Churchwell v. Board of Regents of University of Michigan

• Decision Date: 19 May 1980
• Docket Number: Docket No. 78-4059
• Parties: Katherine CHURCHWELL, Plaintiff-Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF MICHIGAN, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 75

296 N.W.2d 75

97 Mich.App. 463

Katherine CHURCHWELL, Plaintiff-Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF MICHIGAN, Defendant-Appellee.

Docket No. 78-4059.

Court of Appeals of Michigan.

May 19, 1980.

Released for Publication Sept. 24, 1980.

Randall D. Fielstra, Muskegon, for plaintiff-appellant.

David R. Getto, Detroit, for defendant-appellee.

Before MAHER, P. J., and ALLEN and PIERCEY, ^* JJ.

PIERCEY, Judge.

This cause represents an appeal from a summary judgment entered in the defendant's behalf in the Court of Claims. Said judgment was entered on the ground that the plaintiff had failed to state a claim in avoidance of the governmental immunity statute. M.C.L. § 691.1407; M.S.A. § 3.996(107). GCR 1963, 117.2(1).

Plaintiff's initial complaint alleged that she sustained injuries through the negligent treatment she received from the agents and employees of the defendant at the University of Michigan Hospital. Defendant responded with a motion for summary judgment on governmental immunity grounds. Plaintiff was granted leave to amend her complaint to allege that the University of Michigan Hospital was engaged in a proprietary function. This served to no avail, however, as the trial court filed written findings concluding that the plaintiff had failed to state a claim in avoidance of governmental immunity, either by pleading that the operation of University Hospital was a proprietary function, or by pleading that the hospital was not a governmental function.

After an evidentiary hearing was held and testimony was taken on the organizational purposes of the hospital, its financial support, and its various functions, including health care, research, and education of medical students and residents, the trial court granted defendant's summary judgment motion incorporating the written findings it had previously filed. From this adverse determination, plaintiff appeals as of right.

The sole question raised in this appeal is whether the Board of Regents of the University of Michigan are engaging in the exercise or discharge of a governmental function in their operation of the University of Michigan Hospital, thus entitling them to immunity from tort liability under M.C.L. § 691.11407; M.S.A. § 3.996(107).

M.C.L. § 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 of the state from tort liability as it existed heretofore, which immunity is affirmed."

The statutory term "governmental function" has been subjected to varied interpretations by members of the Supreme Court as of late. Justices Ryan, Coleman, and Williams are of the opinion that the Legislature, by employing such a common law term of art in creating statutory immunity, has directed the courts to look to the common law for guidance in determining whether, in any given case, a governmental agency may invoke the protection of the statute. Also, case law before the adoption of this statute held that the operation of a public hospital to promote the public health is a governmental function. See Perry v. Kalamazoo State Hospital, 404 Mich. 205, 211, 273 N.W.2d 421 (1978).

Justices Kavanagh, Levin and Fitzgerald, reject this strict reliance on prior case precedent, opining that the evolution of case precedent is exclusively committed to the judicial branch of government. As an alternative to following common law precedent, then, these Justices suggest that the term "governmental function" be limited to those activities sui generis governmental-of essence to governing. See Parker v. Highland Park, 404 Mich. 183, 193-194, 273 N.W.2d 413 (1978). In applying this test in Parker, these Justices concluded that the daily operations of a hospital do not constitute a governmental function. Parker, supra, 194, 273 N.W.2d 416.

From this discussion, it can be seen that the Court was split on this issue in both Parker and Perry. As a result, the critical analysis in each case was supplied by Justice Moody. Justice Moody agreed with Justices Kavanagh, Levin and Fitzgerald in their conclusion that the Court is not statutorily bound to its common law precedent due to the statutory use of the term "governmental function". Justice Moody, however, declined to follow the planning/operations distinction that Justices Fitzgerald, Kavanagh and Levin proposed as a means of applying the "essence of governing test" in Thomas v. Department of State Highways, 398 Mich. 1, 21, 247 N.W.2d 530 (1976).

Instead, Justice Moody stated the crux of the governmental essence test to be upon:

" * * * 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." Parker, supra, 200, 273 N.W.2d 419.

Justice Moody's recommended analysis has emerged as the decisive one at this particular stage in the development of the immunity doctrine in that, as can be seen, he has the "swing vote" on questions of the application of governmental immunity. In Parker, Justice Moody applied his swing vote to the Kavanagh-Fitzgerald-Levin bloc in holding that the day to day operations of a municipal general hospital were not unique to government, nor pursuant to a governmental mandate, and, as a result, not...