Deaner v. Utica Community School Dist.

• Decision Date: 24 July 1980
• Docket Number: Docket No. 78-5488
• Citation: 297 N.W.2d 625,99 Mich.App. 103
• Parties: Chester C. DEANER, Jr., and Chester C. Deaner, Plaintiffs-Appellants, v. UTICA COMMUNITY SCHOOL DISTRICT, and Eric B. Johnston, D. O., Defendants-Appellees, and Robert Dilday, Jeffrey Facsko, and Joseph Schlof, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 625

297 N.W.2d 625

99 Mich.App. 103

Chester C. DEANER, Jr., and Chester C. Deaner, Plaintiffs-Appellants, v.UTICA COMMUNITY SCHOOL DISTRICT, and Eric B. Johnston, D O., Defendants-Appellees and Robert Dilday, Jeffrey Facsko, and Joseph Schlof, Defendants.

Docket No. 78-5488.

Court of Appeals of Michigan.

July 24, 1980.

Released for Publication Nov. 5, 1980.

Phillip G. Bozzo, Detroit, for plaintiffs-appellants.

Barbara L. Quenneville, Detroit, for Utica Community School Dist.

Robert E. Sullivan, Detroit, for Eric B. Johnston, Robert Dilday, Jeffrey Facsko, and Joseph Schlof.

Before HOLBROOK, P. J., and MAHER and CYNAR, JJ.

PER CURIAM.

PlaintiffChester C. Deaner, Jr. was enrolled in a combative sports physical education course at Eisenhower High School in the Utica Community School District.The course included wrestling.Defendant Johnston examined plaintiff on September 9, 1972, and approved his physical condition for wrestling.On February 16, 1973, while wrestling in class with fellow student Jeffrey Facsko, plaintiff suffered a subluxation of two vertebrae which resulted in quadriplegia.

The trial court granted summary judgment for defendant Johnston, pursuant to GCR 1963, 117.2(3), on the ground that there was no genuine issue as to any material fact and that Johnston was therefore entitled to judgment as a matter of law.The trial court granted summary judgment for defendantUtica Community School District, pursuant to GCR 1963, 117.2(1), on the ground that the school district was immune from tort liability under M.C.L. § 691.1407;M.S.A. § 3.996(107).Plaintiffs appeal from those orders.

GCR 1963, 117.3 requires that a motion based on GCR 1963, 117.2(3) be supported by affidavits.In Brooks v. Reed, 93 Mich.App. 166, 174, 286 N.W.2d 81(1979), this Court discussed the supporting affidavit requirement.There, as here, defendant was the moving party.

"In a summary judgment proceeding, an affidavit is employed as a voluntary statement made ex parte.3 Am.Jur.2d, Affidavits, § 1, p. 380.The function of an affidavit by the defendant is to establish affirmatively that there is no basis in fact to support plaintiff's claim.To that end, the defendant must come forward with some evidentiary proof-some statement of specific fact.Durant v. Stahlin, (375 Mich. 628, 135 N.W.2d 392(1965));Doornbos v. Nordman, 26 Mich.App. 278, 281, 182 N.W.2d 362(1970)."

In other cases, it has been held that the nonmoving party need not meet a legally insufficient affidavit.See for exampleMcCoy v. DeLiefde, 376 Mich. 198, 208, 135 N.W.2d 916(1965);Hollerud v. Malamis, 20 Mich.App. 748, 762, 174 N.W.2d 626(1969), andJones v. Shek, 48 Mich.App. 530, 533, 210 N.W.2d 808(1973).The nonmoving party therefore need not produce evidence to demonstrate that there is a material issue of fact as to a point on which a moving party has not produced an affidavit or other evidence.

Here neither side's affidavits, depositions, or evidence touched on the relevant standard of care or on a causal link between defendant Johnston's conduct and the injury.Comparison of defendant Johnston's affidavit with the deposition of Chester C. Deaner, Jr., shows the existence of an issue of fact as to the course defendant Johnston followed in examining Deaner.However, the failure of Johnston to find such a defect or disease is completely consistent with the theory that he was negligent in failing to find one.That Deaner stated in his deposition that he had not known of such a defect did not necessarily mean that no such defect existed, or that Johnston was not negligent in failing to find it.The trial court's grant of summary judgment for defendant Johnston therefore must be reversed.

In Bush v. Oscoda Area Schools, 405 Mich. 716, 727-728, 275 N.W.2d 268(1979), Justice Levin, writing for the Court, stated:

"Three Justices have indicated in other opinions⁶ that a school district is subject to liability for negligence in the operation of a school and would therefore find it unnecessary to decide whether the complaint states a claim within the defective building provision.Because there is no majority to so hold, we must determine whether the complaint states a claim within the defective building provision.

6.I would hold on equal protection grounds that a school district is subject to the same liability as a private school.SeeThomas v. Dep't of State Highways, 398 Mich. 1, 14, 247 N.W.2d 530(1976).Justice KAVANAGH and Justice FITZGERALD have said in an opinion which I signed that the operation of a school is not a governmental function.Thomas v. Dep't of State Highways, supra, pp. 21-22, 247 N.W.2d 530.See also, Pichette v. Manistique Public Schools, 403 Mich. 268, 269 N.W.2d 143(1978)."

This statement is useful as a guide for interpreting Parker v. Highland Park, 404 Mich. 183, 273 N.W.2d 413(1978), andPerry v. Kalamazoo State Hospital, 404 Mich. 205, 273 N.W.2d 421(1978), in the context of the present case.In Parker, Justices Fitzgerald, Kavanagh, and Levin limited the term "governmental function" to those activities of essence to governing.They determined that the operation of a general hospital was not of essence to governing because it was not an activity of such peculiar nature that it could only be done by government.These are the Justices that Bush indicates would hold the operation of a school is not a governmental function.

Justice Moody agreed that only those activities of essence to governing were governmental functions.However, his view of what activities were of essence to governing was more expansive than that of Justices Fitzgerald, Kavanagh, and Levin.In Parker, at 200, 273 N.W.2d 413, he said:

"(A)s 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...