Everett v. Saginaw County, Docket No. 60957

• Decision Date: 06 May 1983
• Docket Number: Docket No. 60957
• Citation: 333 N.W.2d 301,123 Mich.App. 411
• Parties: Dorothy EVERETT, Administratrix of the Estate of George Everett, Deceased, Plaintiff-Appellant, v. COUNTY OF SAGINAW and Saginaw Community Hospital, a Public Corporation, Defendants-Appellees. 123 Mich.App. 411, 333 N.W.2d 301
• Court: Court of Appeal of Michigan — District of US

Page 301

333 N.W.2d 301

Dorothy EVERETT, Administratrix of the Estate of George Everett, Deceased, Plaintiff-Appellant, v. COUNTY OF SAGINAW and Saginaw Community Hospital, a Public Corporation, Defendants-Appellees.

Docket No. 60957.

123 Mich.App. 411, 333 N.W.2d 301

Court of Appeals of Michigan.

Submitted Nov. 3, 1982.

Decided Feb. 23, 1983.

Released for Publication May 6, 1983.

[123 MICHAPP 412] Robert L. Loucks, Saginaw, for plaintiff-appellant.

Borrello, Thomas & Jensen, P.C. by Peter C. Jensen, Saginaw, for defendants-appellees.

Before HOLBROOK, P.J., and ALLEN and TAHVONEN, ^* JJ.

TAHVONEN, Judge.

Plaintiff appeals as of right an order of the trial court dismissing her complaint against defendant Saginaw Community Hospital. The trial court ruled that governmental immunity barred plaintiff's action against the hospital. The court also dismissed plaintiff's complaint against defendant Saginaw County, ruling that plaintiff failed to state a claim on which relief could be granted. Plaintiff has not appealed the latter ruling.

On February 3, 1978, plaintiff's decedent was transferred to Saginaw Community Hospital from St. Mary's Hospital in Saginaw. He was placed in the hospital's extended care facility after a prognosis[123 MICHAPP 413] was made that he would be in need of skilled or unskilled nursing care the remainder of his life. Decedent died on February 5, 1978. It is alleged that his death resulted from the negligence of employees of Saginaw Community Hospital.

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."

In Parker v. City of 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), the Supreme Court announced the test for determining whether a governmental entity is engaged in the discharge of a governmental function. Since Justice Moody constituted the swing vote in each case, this Court has consistently applied his analysis. See e.g., Trezzi v. Detroit, 120 Mich.App. 506, 328 N.W.2d 70 (1982); Catenaro v. Detroit, 115 Mich. 615, 617-618, 321 N.W.2d 746 (1982), Weaver v. Duff Norton Co., 115 Mich.App. 286, 290-291, 320 N.W.2d 248 (1982).

As noted in Weaver, supra, the Moody analysis begins with a presumption of liability:

"Participation of modern government in our everyday existence is so pervasive that any presumption must rightly run to government responsibility and consequent liability rather than to immunity. Present realities dictate viewing immunity as a privilege, limited to those activities uniquely associated with governmental enterprise." Parker, supra, 404 Mich. p. 199, 273 N.W.2d 413.

[123 MICHAPP 414] In determining whether a particular activity constitutes a governmental function, the focus is on the precise activity giving rise to plaintiff's claim rather than on the entity's overall or principal operation. Weaver, supra; Churchwell v. Regents of University of Michigan, 97 Mich.App. 463, 469, 296 N.W.2d 75 (1980). As stated by Justice Moody in Parker, supra, 404 Mich. p. 200, 273 N.W.2d 413:

"[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 perimeter, although performed by a government agency, are not governmental functions and therefore not immune."

The activity involved in this case relates to an allegation of negligence in the performance of...