Bauer v. City of Garden City

• Decision Date: 24 November 1987
• Docket Number: Docket No. 89028
• Citation: 414 N.W.2d 891,163 Mich.App. 562
• Parties: Helen BAUER, Plaintiff-Appellee, Cross-Appellant, v. CITY OF GARDEN CITY, Defendant-Appellant, Third-Party Plaintiff, Cross-Appellee, and DT & T Corporation, Third-Party Defendant. 163 Mich.App. 562, 414 N.W.2d 891
• Court: Court of Appeal of Michigan — District of US

Page 891

414 N.W.2d 891

Helen BAUER, Plaintiff-Appellee, Cross-Appellant, v. CITY OF GARDEN CITY, Defendant-Appellant, Third-Party Plaintiff, Cross-Appellee and DT & T Corporation, Third-Party Defendant.

Docket No. 89028.

163 Mich.App. 562, 414 N.W.2d 891

Court of Appeals of Michigan.

Submitted April 15, 1987.

Decided May 20, 1987.

Released for Publication Nov. 24, 1987.

[163 MICHAPP 564] Bockoff & Zamler, P.C. by John J. Futchko, Southfield, for plaintiff-appellee, cross-appellant.

Cummings, McClorey, Davis & Acho, P.C. by Suzanne P. Walworth, Livonia, for defendant-appellant, third-party plaintiff, cross-appellee.

Before J.H. GILLIS, P.J., and BEASLEY and SAWYER, JJ.

PER CURIAM.

Plaintiff, Helen Bauer, filed this action for damages in the Wayne Circuit Court on April 27, 1982, claiming that she injured herself when she fell in a shopping center parking lot and that ice and snow on the surface of the lot caused the fall and, thereby, the injury. The lot was owned by defendant, City of Garden City. On March 7, 1984, the trial court granted defendant city's motion for summary judgment. This Court reversed that decision in Bauer v. Garden City, ¹ a case decided on December 3, 1984, remanding the case to the trial court. Defendant city neither filed a motion for rehearing nor applied for leave to appeal to the Supreme Court. Less than four weeks after this Court's decision, however, the Supreme Court decided Ross v. Consumers Power Co. (On Rehearing). ² Defendant subsequently moved for summary disposition on grounds that it [163 MICHAPP 565] was governmentally immune under Ross. The trial Court denied that motion in an order filed November 12, 1985. This Court granted defendant's application for leave to appeal, and plaintiff subsequently brought a cross-appeal.

Defendant's position on appeal is that it was governmentally immune under Ross for the reason that it was engaging in a governmental function. Plaintiff denies this and further argues that defendant's appeal is barred by the doctrine of law of the case. In her cross-appeal, plaintiff argues that defendant's failure to timely assert governmental immunity as an affirmative defense constitutes a waiver of that issue. We discuss plaintiff's cross-appeal first, because a decision in plaintiff's favor on that issue would obviate the issues raised in defendant's appeal.

Plaintiff's cross-appeal is based largely on the following language from MCR 2.111(F):

"(2) Defenses Must Be Pleaded; Exceptions. A party against whom a cause of action has been asserted by complaint, cross-claim, counterclaim, or third-party claim must assert in a responsive pleading the defenses the party has against the claim. A defense not asserted in the responsive pleading or by motion as provided by these rules is waived, except for the defenses of lack of jurisdiction over the subject matter of the action, and failure to state a claim on which relief can be granted....

"(3) Affirmative Defenses. Affirmative defenses must be stated in a party's responsive pleading. Under a separate and distinct heading, a party must state the facts constituting

"(a) an affirmative defense, such as contributory negligence; assumption of risk; payment; release; satisfaction; discharge; license; fraud; duress; estoppel; statute of frauds; statute of limitations; immunity granted by law; want or failure of consideration[163 MICHAPP 566] ; or that an instrument or transaction is void, voidable, or cannot be recovered on by reason of statute or non-delivery...."

Plaintiff contends that defendant had failed to assert an affirmative defense, to wit, "immunity granted by law," in a timely fashion and so has waived it. Plaintiff is mistaken, however, about the nature of governmental immunity. In Hyde v. Univ. of Michigan Bd. of Regents, ³ the Supreme Court specifically held that plaintiffs bear the burden of pleading facts in their complaints which would justify a finding that recovery in their tort cause of action is not barred by governmental immunity. The Court reasoned that unlike other claims of immunity, sovereign and governmental immunity are not affirmative defenses, but characteristics of government which prevent imposition of tort liability. For this reason, defendant city did not waive governmental immunity by not pleading it in its responsive pleadings. We now turn to the issues in defendant's appeal.

Both parties cite the following passage from Ross as controlling on the question of whether the operation of the parking lot constituted a governmental function, thus rendering defendant immune:

"We therefore conclude that a governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law. When a governmental agency engages in mandated or authorized activities, it is immune from tort liability, unless the activity is proprietary in nature (as defined in Sec. 13) or falls within one of the other statutory exceptions[163 MICHAPP 567] to the governmental immunity act. Whenever a governmental agency engages in an activity which is not expressly or impliedly mandated or authorized by constitution, statute, or other law (i.e., an ultra vires activity), it is not engaging in the exercise or discharge of a governmental function. The agency is therefore liable for any injuries or damages incurred as a result of its tortious conduct." (Footnote omitted.) ⁴

Defendant cites, as its statutory mandate for maintaining a parking lot, the following passage from M.C.L. Sec. 117.4h; M.S.A. Sec. 5.2081:

"Each city may in its charter provide:

* * *

"(6) For the acquiring, establishment, operation, extension and maintenance of facilities for the storage and parking of vehicles within its corporate limits, including the fixing and collection of charges for services and use thereof on a public utility basis, and for such purpose to acquire by gift, purchase, condemnation or otherwise the land necessary therefor."

Defendant also points to Sec. 1.03 of its charter, giving it "all powers possible for a city to have under the constitution and laws of this state as fully and completely as though they were specifically enumerated in the Charter." In addition, the various ordinances in Chapter 98 of defendant's charter extensively regulate parking lots. Section 98.23 goes so far as to state that the policy of the city is to provide handicapper parking spaces in "any municipal parking area."

Plaintiff argues that, while these statutes and ordinances may permit the city to operate a parking lot, they do not expressly mandate or require [163 MICHAPP 568] such operation. For this reason, plaintiff says, the operation of the parking lot is not a governmental function under the above quoted language in Ross, so that defendant is not governmentally immune.

A similar argument was raised by the plaintiff in Hyde, supra, who said that the particular types of routine medical care provided by public general hospitals were not authorized by statute or other law. The Supreme Court responded:

"Plaintiff has misperceived how the Ross definition of 'governmental function' should be applied. It is not necessary that there be a specific statutory provision mandating or authorizing a hospital to set bones or deliver babies. Such an interpretation would emasculate the governmental immunity act and Ross, as well as result in a proliferation of unnecessarily detailed legislation. Ross only requires that there be some constitutional, statutory, or other legal basis for the activity in which the governmental agency was engaged when the alleged tort was committed. The governmental immunity act, as interpreted by Ross, permits imposition of tort liability upon a governmental agency only where the agency was engaged in an ultra vires activity, i.e., an activity which is not expressly or impliedly mandated or authorized by constitution, statute, or other law. Ross, [420 Mich.] p. 620 ." (Emphasis added.) ⁵

Consistent with the Ross mandate that a governmental function be broadly defined to encompass most activities of government and because defendant's charter provision giving defendant "all powers possible for a city to have under the constitution and laws of this state" incorporated by reference the parking facility language in M.C.L. Sec. 117.4h; M.S.A. Sec. 5.2081, defendant's operation of the parking lot was a governmental function.

[163 MICHAPP 569] Plaintiff argues, however, that the doctrine of the law of the case bars defendant's appeal on this issue. That doctrine, as restated by the Supreme Court in C.A.F. Investment Co. v. Saginaw Twp., ⁶ establishes the following rule: "[I]f an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same." It is an old doctrine in Michigan, going back at least to 1877. ⁷

In particular, plaintiff argues that the following language, near the end of this Court's earlier decision on the prior appeal of this case, establishes the law of the case:

"Defendant raises no defense on governmental immunity. In any event, we do not view ownership of a shopping center parking lot as a 'governmental function'. MCL 691.1407; MSA 3.996(107). We hold that the city, as the owner of a commercial parking lot, owed plaintiff a duty of reasonable care." ⁸

Defendant points out that the bulk of this Court's earlier decision was a determination whether the rule of "natural accumulation" applied to the situation described in the complaint. This, indeed, was the basis of the trial court's decision granting summary judgment prior to the first appeal. Defendant says that this Court did not actually decide that issue because that issue was not before us. We disagree. Plaintiff asserts, and defendant does not deny, that plaintiff argued the [...