Beauchamp v. Saginaw Tp.

• Decision Date: 02 March 1977
• Docket Number: Docket No. 26654
• Citation: 253 N.W.2d 355,74 Mich.App. 44
• Parties: Thomas BEAUCHAMP and Betty Beauchamp, Plaintiffs-Appellants, v. SAGINAW TOWNSHIP, a Municipal Corporation, Defendant-Appellee. 74 Mich.App. 44, 253 N.W.2d 355
• Court: Court of Appeal of Michigan — District of US

Page 355

253 N.W.2d 355

Thomas BEAUCHAMP and Betty Beauchamp, Plaintiffs-Appellants, v. SAGINAW TOWNSHIP, a Municipal Corporation,

Defendant-Appellee.

Docket No. 26654.

74 Mich.App. 44, 253 N.W.2d 355

Court of Appeals of Michigan.

March 2, 1977.

Released for Publication May 25, 1977.

[74 MICHAPP 45] VanBenschoten & VanBenschoten, by Harvey E. VanBenschoten, Saginaw, for plaintiffs-appellants.

William A. Crane, J. Michael Fordney, Saginaw, for defendant-appellee.

Before GILLIS, CAVANAGH and D. E. HOLBROOK, Jr., JJ.

GILLIS, Presiding Judge.

Plaintiff Thomas Beauchamp ¹ was employed by Anklam Construction Company (hereinafter referred to as Anklam) as a laborer and pipelayer. Anklam had entered into a contract with Saginaw Township (the defendant in this case), a municipal corporation, to construct a sewer system in the undeveloped northeast section of the township. On the morning of August 28, 1973, plaintiff was engaged in laying sewer tiles in a trench being dug by an excavating crane operated by another employee of Anklam. The crane operator, in lowering the excavating bucket into [74 MICHAPP 46] the trench, accidentally caused the bucket to strike plaintiff in the head, neck and shoulder area. As a result of this blow, plaintiff was severely injured and is now a quadriplegic, permanently paralyzed from the neck down.

On August 28, 1975, plaintiffs filed a complaint against defendant municipality alleging that defendant had maintained control over the construction of the sewer system, that the construction was inherently dangerous, and that defendant negligently failed to provide plaintiff with a safe place to work, failed to require safe working procedures and equipment, and failed to warn plaintiff of the danger inherent in the work. Defendant filed a motion for accelerated and/or summary judgment ² claiming that by virtue of Michigan's governmental immunity statute, M.C.L.A. § 691.1401 et seq.; M.S.A. § 3.996(101) et seq., it is immune from liability. The trial court granted defendant's motion. Plaintiff appeals as of right. He argues that defendant is not immune. ³

M.C.L.A. § 691.1407; M.S.A. § 3.996(107) provides:

"Except as in this act otherwise provided, 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. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity [74 MICHAPP 47] of the state from tort liability as it existed heretofore, which immunity is affirmed."

Recently, the Michigan Supreme Court has had occasion to apply and interpret the above statute. As of this date, we have been presented with three of these decisions. ⁴ These three cases contain within them eleven separate opinions. Justice Williams has summarized the general consensus to be that "the test of whether a governmental agency can claim immunity under the statute is whether the specific activity alleged against the governmental defendant falls within 'the exercise or discharge of a governmental function' ". Galli v. Kirkeby, 398 Mich. 527, 536, 248 N.W.2d 149, 152 (1976), Opinion by Williams, J. Our inquiry thus becomes, is the construction of a sewer by a municipal corporation activity in discharge of a governmental function?

The majority opinion in Thomas v. State Highway Department, 398 Mich. 1, 247 N.W.2d 530 (1976), generally defined "governmental function" as:

"a term of art which has been used by the courts of this state to describe those activities of government which due to their public nature should not give rise to liability at common law." 398 Mich. at 9, 247 N.W.2d at 532.

In utilizing that definition a majority of our Supreme Court agrees that maintenance and improvement of a highway is a governmental function, Thomas v. State Highway Department, supra, the malicious activity of state hospital employees in discouraging plaintiff's customers from doing business with his newspaper is not activity [74 MICHAPP 48] within the exercise of a governmental function, McCann v. Michigan, 398 Mich. 65, 247 N.W.2d 521 (1976), and screening, hiring and supervision of school personnel are governmental functions, Galli v. Kirkeby, supra.

We have been instructed that in making determinations of whether a given activity is or is not a governmental function we should analyze the given situations on a case by case basis. Our tools include the available case law, and, when the same is not clear, we are to utilize our "own creative genius" in adapting the case law to resolve the problem at hand. Thomas v. State Highway Department, supra, 398 Mich. at 11, 247 N.W.2d 530. Our examination, analysis and resolution follow.

It developed historically that cities operated under one of two personalities. The municipality when acting as an arm of the state possessed a "public" character, but when acting for the concerns of the citizenry of the city it was functioning within its "private" personality. This public versus private analysis was utilized in evaluating questions of municipal tort immunity. If wearing the public hat, the municipal corporation was said to be performing governmentally and was immune from tort liability as was the state. On the other hand, if the activity was for the benefit of the peculiar locality, then the municipal corporation was deemed equivalent to a private corporation. See, e. g., Board of Commissioners v. Common Council, 28 Mich. 228, 15 A.R. 202 (1873), Barron v. Detroit, 94 Mich. 601, 54 N.W. 273 (1893), Gilboy v. Detroit, 115 Mich. 121, 73 N.W. 128 (1897). Additionally, the city as an owner of property was regarded as a private concern. People v. Hurlbut, 24 Mich. 44, 9 A.R. 103 (1871). It was from this theory that our Supreme Court affirmed a damage award to a [74 MICHAPP 49] plaintiff who had fallen into a sewer ditch being dug on a city street. They stated:

"The sewers of the city, like its works for supplying the city with water, are the private property of the city they belong to the city. The corporation and its corporators, the citizens, are alone interested in them the outside public or people of the state at large have no interest in them, as they have in the streets of the city, which are public highways." Detroit v. Corey, 9 Mich. 165, 184, 80 AR 78 (1861).

In Ostrander v. Lansing, 111 Mich. 693, 70 N.W. 332 (1897), the Court cited Corey and reiterated that sewer construction is a private municipal enterprise rather than a governmental function.

With the advent of extensive "home rule" legislation this public, private dichotomy of municipal tort liability was refined. Cities developed an immunity of their own and were excluded from liability "when the function exercised was for the exclusive benefit of the local public, without private advantage or emolument to the corporation." Hodgins v. Bay City, 156 Mich. 687, 692, 121 N.W. 274, 276 (1909). The focus shifted from a question of the locality of the function and the recipients thereof to a question of the nature of the operation and profit derived therefrom. The cases are confusing; in one situation finding liability due to an incidental profit arising from the activity, Foss v. Lansing, 237 Mich. 633, 212 N.W. 952 (1927), while in another situation finding immunity if the profit is incidental to the main purpose of the exercised function, Johnson v. Board of County Road Commissioners, 253 Mich. 465, 235 N.W. 221 (1931). Cooperrider, The Court, the Legislature, and Governmental Tort Liability in Michigan, 72 Mich.L.Rev. 187, 229-237 (1973). One could break down the [74 MICHAPP 50] fact situations presented in the available cases, dissect their own factual components, and then determine which analysis better applies to the facts in question in order to reconcile and distinguish the seeming inconsistencies among the precedents. Rather than partake in the painful task of separating, distinguishing, applying, analyzing and reanalyzing, suffice it to say that the present message seems to thrust on the purpose of the engaged-in activity rather than on the result (profit). ⁵

" 'The underlying test is whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit. If it is, there is no liability; if it is not, there may be liability. That it may be undertaken voluntarily and not under compulsion of statute is not of consequence.' Gunther v. Cheboygan County Road Commissioners, 225 Mich. 619; (196 N.W. 386, 387 (1923)), Johnson v. Ontonagon County Road Commissioners, 253 Mich. 465; (235 N.W. 221 (1931)), Daszkiewicz v. Detroit Board of Education, 301 Mich. 212; (3 N.W.2d 71 (1942))." Martinson v. Alpena, 328 Mich. 595, 598, 44 N.W.2d 148, 149 (1950). Cited with approval in McCann v. Michigan, supra, 398 Mich. at 79, 247 N.W.2d 521.

It is true that sewers have consistently been grouped on the private side of the public, private dichotomy. Sewers were originally constructed and maintained by the city as a business enterprise, Cooperrider, supra, at 229, and thought of as a [74 MICHAPP 51] strictly local concern with the remainder of the state having no interest at all in their...