Feliciano v. State, Dept. of Natural Resources

• Decision Date: 23 April 1980
• Docket Number: Docket No. 46007
• Citation: 293 N.W.2d 732,97 Mich.App. 101
• Parties: Carmen FELICIANO, Administratrix of the Estate of Elizabeth Feliciano, Deceased, Plaintiff-Appellant, v. STATE of Michigan, DEPARTMENT OF NATURAL RESOURCES, Jill Irvine, Jeffrey Eder, and Gregory Osborne, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 732

293 N.W.2d 732

97 Mich.App. 101

Carmen FELICIANO, Administratrix of the Estate of Elizabeth Feliciano, Deceased, Plaintiff-Appellant, v. STATE of Michigan, DEPARTMENT OF NATURAL RESOURCES, Jill Irvine, Jeffrey Eder, and Gregory Osborne Defendants-Appellees.

Docket No. 46007.

Court of Appeals of Michigan.

April 23, 1980.

Released for Publication July 11, 1980.

James Francis Finn, Detroit, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Sterling W. Schrock, Asst. Atty. Gen., for defendants-appellees.

Before GILLIS, P. J., and ALLEN and KELLY, JJ.

ALLEN, Judge.

While wading in the shallow water of Silver Lake in the Pinckney State Recreation Area on July 19, 1978, Elizabeth Feliciano, age 15, stepped into a drop-off and drowned. The Pinckney State Recreation Area is under the jurisdiction, control and supervision of the Department of Natural Resources of the State of Michigan. On December 1, 1978, complaint was filed in the Court of Claims alleging that decedent's death was "the direct and proximate result of the negligence of the defendants, their agents, servants, employees or persons otherwise under their supervision". Paragraph 6 of the complaint proceeded to set forth seven specific acts of negligence. ¹ Except for averring that Silver Lake and its environs were under the control of the Department of Natural Resources and averring seven specific acts of alleged negligence, the complaint made no reference to or averment that defendants' conduct was in the performance of a proprietary function.

Defendants moved in the Court of Claims for summary judgment under GCR 1963, 117.2(1) on the ground that the complaint failed to set forth a factual basis constituting one of the recognized exceptions to defendants' sovereign immunity from tort liability. Following a hearing, the trial judge granted the motion and on June 29, 1979, entered an order stating that plaintiff's complaint failed to state a claim upon which relief could be granted. From that order plaintiff appeals of right.

On appeal, defendants urge this Court to affirm the trial court's order in all of its aspects because: (I) the operation of a recreational area as part of a state park system is a governmental function and thus is clothed with governmental immunity; (II) failure of the complaint to plead facts in avoidance of immunity; and (III) the three individual persons named as defendants may not be sued individually in the court of claims.

I

Traditionally the operation of a park system and recreational area was held to be a governmental function clothed with immunity from suit. Rohrabaugh v. Huron-Clinton Metropolitan Authority Corp., 75 Mich.App. 677, 681-684, 256 N.W.2d 240 (1977). But in late 1978, our Supreme Court, in two closely divided opinions, adopted new concepts of governmental immunity. Parker v. 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). Three Justices advanced an "essence of government standard" under which a function is determined to be governmental and protected by immunity from suit largely by deciding whether the function is a planning function or an operations function. Three Justices opted for a common law case precedent standard under which a function would be held to be protected by immunity if it were so held to be by common law case precedent.

One Justice, Justice MOODY, was left with the swing vote. He agreed with the "essence of government" standard, but rejected the planning/operations distinction thereof. He proposed a "can it be effectively accomplished only by government" test. The MOODY test would bring more functions of government under the protective umbrella of immunity than would the planning/operations standard. In Parker, supra, Justice MOODY joined with Justices FITZGERALD, KAVANAGH and LEVIN to hold that the operation of a municipal hospital was not a governmental function. But in Perry, supra, Justice MOODY sided with Justices COLEMAN, RYAN and WILLIAMS to hold that a state-operated mental institution was a governmental function immune from tort liability. ²

Applied to the factual situation before us, the COLEMAN, RYAN, WILLIAMS common law test would require a finding of immunity. Conversely, the FITZGERALD, KAVANAGH, LEVIN position would preclude a finding of immunity. What is not clear is the finding commanded by Justice MOODY's position. However, this Court, on facts basically the same as those presented in the instant case, recently held the operation of a recreational area was not a governmental function protected by immunity from suit. Daughterty v. Michigan, 91 Mich.App. 658, 283 N.W.2d 825 (1979). In that case plaintiff sustained personal injuries when he dove off an unguarded bridge into the Huron River in the Proud Lake Recreational Area operated by the Department of Natural Resources. The Court said at 663, 283 N.W.2d at 828:

"Private recreational areas do exist and provide essentially the same services. Also under the analysis stated by Mr. Justice Moody, in Parker, the instant case does not present a situation where the purpose, planning, carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by government. In addition, liability would not be an unacceptable interference with the government's obligation to govern.

"Applying the principles laid down in Parker, we rule that the operation of the recreational area in question was not a governmental function. Therefore, defendants would not enjoy governmental immunity."

Appellees respectfully suggest that Daugherty was incorrectly decided and ask that this panel decline to follow that opinion. In support of this request, appellees cite the broad statutory duties of the Department of Natural Resources to acquire, maintain and make available for the use of the public open spaces for park and recreational purposes ³ and to maintain a system for outdoor recreation. ⁴ In a Brandeis type brief, appellees proceed to lay out the extensive number of state park and recreation areas acquired and under the jurisdiction of the Department of Natural Resources. Attendance during a two-year period at the state park system totaled 44,410,763 persons, including 1,196,536 persons utilizing the Pinckney Recreation Area. Given these facts which disclose the magnitude of the operation, appellees argue that under Justice Moody's "can it be effectively accomplished" test, only government could effectively operate the Pinckney Recreation Area. Appellee's argument is persuasive when applied to the maintenance and operation of a park and recreational system in general. But it was not the general activity which was being conducted when the alleged negligence occurred in the instant case. Defendants' alleged negligent conduct occurred during the operation of a supervised swimming beach area. The operation of a bathing beach where bath houses are provided for changing clothes and ropes and markers are set out to designate the area for swimming is a function commonly and effectively performed by private enterprise. The operation of a swimming beach is no more a governmental function subject to immunity from suit than the operation of a municipal roller skating rink, concerning which this Court in Cronin v. Hazel Park, 88 Mich.App. 488, 276 N.W.2d 922 (1979), held:

" * * * we hold that the operation of a roller skating program by a municipal corporation is not of essence to governing. We conclude that such activity is nongovernmental even under Justice Moody's broader statement of the governmental essence test." Id., at 491, 276 N.W.2d, at 923. (Emphasis supplied.)

Similarly, the operation of a swimming area is less "of the essence of governing" than the operation of an emergency medical services unit by a municipal fire department an operation held not to be a governmental function protected by immunity from suit. Berkowski v. Hall, supra.

In summary, to the extent that Daugherty, supra, holds that the entire spectrum of the Department of Natural Resources statutory prescribed operation of the Pinckney Recreation Area is not a governmental function, we disagree with Daugherty. ⁵ ] But to the extent that case holds that the conduct and operation of a bathing and swimming area is a nongovernmental function to which the defense of immunity does not apply, we agree with the decision. Our decision in this...