Haselhuhn v. Huron-Clinton Metropolitan Authority

• Decision Date: 19 May 1981
• Docket Number: Docket No. 49845,HURON-CLINTON
• Parties: Robert R. HASELHUHN, Individually and as Administrator of the Estate of Patricia Ann Haselhuhn, Deceased, and Jane A. Haselhuhn, Plaintiffs-Appellants, v. TheMETROPOLITAN AUTHORITY, Defendants, and Robert Watts and Marvin Armstadt, Defendants-Appellants. 106 Mich.App. 461, 308 N.W.2d 190
• Court: Court of Appeal of Michigan — District of US

Page 190

308 N.W.2d 190

Robert R. HASELHUHN, Individually and as Administrator of the Estate of Patricia Ann Haselhuhn, Deceased and Jane A. Haselhuhn Plaintiffs-Appellants, v. The HURON-CLINTON METROPOLITAN AUTHORITY, Defendants and Robert Watts and Marvin Armstadt, Defendants-Appellants.

Docket No. 49845.

106 Mich.App. 461, 308 N.W.2d 190

Court of Appeals of Michigan.

May 19, 1981.

Released for Publication July 24, 1981.

[106 MICHAPP 463] Charles Gottlieb, Detroit, for plaintiffs-appellants.

Sharon C. Ranucci, Detroit, for defendants; Nancy L. Bosh, Detroit, of counsel.

Before KAUFMAN, P. J., and KELLY and CYNAR, JJ.

KELLY, Judge.

This case presents a first impression question in Michigan, that is, where an injury occurs in the course of employment to one alleged to be an employee of the United States Government under the Federal Comprehensive Employment and Training Act, is a dual employment question of fact presented which precludes summary judgment?

Plaintiffs appeal as of right from separate lower court orders granting defense motions for summary judgment.

On June 23, 1976, the plaintiffs' daughter, Patricia Ann Haselhuhn, was killed in a motor vehicle collision at Stoney Creek Metropark. Patricia Ann was employed under the Comprehensive Employment and Training Act (CETA), 29 U.S.C. § 801 et seq., and was working at the park as a groundskeeper. The park was operated by defendant Huron-Clinton Metropolitan Authority (HCMA). At the time of her death, Patricia Ann was allegedly under the supervision of defendants Watts and Armstadt, who were employees of HCMA and whose duties included supervision of CETA employees. Just prior to the fatal accident, Patricia Ann was directed to drive a golf-cart-like vehicle [106 MICHAPP 464] the wrong way on a one-way road for an undisclosed purpose. At that time, the park was not open and weather conditions were foggy. In the fog, Patricia Ann's vehicle collided with a truck traveling in the opposite direction.

This case comes before us on the odd procedural origin of final orders entered in different circuits. On July 6, 1977, plaintiffs brought suit against the HCMA in Wayne County Circuit Court. HCMA filed motions for summary and accelerated judgments on two grounds: (1) that plaintiffs' suit was barred by governmental tort immunity and (2) that the deceased was an employee of the HCMA and, as such, plaintiffs' exclusive remedy was under workers' compensation.

Plaintiffs later moved to amend their complaint to join Armstadt and Watts as defendants. On February 21, 1978, Judge Horace Gilmore of the Wayne County Circuit Court granted the motion to amend. The next day Judge Gilmore granted HCMA's motion for summary judgment on the basis of governmental immunity, but held in abeyance the motion for accelerated judgment on the exclusive remedy of workers' compensation. In the interim, Armstadt and Watts moved to change venue to Macomb County, which motion was granted on July 13, 1978. Once the case against Armstadt and Watts reached Macomb County, the defendants filed motions for accelerated and summary judgment on the same grounds alleged by HCMA in Wayne County. On March 16, 1979, Macomb County Circuit Court Judge Edward J. Gallagher granted summary judgment on both grounds and issued an order to that effect on August 3, 1979.

I.

In recent years the issue of governmental tort [106 MICHAPP 465] immunity for parks and recreational areas has produced considerable activity in the appellate courts in this state. For example, in a case involving one of these parties, this Court held that the operation of a park and recreational area is a governmental function and thus clothed with governmental immunity. Rohrabaugh v. Huron-Clinton Metropolitan Authority Corp., 75 Mich.App. 677, 256 N.W.2d 240 (1977). However, as a result of several closely divided opinions from the Supreme Court, this Court has reexamined the issue presented in Rohrabaugh several times, with conflicting results.

Governmental immunity from tort liability is provided by statute:

"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." M.C.L. § 691.1407; M.S.A. § 3.996(107).

A split of authority has developed in the Supreme Court over how this act should be applied. Justices Fitzgerald, Kavanaugh and Levin would limit governmental functions under this act to those activities that are "of essence to governing". Parker v. Highland Park, 404 Mich. 183, 194, 273 N.W.2d 413 (1978), dissent in Perry v. Kalamazoo State Hospital, 404 Mich. 205, 215, 273 N.W.2d 421 (1978). Justices Ryan, Williams and Coleman would apply the common-law principles developed for the passage of the governmental immunity act [106 MICHAPP 466] to determine whether the government should be immune. Parker v. Highland Park, supra, dissenting opinion, 203, Perry v. Kalamazoo State Hospital, supra, 404 Mich. 210-211, 273 N.W.2d 421. Justice Moody wrote separately in Perry and Parker engrafting on the Kavanaugh-Levin-Fitzgerald language an "only by government" limitation:

"To delineate a complete and balanced definition of governmental function within a simplistic format would be presumptuous. However, as 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." Parker v. Highland Park, supra, 404 Mich. 200, 273 N.W.2d 413.

See also Keenan v. Secretary of State, 103 Mich.App. 82, 302 N.W.2d 602 (1981).

Before applying these various tests to the facts of the instant case, it is necessary to determine what function the government branch was performing when plaintiffs' decedent was injured. HCMA was filling a dual role at the time of the accident. First, HCMA was involved in training the unemployed as part of its agreement to accept CETA workers. Second, HCMA was involved in the maintenance of a recreation area for the benefit of the public.

The training of unemployed workers is a task that has been assumed by the government from the depression era onward. No private agency would be likely to undertake this function, as little profit could be found in such a task. Thus, under [106 MICHAPP 467] either the common-law test or the essence of governing standard, we regard training in connection with CETA as a governmental function.

The question of whether HCMA was filling a governmental function in maintaining a recreation area is closer. Plaintiffs rely on Pichette v. Manistique Public Schools, 403 Mich. 268, 269 N.W.2d 143 (1978), for the proposition that maintenance of a park is a governmental function. In that case, however, the Court was considering a playground not a large recreational area and the majority did not rule on whether operating a playground is a governmental function.

Since Perry and Parker, this Court has twice considered whether the operation of large recreational areas constitutes an immune governmental function. In Daugherty v. Michigan, 91 Mich.App. 658, 283 N.W.2d 825 (1979), the Court considered the issue when a patron at the Proud Lake Recreation Area was seriously injured by diving from an abandoned bridge into the Huron River. The Court recognized the traditional view of park operations but found that the changing views of the Supreme Court required a different result. The Court held:

"In applying the law as stated in the recent decisions of our Supreme Court as we understand it, it appears that the operation of a recreational area is not 'of essence to governing' because it is not an activity which can be done only by government. 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...