Catenaro v. City of Detroit, Docket No. 53634

• Decision Date: 04 May 1982
• Docket Number: Docket No. 53634
• Parties: Angelo CATENARO and Carol Catenaro, Plaintiffs-Appellants, v. CITY OF DETROIT, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 746

321 N.W.2d 746

115 Mich.App. 615

Angelo CATENARO and Carol Catenaro, Plaintiffs-Appellants, v. CITY OF DETROIT, Defendant-Appellee.

Docket No. 53634.

Court of Appeals of Michigan.

Submitted Dec. 1, 1981.

Decided April 23, 1982.

Released for Publication May 4, 1982.

The Jaques Admiralty Law Firm, P.C. by Robert E. Swickle, Detroit, for plaintiffs-appellants.

Kerr, Russell & Weber by Christine E. Moore, Detroit, for defendant-appellee.

Before DANHOF, C. J., and J. H. GILLIS and BRONSON, JJ.

PER CURIAM.

Plaintiffs appeal as of right the trial court's order granting summary judgment to defendant on the basis of governmental immunity.

Plaintiff Angelo Catenaro was an employee of an independent contractor which had contracted with defendant City of Detroit for the replacement of old cast iron water mains with new plastic mains. While working on this project, plaintiff allegedly sustained injuries to his right leg when the walls of a trench in which he was working collapsed.

On September 13, 1976, plaintiffs filed this action alleging breach of a duty to provide a safe place to work and failure to inspect and supervise work activities. The complaint alleged gross negligence, strict liability and maintenance of an inherently dangerous work activity. On May 14, 1980, defendant filed a motion for summary judgment under GCR 1963, 117.2(1), asserting that plaintiffs' claim was barred by governmental immunity. M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107). Defendant's motion was granted by order dated August 29, 1980. Plaintiffs appeal as of right.

M.C.L. Sec. 691.1407; M.S.A. Sec. 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 of the state from tort liability as it existed heretofore, which immunity is affirmed."

In the cases of Parker v. City of Highland Park, 404 Mich. 183, 273 N.W.2d 413 (1978), and Perry v. Kalamazoo State Hospital, 404 Mich. 205, 273 N.W.2d 421 (1978), the Supreme Court in four-to-three decisions announced a new test for determining when a governmental agency is engaged in the exercise or discharge of a governmental function. This modern analysis limits the protective shield of immunity to those activities which are sui generis governmental--of essence to governing.

Justice Moody's specific application of the test has been most often applied in subsequent decisions. Writing separately in Parker, Justice Moody stated:

"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. 183, 200, 273 N.W.2d 413.

Several panels of this Court have applied this standard in the context of government operated water or sewer systems. In Rubino v. Sterling Heights, 94 Mich.App. 494, 290 N.W.2d 43 (1979), we held that the operation of a municipal water system was not a governmental function, noting the following factors:

"Since the government is not the only entity involved in supplying the public with drinking water, it is not an operation that can be effectively accomplished only by the government. The public's demand for water is additionally met by various privately owned companies, property owners' associations, and other entities. The existence of privately run water distribution systems indicates that their maintenance does not necessarily require tax funding; such systems can be supported by the fees charged to users.

"Further, it is significant that citizen participation in a government operated water system is not mandatory. A property owner already receiving water from a private well is not required to hook up to an available public water supply.

"Finally, tort liability does not result in an impermissible interference with the government's ability to govern. A water distribution system is of such nature that potential liability may be taken into consideration as a cost of doing business." 94 Mich.App. 494, 498-499, 290 N.W.2d 43.

In Ross v. Consumers Power Co., 93 Mich.App. 687, 287 N.W.2d 319 (1979), lv. gtd. 408 Mich. 959 (1980), we found that construction of a drain was not an activity which could be effectively accomplished only by the government and was therefore not a governmental...