Ballard v. Ypsilanti Tp.
| Decision Date | 09 June 1998 |
| Docket Number | 106954,Docket Nos. 106941,No. 10,10 |
| Citation | 457 Mich. 564,577 N.W.2d 890 |
| Parties | Sheniece BALLARD, Personal Representative of the Estate of Kassim Ballard, Plaintiff-Appellant, Cross-Appellee, and Dorothy J. Wilkes and Edna Reid, Co-personal Representatives of the Estate of Anthony Deon Wilkes, Plaintiffs, v. YPSILANTI TOWNSHIP, Defendant-Appellee, Cross-Appellant, and Joann Brinker and Dave Cooper, Defendants. Sheniece BALLARD, Personal Representative of the Estate of Kassim Ballard, Plaintiff, and Dorothy J. Wilkes and Edna Reid, Co-personal Representatives of the Estate of Anthony Deon Wilkes, Plaintiffs-Appellants, Cross-Appellees, v. YPSILANTI TOWNSHIP, Defendant-Appellee, Cross-Appellant, and Joann Brinker and Dave Cooper, Defendants. Calendar |
| Court | Michigan Supreme Court |
Sommers, Schwartz, Silver & Schwartz, P.C. by Patrick Burkett, Southfield, for plaintiff-appellant Ballard.
Law Offices of Joseph DeVal Welton by Joseph DeVal Welton, Detroit, and Alvin L. Keel, Pontiac, for plaintiff-appellant Wilkes.
Garan, Lucow, Miller, Seward & Becker, P.C. by Rosalind Rochkind and Thomas F. Myers, Detroit, for defendant-appellee cross-appellant Ypsilanti Township.
Plunkett & Cooney, P.C. by Christine D. Oldani and Mary Massaron Ross, Detroit, amicus curiae, for Michigan Municipal League & Michigan Townships Association.
We granted leave to appeal in this case to determine the effect of the recreational land use act (RUA), M.C.L. § 300.201; M.S.A. § 13.1485, on the governmental tort liability act (GTLA), M.C.L. § 691.1407(1); M.S.A. § 3.996(107)(1). The plaintiffs' decedents drowned while wading in a man-made lake in a township park.
Specifically, we are asked to decide if the recreational land use act creates an exception to the governmental immunity created by the GTLA. We hold that the act was not intended to waive the state's immunity from liability and does not create an exception to governmental immunity. Therefore, we affirm the result reached by the Court of Appeals, but for different reasons.
The Court of Appeals summarized clearly the tragic events giving rise to this action:
On July 4, 1991, plaintiffs' decedents, Kassim Ballard, age eleven, and Anthony Wilkes, age twelve, were taken with a group of boys to Ford Lake Park in Ypsilanti by two adults, Haratio Blacksher and Veronica Mitchell. Although Mitchell told the boys not to go swimming, Blacksher allowed them to go into the water. The boys were nonswimmers. Ballard was in the water about ten to twelve feet out when he lost his footing. Wilkes went to help him and they both struggled. Blacksher went into the lake. All three went under. Blacksher emerged, but the boys drowned.
Off the shore of the lake where the boys drowned, the water was twenty to twenty-four inches deep for a length of about twelve feet. At that point, the water turned mucky and the depth dropped to 3 1/2 feet. At thirteen feet from the shore, the water was six feet deep. Defendant township runs Ford Lake Park. A 1983 study of the lake noted the existence of hazardous drop-offs. [216 Mich.App. 545, 546-547, 549 N.W.2d 885 (1996).]
The boys' estates sued Ypsilanti Township and two park caretakers individually. The trial court denied Ypsilanti's motions for summary disposition based on governmental immunity, and allowed the case to go to a jury. The jury awarded $1 million to Ballard's estate, and $400,000 to Wilkes' estate reduced by twenty-five percent for comparative fault. The trial court denied motions for judgment notwithstanding the verdict and new trial.
The Court of Appeals reversed, holding that the township was immune from liability. The panel held that the GTLA controlled because it had been more recently enacted than the recreational land use act. It reasoned that the Legislature was aware of the recreational land use act, but did not make an exception for it. Hence, it did not intend to waive the state's immunity from liability.
Plaintiffs raise a question of law, which we review de novo. Cardinal Mooney High School v. Michigan High School Athletic Ass'n, 437 Mich. 75, 80, 467 N.W.2d 21 (1991).
There are two statutes at issue in this case. First is the GTLA, which provides a broad grant of governmental immunity, subject to several statutory exceptions. The second is the recreational land use act, which limits landowner liability, except in cases of gross negligence or wilful and wanton misconduct. The issue before the Court is whether the recreational land use act applies to government-owned lands in such a way as to subject the township to liability for its wilful and wanton behavior.
The term "governmental immunity" derives from "sovereign immunity," and although the two are often used interchangeably, they are not synonymous. Sovereign immunity refers to the immunity of the state from suit and from liability, while governmental immunity refers to the similar immunities enjoyed by the state's political subdivisions. Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 596-597, 363 N.W.2d 641 (1984). 1 In the present case, although governmental immunity is at issue because plaintiffs seek to hold a township liable, there is no reason to distinguish sovereign immunity. The recreational land use act does not provide different standards for the state and its political subdivisions.
From the time of its creation, Michigan has enjoyed sovereign immunity, because "the state, as creator of the courts, was not subject to them or their jurisdiction." Id. at 598, 363 N.W.2d 641. This immunity is waived only by legislative enactment. In early times, one seeking to recover against the state would have to obtain a waiver of immunity from suit from the Legislature. Id. Later, as the number of claims increased to where legislative attention to each became unwieldy, the Legislature waived immunity from suit by creating various agencies to deal with the claims. Id. at 598-600, 363 N.W.2d 641.
In 1964, the Legislature codified common-law sovereign immunity to liability and put all then-existing legislative exceptions in one place by enacting the governmental tort liability act. M.C.L. § 691.1401(1) et seq.; M.S.A. § 3.996(101) et seq. The GTLA states in part:
Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. [M.C.L. § 691.1407(1); M.S.A. § 3.996(107)(1).]
By the "[e]xcept as otherwise provided in this act" language, the GTLA proclaims to contain all exceptions to governmental immunity. While the GTLA does contain several of those exceptions, others exist outside the act. This is so because the Legislature, in enacting a law, cannot bind future Legislatures. Malcolm v. East Detroit, 437 Mich. 132, 139, 468 N.W.2d 479 (1991), citing Harsha v. Detroit, 261 Mich. 586, 246 N.W. 849 (1933). As a result, it remains free to amend or abolish governmental immunity by creating exceptions to it, either within the GTLA, or in the context of another statute.
In the present case, plaintiffs brought suit against Ypsilanti Township under the recreational land use act, and the township responded by asserting governmental immunity under the GTLA. Plaintiffs argue that the defense of governmental immunity from liability must fail because the recreational land use act is one of the statutorily created exceptions to GTLA immunity.
The issue whether the recreational land use act creates a statutory exception to governmental immunity is one of first impression. In the past we have examined the meaning, history, and purpose of the recreational land use act. However, we have reserved opinion, until today, on whether it creates liability for a political subdivision of the state. 2
Before we reach the merits of the governmental immunity defense, we first respond to plaintiff Ballard's argument that the township waived that defense in the present case.
Plaintiff Ballard argues that defendant waived its defense of governmental immunity essentially by admission. To establish the waiver, she quotes the following passage from one of defendants' briefs:
In an effort to convince the Court that the township waived the defense of governmental immunity, plaintiff Ballard has chosen to take the quoted material out of context. The "cloak of immunity" to which defendant referred was that provided by the recreational land use act, not the GTLA. In the sentences preceding the quoted language, it is clear that defendant is referring to the immunity from liability for negligence granted by the recreational land use act. It is not referring to governmental immunity under the GTLA.
Plaintiff Ballard also asserts as error the failure of the Court of Appeals to address this issue. We assume that the Court of Appeals did not respond to plaintiff's waiver argument for the same reason we find the argument unpersuasive: it is without merit. Defendant did not waive its defense of governmental immunity, but raised the defense in its answer and has continued to raise it at each level, including in its brief and argument before this Court.
Plaintiff Wilkes also raises an argument which, if successful, would make it unnecessary for us to weigh the merits of the immunity analysis as between the two statutes. Plaintiff argues that there is a judge-made exception to GTLA immunity for suits under the recreational land use...
To continue reading
Request your trial
-
Studier v. MPSERB, Docket No. 125765
...Communications Comm., 192 U.S.App. D.C. 448, 459, 593 F.2d 1102 (1978); Mirac, supra at 430, 685 N.W.2d 174; Ballard v. Ypsilanti Twp., 457 Mich. 564, 569, 577 N.W.2d 890 (1998). 21. Nat'l R., supra at 467, 105 S.Ct. 22. It is clear that the Legislature can use such nomenclature when it wis......
-
County Rd. Ass'n Of Mich. v. Governor
...of sovereign immunity. The question whether an entity has immunity is one of law, which we review de novo. Ballard v. Ypsilanti Twp., 457 Mich. 564, 567, 577 N.W.2d 890 (1998). Michigan Courts have long recognized that “[t]he State, as sovereign, is immune from suit save as it consents to b......
-
Rott v. Rott
...land to make their land available to the public[.]" Neal , 470 Mich. at 666, n. 6, 685 N.W.2d 648. See also Ballard v. Ypsilanti Twp. , 457 Mich. 564, 576-577, 577 N.W.2d 890 (1998) ("The [RUA] passed in 1953 in response to fears that potential negligence liability would discourage property......
-
Hannay v. Dep't of Transp. Hunter
...Id. at 376–377, 835 N.W.2d 545.24 MCR 2.116(C)(10).25 Bradley Estate, 494 Mich. at 376, 835 N.W.2d 545.26 Ballard v. Ypsilanti Twp., 457 Mich. 564, 567, 577 N.W.2d 890 (1998).27 Id. at 567–568, 577 N.W.2d 890.28 Bradley Estate, 494 Mich. at 377–378, 835 N.W.2d 545.29 Id. at 377–378, 835 N.W......