Churilla v. School Dist. for City of East Detroit, Docket No. 45419

Citation306 N.W.2d 381,105 Mich.App. 32
Decision Date07 April 1981
Docket NumberDocket No. 45419
PartiesJohn Lawrence CHURILLA, a minor by his Next Friend, John Churilla, and John Churilla, Individually, Plaintiffs-Appellants, v. SCHOOL DISTRICT FOR CITY OF EAST DETROIT, Defendant-Appellee, and Riddell Incorporated, a foreign corporation, Griswold Sporting Goods Co., a Michigan corporation, and Al Bernardi, Jointly and Severally, Defendants.
CourtCourt of Appeal of Michigan (US)

Stanley S. Schwartz, Norman D. Tucker, Southfield, Gregory W. Stine, Farmington Hills, for plaintiffs-appellants.

Wayne L. Ogne, Troy, for E. Detroit Sch. Dist.

Before BRENNAN, P. J., and BRONSON and BASHARA, JJ.

BASHARA, Judge.

This appeal involves the sole issue of whether the day-to-day operation of a public school, including the administration and supervision of a football program, is a governmental function and, therefore, entitled to immunity. We hold that a public school in the operation of its athletic program is entitled to immunity, and so affirm the order of the trial judge granting the school district's motion for summary judgment.

John Lawrence Churilla was a student at Oakwood Junior High School within the defendant school district. He was participating in a practice session of the school's football program when he allegedly made contact with an oncoming team member, sustaining injury.

Our Supreme Court appears to have determined that the operation of a public school is a governmental function. In Bush v. Oscoda Area Schools, 405 Mich. 716, 275 N.W.2d 268 (1979), Justice Levin reiterated the position of Justices Kavanagh, Fitzgerald, and himself that the day-to-day operation of a school is not a governmental function. See Galli v. Kirkeby, 398 Mich. 527, 531, 248 N.W.2d 149 (1976). He conceded that his position did not command the concurrence of a majority of the Court. Bush, 405 Mich. 727-728, 275 N.W.2d 268.

In Bush, the remaining four justices agreed with Justice Levin's assessment that the "Kavanagh Levin Fitzgerald view" did not claim a majority of the Court.

The case of Deaner v. Utica Community School Dist., 99 Mich.App. 103, 297 N.W.2d 625 (1980), presents facts similar to the case at bar. The minor in that matter was enrolled in a combative sports course and suffered severe injuries while engaged in a wrestling match in class.

The Deaner Court analyzed Justice Moody's position on governmental immunity in Parker v. 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), and applied it as follows:

"Operation of a public school presents factors similar to those relied on by Justice Moody to distinguish mental hospitals from general hospitals. The government plays a pervasive role in the area of education, appropriating substantial state funds to that field and declaring education as a public policy. See Const.1963, art. 8, §§ 1 & 2. The number of private schools is inadequate to meet the educational needs of the public. Finally, while private schools exist to educate some students, the provision of a free and universal education is a uniquely governmental function. Therefore, we would find that the trial court was correct in granting summary judgment to the school district based on governmental immunity." 99 Mich.App. 108.

See also, Smith v. Mimnaugh, 105 Mich.App. ---, 306 N.W.2d 454 (1981).

In Lovitt v. Concord School Dist., 58 Mich.App. 593, 228 N.W.2d 479 (1975), plaintiff's decedent died of heat prostration during a particularly severe football practice session. Concluding that a school district is immune from tort liability under such circumstances, the Court cited McDonell v. Brozo, 285 Mich. 38; 280 N.W. 100 (1938), and Cody v. Southfield-Lathrup School Dist., 25 Mich.App. 33, 181 N.W.2d 81 (1970), for the proposition that physical education activities have been held to constitute a governmental and not a proprietary function.

The Lovitt Court quoted with approval from Justice Dethmer's opinion in Watson v. Bay City School Dist., 324 Mich. 1, 11, 36 N.W.2d 195 (1949):

"Here the football game was part of the school's physical education program. The function is inherently educational, a governmental function without doubt."

Finally, in Richards v. Birmingham School Dist., 348 Mich. 490, 509-510, 83 N.W.2d 643 (1957), the Court stated:

"The football game played on November 25, 1948, must be considered as a part of the athletic activities of the school rather than as an independent contest. * * * Rather, the entire department is operated as a part of the school facilities and in furtherance of the objectives to be attained in educational lines. It may not be said that defendant district, in allowing athletic competition with other schools, is thereby engaging in a function proprietary in nature. On the contrary, it is performing a governmental function vested in it by law."

Affirmed.

BRONSON, Judge (dissenting).

I respectfully dissent. Fundamentally, I disagree with the majority's expansive interpretation of Bush v. Oscoda Area Schools, 405 Mich. 716, 275 N.W.2d 268 (1979). I agree that the Bush triumverate of Justices Levin, Kavanagh, and Fitzgerald did not command a majority with their view that the operation of a public school system is not a governmental function. However, I do not believe that the remaining four justices should be classed together as holding that every function carried out by a school system is entitled to the cloak of governmental immunity. The majority impliedly recognizes this fact by quoting from Deaner v. Utica School Dist., 99 Mich.App. 103, 297 N.W.2d 625 (1980), that portion of the opinion analyzing Justice Moody's position on governmental immunity as expressed in Parker v. 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). In Parker, Justice Moody wrote:

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

The question we are presented with in this case is whether an extracurricular football program is of the essence of government as defined above by Justice Moody. In my opinion, Justice Moody's view of a governmental function makes...

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