Boulet By Boulet v. Brunswick Corp.

• Decision Date: 05 August 1983
• Docket Number: Docket No. 61773
• Citation: 126 Mich.App. 240,336 N.W.2d 904,12 Ed. Law Rep. 952
• Parties: David BOULET, By His Next Friend, Laurent BOULET, and Laurent Boulet, Individually, Plaintiffs-Appellants, v. BRUNSWICK CORPORATION, Defendant, and Lawrence Kaye and Mel Anderson, Defendants-Appellants. 126 Mich.App. 240, 336 N.W.2d 904, 12 Ed. Law Rep. 952
• Court: Court of Appeal of Michigan — District of US

Page 904

336 N.W.2d 904

David BOULET, By His Next Friend, Laurent BOULET, and Laurent Boulet, IndividuallyPlaintiffs-Appellants, v.BRUNSWICK CORPORATION, Defendant and Lawrence Kaye and Mel Anderson, Defendants-Appellants.

Docket No. 61773.

126 Mich.App. 240, 336 N.W.2d 904, 12 Ed. Law Rep. 952

Court of Appeals of Michigan.

Submitted Oct. 14, 1982.

Decided June 6, 1983.

Released for Publication Aug. 5, 1983.

[126 MICHAPP 243]Frimet, Bellamy, Gilchrist & Lites, P.C. by Frederick B. Bellamy and Dan Ellis Champney, Detroit, for plaintiffs-appellants.

Ogne, Jinks, Ecclestone & Alberts, P.C. by Wayne L. Ogne and Bryan Cermak, Troy, for Lawrence Kaye and Mel Anderson.

Before T.M. BURNS, P.J., and V.J. BRENNAN and WAHLS, JJ.

V.J. BRENNAN, Judge.

The facts are set forth in the dissenting opinion.The sole issue for our consideration is whether the trial court erred in granting defendantsLawrence Kaye and Mel Anderson's motion for summary judgment on the basis that they were immune from suit because of governmental immunity.M.C.L. Sec. 691.1407;M.S.A. Sec. 3.996(107).

We find no error on the part of the trial court.A public school in the operation of its athletic program, including the administration and supervision of a football program, is entitled to governmental immunity.Churilla v. East Detroit School Dist., 105 Mich.App. 32, 306 N.W.2d 381(1981).Further, teachers and supervisors of the programs are entitled to governmental immunity when they have performed their duties within the scope of their employment.Regulski v. Murphy, 119 Mich.App. 418, 326 N.W.2d 528(1982).A physical education[126 MICHAPP 244] program, as part of the general curriculum or as an extracurricular activity, is in furtherance of and an integral part of the total public education provided to students.While we recognize that there are football programs that exist through private organizations, we find that this fact alone does not preclude a finding that a public school or its teachers are entitled to governmental immunity in cases such as the present one where a football program is offered by a school that is otherwise entitled to governmental immunity where other programs are involved.In Parker v. Highland Park, 404 Mich. 183, 200, 273 N.W.2d 413(1978), Justice Moody noted that, "it would be incongruous to find that the operational activities of some public agencies are other than governmental.Likewise, conceivably there could be essential governmental activity which would have some common analogy in the private sector."We find that even though a football program could be administered and provided for by the private sector, when these programs are provided as part of a public school education, the school, teachers and supervisors are entitled to governmental immunity.Grames v. King, 123 Mich.App. ---, 332 N.W.2d 615(1983).

Affirmed.

WAHLS, J., concurs.

T.M. BURNS, Presiding Judge, dissenting.

Football is a governmental activity?Were defendants Kaye and Anderson making a governmental decision when they decided to send plaintiffDavid Boulet into a junior varsity high school football game?Does Detroit Lions head coach Monte Clark make a quasi-governmental decision when he decides to put a reserve into a game?For some reason that I [126 MICHAPP 245] cannot fathom, the majority in this case along with the majority in Churilla v. East Detroit School Dist., 105 Mich.App. 32, 306 N.W.2d 381(1981), and the panel in Grames v. King, 123Mich.App. ---332 N.W.2d 615(1983)¹ seem to think so.Because it stretches governmental immunity to absurd lengths, I cannot join the majority opinion.

On December 14, 1981, the trial court issued an order granting defendantsLawrence Kaye and Mel Anderson's motion for summary judgment.GCR 1963, 117.2(1).Plaintiffs appeal as of right.

This marks the third time this case appears before this Court.The first appeal concerned venue.107 Mich.App. 589, 309 N.W.2d 680(1981).The second appeal concerned plaintiffs' motion to amend the complaint to add the Warren Woods School District and Schutt Manufacturing Company as partiesdefendant.This Court issued an order granting the motion to amend on January 22, 1982.This appeal deals with the following facts.

PlaintiffDavid Boulet received a serious neck injury rendering him a quadriplegic on October 19, 1978, while participating in a junior varsity football game for Warren Woods High School.DefendantLawrence Kaye was the head coach at the time; defendantMel Anderson was the assistant coach.DefendantBrunswick Corporation had manufactured the helmet worn by David when he was injured.

Eventually, plaintiffs sued Kaye and Anderson alleging that they had failed to properly supervise, instruct and train David Boulet to participate in the football program and that such failure proximately caused the injury.The trial judge granted [126 MICHAPP 246]the summary judgment motion ruling that Kaye and Anderson were protected from tort liability by governmental immunity.M.C.L. Sec. 691.1407;M.S.A. Sec. 3.996(107).

Under the present test for determining whether or not governmental immunity protects an individual or an entity, we ask first whether or not the particular activity is a governmental function and then whether or not the activity falls within the exercise or discharge of that governmental function.McCann v. Michigan, 398 Mich. 65, 247 N.W.2d 521(1976).The definition of what constitutes a governmental function has changed a number of times over the last several decades.In the past few years, however, the starting point has been Parker v. Highland Park, 404 Mich. 183, 273 N.W.2d 413(1978).There, three justices adopted the traditional common law "common good" definition for determining what is a governmental function.Three other justices applied a far more restrictive "essence of governing" test.Because of this split, this Court has used the late Justice MOODY's middle approach:

"To delineate a complete and balanced definition of governmental function within a simplistic format would be presumptuous.However, as 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. at 200, 273 N.W.2d 413.

Presently, the law in this state recognizes that a [126 MICHAPP 247] public school's operations constitute a governmental function.Bush v. Oscoda Area Schools, 405 Mich. 716, 275 N.W.2d 268(1979);Lee v. Highland Park Sch. Dist., 118 Mich.App. 305, 324 N.W.2d 632(1982);Belmont v. Forest Hills Public Schools, 114 Mich.App. 692, 319 N.W.2d 386(1982);Bokano v. Wayne-Westland Community Schools, 114 Mich.App. 79, 318 N.W.2d 613(1982);Everhart v. Roseville Community Schools Bd. of Ed., 108 Mich.App. 218, 310 N.W.2d 338(1981).But even if the school district itself is usually immune, we must still focus on the relevant particular activity to determine whether or not it is a governmental function protected by governmental immunity: "We are of the opinion that every activity carried out by a school system would not automatically be entitled to governmental immunity".Cobb v. Fox, 113 Mich.App. 249, 255, 317 N.W.2d 583, 586(1982).Furthermore, this Court noted in Weaver v. Duff Norton Co., 115 Mich.App. 286, 292, 320 N.W.2d 248(1982): "In determining whether a particular governmental activity is a governmental function, this Court is constrained to focus on the precise activity giving rise to a plaintiff's claim, rather than overall or principal departmental operations".

I simply cannot believe that the operation of an extracurricular football program by a public high school fits within Justice MOODY's "effectively accomplished only by the government" test for governmental immunity.Football is not a part of education qua education.SeeGaston v. Becker, 111 Mich.App. 692, 697, 314 N.W.2d 728(1981).Football itself is by no means essential to a school's operation.Numerous schools do not have football programs.In fact, extra-curricular activities like football often seem to be among the first budget cutbacks whenever a school district loses a millage [126 MICHAPP 248] election.Furthermore, we note that many private schools have football programs.

Judge BRONSON, dissenting in Churilla, supra, found that an extracurricular football program is not "of the essence of government" as defined by Justice MOODY:

"I believe that an extracurricular football program is simply not of a uniquely governmental character or precipitated by governmental mandate.While MCL 380.1502;MSA 15.41502 mandates 'health and physical education' in the public schools, it does not require the maintenance of extracurricular athletic activities.[ ²] There is nothing uniquely governmental in the function of staging competitive athletic events.I also reject the idea that holding school districts liable for the negligent operation of a football program constitutes 'an unacceptable interference with government's ability to govern'.

"Nor do I believe a football program like the one in question here can only be accomplished through the government.It is true that the majority of football programs for high school-aged participants are run through schools, and that Justice MOODY considered the fact that private general hospitals exceeded...