Grames v. King
| Decision Date | 06 May 1983 |
| Docket Number | Docket Nos. 63548,63575 |
| Citation | 332 N.W.2d 615,123 Mich.App. 573,10 Ed. Law Rep. 783 |
| Parties | Tamara L. GRAMES, Barbara S. Grames and Harry E. Grames, Plaintiffs-Appellees, v. Rose KING and Patricia King, and their parents, Minnie King and Mr. King, Glenda Johnson and her parents, Mr. and Mrs. Johnson, Defendants, and The Pontiac School District, The Pontiac Board of Education, Joe Earl Carr, Allison Naomi Moore, Hercules Renda and Dana P. Whitmer, Defendants-Appellants. Tamara L. GRAMES, Barbara A. Grames and Harry E. Grames, Plaintiffs-Appellees, v. Rose KING, et al., Defendants, and The Walled Lake School District, The Walled Lake Board of Education, Kenneth W. Butler, Richard Schneider, Tom Evans, Gerald Wallace and Dr. Donald Sheldon, Defendants- Appellants. 123 Mich.App. 573, 332 N.W.2d 615, 10 Ed. Law Rep. 783 |
| Court | Court of Appeal of Michigan — District of US |
[123 MICHAPP 574] Lakin, Worsham & Victor, P.C. by Larry A. Smith, Southfield, for plaintiffs-appellees.
Ogne, Jinks, Ecclestone & Alberts, P.C. by Dennis D. Alberts and Stephen T. Moffett, Troy, for defendants Pontiac School Dist., Pontiac School Bd. and its employees.
Berry, Puleo & Noeske by William D. Kahn, Troy, for defendants Walled Lake School Dist., Walled Lake School Bd. and its employees.
Before DANHOF, C.J., and J.H. GILLIS and DEMING, * JJ.
The defendant school districts, [123 MICHAPP 575] boards of education and their respective employees appeal by leave granted from the trial court's order denying their motion for summary judgment and finding that defendants were not protected by governmental immunity under M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107).
Plaintiff minor, Tamara Grames, was allegedly injured when she was assaulted in the locker room of Pontiac Northern High School following a girls' basketball game. Ms. Grames was a student at Walled Lake High School and a member of the school's basketball team. She was allegedly assaulted by certain Pontiac Northern students following a game between Pontiac Northern and Walled Lake.
Ms. Grames and her parents filed this action against several parties including the Walled Lake and Pontiac School Districts and boards of education (hereinafter the school districts) and various employees of each school district (hereinafter the employees). The above-mentioned defendants filed a motion for summary judgment based on governmental immunity. The trial court denied the motion, finding that supervision of a locker room following an extracurricular sports event was not of essence to governing within the meaning of Parker v. City of Highland Park, 404 Mich. 183, 273 N.W.2d 413 (1978). Separate applications for leave to appeal filed by both school districts and their respective employees were granted by this Court and the matters were consolidated.
Under M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107), a governmental agency is immune from tort liability when it is engaged in the exercise or discharge of a governmental function. We will address separately the questions of whether the governmental immunity statute applies, 1) to the school districts, and [123 MICHAPP 576] 2) to the individual employees of the school districts.
Plaintiffs, in order to state a valid claim against a governmental agency such as a school district, must plead facts in avoidance of governmental immunity. McCann v. Michigan, 398 Mich. 65, 77, 247 N.W.2d 521 (1976). This means that plaintiffs must demonstrate either that the school districts' activity comes within one of the statutory exceptions to governmental immunity or that the activity did not constitute the exercise or discharge of a governmental function.
In the case at bar, the amended complaint contained an allegation of "premises liability", which apparently sought to invoke the public building exception to governmental immunity, M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106). 1 However, the trial court did not address the public building exception in its opinion and plaintiffs on appeal do not argue its applicability. Upon a review of the amended [123 MICHAPP 577] complaint, we find that plaintiffs have failed to plead facts in avoidance of governmental immunity under the public building exception. The premises liability count alleges that Pontiac Northern negligently failed to provide a separate locker room and facilities for the visiting Walled Lake team. The premises liability allegation stems not from a defective or dangerous condition in the building itself, but from the defendants' alleged failure to properly supervise activities conducted within the building. The public building exception is therefore inapplicable. See Vargo v. Svitchan, 100 Mich.App. 809, 301 N.W.2d 1 (1980); Belmont v. Forest Hills Public Schools, 114 Mich.App. 692, 698, 319 N.W.2d 386 (1982). Moreover, plaintiffs have failed to comply with the notice requirement contained in the statute.
The remaining question is whether the school districts were engaged in the exercise or discharge of a governmental function. The Supreme Court, despite numerous attempts, has to date been unable to reach a clear majority as to what is meant by the legislative term "governmental function". The Court's most recent pronouncement occurred in Ross v. Consumers Power Co., 415 Mich. 1, 327 N.W.2d 293 (1982). This Court is aware that with the recent changes in the membership of the Supreme Court, the law is likely to change with the issuance of the Court's next opinion on the subject. Nonetheless, it is the duty of this Court, being bound under the doctrine of stare decisis, to decide the instant appeal consistent with the law as it now exists rather than to attempt to predict the positions which may ultimately be adopted by newly seated members of the Supreme Court.
The four presently seated justices who have voiced opinions on the issue are apparently irreconcilably[123 MICHAPP 578] divided. Justices Ryan and Williams hold to the "common good of all test" while Justices Kavanagh and Levin continue to look to whether the agency's activity is "of essence to governing". 2 Justices Cavanagh, Riley and Brickley have not during their tenure on the Supreme Court expressed an opinion on the issue.
In the wake of the three-three-one split which existed in the Supreme Court prior to November, 1982, several panels of this Court have applied the standard enunciated by the late Justice Moody in Parker v. City of Highland Park, supra. This practice was recognized, and indeed, approved by Justice Ryan in Ross, supra:
Ross, supra, 415 Mich. p. 12, 327 N.W.2d 293.
Justice Moody, writing separately in Parker, summarized his version of the test as follows:
Parker, supra, 404 Mich. p. 200, 273 N.W.2d 413.
We recognize that Justice Moody's test has never been the law of this state and that it has not been adopted by even one of the present members of the Supreme Court. Nonetheless, it is this Court's duty, in the absence of clear direction from the Supreme Court, to adopt and apply what it perceives to be the appropriate rule of law. In our opinion, Justice Moody's test, which embraces a middle-ground approach between the "common good of all test" on the one hand and the "of essence to governing" test on the other, represents the better view. We will therefore apply Justice Moody's test to the present facts.
The recent panels of this Court have consistently held that the operation of a public school is a governmental function. Weaver v. Duff Norton Co., 115 Mich.App. 286, 289, 320 N.W.2d 248 (1982); Belmont v. Forest Hills Public Schools, supra. However, this simple statement of the rule is not sufficient. In determining whether an activity is a governmental function, the focus must be on the precise activity giving rise to plaintiffs' claim rather than on the overall operations of the agency. Weaver, supra, p. 292, 320 N.W.2d 248. Accordingly, the question is whether the school districts' operation of extracurricular sports programs constitutes a governmental function. 3
[123 MICHAPP 580] In Churilla v. East Detroit School Dist., 105 Mich.App. 32, 306 N.W.2d 381 (1981), the plaintiff minor, a junior high school student and a member of the school's football team, was injured during a football practice. Judge Bashara, writing for the majority, applied Justice Moody's test and held that the school's operation of a football program was a governmental function. 4 Similarly, in Deaner v. Utica Community School Dist., 99 Mich.App. 103, 297 N.W.2d 625 (1980), the plaintiff was injured during a wrestling class which was part of his high school's physical education program. Applying Justice Moody's test, the Court found that the...
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