Williams v. Primary School Dist. No. 3, Green Tp., Mecosta County

• Decision Date: 14 June 1966
• Docket Number: No. 1288,No. 3,1288,3
• Parties: Jack WILLIAMS, Special Administrator of the Estate of Suzan Kay Williams, Deceased, Jack Williams and Gladys Williams, Individually, and Jack Williams, as Next Friend of his minor children, Kim Christine Williams and April Lynn Williams, Plaintiffs-Appellants, v. PRIMARY SCHOOL DISTRICT #3, GREEN TOWNSHIP, MECOSTA COUNTY, Michigan a/k/a the Paris School District, a Political Subdivision of the State of Michigan, Defendant-Appellee. Cal
• Court: Court of Appeal of Michigan — District of US

Page 894

142 N.W.2d 894

3 Mich.App. 468

Jack WILLIAMS, Special Administrator of the Estate of Suzan

Kay Williams, Deceased, Jack Williams and Gladys Williams, Individually, and Jack Williams, as Next Friend of his minor children, Kim Christine Williams and April Lynn Williams, Plaintiffs-Appellants, v. PRIMARY SCHOOL DISTRICT #3, GREEN TOWNSHIP, MECOSTA COUNTY,

Michigan a/k/a the Paris School District, a

Political Subdivision of the State of

Michigan, Defendant-Appellee.

Cal. No. 1288.

Court of Appeals of Michigan, Division No. 3.

June 14, 1966.

R. L. Miles, Big Rapids, for appellants.

Richard D. Ward, Cholette, Perkins & Buchanan, Grand Rapids, for appellee.

Before HOLBROOK, P.J., and BURNS and McGREGOR, JJ. HOLBROOK, Judge.

Plaintiffs brought action for claim of wrongful death of their six year old daughter, a student at defendant school, occurring May 14, 1964, during a recess period while she was using a so-called 'Giant Stride', one of the playground pieces of equipment situated on defendant's premises.

Defendant made a motion for a summary judgment under GCR 117 claiming there was no genuine issue as to any material fact and that defendant was a primary school district and an agency of the state of Michigan and as such was clothed with immunity from liability for ordinary torts committed in its exercise of the governmental function of conducting recreational activities on its school playground.

The learned trial judge granted the motion for summary judgment and dismissed plaintiffs' complaint. Plaintiffs have appealed.

Plaintiffs raise one question on this appeal, i.e.,

'Is a primary school district immune from suit for wrongful death of a 6 year old child fatally injured during a school recess while playing unsupervised on a piece of school playground equipment, specifically alleged to be patently dangerous and of especial peril to children in such age brackets?'

Plaintiffs in their answer to the motion for summary judgment asserted that by the decision of Myers v. Genesee County Auditor, (1965) 375 Mich. 1, 133 N.W.2d 190, the rule of governmental immunity as to all political subdivisions of government was abrogated as well as to municipal corporations irrespective of whether the involved political subdivision was functioning 'governmentally' or 'proprietarily'. It was plaintiffs' claim therein that defendant school district was a political subdivision in accord with the definition contained in P.A.1964, No. 170, ¹ and governed by Myers, supra.

The case of Myers, supra, is the last of a series of Supreme Court decisions dealing with governmental immunity. It clearly distinguishes sovereign immunity, which may be claimed only by the state government, i.e., the state and its agencies. It holds that the state and its agencies are endowed with absolute sovereign immunity from tort liability except to the extent that such immunity has been abrogated legislatively. Further, the Myers case, supra, establishes the rule that subdivisions of governmental and municipal corportions are not shielded from tort liability by any governmental immunity.

Subsequent to the Myers case, supra, until changed by legislature, governmental immunity consequently is restricted to 'soverign immunity' which doctrine shields from tort liability only the state, its institutions and agencies.

The case of Sayers v. School District #1, Fractional, (1962) 366 Mich. 217, 114 N.W.2d 191, is authority for the proposition that a school district is an agency of the state and as such, is clothed with sovereign immunity. ² This postulate is founded upon sound precedent. The cases of Atty. Gen. ex rel. Zacharias v. Bd. of Education of City of Detroit (1908) 154 Mich. 584, 118 N.W. 606; Atty. Gen. ex rel. McRae v. Thompson (1912) 168 Mich. 511, 134 N.W. 722; In re School District No. 6, Paris and Wyoming Twps Kent County (1938) 284 Mich. 132, 278 N.W. 792, and School Dist. of City of Lansing v. State Bd. of Education (1962) 367 Mich. 591, 116 N.W.2d 866, hold that education, its regulation and control, are no part of local self-government but a subject of state concern, differently treated in separate articles of the state Constitution. It may be noted that Article VII of the Michigan Constitution of 1963 deals with local government, i.e., municipal corporations and political subdivisions, while Article VIII specifically deals with education.

The case of Myers v. Genesee County Auditor, supra, did not overrule the case of Sayers v. School District #1, Fractional, supra, we have previously ruled in the case of Picard v. Greisinger (1965), 2 Mich.App. 96, 138 N.W.2d 508. The latter remains the alw for purposes of this decision.

Act No. 170, P.A.1964, was not in force at the time the claimed tort occurred on May 14, 1964, nor at the time this case was commenced on May 20, 1965 ³. The foregoing disposes of the case and mandates affirmance of the trial court.

While not necessary to decision herein, we choose to deal with plaintiffs' claims that there are involved in this case the issues of 'attractive nuisance', and nuisance. In their briefs addressed to this court, plaintiffs claim that such issues were advanced as a basis for their suit in the trial court, notwithstanding the fact that plaintiffs' counsel did not name them as such in his complaint, because they were contained therein by allegations of fact. The claimed facts are contained in paragraphs 3 and 4 of said complaint and appear in the footnote. ⁴ Plaintiffs further alleged that their daughter was thrown to the ground from a swinging position either by reason of the rotational speed or by being bumped by the child then and there holding on to the chain immediately behind her, and that the injuries suffered from this fall caused her unfortunate death.

Plaintiffs' claim based on an attractive nuisance is inapplicable to the facts of this case because trespass is the basic requirement of an attractive nuisance, and it is absent here, Royston v. City of Charlotte (1936) 278 Mich. 255, 270 N.W. 288.

Plaintiffs claim that their action can be maintained upon the premise that defendant created and maintained a nuisance by having the piece of equipment known as the 'Giant Stride' on its playground. Further that the governmental immunity afforded school districts does not extend to the creating or maintaining of a nuisance.

Plaintiffs cite the case of Royston v. City of Charlotte, supra, wherein Mr. Justice Wiest stated on p. 260, 270 N.W. p. 290:

'Acts in the discharge of governmental functions which create a nuisance Per se do not come within the immunity otherwise accorded. Want of care in maintenance, however, presents the question of negligence only, and not that of a public nuisance, which must rest on inherent danger even under the best of care.'

To better understand whether the piece of playground equipment in our case comes within the designation of a nuisance we turn to Prosser on Torts, 3rd Ed., Chap. 17, pp. 592--594 for enlightenment and find:

'There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance'. It has meant all things to all men, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or comprehensive definition. Few terms have afforded so excellent an illustration of the familiar tendency of the court to seize upon a catchword as a substitute for any analysis of a problem; the defendant's interference with the plaintiff's interests is characterized...