Codd v. Wayne County, Docket No. 158565
| Decision Date | 21 April 1995 |
| Docket Number | Docket No. 158565 |
| Parties | CODD v. WAYNE COUNTY. |
| Court | Court of Appeal of Michigan — District of US |
Sachs, Waldman, O'Hare, Helveston, Hodges & Barnes, P.C. by Gregory M. Janks, Detroit, for plaintiffs.
Plunkett & Cooney, P.C. by Christine D. Oldani, Detroit, for defendant.
Before JANSEN, P.J., and MICHAEL J. KELLY and HOOD, JJ.
On February 15, 1991, plaintiff David Codd, an employee of United Airlines, Inc., slipped and fell while pulling a baggage cart in a lot at Detroit Metropolitan Airport. Plaintiffs filed the present action in the Wayne Circuit Court, alleging negligence against defendant Wayne County in its failure to design, build, operate, and maintain the premises of the airport in a reasonably safe manner. Plaintiffs subsequently amended their complaint to claim public nuisance and nuisance per se. The trial court granted the county's motion for summary disposition on the basis of governmental immunity pursuant to MCR 2.116(C)(7). We affirm.
Plaintiffs claim that the trial court erred in determining that the county's maintenance and operation of the airport does not fall within the proprietary function exception to governmental immunity. M.C.L. § 691.1413; M.S.A. § 3.996(113). We disagree.
When reviewing the grant of a motion for summary disposition on the ground that the claim is barred by governmental immunity, we consider all documentary evidence submitted by the parties. All well-pleaded allegations are accepted as true and construed in favor of the nonmoving party. To survive a motion for summary disposition, the plaintiff must allege facts warranting the application of an exception to governmental immunity. Wade v. Dep't. of Corrections, 439 Mich. 158, 163, 483 N.W.2d 26 (1992).
M.C.L. § 691.1407; M.S.A. § 3.996(107) provides in pertinent part:
(1) Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the governmental agency is engaged in the exercise or discharge of a governmental function.
M.C.L. § 691.1401(f); M.S.A. § 3.996(101)(f) provides:
"Governmental function" is an activity which is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law.
The acquisition, operation, and maintenance of airports by political subdivisions is expressly authorized by the Legislature. See M.C.L. § 259.126; M.S.A. § 10.226. Therefore, the operation of Detroit Metropolitan Airport by defendant Wayne County constitutes a governmental function. M.C.L. § 691.1401(f); M.S.A. § 3.996(101)(f), M.C.L. § 259.126; M.S.A. § 10.226, M.C.L. § 259.132; M.S.A. § 10.232.
However, plaintiffs argue that the operation of the airport falls within the proprietary exception to governmental immunity. M.C.L. § 691.1413; M.S.A. § 3.996(113). We disagree. The Legislature defined "proprietary function" in § 13 of the act as follows:
Proprietary function shall mean any activity which is conducted primarily for the purpose of producing a pecuniary profit for the government agency, excluding, however, any activity normally supported by taxes or fees.
In Hyde v. Univ. of Michigan Bd. of Regents, 426 Mich. 223, 257-258, 393 N.W.2d 847 (1986), the Court held that to be a proprietary function under § 13, an activity must (1) be conducted primarily for the purpose of producing a pecuniary profit and (2) not normally be supported by taxes or fees. Whether an activity actually produces a profit is not dispositive. Id. An agency may conduct an activity on a self-sustaining basis without being subject to tort liability. Id. The depositing of the profit in a general fund or the use of the profit to finance unrelated functions may indicate the pecuniary motive. However, the use of the revenue only to pay current and long-range expenses may indicate a nonpecuniary purpose. See also Adam v. Sylvan Glynn Golf Course, 197 Mich.App. 95, 97-98, 494 N.W.2d 791 (1992); Totsky v. Henry Ford Hosp., 169 Mich.App. 286, 290-291, 425 N.W.2d 531 (1988); Taylor v. Detroit, 182 Mich.App. 583, 587, 452 N.W.2d 826 (1989).
The documentary evidence presented in this case indicates that Detroit Metropolitan Airport is not operated for the purpose of producing a pecuniary profit and normally is supported by taxes and fees. An affidavit from Robert Braun, the Director of Airports for the County of Wayne, provides that the airport normally is supported by taxes and fees and that a...
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