Harris v. University of Michigan Bd. of Regents, Docket No. 177036

CourtCourt of Appeal of Michigan (US)
Citation558 N.W.2d 225,219 Mich.App. 679
Docket NumberDocket No. 177036
Parties, 115 Ed. Law Rep. 488 Scott Arthur HARRIS, Plaintiff-Appellant, v. UNIVERSITY OF MICHIGAN BOARD OF REGENTS, James J. Duderstadt, and Jack Weidenbach, Defendants-Appellees.
Decision Date05 November 1996

Page 225

558 N.W.2d 225
219 Mich.App. 679, 115 Ed. Law Rep. 488
Scott Arthur HARRIS, Plaintiff-Appellant,
Duderstadt, and Jack Weidenbach, Defendants-Appellees.
Docket No. 177036.
Court of Appeals of Michigan.
Submitted Jan. 10, 1996, at Grand Rapids.
Decided Nov. 5, 1996, at 9:00 a.m.
Released for Publication Jan. 24, 1997.

Page 226

[219 Mich.App. 680] Kantner and Associates by Veronique Lerner, Ann Arbor, for plaintiff-appellant.

C.J. Hurbis and Mary F. Clinton, Ann Arbor, for defendants-appellees.

Before NEFF, P.J., and SAAD and MARKEY, JJ.

SAAD, Judge.

219 Mich.App. 681] I

Nature of the Case

This case raises two interrelated legal questions of first impression and of particular importance to intercollegiate athletics in Michigan. First, is intercollegiate athletics a governmental function of a public university so as to immunize the university from tort liability? Second, if so, does the proprietary function exception to governmental immunity apply under the facts of this case? For reasons stated in this opinion, we hold that intercollegiate athletics is a governmental function of a state university that entitles it to governmental immunity and that, on the record presented here, the proprietary function exception does not apply.


Facts and Proceedings Below

Plaintiff, a student member of the University of Michigan men's intercollegiate gymnastics team, sued the University of

Page 227

Michigan Board of Regents, the university president (James J. Duderstadt), the director of athletics (Jack Weidenbach), and the gymnastics coach (Robert K. Darden, II) for injuries that he sustained during a team visit to Colorado for a gymnastics competition. The trial court denied Darden's motion for summary disposition, but granted summary disposition for the Board of Regents, Duderstadt, and Weidenbach, on the basis of governmental immunity. Plaintiff now appeals from the grant of summary disposition.

On March 7, 1990, plaintiff was in Colorado with the University of Michigan's gymnastics team. The gymnastics team is operated by the university's [219 Mich.App. 682] athletic department. Between competitions, coach Darden led the team on a sledding outing and provided plastic trash bags for the team to use as sleds. While sledding, plaintiff crashed into a tree at the bottom of the slope and injured his face and head.

Plaintiff filed two lawsuits. Plaintiff first filed suit in the Court of Claims against defendants Board of Regents, Duderstadt, and Weidenbach and alleged that because the athletic department's activities were conducted primarily to produce a profit, they are proprietary and therefore not sheltered by governmental immunity. Pursuant to stipulation, this case was consolidated with a case in the Washtenaw Circuit Court in which plaintiff sued Darden for negligence.

After consolidation, all defendants moved for summary disposition on the basis of governmental immunity under M.C.L. § 691.1407; M.S.A. § 3.996(107). The university argued that operating an athletic program was a governmental function for which it was entitled to immunity. Duderstadt and Weidenbach contended that they were entitled to governmental immunity because plaintiff failed to allege gross negligence against them. In response to defendants' motion, plaintiff argued that the athletic department was engaged in a proprietary function, not a governmental function, and that he had properly pleaded his claims against Duderstadt and Weidenbach.

The trial court found that the "operation of a program of intercollegiate athletics is a legitimate function of an educational institution and [has] certainly traditionally been so." As such, the trial court found that athletic programs at state universities are " 'expressly or impliedly mandated or authorized by constitution, statute ... or other law' and are therefore[219 Mich.App. 683] a government function." (Citations omitted.) After finding that the athletics program was a government function, the trial court proceeded to address plaintiff's argument regarding the proprietary function exception and found:

Affidavits submitted by the University, as well as audits submitted by the plaintiff, conclusively establish that only football and basketball at the University produce revenues which exceed expenses and that all other sports, including men's gymnastics, operate at a loss and are supported by football and basketball net revenues. It is abundantly clear that the nonrevenue sports, including the one at issue here are not conducted primarily for profit. Nor does the submitted material suggest that the athletic program as a whole is a proprietary function.

Therefore, the trial court granted summary disposition to the Board of Regents, Duderstadt, and Weidenbach in the Court of Claims action. Plaintiff now appeals.



A. Governmental Function

The University of Michigan (and its governing board, the Board of Regents) is one of the governmental units to which Michigan's governmental immunity statute applies. M.C.L. § 691.1401(c), (d); M.S.A. § 3.996(101)(C), (D). M.C.L1. § 691.1407(1); M.S.A. § 3.996(107)(1) provides:

Page 228

[219 Mich.App. 684] Except as otherwise provided in this act, 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 in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed.

"Governmental function" is broadly defined by the Legislature as "an activity which is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law." M.C.L. § 691.1401(f); M.S.A. § 3.996(101)(f). According to well-established case law, this definition is to be broadly applied and requires only that "there be some constitutional, statutory or other legal basis for the activity in which the governmental agency was engaged." Pawlak v. Redox Corp., 182 Mich.App. 758, 764, 453 N.W.2d 304 (1990), citing Hyde v. Univ. of Michigan Bd of Regents, 426 Mich. 223, 253, 393 N.W.2d 847 (1986). If an activity conducted by a governmental entity is considered a governmental function, then such activity is immune from tort liability unless one of the exceptions to governmental immunity applies. M.C.L. § 691.1401 et seq.; M.S.A. § 3.996(101) et seq. Here, plaintiff argues that (1) intercollegiate athletics is not a governmental function and (2) the proprietary function exception applies to strip the university of any governmental immunity.

First, plaintiff argues that the university was not engaged in a governmental function in operating the [219 Mich.App. 685] athletic department or the gymnastics team of which plaintiff was a member. We disagree. Given the broad definition of a governmental function, and in light of the history of intercollegiate athletics at Michigan universities and colleges that has historic support from the Michigan Legislature, we find that intercollegiate athletics is a governmental function for purposes of immunity. We will discuss analogous case law from Michigan and sister states that supports this conclusion. We will also point to federal and state legislative support for our finding that intercollegiate athletics is a governmental function.

Numerous Michigan cases have held that physical education activities provided by a public high school constitute a governmental function. See, e.g., Cody v. Southfield-Lathrup School Dist., 25 Mich.App. 33, 181 N.W.2d 81 (1970) (high school physical education activities, and gymnastics in particular, constitute a governmental and not a proprietary function); Lovitt v. Concord School Dist., 58 Mich.App. 593, 228 N.W.2d 479 (1975) (despite the fact that admission was charged to football games, the administration of a high school football program is a governmental, not a proprietary, function); Churilla v. East Detroit School Dist., 105 Mich.App. 32, 306 N.W.2d 381 (1981) (the administration of a high school football program is a governmental function).

The rationale for these decisions is equally applicable to intercollegiate athletics: (1) team sports and competitions are properly a part of a school's overall physical education program, (2) the function of a physical education and related sports program is [219 Mich.App. 686] inherently educational, and (3) because such a program is educational, it is properly considered a governmental function. Id. at 35, 306 N.W.2d 381. As will be discussed below in connection with our analysis of the proprietary function exception, the fact that the activity generates incidental profit or revenue does not change the character of that function. Lovitt, supra at 597, 228 N.W.2d 479.

Although no Michigan case has squarely and expressly extended this analysis from the high school physical education program to the...

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