL 691.1401(e) a municipal
corporation falls within the meaning of a political subdivision. Defendant, as a municipal
corporation, constitutes a governmental agency for purposes of the GTLA. See Warda v
Flushing City Council, 472 Mich 326, 331-332; 696 NW2d 671 (2005). The Flint Police
Department, an agency of the city, constitutes a governmental agency for purposes of the GTLA.
Mack v Detroit, 467 Mich 186, 204; 649 NW2d 47 (2002). As explained in Mack:

       absent the applicability of a statutory exception, it is immune from tort liability if
       the tort claims arise from the department’s exercise or discharge of a
       governmental function. MCL 691.1407(1). “ ‘Governmental function’ is an
       activity that is expressly or impliedly mandated or authorized by constitution,
       statute, local charter or ordinance, or other law.” MCL 691.1401[(b)]. It is well

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       established in Michigan that the management, operation, and control of a police
       department is a governmental function. [Id.]

       The GTLA provides six statutory exceptions to the immunity granted to governmental
agencies: “ ‘the highway exception, MCL 691.1402; the motor-vehicle exception, MCL
691.1405; the public-building exception, MCL 691.1406; the proprietary-function exception,
MCL 691.1413; the governmental-hospital exception, MCL 691.1407(4); and the sewage-
disposal-system-event exception, MCL 691.1417(2) and (3).’ ” Goodhue v Dep’t of Trans, 319
Mich App 526, 531 n 1; 904 NW2d 203 (2017), quoting Wesche v Mecosta Co Rd Comm, 480
Mich 75, 84 n 10; 746 NW2d 847 (2008). As our Supreme Court explained in Nawrocki, 463
Mich at 156-157:

       Immunity from tort liability, as provided by MCL § 691.1407 [ ] is expressed in
       the broadest possible language—it extends immunity to all governmental agencies
       for all tort liability whenever they are engaged in the exercise or discharge of a
       governmental function.

                                               * * *

               Because immunity necessarily implies that a “wrong” has occurred, we are
       cognizant that some tort claims, against a governmental agency, will inevitably go
       unremedied. Although governmental agencies may be under many duties, with
       regard to services they provide to the public, only those enumerated within the
       statutorily created exceptions are legally compensable if breached. [Citations
       omitted; emphasis in original.]

        In Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 625; 363 NW2d 641
(1984), our Supreme Court reiterated the well-settled principle that a city cannot be held
vicariously liable for torts of its police officers committed during police activity that constitutes a
governmental function. This Court has stated, “even if the officers were not engaged in the
exercise of a governmental function within the scope of their employment, the city is nonetheless
entitled to immunity because it cannot be held liable for the intentional torts of its employees.”
Payton v Detroit, 211 Mich App 375, 393; 536 NW2d 233 (1995), citing Alexander v Riccinto,
192 Mich App 65, 71-72; 481 NW2d 6 (1991).

        In this case, plaintiff asserted that defendant bore tort liability for the police department’s
return of the handgun to Wheeler because the police department committed ordinary negligence
or acted recklessly by returning Wheeler’s handgun contrary to police department guidelines and
state law. Unless an exception applied, defendant had entitlement to governmental immunity
under MCL 691.1407(1) from plaintiff’s claims.

        De novo review of the record establishes that the defendant engaged in a governmental
function that involved the management, operation, and control of a police department. Its
conduct concerned the management of evidence seized and held in relation to uncharged conduct
and its return of the property to the person from whom the property had been taken. Although
the record reflects that the police department neglected to follow guidelines, ordinances, and
statutory requirements, plaintiff’s claims regarding such conduct did not fall within any of the six

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statutory exceptions to the immunity granted to governmental agencies. Therefore, defendant
was entitled to governmental immunity and the trial court erred by not granting it summary
disposition and dismissal of plaintiff’s claims. Because our decision is dispositive, we need not
consider the additional claims of error raised by defendant.

       Reversed and remanded for entry of an order dismissing plaintiff’s claims against
defendant. We do not retain jurisdiction.

                                                           /s/ Christopher M. Murray
                                                           /s/ David H. Sawyer
                                                           /s/ James Robert Redford




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