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### STATE OF MICHIGAN

COURT OF APPEALS

GAIL FOSTER,

Plaintiff-Appellee, UNPUBLISHED March 1, 2016

v No. 324837
Macomb Circuit Court KEVIN SZLAGA, LC No. 14-002825-NO

Defendant-Appellant,
and

COUNTY OF MACOMB,

Defendant.

Before: S ERVITTO , P.J., and S AAD and O’B RIEN , JJ.

P ER C URIAM

.

Defendant Kevin Szlaga appeals as of right the trial court’s N ovember 10, 2014 order denying his motion for summary disposition pursuant to MCR 2.11 6(C)(7), (C)(8), and (C)(10).
We reverse and remand for the e ntry of an order granting summar y disposition in Szlaga’s favor.

I. BACKGROUND

Kevin Szlaga is a Macomb County Deputy Sheriff and a member of the Macomb County Canine Unit. As a deputy sheriff and canine unit member, he wa s assigned a canine named Zeke. Szlaga is responsible for Zeke’s care 24 hours each day. This is true regardless of whether he is on or off duty. On June 21, 2013, the date of th e incident underlying this matter, Szlaga and Zeke were at a cotta ge in Clare County. On that dat e, plaintiff, Gail Foster, entered the cottage and, eventually, approached Zeke, who bit Foster. While what occurred between the time Foster entered the cottage and when Zeke bit Foster is dis puted, i.e., whether Foster was uninvited, whether Zeke was barking as Foster approached, etc., it is undisputed that Zeke bit Foster. Foster subsequently file d this lawsuit ag ainst Szlaga and Macomb County.

In her four-count complaint, Foster alleged the following: (1 ) that both defendants were liable under MCL 287.351, commonly known as Michigan’s dog-bite statute; (2) that both defendants were liable for genera l negligence; (3) that both de fendants were liable under common-law strict liability; and (4) that both defendants were liable for gross negligence. Foster-2- sought monetary damages as a result of the injuries that she su stained from Zeke’s bite. In September 2014, Macomb County move d for summary disposition pur suant to MCR 2.116(C)(7) on governmental immunity grounds. On October 30, 2014, the tri al court entered a written order granting Macomb County’s motion. I t expressly concluded Macomb County was immune from Foster’s lawsuit under MCL 691.1407(1) of the Governmental Tort Liability Act (GTLA), MCL

691.1401 et seq . It stated as follows: “Acco rdingly, consiste nt with the dut y to broadly construe the term ‘governmental function,’ the Court finds that Deputy Szlaga’s possession and maintenance of Zeke, even on vacation, is relate d to the discharge of a governmental function .” (Emphasis added.)

Szlaga moved for summary disposition several days later, on No vember 10, 2014, on the same grounds, pursuant to MCR 2.116(C)(7), as well as on additi onal grounds, pursuant to MCR 2.116(C)(8) and (C)(10). This time , however, the trial court d enied Szlaga’s motion on the record at the close of the parties’ brief oral arguments. It e xplained as follows: “I’m going to respectfully deny the motion w ithout prejudice. There is a lot of information that you’re providing me that, grant it, we may be I’m sure revisiting this issue at some point in the future, but there has been no discovery [and] you don’t know what you d on’t know at this point.” This appeal followed.

II. ANALYSIS

On appeal, Szlaga argues that the trial court erred in denying his motion for summary disposition as to all of Fos ter’s claims. We agree.

A. STANDARD OF REVIEW

We review a trial court’s decision on a motion for summary dis position de novo. Oliver
v Smith , 290 Mich App 678, 683; 810 NW2d 57 (2010). Summary dispositi on pursuant to MCR 2.116(C)(7) is appropriate, as it relates to this case, when th e undisputed facts establish that the plaintiff’s claim is barred by governmental immunity. Though n ot required, a party moving for summary disposition pursuant to MCR 2.116(C)(7) may support his or her motion with affidavits, admissions, depositi ons, or other documentary evide nce to support his or her position. Petipren v Jaskowski , 494 Mich 190, 201; 833 NW2d 247 (2013). Ultimately, “[i]f th e facts are not in dispute and reasonable minds could not differ concerning the legal effect of those facts, whether a claim is barred by immunity is a question for the cou rt to decide as a matter of law.” Poppen v Tovey , 256 Mich App 351, 354; 664 NW2d 269 (2003).

B. GOVERNMENTAL IMMUNITY

The GTLA generally provides imm unity to governmental agencies, officers, agents, and employees engaged in a governmental function from all tort clai ms. The relevant statutory provision, MCL 691.1407(2), provides as follows:

Except as otherwise provided in this section, and without rega rd to the discretionary or ministerial natu re of the conduct in question, each officer and employee of a governmental agency, each volunteer acting on beh alf of a governmental agency, and each member of a board, council, commi ssion, or statutorily created task force of a governmental agency is immu ne from tort-3- liability for an injury to a person or damage to property cause d by the officer, employee, or member while in the course of employment or servic e or caused by the volunteer while acting on behalf of a governmental agency i f all of the following are met:

(a) The officer, employee, member, or volunteer is acting or r easonably believes he or she is acting with in the scope of his or her aut hority.

(b) The governmental agency is engaged in the exercise or disc harge of a governmental function.

(c) The officer’s, employee’s, member’s, or volunteer’s conduc t does not amount to gross negligence that i s the proximate cause of the i njury or damage.

The arguments raised by the parties can, generally, be boiled d own to one simple issue—was Szlaga acting in the course of his employment when Zeke bit Fos ter? We conclude that, as a matter of law, he was.

1. “THE COURSE OF EMPLOYMENT”

Whether a governmental employee was acting in the course of hi s or her employment is generally determined with referen ce to common-law tort and agen cy principles. Backus v Kauffman (On Rehearing) , 238 Mich App 402, 407; 605 NW2d 690 (1999). In determining whether a governmental employee was acting in the course of his or her employment, courts necessarily consider (1) whether an employment relationship exi sts; (2) if one does, the circumstances of the work environment; and (3) “the notion that the act in question was undertaken in furtherance of the employer’s purpose.” Id . at 407-408.

Considering each in this case, we conclude that all three are present. First, an employment relationship obviouslyexists between Szlaga, i.e, t he governmental employee, and Macomb County, i.e., the government. Further, the circumstance s of that work environment included Szlaga’s possession and maintenance of Zeke, even outs ide of Macomb County while off duty. While it is true that this consideration includes “t he temporal and spatial boundaries” of Szlaga’s employment, Backus , 238 Mich App at 407-408, we reject the imposition of a bright

line boundary as Foster suggests. Szlaga was undisputedly resp onsible for possessing and maintaining Zeke 24 hours per day, regardless of whether he was on or off duty, on vacation, or in another county. As Szlaga sugg ests, Zeke is not equivalent to a patrol vehicle that can simply be left unattended at the police station. Instead, someone mus t be responsible for Zeke’s wellbeing, and Macomb County, the governmental employer in this cas e, has expressly and unequivocally placed that responsibility on Szlaga as a conditi on of his employment and as a member of the canine unit. “[P]erforming work assigned by the employer or engaging in a course of conduct subject to the employer’s control” is relevan t to this consideration. 2 Restatement Agency, 3d, § 7.07(2), p 198. Stated differently, “[a]n injury arises out of the course of employment when it occurs as a circumstance of or inc ident to the employment relationship.” Calovecchi v State of Michigan , 223 Mich App 349, 352; 566 NW2d 40 (1997). At the risk of stating the obvious , had Szlaga not been employe d with Macomb County as a deputy sheriff and responsible for Zeke as a member of the cani ne unit at the time that this-4- incident occurred, it is hard to imagine that he would have had Zeke with him at the cottage. Finally, Szlaga brought Zeke to th e cottage in furtherance of h is employer’s purpose. Stated simply, as he was requi red to possess and maintain Zeke at all times, this included times when he was off duty and outside of Macomb County.

Perhaps the strongest support for our conclusion comes from th e fact that the trial court reached the exact same result, albeit in relation to Macomb Cou nty, just 11 days before entering the order at issue in this appeal. As stated above, the trial court granted Macomb County’s motion for summary disposition pursuant to MCR 2.116(C)(7) and concluded as follows in doing so: “Accordingly, consistent w ith the duty to broadly construe the term ‘governmental function,’
the Court finds that Deputy Szlaga’s possession and main tenance of Zeke, even on vacation, is related to the discharge of a governmental function .” (Emphasis added.) In our review of the record, we discern no appropriate reason for Szlaga’s actions, i.e., possessing and maintaining Zeke, to constitute the discharge of a governmental function as it relates to Macomb County but not as it relates to Szlaga. Stated differently, we find each of the trial court’s orders on the
defendants’ motions for summar y disposition to be at odds with the other, and, for the reasons set forth above, we conclude that the first order, not the order ap pealed in this case, was the correct
one of the two.

Equally persuasive in our minds is Szlaga’s reliance on Niederhouse v Palmerton , 300 Mich App 625; 836 NW2d 176 (2013). In that case, an off-duty p olice officer assisted in providing airboat rides during Wi nterfest in Roscommon County. Id . at 628. Toward the conclusion of a ride, the officer eventually lost control of th e airboat and struck a snowmobile.

Id . at 629-630. As a result of the collision, a bystander’s leg was pinned between the airboat and
the snowmobile. Id . at 630. The bystander sued the off-duty officer for gross an d ordinary negligence, and the officer responded with a motion for summary disposition pursuant to MCR 2.116(C)(7) on the grounds of governmental immunity. Id . at 630. The trial court agreed with the officer, and we were presented with an issue on appeal stri kingly similar to that raised in this
case—did the officer’s actions at issue occur in the course of his employment? Id . at 630-631. In an analysis that mirrors the one above, we concluded that, d espite the fact that the officer was off duty and not engaging in what one may commonly consider an “ordinary” police function, the officer’s actions were carried out in the course of his emp loyment. Id . at 634-635. This was true despite the fact that the officer “was not specifically in structed by his employer to provide airboat rides that day.” Id . at 635. While factually different, the same conclusion never theless prevails in this case. Giving airboat rides and caring for a p olice dog, while likely enjoyable, are
both activities that both of the se officers would not have done had they not been employed by their respective governmental agencies. See id . at 634 (stating that “had [the officer] not been in an employment relationship with the sheriff’s department, he wo uld not have been driving the airboat at the time of the accident.). See also id . at 635 (stating that “he would not have been involved in the accident had he not been in an employment relat ionship with the sheriff’s department.”).

Accordingly, in light of the above considerations, we conclude that Szlaga was acting in the course of his employment for purposes of MCL 691.1407(2) as a matter of law. Thus, because Szlaga, a governmental employee, was immune from all li ability as asserted by Foster in her complaint, the trial court erred in denying Szlaga’s motion for summary disposition pursuant to MCR 2.116(C)(7).-5- Foster’s argument on appeal does nothing to refute such a conc lusion. Foster argues that Szlaga was not acting in the cour se of his employment and cites various nonbinding caselaw to support her position. At the outset, we reject that argument s imply because we are not bound by any of the cited legal authority. See MCR 7.215(J)(1). Furthe rmore, each of the nonbinding cases are distinguish able from the matter at hand. In Secosky v Sanders , unpublished opinion per curiam of the Court of Appeals, issued October 21, 2014 (Docket Nos. 316441, 316544, 316688), pp 6-9, we affirmed a trial court’s denial of summary disposition on governmental immunity grounds in a situation where a student attending a uni versity for a fellowship was involved in an accident while using one of the university’s veh icles “in a purely recreational outing” that she voluntary[ily ] participat[ed]” in. In Bukowski v Mich Twp Participating Plan

, unpublished opinion per curiam of the Court of Appeals, issued October 18, 2005 (Docket No. 262564), pp 3-4, we affirmed a trial court’s denial of summary disposition on governmental immunity grounds in a situation where an off-duty police office r was involved in an automobile accident while driving a patrol vehicle. What is important to discern from these cases is that, in each, the governmental employee was not required to do the action at issue. In Secoskey , the
student was not required to take the university vehicle for the recreational ou ting. She could
have left it behind. In Bukowski , the off-duty officer was not required to take the patrol vehi cle. He could have left it behind. In our case, however, Szlaga was required to take Zeke to his cottage, and he could not have left him behind. F oster also relies on Chambo v City of Detroit

, 83 Mich App 623, 624-625; 269 NW2d 243 (1978), a workmen’s comp ensation case in which a police officer was injured in an automobile accident on his way to his duty station and unable to work because of those injuries. Recognizing that the officer “ was not in a position to benefit the City of Detroit” as he was in the City of Dearborn at the time of the accident, we reversed an
award in the officer’s favor. Id . at 630-631. That case is likewise distinguishable because, i n this case, Szlaga was in a position to benefit Macomb County—he was possessing and maintaining Zeke. Thus, none of the cases primarily relied on by Foster impact our conclusion
in this matter.

Even considering those cases, however, we nevertheless conclud e that Foster’s argument
must fail. She claims that Szla ga was not acting in the course of his employment because he was not in or near Macomb County “and had no work obligations for h is employer.” As discussed above, this argument ignores Szlaga’s obligations to possess an d maintain Zeke, regardless of Szlaga’s or Zeke’s physical location. We disagree with Foster’ s conclusory claims that “[g]rooming and feeding purposes have no relevance to police wo rk for Macomb County.” Again, someone was responsible for possessing and maintaining Z eke, and Macomb County, Szlaga’s governmental employer, placed that responsibility squa rely on Szlaga as a condition of his employment and as a member of the canine unit. In his answ ers to Foster’s interrogatories, Szlaga clearly explained that he was responsible for maintainin g his relationship with Zeke as well as feeding and grooming Zeke at all times. In essence, pl aintiff requests that we implement a bright-line rule requiring th at governmental immunity only ap ply when “effectuating an arrest,” “pursuing a suspect,” or “defusing a situation.” We d ecline to narrow governmental immunity to such a specific series of circumstances, especiallyin light of the fact that it is the exceptions, not the general rule of immunity, that is to be construed narrowly. Stanton v City of
Battle Creek , 466 Mich 611, 618; 647 NW2d 508 (2002); Nawrocki v Macomb Co Rd Comm’n

, 463 Mich 143, 159; 615 NW2d 702 (2000).

2. GROSS NEGLIGENCE-6- Even if governmental immunity applies, Foster contends, the tr ial court’s decision should nevertheless be affirmed because Szlaga’s conduct at issue amou nted to gross negligence. See MCL 691.1407(2)(c). Foster’s argument is meritless. She claim s that, “even if [Szlaga] was ruled to be in the course and scope of his employment, Szlaga’s gross negligence was the proximate cause of Foster’s injury and therefore he is still no t entitled to governmental immunity.” She provides little , if any, indication as to how S zlaga’s conduct was grossly negligent. Instead, she repeated ly states that his conduct was not in the course of his employment, but that fact, alone, does not automatically render his conduct grossly negligent. Gross negligence is “conduct so reckless as to demonstrate a su bstantial lack of concern for whether an injury results.” M CL 691.1407(8)(a). In short, Fos ter points to, and we find, nothing in the record to support a conclusion that Szlaga’s conduct was grossly negligent. While she makes several unsupported claims that Szlaga “should have caged Zeke” or “been at Zeke’s side at all times” because Zeke was “abnormally vicious,” these conc lusory claims, unsupported by the record, are simply insuffici ent to avoid summary dispositio n.

C. THE DOG-BITE STATUTE

While irrelevant in light of our conclusion above, see Tate v City of Grand Rapids , 256 Mich App 656, 658-661; 671 NW2d 84 (2003) (explaining that a la wsuit alleging a violation of MCL 287.351(1), the dog-bite statu te, is subject to the GTLA), we will also briefly address the parties’ arguments as to whether Szlaga was an “owner” for purp oses of MCL 287.351(1). MCL 287.351(1) provides as follows:

If a dog bites a person, withoutprovocation while the person is on public property, or lawfully on private property, including the proper ty of the owner of the dog, the owner of the dog shall be liable for any damages s uffered by the person bitten, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.

Contrary to Foster’s assertion, the term “owner” is not statuto rily defined for purposes of MCL 287.351(1). See Trager v Thor , 199 Mich App 223, 229-232; 501 NW2d 251 (1993), aff’d in part, rev’d in part 445 Mich 95 (1994). Thus, we turn to the p lain and ordinary definition of

“owner.” Koontz v Ameritech Servs, Inc , 466 Mich 304, 312; 645 NW2d 34 (2002). MerriamWebster’s Collegiate Dictionary (2003) defines “own” as “belongi ng to oneself or itself[.]” While additional analysis is necessary to take that definition and use it to determine whether Szlaga owns Zeke, suffice it to say that he does not as a matte r of law. Szlaga provided the affidavit of Macomb County Unde rsheriff Kent Lagerquist, which included sworn testimony that Zeke belonged to Macomb County, not Szlaga, as well as his own interrogatory answers indicating the same. Foster di d not respond to this evidence w ith any evidence of her own; rather, she merely claims that because “Szlaga was in possessio n of the dog, kept the dog, [and] took care of the dog,” he was automatically “an owner and/or co nstructive owner of the dog.” If not abandoned, see Peterson Novelties, Inc v City of Berkley , 259 Mich App 1, 14; 672 NW2d 351 (2003), this conclusory assertion is not supported by fact or law. We find nothing in the plain language of the statute tha t would support an interpretat ion that simply possessing, keeping, and taking care of a dog constitutes ownership for pur poses of MCL 287.351(1).

D. INCOMPLETE DISCOVERY-7- To the extent that Foster also requests that the trial court’s order denying summary disposition be affirmed because “very little discovery has take n place,” we decline to do so. While it is true that “summary disposition is premature if gran ted before discovery on a disputed issue is complete,” State Treasurer v Sheko , 218 Mich App 185, 190; 553 NW2d 654 (1996), it is important to keep in mind the operative part of that stateme nt—if granted before discovery on

a disputed issue is complete. Foster points to no fact that is in dispute for purposes of Szlaga’s motion. While she claims that, in the general sense, there is a dispute as to whether Szlaga was acting in the course of his employment, she fails to acknowledg e that there is no factual dispute at issue—the parties agree that Szlaga and Zeke were at the cottage when the bite occurred. Further, at the very least, Foster could have given some sort o f indication as to what further discovery was desired. But, she did not.

III. CONCLUSION

In sum, because Szlaga was entitled to governmental immunity p ursuant to MCL 691.1407(2) as a matter of law, we conclude that the trial cour t erred in denying his motion for summary disposition pursuant to MCR 2.116(7) as to all of Foste r’s claims. We therefore reverse the trial court’s November 10, 2014 order and remand fo r the entry of an order granting Szlaga summary disposition in full.

Reversed and remanded. We do not retain jurisdiction. Szlaga , being the prevailing party, may tax costs pursuant to MCR 7.219.

/s/ Henry William Saad
/s/ Colleen A. O’Brien