Bokano v. Wayne-Westland Community Schools

• Decision Date: 04 May 1982
• Docket Number: WAYNE-WESTLAND,Docket No. 54072
• Parties: Linda BOKANO, Plaintiff-Appellant, v.COMMUNITY SCHOOLS, Defendant-Appellee. 114 Mich.App. 79, 318 N.W.2d 613, 3 Ed. Law Rep. 1101
• Court: Court of Appeal of Michigan — District of US

Page 613

318 N.W.2d 613

Linda BOKANO, Plaintiff-Appellant, v. WAYNE-WESTLAND COMMUNITY SCHOOLS, Defendant-Appellee.

Docket No. 54072.

114 Mich.App. 79, 318 N.W.2d 613, 3 Ed. Law Rep. 1101

Court of Appeals of Michigan.

Submitted Oct. 8, 1981.

Decided March 4, 1982.

Released for Publication May 4, 1982.

[114 MICHAPP 81] Goodman, Eden, Millender & Bedrosian, Detroit, for plaintiff-appellant.

Garan, Lucow, Miller, Seward, Cooper & Becker, P. C., Detroit, for defendant-appellee; Gromek, Bendure & Thomas, Detroit, of counsel.

Before DANHOF, C. J., and WALSH and RILEY, JJ.

PER CURIAM.

Plaintiff brought this action against defendant to recover for injuries suffered in a power press accident at L & W Engineering. The trial court granted summary judgment, GCR 1963, 117.2(1), for the defendant on the basis of governmental immunity.

In her complaint, plaintiff alleges that defendant's agent was negligent in sending her to L & W Engineering for a part-time job without adequately investigating the work conditions, safety procedures, job difficulty and new employee training program.

Plaintiff was, at the time of the accident, a student in the defendant school. She has a low IQ and was 18 years of age when she was injured. Prior to the accident, plaintiff had used the assistance of defendant's work studies coordinator to obtain employment in a nursing home and later in a city recreation department. Plaintiff received school credit for her work at these previous jobs but not the one at L & W Engineering. Plaintiff was not in a "work study" or a "cooperative" job [114 MICHAPP 82] placement program when defendant's agent found her employment with L & W Engineering. ¹ Instead, she was in an employment program made available by defendant called the "work experience program". ² The purpose of this type of employment was remuneration and work experience with a coincidental learning purpose.

The issue on appeal is whether a school district is engaged in the exercise of a governmental function, for purposes of governmental immunity, when it assists students in finding jobs when the primary purpose of these jobs is not a learning experience.

The starting point, for any inquiry into whether a defendant is governmentally immune, is two Supreme Court cases decided in 1978. Parker v. Highland Park, 404 Mich. 183, 273 N.W.2d 413 (1978); Perry v. Kalamazoo State Hospital, 404 Mich. 205, 273 N.W.2d 421 (1978). Parker involved [114 MICHAPP 83] the operation of a municipal general hospital and Perry involved the operation of a state mental hospital. Applying the "of essence to governing" test, Justices Kavanaugh, Fitzgerald and Levin found the operation of both a municipal general hospital (Parker) and a state mental hospital (Perry) not to be a governmental function and therefore not entitled to tort immunity. 404 Mich. 183, 194-195, 273 N.W.2d 413, 404 Mich. 205, 215, 273 N.W.2d 421.

Justices Williams, Coleman and Ryan, on the other hand, adhered to the traditional "common good of all" test for identifying a governmental function and found the operation of each hospital to be a governmental function and therefore entitled to immunity. 404 Mich. 183, 204, 273 N.W.2d 413, 404 Mich. 205, 213, 273 N.W.2d 421.

The deciding vote in each case was cast by Justice Moody, who found the operation of a municipal general hospital not to be a governmental function but the operation of a state mental hospital to be a governmental function. 404 Mich. 183, 202, 273 N.W.2d 413, 404 Mich. 205, 213, 273 N.W.2d 421.

Justice Moody proposed a "can it be effectively accomplished only by government" test. Feliciano v. Dep't of Natural Resources, 97 Mich.App. 101, 105, 293 N.W.2d 732 (1980). In Parker, Justice Moody stated:

"[A]s a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government's ability to govern, activities that fall outside this perimeter, although performed by a government agency, are not governmental functions and therefore not immune." 404 Mich. 183, 200, 273 N.W.2d 413.

[114 MICHAPP 84] We note that Justice Moody's decisions and his test have been analysized by this Court many times. Churilla v. East Detroit School Dist., 105 Mich.App. 32, 306 N.W.2d 381 (1981); Hoeppner v. Dep't of Labor, 104 Mich.App. 334, 304 N.W.2d 841 (1981); Deaner v. Utica Community School Dist., 99 Mich.App. 103, 297 N.W.2d 625 (1980).

First we must determine, by reference to the degree of government involvement in education, whether the function in question is uniquely served by government. In this regard, it is noteworthy that, of more than two million students enrolled in primary and secondary schools in Michigan, more than ninety percent are enrolled in public schools. Michigan Nonpublic Schools Educational Statistics, Michigan Department of Education, 1978-1979, p. 1. It is readily apparent that the number of public schools far exceeds the number of private schools. Cf., Parker, supra, 404 Mich. at 201, fn. 4, 273 N.W.2d 413. It is equally clear that the number of private schools available to deal with the educational needs of the public is inadequate. See Perry, supra, 404 Mich. at 214, 273 N.W.2d 421. This factor then weighs on the side of immunity for schools.

Turning to the question of public versus private fiscal involvement in the public schools, it should be noted that the Michigan Constitution mandates establishment of "a system of free public elementary and secondary schools". (Emphasis added.) Const. 1963, art. 8, Sec. 2. As a result, the public schools are funded virtually exclusively out of public funds. The fiscal involvement factor clearly indicates that public schools are a governmental function.

We conclude that the day-to-day services provided by teachers and other school employees represent a governmental function. Indeed, in three [114 MICHAPP 85] post-Parker-Perry cases, this Court has held that public schools have governmental immunity. Smith v. Mimnaugh, 105 Mich.App. 209, 306 N.W.2d 454 (1981) (school district immune from liability for failure to provide a safe means of crossing a busy street near the school), Churilla, supra, (school district immune for an injury suffered during practice sessions of the school football team) and Deaner, supra, (school district immune for an injury suffered while wrestling during a physical education class).

Plaintiff in this case argues that it is not enough that the day-to-day operation of a public school is a government function but that the particular activity out of which the injury allegedly arose must be examined and found to be a government function. We agree. This Court must focus on the activity which gave rise to the injury and not just the governmental agency involved. As Justice Moody stated, "the crux of governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by government". Parker, supra, 404 Mich. at 200, 273 N.W.2d 413. (Emphasis added.)

In Churchwell v. Regents of the University of Michigan, 97 Mich.App. 463, 296 N.W.2d 75 (1980), the plaintiff brought a malpractice action against University Hospital. The Court rejected the claim of immunity and said "we must focus on the precise operation sought to be held immune rather than overall or principal departmental operations". Id., 469, 296 N.W.2d 75.

In this case, we do not pass on whether a school district is immune when a student involved in a work study or cooperative program is injured on [114 MICHAPP 86] the job. We focus narrowly on the activity of the defendant, that is, placing students in jobs which do not directly relate to their studies and which have the primary purpose of allowing students to earn money.

The...