Daugherty v. State, Dept. of Natural Resources

• Decision Date: 20 August 1979
• Docket Number: Docket No. 24404
• Citation: 283 N.W.2d 825,91 Mich.App. 658
• Parties: Vincent DAUGHERTY, Plaintiff-Appellant, v. STATE of Michigan, DEPARTMENT OF NATURAL RESOURCES, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 825

283 N.W.2d 825

91 Mich.App. 658

Vincent DAUGHERTY, Plaintiff-Appellant, v. STATE of Michigan, DEPARTMENT OF NATURAL RESOURCES Defendants-Appellees.

Docket No. 24404.

Court of Appeals of Michigan.

Aug. 20, 1979.

Released for Publication Oct. 10, 1979.

Kenneth A. Webb, Detroit, John H. Waldeck, Orchard Lake, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Curtis G. Beck, Asst. Atty. Gen., for defendants-appellees.

Before ALLEN, P. J., and T. M. BURNS and HOLBROOK, ^* JJ.

HOLBROOK, Judge.

Plaintiff appeals as of right from an order of the trial court granting defendants' motion for accelerated judgment on the basis of governmental immunity.

The complaint of plaintiff was filed in the Court of Claims on September 11, 1974, seeking damages for personal injuries sustained by him on July 13, 1973, when diving into the Huron River from a bridge in the Proud Lake Recreation Area, Oakland County, Michigan.

Plaintiff therein alleged that defendants were in control of the operation and maintenance of the "Power Picnic Site", including a bridge over the Huron River and that the bridge was in a state of disrepair and abandonment. Plaintiff also alleged that defendants knew, or should have known that the public openly and notoriously used the bridge for jumping and diving into the river. He further alleged that on July 13, 1973, he observed others jumping and diving into the river from the bridge, and he proceeded to do likewise, and in the process struck his head on an unknown object hidden beneath the surface of the river. This resulted in the plaintiff's suffering permanent and complete paralysis from the shoulders down, with only minimal use of his arms.

Plaintiff in his complaint alleged also that defendants' knowing or "having basis of belief for knowing" the hazardous and dangerous condition of the bridge, created and maintained a nuisance and breached their duties to the public, including the failure to post warnings; provide supervision; shape and maintain a safe riverbed; remove dangerous conditions; remedy the dangerous condition, when defendants knew or should have known of it; and raze the bridge.

The defendants on September 19, 1974, filed a motion for summary judgment or, in the alternative, accelerated judgment, on the basis of governmental immunity. This motion was heard on March 27, 1975.

Thereafter, on April 3, 1975, plaintiff filed a motion to amend his complaint, with proposed additional allegations that defendants failed to keep the bridge in reasonable repair and in a condition reasonably safe and fit for travel, and that defendants created a nuisance per se and in fact by placing a large number of large boulders around the pilings of the bridge, creating a dangerous and hazardous condition.

The trial judge, on May 2, 1975, filed his opinion holding defendants immune, unless the nuisance complained of constituted a taking of property without just compensation. The trial court also found that the proposed amendments to the complaint would not affect his ruling on the motion.

Plaintiff raises two issues on appeal, viz:

I. Is the operation and maintenance of a recreational area a governmental function for the purposes of sovereign immunity?

II. Was accelerated judgment based on governmental immunity improper where plaintiff had alleged that defendants created and maintained a nuisance?

In addressing the first issue we acknowledge that our Michigan Courts have traditionally treated the operation of recreational parks as a governmental function. Royston v. City of Charlotte, 278 Mich. 255, 270 N.W. 288 (1936); Penix v. St. Johns, 354 Mich. 259, 92 N.W.2d 332 (1958); Rohrabaugh v. Huron-Clinton Metropolitan Authority Corp., 75 Mich.App. 677, 256 N.W.2d 240 (1977); Collison v. Saginaw, 84 Mich.App. 325, 269 N.W.2d 586 (1978).

However, our Supreme Court has redefined "governmental function" in the two recent cases of 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 the Court held that the operation of a municipal hospital was not a governmental function. Mr. Justice Fitzgerald, with Mr. Chief Justice Kavanagh and Mr. Justice Levin concurring, stated:

"Again, we reject the rigid dichotomy of the past. Because an activity is not proprietary, it does not necessarily follow that the activity is governmental. We would limit the term 'governmental function' to those activities Sui generis governmental of essence to governing." 404 Mich. 193, 273 N.W.2d 416.

Mr. Justice Fitzgerald rejected the "common good of all" test for defining the term "governmental function". 404 Mich. 194, 273 N.W.2d 413. He pointed out that the operation of a hospital is not an activity of a peculiar nature such that the activity can only be done by government. Rather, government participates along the side of private enterprise and charitable and religious organizations in operating hospitals. He additionally noted that the modern hospital is essentially a business and as such there is no rational ground upon which immunity for the government-operated hospital can rest. 404 Mich. 195, 273 N.W.2d 413.

Mr. Justice Moody concurred in a separate opinion. Although not actually adopting the "Sui generis governmental of essence to governing test" his approach to the issue was similar wherein he 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 parameter, although performed by a government agency, are not governmental functions and therefore not immune." 404 Mich. 200, 273 N.W.2d 419.

In the case of Perry, supra, the Supreme Court held that the operation of a Public mental hospital Is a governmental function. ¹

In applying the law as stated in the recent decisions of our Supreme Court as we understand it, it appears that the operation of a recreational area is not "of essence to governing" because it is not an activity which can be done only by...