Adam v. Sylvan Glynn Golf Course, Docket No. 134018

• Decision Date: 18 November 1992
• Docket Number: Docket No. 134018
• Citation: 197 Mich.App. 95,494 N.W.2d 791
• Court: Court of Appeal of Michigan — District of US
• Parties: Lyndann ADAM, Plaintiff-Appellant, v. SYLVAN GLYNN GOLF COURSE and City of Troy, Defendants-Appellees.

Page 791

494 N.W.2d 791

197 Mich.App. 95

Lyndann ADAM, Plaintiff-Appellant, v. SYLVAN GLYNN GOLF COURSE and City of Troy Defendants-Appellees.

Docket No. 134018.

Court of Appeals of Michigan.

Submitted June 24, 1992, at Lansing.

Decided Nov. 18, 1992, at 9:00 a.m.

Released for Publication Feb. 17, 1993.

Hylton & Hylton, P.C. by Kenneth N. Hylton, Jr., Detroit, for plaintiff-appellant.

Dawn A. Schumacher, Troy, for defendants-appellees.

Before HOLBROOK, P.J., and WEAVER and McDONALD, JJ.

PER CURIAM.

Plaintiff went cross-country skiing at the Sylvan Glynn Golf Course owned by the City of Troy. Plaintiff paid a $3 admission fee and a $4 ski-rental fee. Plaintiff claimed she fell and was permanently injured while skiing on an unmarked trail. Plaintiff brought suit, and defendant moved for summary disposition on the ground of governmental immunity, which the trial court granted. Plaintiff appeals as of right. We affirm.

I

Plaintiff first contends the court erred in finding defendant was protected by governmental immunity. Plaintiff asserts that the proprietary function exception to governmental immunity applies and that defendant used the golf course for cross-country skiing without authorization.

Tort immunity is broadly granted to governmental agencies by M.C.L. Sec. 691.1407(1); M.S.A. Sec. 3.996(107)(1), which provides in pertinent part:

Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the governmental agency is engaged in the exercise or discharge of a governmental function.

A governmental function is an activity that is expressly or impliedly mandated or authorized by constitution, statute, or other law. Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 620, 363 N.W.2d 641 (1984), M.C.L. Sec. 691.1401(f); M.S.A. Sec. 3.996(101)(f). This definition of governmental function is to be broadly applied. It only requires that there be some constitutional, statutory, or other legal basis for the activity in which the agency was engaged. Tort liability may be imposed only if the agency was engaged in an ultra vires activity. Hyde v. Univ. of Michigan Bd. of Regents, 426 Mich. 223, 252-253, 393 N.W.2d 847 (1986); Bauer v. Garden City, 163 Mich.App. 562, 568, 414 N.W.2d 891 (1987).

Plaintiff argues that the cross-country skiing was not a governmental function because there was no specific authorization that allowed for cross-country skiing. We disagree. Defendant was authorized to use the property for recreational purposes, which could include cross-country skiing.

Plaintiff also argues that defendant is not protected by governmental immunity because the proprietary function exception, M.C.L. Sec. 691.1413; M.S.A. Sec. 3.996(113), applies. To be a proprietary function, an activity must be conducted primarily for the purpose of producing a pecuniary profit and not normally be supported by taxes or fees. Hyde, supra 426 Mich. at 257-258, 393 N.W.2d 847; Charbeneau v. Wayne Co. General Hosp., 158 Mich.App. 730, 732, 405 N.W.2d 151 (1987). Whether an activity actually generates a profit is not dispositive, but the existence of a profit is relevant in determining the governmental agency's intent. Hyde, supra 426 Mich. at 258-259, 393 N.W.2d 847; Murphy v. Muskegon Co., 162 Mich.App. 609, 621-622, 413 N.W.2d 73 (1987). An agency may conduct an activity on a self-sustaining basis without being subject to the proprietary function exemption. Hyde, supra; Taylor v. Detroit, 182 Mich.App. 583, 587, 452 N.W.2d 826 (1989).

In this case, plaintiff pleaded no facts that showed defendant operated the golf course as a cross-country skiing facility for the primary purpose of making a profit. Defendant provided evidence that the golf course was a nonprofit, public facility and that revenue collected was used to pay the purchase price and maintenance costs. Id. Defendant showed that this property was initially condemned in order to promote the public health, safety, and general welfare, and the primary purpose was not to produce a pecuniary profit. Any profit generated would be an incidental profit; therefore, these activities may still be considered governmental functions.

II

Plaintiff next argues the trial court erred in granting the defendant's motion for summary disposition, asserting that an issue regarding the defendant's intent was present.

Plaintiff did not raise or preserve this issue in her responses to defendant's motion for summary disposition in the trial court. Generally, an issue not raised before and considered by the trial court is not preserved for appellate review. People v. Stacy, 193 Mich.App. 19, ...