Cobb v. Fox

Decision Date06 April 1982
Docket NumberDocket No. 49438
Citation317 N.W.2d 583,113 Mich.App. 249
Parties, 3 Ed. Law Rep. 393 Sharon COBB, Administratrix of the Estate of Scott Douglas Seelhoff, Deceased, Plaintiff-Appellee, v. James L. FOX, Defendant-Appellee, and Fowler Board of Education And Fowler School District, Defendants-Appellants.
CourtCourt of Appeal of Michigan — District of US

Church, Wyble, Kritselis, Anderson & Robinson, P. C. by Thomas H. Hay, Lansing, for plaintiff-appellee.

Fraser, Trebilcock, Davis & Foster, P. C. by Randy J. Hackney and Paula R. Latovick, Lansing, for defendant-appellee Fox.

Willingham, Cote, Hanslovsky, Griffith & Foresman, P. C. by John A. Yeager, East Lansing, for Fowler Board of Education and Fowler School Dist.

Before V. J. BRENNAN, P. J., and ALLEN and MEGARGLE, * JJ.

V. J. BRENNAN, Presiding Judge.

Plaintiff's eight-year-old son, Scott Douglas Seelhoff, was killed March 30, 1978, after being struck by an automobile driven by defendant Fox. The accident occurred shortly after Scott was discharged from a school bus operated by the Fowler Board of Education and Fowler School District (hereinafter defendants). Plaintiff, as administratrix of Scott's estate, commenced this action against Fox and the defendants. Defendants moved for summary and accelerated judgment based on governmental immunity, M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107). The trial court denied the motions. Defendants now appeal by leave granted.

Scott was a second-grade student at a school located north of M-21 highway. Scott lived south of M-21. Wright Road, a heavily travelled road, runs perpendicular to M-21. Under the school's bussing program, there were three busses that stopped south of M-21. Bus stops one and three were on the west side of Wright Road. Bus stop two was on the east side. Scott lived on the east side of Wright Road. The bus stops were located so as to minimize students' crossing the road.

Scott could choose any one of the three busses. Students were not required to ride a specific bus and were not assigned to a specific stop. If Scott took the bus that discharged students at bus stops one or three, he would have to cross Wright Road to get home.

Approximately two to three years prior to the accident, parents petitioned the school board for another bus stop on the east side of the road. The fourth stop was requested to be opposite bus stop three. The superintendent of schools testified that the request was denied since bus stop two was only two blocks north of bus stop three, and he thought that the students could walk the additional two blocks.

Plaintiff, Scott's mother, testified that Scott and his brother did not take the school bus a majority of the time. When the boys took the bus, they took the bus that discharged them at bus stop two which was on the same side of Wright Road that they lived on, but two blocks farther than bus stop three. Approximately two to three weeks prior to the accident, plaintiff instructed her sons to take the bus that discharged them across from their home because of the weather and muddy conditions existing on their side of the road. The boys also preferred that bus because younger children rode on it.

Plaintiff also testified that she either met the boys once they were discharged from the bus so that she could walk them across the road or she stood in her doorway and would wave them across when they could cross safely.

On the day of the accident, plaintiff saw Scott and his brother walking home from the bus stop. She went into her house for a moment and did not see the accident occur. The testimony regarding the accident was conflicting. Scott's brother testified that Scott was waved across the road by a truck driver who had stopped for him, and was then hit by Fox's automobile. On the other hand, Fox and Kathryn Anderson, a witness, stated that Scott was hit when he entered the street without looking for oncoming traffic. It was undisputed that the school bus that Scott rode did not strike him and there were no school busses within two blocks of the accident.

The first question for our consideration is whether the planning, maintenance and operation of a school bus system by a school district is an immune governmental function; specifically, whether the laying out of routes for school bus travel and the designation of school bus stops constitutes a governmental function.

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."

Since the term "governmental function" is not defined in the statute, the determination of whether an activity is a "governmental function" is left to the courts. Recently, after interpreting several decisions of the Supreme Court regarding governmental immunity, Parker v. City of 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); and Bush v. Oscoda Area Schools, 405 Mich. 716, 275 N.W.2d 268 (1979), this Court has found that the operation of a public school is a governmental function. McIntosh v. Becker, 111 Mich.App. ----, 314 N.W.2d 728 (1981); Everhart v. Board of Education of the Roseville Community Schools, 108 Mich.App. 218, 310 N.W.2d 338 (1981); Smith v. Mimnaugh, 105 Mich.App. 209, 306 N.W.2d 454 (1981); Chruilla v. School Dist. for the City of East Detroit, 105 Mich.App 32, 306 N.W.2d 381 (1981); Deaner v. Utica Community School Dist, 99 Mich.App. 103, 297 N.W.2d 625 (1980). However, there is a disagreement among the panels of this Court as to whether all activities carried out by the school district would be immune governmental functions.

In Deaner, supra, a high school student suffered a sublaxation of two vertebrae, which resulted in quadriplegia, while wrestling in a physical education class with a fellow student. The trial court granted summary judgment on the ground of governmental immunity. On appeal, this Court affirmed stating:

"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, Secs. 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. at 108, 297 N.W.2d 625.

Deaner has been cited for the proposition that any function carried out as part of the operation of a public school is an immune governmental function. In Churilla, supra, Judge Bronson stated in his dissent that he disagreed with the majority's impliedly interpreting the Deaner opinion as holding that any function was governmentally immune. 1

In McIntosh, supra, (Judge Holbrook dissenting) the majority found:

"We agree with Judge Holbrook's partial dissent * * * that the school board is immune from negligence in the hiring and supervision of defendant Becker. However, we disagree with the partial dissent to the extent that it implies that any function carried out as part of the operation of a public school is an activity leaving the school district without liability because of the doctrine of governmental immunity. We are not sure that the panel of this Court which decided Deaner v. Utica Community School Dist., 99 Mich.App. 103, 297 N.W.2d 625 (1980), really meant to hold that every incident of a public school's operation constitutes a governmental function. Both Judge Holbrook's partial dissent in this case and the majority opinion in Churilla v. School Dist. for the City of East Detroit, 105 Mich.App. 32, 306 N.W.2d 381 (1981), cite Deaner for this proposition, however.

* * *

* * *

"The majority in Churilla and Judge Holbrook impliedly in this case analyzes Justice Moody's position as an all-or-nothing approach. That is, either all of the governmental unit's operational activities are immune from tort liability or none are. We believe, however, that the emphasized portion of Justice Moody's opinion in Parker supports the notion that the specific activities complained of and performed by the governmental agency are of paramount importance to resolving the immunity question and not simply the governmental unit's overall purpose." 111 Mich.App. at ---, 314 N.W.2d 728.

We are of the opinion that every activity carried out by a school system would not automatically be entitled to governmental immunity. In determining whether an activity constitutes a governmental function, this Court has held that the focus must be on the particular activity involved and not on the entity's overall or principal operation. Feliciano v. Dep't of Natural Resources, 97 Mich.App. 101, 293 N.W.2d 732 (1980); Berkowski v. Hall, 91 Mich.App. 1, 282 N.W.2d 813 (1979).

In other contexts, this Court has found that the following activities carried out by a school district enjoyed governmental immunity- : furnishing crossing guards and overhead cross-walks, Smith v. Mimnaugh, supra ; conducting a student recess, Everhart v. Roseville Board of Education, supra ; and the administration and supervision of a football program, Churilla v. School Dist. for the City of East Detroit, supra.

In McNees v. Scholley, 46 Mich.App. 702, 707, 208 N.W.2d 643 (1973), this Court held that the laying out of routes for school bus travel and the designation of school bus stops...

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